State v. Watts , 2016 Ohio 4960 ( 2016 )

[Cite as State v. Watts, 2016-Ohio-4960.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103568
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
KORDEYA D. WATTS, II
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-13-575542-A, CR-14-587180-A,
CR-14-588844-A, and CR-14-588905-A
BEFORE: Jones, A.J., Keough, J., and Stewart, J.
RELEASED AND JOURNALIZED: July 14, 2016
ATTORNEY FOR APPELLANT
Carmen P. Naso
Milton A. Kramer Law Clinic
11075 East Boulevard
Cleveland, Ohio 44106
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Owen M. Patton
Kelly N. Mason
Assistant County Prosecutors
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., A.J.:
{¶1} Defendant-appellant Kordeya Watts, II appeals his sentence on multiple
counts. For the reasons that follow, we affirm in part and reverse in part.
{¶2} In 2015, Watts pleaded guilty in four cases. In Cuyahoga C.P. Nos.
CR-13-575542-A and CR-14-588902-A, Watts pleaded guilty in each case to one count
of receiving stolen property. In Case No. CR-14-588844-A, Watts pleaded guilty to
aggravated robbery with a one-year firearm specification and having weapons while
under disability. In Case No. CR-14-587180-A, Watts pleaded guilty to aggravated
robbery with a one-year firearm specification, robbery, and having weapons while under
disability. The trial court decided the sentences on the cases should run consecutive to
one another and sentenced Watts to a total of 14 years in prison. Watts filed a timely
notice of appeal and raises two assignments of error for our review:
I. The court failed to make the statutory findings required to impose
consecutive sentences.
II: Appellant was not afforded effective assistance of counsel.
{¶3} In the first assignment of error, Watts claims that the trial court failed to make
the requisite statutory findings necessary to impose the consecutive sentences and
requests that his sentences be vacated. The state concedes that the trial court failed to
make all of the required findings to support the imposition of consecutive sentences, but
disagrees with Watts on the proper remedy.
{¶4} Pursuant to R.C. 2953.08(G)(2), we may modify or vacate a sentence only if
we clearly and convincingly find that the record does not support the mandatory
sentencing findings, or that the sentence is otherwise contrary to law. A sentence is
“contrary to law” if the sentencing court failed to make the findings required to order
consecutive service of sentences under R.C. 2929.14(C)(4). State v. Bonnell, 140 Ohio
St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37.
{¶5} Under R.C. 2929.14(C)(4), consecutive sentences may be imposed if the trial
court finds that (1) a consecutive sentence is necessary to protect the public from future
crime or to punish the offender, (2) consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender poses to the public,
and (3) any one of the following apply:
(1) the offender committed one or more of the multiple offenses while
awaiting trial or sentencing, while under a sanction, or while under
postrelease control for a prior offense;
(2) at least two of the multiple offenses were committed as part of one or
more courses of the conduct, and the harm caused by two or more of the
offenses was so great or unusual that no single prison term for any of the
offenses committed as part of any of the courses of conduct adequately
reflects the seriousness of the offender’s conduct; or
(3) the offender’s history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the
offender.
{¶6} A trial court must both make the statutory findings mandated for consecutive
sentences under R.C. 2929.14(C)(4) at the sentencing hearing and incorporate those
findings into its sentencing entry. Bonnell at the syllabus. However, “a word-for-word
recitation of the language of the statute is not required, and as long as the reviewing court
can discern that the trial court engaged in the correct analysis and can determine that the
record contains evidence to support the findings, consecutive sentences should be
upheld.” Id. at ¶ 29.
{¶7} Both Watts and the state agree that the trial court failed to make the requisite
statutory findings to support the imposition of consecutive sentences. Watts argues that
his sentence should be vacated in toto and the case remanded for resentencing. The state
argues that the cases should be remanded for the limited purpose of determining whether
the sentences already imposed should be run consecutive. As with previous cases, we
agree with the state’s position. See State v. Balog, 8th Dist. Cuyahoga No. 102528,
2015-Ohio-5415, ¶ 15; see also State v. Romanko, 8th Dist. Cuyahoga No. 101921,
2015-Ohio-4759, ¶ 11; State v. Vargas, 8th Dist. Cuyahoga No. 101796, 2015-Ohio-2856,
¶ 15.
{¶8} Therefore, we remand this case to the trial court for the limited purpose of
considering whether consecutive sentences are appropriate and, if so, to make the
findings required by R.C. 2929.14(C)(4) on the record and to incorporate those findings
into the sentencing entry.
{¶9} The first assignment of error is sustained.
{¶10} In the second assignment of error, Watts claims that he was not afforded
effective assistance of trial counsel because his counsel failed to set forth any evidence of
mitigating circumstances that could have reduced his sentence.
{¶11} In order to successfully maintain an ineffective assistance of counsel claim,
a defendant must demonstrate that counsel’s performance was deficient and that he or she
was prejudiced by counsel’s deficient performance; that is, that there is a reasonable
probability that but for counsel’s unprofessional errors the result of the trial or proceeding
would have been different. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984).
{¶12} Watts argues that his attorney failed to advocate for him and made
statements that were harmful to him and hurt his chances of receiving a reduced sentence,
including stating that there was “very little mitigation to be made for [Watts].”
{¶13} During the sentencing hearing, defense counsel acknowledged that Watts
committed three out of four of the crimes just after the trial court released him on a
personal bond in another case. Counsel, however, also told the court that Watts had a
strong family, Watts admitted he had made mistakes and wanted to “atone” for them, and
hoped to benefit from any programs offered in prison. Counsel requested a minimum
sentence or a sentence “not in the double digits,” and the possibility of judicial release.
{¶14} We note that Watts, who had a violent criminal history, committed three of
the four charged crimes over the short period of four days. These crimes included two
aggravated robberies with a gun and occurred while he was out on bond to the trial court.
It is entirely plausible that defense counsel’s chosen strategy was to minimize the
exposure to his client by highlighting his client’s youth, willingness to take responsibility
for his actions, and desire to change his life while in prison. Thus, we do not find that
defense counsel’s performance was deficient or that Watts was prejudiced by it.
{¶15} The second assignment of error is overruled.
{¶16} Judgment affirmed in part, reversed in part, and remanded for the limited
purpose of considering whether consecutive sentences are appropriate and, if so, to make
the findings required by R.C. 2929.14(C)(4) on the record and to incorporate those
findings into the sentencing entry.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
LARRY A. JONES, SR., ADMINISTRATIVE JUDGE
KATHLEEN ANN KEOUGH, J., and
MELODY J. STEWART, J., CONCUR