State v. Parker , 2017 Ohio 4294 ( 2017 )

[Cite as State v. Parker, 2017-Ohio-4294.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104610
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
CAMERON PARKER
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-16-603992-A
BEFORE: Stewart, P.J., Laster Mays, J., and Jones, J.
RELEASED AND JOURNALIZED: June 15, 2017
ATTORNEY FOR APPELLANT
Allison S. Breneman
1220 West 6th Street, Suite 303
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
Brett Hammond
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, P.J.:
{¶1} Defendant-appellant Cameron Parker was indicted on one count of felonious
assault, one count of kidnapping, and one count of disrupting public services after getting
violent in the midst of an argument with his ex-girlfriend. He entered a negotiated plea,
pleading guilty to two counts: burglary, a fourth-degree felony, in violation of R.C.
2911.12(B), and assault, a first-degree misdemeanor, in violation of R.C. 2903.13(A).
The third count was nolled. The court sentenced Parker to 18 months in prison and
imposed a $500 fine. Parker raises a single assignment of error, arguing that the trial
court was required to impose community control sanctions instead of a prison term. For
the reasons that follow, we affirm the decision of the trial court.
{¶2} Before reaching the merits of this case, we note that there appeared to be an
issue of whether we have a final appealable order. While the journal entry states that the
court imposed a sentence of 18 months on Count 2, there is no clear sentence entry for
Count 1. The remaining count, as mentioned, was nolled. The journal entry does,
however, contain the following statement: “[t]he defendant is ordered to pay a fine in the
sum of $500.00. ($250.00 fine on each count).” Because Parker pleaded guilty to two
counts, it follows that the sentence for Count 1 consisted solely of a $250 fine. Review
of the sentencing transcript confirms this. The court stated “[o]n the charge of simple
assault, the sentence of the Court is $250 and costs.” Tr. 19. Finding that we have a
final, appealable order, we proceed to the merits.
{¶3} As outlined in the presentence investigation report, and as confirmed by the
victim at sentencing, Parker’s burglary and assault convictions arose when he went to his
ex-girlfriend’s home and argued with her about seeing her phone. The argument became
physical. Parker strangled his ex-girlfriend and threw her on her bed. She tried to
escape multiple times, but was unable to do so. Parker strangled her again. He then
struck her in the face several times with a closed fist causing facial lacerations. Parker
refused to take her to the hospital and left. The ex-girlfriend then called 911 and was
taken to the hospital by EMS where she received stitches for lacerations on her mouth.
{¶4} Parker assigns as error that the trial court abused its discretion by sentencing
him to a prison term on the burglary count, a fourth-degree felony.
{¶5} Although this court has no authority to review Parker’s sentence for an abuse
of discretion, State v. Nitsche, 2016-Ohio-3170, 66 N.E.3d 135, ¶ 65 (8th Dist.), our
review of felony sentences is governed by the standards set forth in R.C. 2953.08(G)(2)
which, in relevant part, provides that an appellate court may disturb a sentence upon
finding, by clear and convincing evidence, that either the record does not support the
sentence under R.C. 2929.13(B), or that the sentence is “otherwise contrary to law.”
{¶6} R.C. 2929.13 circumscribes a court’s ability to impose a prison sentence for
felony convictions. Subdivision (B)(1)(a) creates a presumption in favor of community
control sanctions for felonies of the fourth or fifth degree that meet specified criteria.
Except as provided in division (B)(1)(b) of this section, if an offender is
convicted of or pleads guilty to a felony of the fourth or fifth degree that is
not an offense of violence or that is a qualifying assault offense, the court
shall sentence the offender to a community control sanction of at least one
year’s duration if all of the following apply:
(i) The offender previously has not been convicted of or pleaded guilty to a
felony offense.
(ii) The most serious charge against the offender at the time of sentencing is
a felony of the fourth or fifth degree.
(iii) If the court made a request of the department of rehabilitation and
correction pursuant to [R.C. 2929.13(B)(1)(c)], the department, within the
forty-five-day period specified in that division, provided the court with the
names of, contact information for, and program details of one or more
community control sanctions of at least one year’s duration that are
available for persons sentenced by the court.
(iv) The offender previously has not been convicted of or pleaded guilty to a
misdemeanor offense of violence that the offender has committed within
two years prior to the offense for which sentence is being imposed.
R.C. 2929.13(B)(1)(a).
{¶7} Parker argues that pursuant to R.C. 2929.13(B)(1)(a), the court was required
to sentence him to a community control sanction. There is no dispute that this was
Parker’s first felony conviction, that the most serious charge he was convicted of was a
fourth-degree felony, nothing in the record suggests that the court made a request of the
department of rehabilitation and correction, and there is no claim that Parker has a
previous misdemeanor conviction for an offense of violence. It would seem then that
Parker should have received a community control sanction. Application of R.C.
2929.13(B)(1)(a), however, is subject to R.C. 2929.13(B)(1)(b).
{¶8} Subdivision (B)(1)(b) contains several factors which permit the court to
impose a prison sentence for a felony conviction that would otherwise qualify for
mandatory community control sanctions. The statute provides:
(b) The court has discretion to impose a prison term upon an offender who
is convicted of or pleads guilty to a felony of the fourth or fifth degree that
is not an offense of violence or that is a qualifying assault offense if any of
the following apply:
(i) The offender committed the offense while having a firearm on or about
the offender’s person or under the offender’s control.
(ii) If the offense is a qualifying assault offense, the offender caused serious
physical harm to another person while committing the offense, and, if the
offense is not a qualifying assault offense, the offender caused physical
harm to another person while committing the offense.
(iii) The offender violated a term of the conditions of bond as set by the
court.
(iv) The court made a request of the department of rehabilitation and
correction pursuant to division (B)(1)(c) of this section, and the department,
within the forty-five-day period specified in that division, did not provide
the court with the name of, contact information for, and program details of
any community control sanction of at least one year’s duration that is
available for persons sentenced by the court.
(v) The offense is a sex offense that is a fourth or fifth degree felony
violation of any provision of Chapter 2907. of the Revised Code.
(vi) In committing the offense, the offender attempted to cause or made an
actual threat of physical harm to a person with a deadly weapon.
(vii) In committing the offense, the offender attempted to cause or made an
actual threat of physical harm to a person, and the offender previously was
convicted of an offense that caused physical harm to a person.
(viii) The offender held a public office or position of trust, and the offense
related to that office or position; the offender’s position obliged the
offender to prevent the offense or to bring those committing it to justice; or
the offender’s professional reputation or position facilitated the offense or
was likely to influence the future conduct of others.
(ix) The offender committed the offense for hire or as part of an organized
criminal activity.
(x) The offender at the time of the offense was serving, or the offender
previously had served, a prison term.
(xi) The offender committed the offense while under a community control
sanction, while on probation, or while released from custody on a bond or
personal recognizance.
{¶9} At sentencing the court stated its reasons for imposing a prison term as
follows:
This Court does find that Mr. Parker was previously convicted of an assault
in the Cuyahoga County Juvenile Court. That this assault and the
probation report indicates that this has been a pattern that has been
established of violence. Therefore the Court does find that Mr. Parker falls
outside of the guidelines that would indicate that Mr. Parker has to receive
probation because this is his first conviction as an adult.
Tr. 19. None of the court’s findings, however, trigger any of the 11 (B)(1)(b) factors
listed above. Based on the trial court’s statement that “Mr. Parker was previously
convicted of an assault in the Cuyahoga County Juvenile Court,” it appears that the court
sentenced Parker pursuant to subdivision (B)(1)(b)(vii) which gives the court discretion to
impose a prison term if “[i]n committing the offense, the offender attempted to cause or
made an actual threat of physical harm to a person, and the offender previously was
convicted of an offense that caused physical harm to a person.” But this provision would
be inapplicable because an adjudication in the juvenile court is not the same as a criminal
conviction, see State v. Hand, 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448, ¶ 38,
so the trial court erred by imposing a prison term based on this finding.
{¶10} Nonetheless, we do not find by clear and convincing evidence that the
record does not support the trial court’s sentence or that the sentence is otherwise contrary
to law. Subdivision (B)(1)(b)(ii) does apply to justify the trial court’s imposition of a
prison term: Parker caused physical harm to the victim while committing the offense.
The presentence investigation report and the statements of the victim confirm that Parker
strangled the victim and struck her in the face multiple times, causing injury severe
enough to require medical attention. Based on these facts, the trial court had discretion
to sentence Parker to prison instead of imposing community control sanctions.
Accordingly, Parker’s assignment of error is overruled.
{¶11} Although not raised as an assigned error, Parker notes that the trial court
misstated his postrelease control requirement pursuant to R.C. 2967.28(C) when the court
told him that the parole authority would necessarily impose a period of postrelease
control. The statute does not require a period of postrelease control as part of Parker’s
sentence; however, it gives the parole board discretion to impose up to three years of
postrelease control. Id. The journal entry reflects that postrelease control in this case is
not mandatory: it lists the potential consequences “if/when post release control
supervision is imposed.” Because “a court speaks through its journal,” State ex rel.
Worcester v. Donnellon, 49 Ohio St.3d 117, 118, 551 N.E.2d 183 (1990), and since the
journal entry is both correct and controlling, there is no error.
{¶12} Judgment affirmed.
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.
______________________________________________
MELODY J. STEWART, PRESIDING JUDGE
ANITA LASTER MAYS, J., and
LARRY A. JONES, SR., J., CONCUR