State v. Mock , 2017 Ohio 8866 ( 2017 )

[Cite as State v. Mock, 2017-Ohio-8866.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105060
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
CLIFFORD D. MOCK
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-15-593123-A
BEFORE: Celebrezze, J., Kilbane, P.J., and Boyle, J.
RELEASED AND JOURNALIZED: December 7, 2017
ATTORNEY FOR APPELLANT
Brian A. Smith
Brian A. Smith, Attorney at Law
755 White Pond Drive, Suite 403
Akron, Ohio 44320
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Khalilah A. Lawson
Gregory J. Ochocki
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:
{¶1} Defendant-appellant, Clifford Mock (“appellant”), brings the instant appeal
challenging the trial court’s sentence for aggravated vehicular assault and driving under
the influence of alcohol or drugs. Specifically, appellant argues that the trial court’s
three-year prison sentence is not supported by the record. After a thorough review of the
record and law, this court affirms.
I. Factual and Procedural History
{¶2} On January 18, 2015, appellant was involved in a motor vehicle accident on
Interstate 90. Appellant’s passenger (“victim”) was seriously injured during the
accident. Appellant refused to submit to a chemical test for alcohol or drugs following
the accident.
{¶3} In Cuyahoga C.P. No. CR-15-593123-A, the Cuyahoga County Grand Jury
returned a three-count indictment charging appellant with (1) aggravated vehicular
assault, a second-degree felony in violation of R.C. 2903.08(A)(1)(a), with a furthermore
specification alleging that appellant was driving under suspension at the time of the
offense; (2) aggravated vehicular assault, a third-degree felony in violation of R.C.
2903.08(A)(2)(b), with a furthermore specification alleging that appellant was driving
under suspension; and (3) driving under the influence, a first-degree misdemeanor in
violation of R.C. 4511.19(A)(1)(a). Appellant was arraigned on March 10, 2015; he pled
not guilty to the indictment.
{¶4} The parties reached a plea agreement. On July 27, 2015, appellant pled
guilty to Counts 2 and 3 as charged in the indictment. Count 1 was nolled. The trial
court referred appellant to the probation department for a presentence investigation report
(“PSI”) and set the matter for sentencing.
{¶5} The trial court held a sentencing hearing on August 25, 2015.1 The trial
court imposed a prison term of three years on Count 2 and a six-month prison term on
Count 3. The trial court ordered the counts to run concurrently.
{¶6} On October 11, 2016, appellant, acting pro se, filed an appeal challenging the
trial court’s sentence. This court appointed appellate counsel to represent appellant on
November 4, 2016. Appellant assigns one error for review:
I. The record does not support the imposition of the three-year prison
sentence upon [a]ppellant.
II. Law and Analysis
{¶7} In his sole assignment of error, appellant argues that the trial court’s
three-year prison sentence is not supported by the record.
{¶8} We review felony sentences under the standard set forth in
R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d
1231, ¶ 16. R.C. 2953.08(G)(2) provides that when reviewing felony sentences, a
reviewing court may increase, reduce, or modify a sentence, or it may vacate and remand
1 During this sentencing hearing, the trial court also sentenced appellant in Cuyahoga C.P.
No. CR-15-595911-A, in which appellant pled guilty to aggravated assault, a fourth-degree felony in
violation of R.C. 2903.12(A)(1), and domestic violence, a first-degree misdemeanor in violation of
R.C. 2919.25(A).
the matter for resentencing, only if we clearly and convincingly find that either the record
does not support the sentencing court’s statutory findings or the sentence is contrary to
law. State v. Martin, 8th Dist. Cuyahoga No. 104354, 2017-Ohio-99, ¶ 7. A sentence is
contrary to law if the sentence falls outside the statutory range for the particular degree of
offense or the trial court failed to consider the purposes and principles of felony
sentencing set forth in R.C. 2929.11 and the seriousness and recidivism factors set forth
in R.C. 2929.12. State v. Hinton, 8th Dist. Cuyahoga No. 102710, 2015-Ohio-4907, ¶
10, citing State v. Smith, 8th Dist. Cuyahoga No. 100206, 2014-Ohio-1520, ¶ 13.
{¶9} In the instant matter, appellant contends that the trial court failed to consider
the following mitigating factors in imposing a three-year prison sentence:2 (1) appellant
showed remorse for his conduct, (2) appellant has a history of alcohol abuse, and (3)
appellant has mental health issues.
{¶10} Appellant, his mother, and his aunt discussed appellant’s substance abuse
issues during the sentencing hearing. Appellant’s mother appeared to request that
appellant be ordered to complete a treatment program for alcohol abuse. She explained
that she wants somebody to help appellant and fears that appellant will either die or kill
another person if he continues to drink the way he does. Appellant’s aunt requested that
appellant receive treatment for his alcoholism and opined that “[j]ail is not the answer.”
(Tr. 42.) She explained that appellant has been to prison before and that he continues to
2 Appellant appears to challenge the trial court’s consideration of the R.C. 2929.11 and
2929.12 sentencing factors that govern felony sentencing, rather than the court’s consideration of R.C.
2929.21 and 2929.22 that govern misdemeanor sentencing.
drink upon his release because “he’s not getting help for the things that he need[s].” (Tr.
42.) She asserted that appellant’s conduct in relation to the accident was neither
malicious nor intentional.
{¶11} Appellant spoke on his own behalf during the sentencing hearing. He
explained that he and the victim had been drinking on the night of the accident, but he
acknowledged that it was not an excuse for his conduct. He stated that he does not
remember being in the car or driving on the highway on the night of the accident.
Appellant asserted that he needs help for his alcohol and drug abuse: “I need help for
alcohol and drugs. * * * I just can’t take like one drink and then stop. Once I drink, I
drink until I pass out. I don’t remember nothing.” (Tr. 67.)
{¶12} Appellant stated that he tried to get help for his substance abuse issues. He
asserted that he went to University Hospitals on four occasions to seek treatment, but
every time he went there, they sent him to the psych ward at St. Vincent’s Charity
Hospital. Appellant explained that his probation officer sent him to an outpatient
treatment program and that he was going to two Alcoholics Anonymous meetings per
week before the accident.
{¶13} Regarding appellant’s mental health issues, appellant’s mother indicated that
on one occasion when appellant went to University Hospitals, hospital personnel told her
that appellant was suicidal and suffering from depression. Appellant’s aunt also stated
that appellant suffers from depression.
{¶14} Defense counsel stated that he has known appellant for a couple of years,
and opined that appellant has “a lot of undiagnosed and untreated mental health issues”
that need to be addressed. (Tr. 32-33.) Counsel explained that appellant “does not
speak a lot” and “[d]oes not articulate a lot in connection with the case.” (Tr. 33.)
Defense counsel asked the court to consider ordering appellant to complete treatment to
address his issues. The attorney representing appellant in the domestic violence case
asserted that appellant is “a man of few words” and opined that appellant “has been
suffering from depression since he’s been in jail.” (Tr. 34.)
{¶15} After reviewing the record, we find that the trial court’s sentence is not
contrary to law. The trial court’s sentence on the aggravated vehicular assault count is
within the permissible statutory range under R.C. 2929.14(A)(3)(a). The trial court’s
sentence on the driving under the influence count is within the permissible statutory range
under R.C. 2929.24(A)(1). The trial court’s sentencing journal entry provides, in
relevant part, “the court considered all required factors of the law. The court finds that
prison is consistent with the purpose of R.C. 2929.11.” Aside from this notation in the
sentencing entry, the record reflects that the trial court did, in fact, consider all the
relevant R.C. 2929.11 and 2929.12 sentencing factors — including the mitigating factors
presented by appellant.
{¶16} The trial court indicated that it reviewed appellant’s PSI and confirmed that
the prosecution and appellant’s counsel reviewed the report. Appellant’s criminal
history included convictions for drug trafficking and having weapons while under
disability;3 obstructing official business, resisting arrest, domestic violence, aggravated
menacing, and criminal damaging;4 and drug possession.5
{¶17} The trial court indicated that it considered the statements of appellant’s
attorneys, appellant’s family members, appellant, the victim’s family members, and the
prosecution. The trial court considered that appellant did not intentionally injure the
victim. However, the trial court considered the severity of the injuries that the victim
sustained in the car accident. The trial court emphasized that appellant was fortunate
that the victim’s injuries were not fatal.
{¶18} Finally, contrary to appellant’s assertion, the record reflects that the trial
court considered the relevant mitigating factors. First, the trial court considered that
appellant showed remorse for his conduct. After appellant apologized to the victim and
the trial court, the trial court suggested that appellant “turn around and apologize to [the
victim’s family directly].” (Tr. 64.)
{¶19} Second, the trial court considered appellant’s history of alcohol-related
issues. The trial court inquired about appellant’s progress with the twelve steps. The
court explained that appellant had been given tools to address his substance abuse issues,
but failed to take advantage of these opportunities. The trial court explained that
appellant made the decision to drink on the night of the car accident. The trial court
3 Cuyahoga C.P. No. CR-11-554347-A.
4 Cuyahoga C.P. No. CR-09-530187-A.
5 Cuyahoga C.P. Nos. CR-09-528299-A and CR-06-487547-A.
emphasized that appellant has to “accept and take responsibility for [his] life” and that he
has to stop making excuses and deal with his alcohol issues.
{¶20} Third, the trial court considered the statements about appellant’s mental
health. After hearing the statements from appellant’s attorneys and family members, the
trial court explained, “I don’t necessarily disagree that [appellant] may benefit from some
mental health treatment.” (Tr. 45.) However, the court acknowledged that its options
for imposing a sentence were “limited” because appellant pled guilty to a high-tier felony
of the third-degree. The trial court stated that appellant needs to “take responsibility on
his own” and take advantage of the mental health treatment and programs offered in
prison. (Tr. 44.)
{¶21} To the extent that appellant disagrees with the weight that the trial court
afforded to these relevant mitigating factors, such a determination lies within the sound
discretion of the trial court. State v. Switzer, 8th Dist. Cuyahoga No. 102175,
2015-Ohio-2954, ¶ 12, citing State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793(2000). Accord State v. Stovall, 8th Dist. Cuyahoga No. 104787, 2017-Ohio-2661, ¶ 31.
Appellant’s sentence is not contrary to law simply because he disagrees with the way in
which the trial court weighed the factors under R.C. 2929.11 and 2929.12 and applied
these factors in crafting an appropriate sentence. See State v. Ledbetter, 8th Dist.
Cuyahoga No. 104077, 2017-Ohio-89, ¶ 11.
{¶22} Based on the foregoing analysis, we find that the trial court’s sentence is not
contrary to law. The sentence is within the permissible statutory ranges and the record
reflects that the trial court considered the purposes and principles of felony sentencing set
forth in R.C. 2929.11 and the seriousness and recidivism factors in R.C. 2929.12.
Accordingly, appellant’s sole assignment of error is overruled.
{¶23} Although appellant does not raise the issue on appeal, we find that the trial
court’s sentencing journal entry is inconsistent with the sentence imposed in open court
during the sentencing hearing. During the sentencing hearing, the trial court sentenced
appellant to a prison term of three years on the aggravated vehicular assault count and ten
days in jail on the driving under the influence count. The trial court’s sentencing journal
entry provides, in relevant part, “the court imposes a prison sentence at the Lorain
Correctional Institution of 3 year(s). A 3 year prision [sic] sentence is imposed on
Count 2, to run concuurent [sic] with a 6 month sentence on Count 3.”
{¶24} It is well established that a court speaks through its journal entries. State v.
Miller, 127 Ohio St.3d 407, 2010-Ohio-5705, 940 N.E.2d 924, ¶ 12. However, a trial
court may correct clerical errors at any time in order to conform to the transcript of the
proceedings. State v. Lugo, 8th Dist. Cuyahoga No. 103893, 2016-Ohio-2647, ¶ 3,
citing State v. Steinke, 8th Dist. Cuyahoga No. 81785, 2003-Ohio-3527, ¶ 47; Crim.R. 36.
Trial courts retain continuing jurisdiction to correct clerical errors in judgments with a
nunc pro tunc entry to reflect what the court actually decided. State ex rel. Cruzado v.
Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 18-19.
{¶25} Because the trial court’s sentencing journal entry is inconsistent with the
sentence imposed in open court, we remand the matter to the trial court for the limited
purpose of issuing a nunc pro tunc journal entry that accurately reflects the sentence
imposed at the sentencing hearing.
III. Conclusion
{¶26} After thoroughly reviewing the record, we affirm the trial court’s sentence.
The trial court’s sentence is not contrary to law.
{¶27} Judgment affirmed; the matter is remanded to the trial court for the limited
purpose of issuing a nunc pro tunc journal entry that accurately reflects the sentence
imposed at the sentencing hearing.
It is ordered that appellee recover from 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. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for the issuance of a nunc pro tunc journal entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
MARY EILEEN KILBANE, P.J., and
MARY J. BOYLE, J., CONCUR