State v. Muhammad , 2021 Ohio 2244 ( 2021 )

[Cite as State v. Muhammad, 2021-Ohio-2244.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
No. 20AP-242
Plaintiff-Appellee, : (C.P.C. No. 16CR-6342)
&
v. : No. 20AP-243
(C.P.C. No. 19CR-5159)
Charles Muhammad, :
(REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on June 30, 2021
On brief: [G. Gary Tyack], Prosecuting Attorney, and
Seth L. Gilbert, for appellee. Argued: Seth L. Gilbert.
On brief: Yeura Venters, Public Defender, and Ian J. Jones,
for appellant. Argued: Ian J. Jones.
APPEALS from the Franklin County Court of Common Pleas
BEATTY BLUNT, J.
{¶ 1} Defendant-appellant, Charles Muhammad, appeals from the judgments of
the Franklin County Court of Common Pleas sentencing him to an aggregate 54 months
term of imprisonment following entry of his guilty pleas to two counts of vehicular assault
in Franklin C.P. No. 16CR-6342, and one count of failure to appear on a recognizance in
Franklin C.P. No. 19CR-5159. For the reasons explained below, we affirm.
{¶ 2} On November 14, 2016, appellant was indicted in Franklin C.P. No. 16CR-
6342 on two counts of vehicular assault, both fourth-degree felonies. The indictment
alleged that appellant, while recklessly operating a motor vehicle, caused serious physical
harm to Danielle Bentley and Matthew McVey.
Nos. 20AP-242 and 20AP-243 2
{¶ 3} On February 24, 2017, appellant was indicted in Franklin C.P. No. 17CR-1141
for possession of heroin and possession of cocaine, each of which is a fifth-degree felony in
violation of R.C. 2925.11.1 Both violations were alleged to have occurred on February 19,
2016.
{¶ 4} On July 8, 2019, appellant entered guilty pleas to both fourth-degree felony
counts of vehicular assault. Appellant also plead guilty to two first-degree misdemeanor
counts of attempted possession of drugs as lesser-included offenses in Franklin C.P. No.
17CR-1141. At the July 8, 2019 plea hearing, the state presented the facts of case nos. 16CR-
6342 and 17CR-1141 as follows. On February 19, 2016, at about 11:30 p.m., officers were
watching a house known for drug activity. The officers observed appellant stop at the house
and made contact with him. After appellant provided his information, officers searched the
vehicle using a K-9 unit and found cocaine and heroin.
{¶ 5} Six days later, on February 25, 2016 at about 9:30 p.m., appellant was driving
a vehicle westbound on East Hudson Street approaching North 4th Street, when he rear-
ended a vehicle stopped at the intersection. Inside the stopped vehicle were Bentley, who
was driving and 21 years old at the time, and McVey, who was a passenger and 23 years old
at the time. The crash caused both Bentley and McVey to lose consciousness, and both were
transported to the hospital with life-threatening conditions. McVey sustained a broken left
leg, broken ribs, and numerous facial fractures. Bentley sustained severe head trauma
resulting in permanent brain damage. At the time of the crash, Bentley and McVey were
engaged to be married, but at the time of the hearing they were no longer engaged.
{¶ 6} A traffic crash reconstruction and speed analysis showed that appellant was
travelling at least 61 m.p.h. at the time he struck Bentley's vehicle. Appellant tested positive
for cocaine metabolites at the hospital.
{¶ 7} At the July 8, 2019 hearing, the trial court accepted appellant's guilty pleas,
indicated it would be ordering a pre-sentencing investigation ["PSI"] and scheduled
sentencing for August 22, 2019. The trial court then ordered appellant to provide a urine
sample and return to the courthouse to await the test results. The results were reported as
positive for cocaine. Counsel for appellant made a statement on his behalf, stating that
1 Franklin C.P. No. 17CR-1141 is not a subject of this appeal and therefore the record does not include this
indictment. The court, however, may take judicial notice of the filings in the case.
Nos. 20AP-242 and 20AP-243 3
appellant "vigorously denies that there's any cocaine in his system" and that he believed
appellant hadn't used cocaine "in 10 or 12 years." (July 8, 2019 Tr. at 16.) Defense counsel
further stated that the drugs that were found in appellant's possession in 2016 "were in his
possession because of some soliciting prostitutes that he may have engaged with at this
point" and were not for appellant's own consumption. Id. Defense counsel further
suggested that, based on a "Google search" he had conducted earlier that morning, he
believed the urine sample may have tested as a "false positive for cocaine" due to the
prescription Zoloft appellant was taking at the time. Id.{¶ 8} The trial court initially indicated appellant's bond would be revoked and the
test sent out for "confirmatory results." (Tr. at 17-18.) After appellant was given the
opportunity to address the court, however, the trial court reconsidered revocation and
instead ordered appellant to return to court the next morning at 9:00 a.m. to provide
another urine sample for testing. The trial court stated that if appellant failed to appear, he
would "do all three years in prison." Id. at 22 The trial court also stated that if the test again
came back positive, "you're getting locked up tomorrow." Id. The record does not contain
any information regarding whether appellant appeared the next day as ordered, whether
he provided another urine sample for testing, or the results of any test which may have been
conducted.
{¶ 9} On August 22, 2019, appellant failed to appear for the sentencing hearing. A
capias was issued in each of the two cases for failure to appear. Appellant's bail in the
amount of $1000 recognizance was forfeited at this time as well.
{¶ 10} On October 7, 2019, appellant was indicted in Franklin C.P. No. 19CR-5159
on two counts of failure to appear as required by recognizance, both fourth-degree felonies
in violation of R.C. 2937.99. A warrant was issued for appellant's arrest. Later, on
March 12, 2020, appellant plead guilty to one count of failure to appear. Sentencing was
scheduled in all three cases for April 9, 2020.
{¶ 11} At the April 9, 2020 sentencing hearing, the state reiterated the facts of the
cases initially presented at the July 8, 2019 plea hearing and further described the physical,
emotional, and economic harm caused to Bentley and McVey, including the fact that
Bentley spent months in a rehabilitation center, was unable to walk and permanently in a
wheelchair, and had to be taken care of by others. The state also pointed out appellant's
Nos. 20AP-242 and 20AP-243 4
drug conviction in case no. 17CR-1141, the fact that appellant had failed to appear at the
originally scheduled sentencing hearing, and appellant's apparent failure to fully accept
responsibility for his actions as evinced during the PSI. The state argued that, although
there was a presumption of community control for the fourth-degree felony charges, a
prison sanction was warranted due to the significant injuries, trauma, and economic
damages sustained by the victims.
{¶ 12} Bentley's father and brother next separately addressed the trial court and
made statements on Bentley's behalf. Both described Bentley's severe and permanent
injuries and the lasting effect they had on their family.
{¶ 13} Counsel for appellant then addressed the trial court, stating that appellant
did not intentionally cause the crash and that he himself was also injured in the crash.
Defense counsel explained that appellant was married and took care of his wife, who had
health issues. He further stated that appellant was employed currently and had previously
worked as a drug counselor. Defense counsel urged the trial court to sentence appellant to
work release at Alvis House.
{¶ 14} Appellant next spoke on his own behalf, apologizing to the victims and their
families and stating he never meant to hurt anyone. Appellant stated he had been "clean[]"
for ten years and "did not use that fatal day or night." (Apr. 9, 2020 Tr. at 18.)
{¶ 15} The trial court then recounted appellant's extensive criminal record which
dated back to over 20 years. The court observed that appellant's "adjustment to probation
in the past has not been the best." Id. at 19-20. The court next explained that, while it tries
to give credit to defendants who plead guilty, appellant would receive no credit because he
had failed to appear at sentencing and the court felt he had failed to accept full
responsibility. The court stated that appellant "devastated lives here" and "I can't believe I
can only give you four and a half years, to be honest. I wish I could give you ten because I
would." Id. at 20.
{¶ 16} Ultimately, the trial court sentenced appellant to 18 months for the count of
failure-to-appear, and 18 months for each of the counts of vehicular assault, all to be served
consecutively, for a total of 54 months in prison. The court also ordered restitution in the
amount of $357,000. The court imposed the discretionary 3-year post-release control
term, as well as a mandatory 5-year driver's license suspension.
Nos. 20AP-242 and 20AP-243 5
{¶ 17} The trial court specifically explained its reasoning behind the imposition of
consecutive prison sentences, noting that appellant had failed to appear for sentencing; that
consecutive prison terms are necessary and not disproportionate because the harm was so
great or unusual that a single term does not adequately reflect the seriousness of appellant's
conduct; and because appellant's criminal history shows consecutive terms are needed to
protect the public.
{¶ 18} The judgment entries in both Franklin C.P. Nos. 16CR-6342 and 19CR-5159
contain the following findings:
The Court made factual findings on the record to support all of
the following as it relates to a consecutive sentence. The Court
finds that this consecutive sentence is necessary to protect the
public from future crimes or to punish the offender and
consecutive sentences are not disproportionate to the
seriousness of the offender's conduct and the danger the
offender poses to the public, and the offender committed one
or more of the multiple offenses while awaiting trial or
sentencing.
Further, two of the multiple offenses were committed as part of
one or more courses of conduct and the harm caused by two or
more multiple offenses so committed 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. Finally, the offender's
history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime
by the offender.
{¶ 19} Appellant timely appeals from the foregoing judgment entries and sets forth
the following two assignments of error for this court's review:
[I]. The record does not support the trial court's findings to
impose consecutive sentences under R.C. 2929.14(C)(4) and
R.C. 2929.41(A), and mandated by the Ohio Supreme Court in
State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16
N.E.3d 659.
[II]. The trial court erred in imposing the maximum
sentences for each count when the record did not support the
findings of the various factors required by [R.C.] 2929.12.
Nos. 20AP-242 and 20AP-243 6
{¶ 20} We begin by observing that pursuant to R.C. 2953.08(G)(2), an appellate
court will reverse a trial court's sentencing decision "only if it determines by clear and
convincing evidence that the record does not support the trial court's findings under
relevant statutes or that the sentence is otherwise contrary to law." State v. Marcum, 146
Ohio St.3d 516, 2016-Ohio-1002, ¶ 1. Clear and convincing evidence is that "which will
produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to
be established." Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
This court must "look to the record to determine whether the sentencing court considered
and properly applied the statutory guidelines and whether the sentence is otherwise
contrary to law." State v. Reeves, 10th Dist. No. 14AP-856, 2015-Ohio-3251, ¶ 4.
{¶ 21} In his first assignment of error, appellant contends the trial court erred
because the record does not support the trial court's findings required to impose
consecutive sentences under R.C. 2929.14(C)(4) and 2929.41(A). We disagree.
{¶ 22} " 'Under Ohio law, absent an order requiring sentences to be served
consecutively, terms of incarceration are to be served concurrently.' " State v. Guy, 10th
Dist. No. 17AP-322, 2018-Ohio-4836, ¶ 56, quoting State v. Sergent, 148 Ohio St.3d 94,
2016-Ohio-2696, ¶ 16, citing R.C. 2929.41(A). A trial court may, in its discretion, impose
consecutive sentences for multiple prison terms pursuant to R.C. 2929.14(C)(4). Id. Before
imposing consecutive sentences, the trial court must find that: (1) the 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) at least one of the
following:
(a) The offender committed one or more of the multiple
offenses while the offender was awaiting trial or sentencing,
was under a sanction imposed pursuant to section 2929.16,
2929.17, or 2929.18 of the Revised Code, or was under post-
release control for a prior offense.
(b) At least two of the multiple offenses were committed as part
of one or more courses of conduct, and the harm caused by two
or more of the multiple offenses so committed 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.
Nos. 20AP-242 and 20AP-243 7
(c) The offender's history of criminal conduct demonstrates
that consecutive sentences are necessary to protect the public
from future crime by the offender.
R.C. 2929.14(C)(4). Thus, pursuant to R.C. 2929.14(C)(4), in order to impose consecutive
terms of imprisonment, a trial court is required to make at least three distinct findings:
(1) that consecutive sentences are necessary to protect the public from future crime or to
punish the offender; (2) that 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) that one of the subsections (a), (b), or (c) applies. State v. Price, 10th Dist. No. 13AP-
1088, 2014-Ohio-4696, ¶ 31, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177.
{¶ 23} In Bonnell, the Supreme Court of Ohio held that a trial court seeking to
impose consecutive sentences must make the findings required by R.C. 2929.14(C)(4) "at
the sentencing hearing and incorporate its findings into its sentencing entry, but it has no
obligation to state reasons to support its findings." Bonnell at syllabus. Nor is the trial court
"required to give a talismanic incantation of the words of the statute, provided that the
necessary findings can be found in the record and are incorporated into the sentencing
entry." Id. at ¶ 37. "[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.
{¶ 24} "In determining whether the trial court engaged in the correct analysis, an
appellate court 'may liberally review the entirety of the sentencing transcript to discern
whether the trial court made the requisite findings.' " State v. Hairston, 10th Dist. No.
17AP-416, 2017-Ohio-8719, ¶ 8, quoting State v. Stephen, 7th Dist. No. 14 BE 0037, 2016-
Ohio-4803, ¶ 22 citing Bonnell at ¶ 29. Furthermore, "once the trial court makes the factual
findings required by R.C. 2929.14(C)(4), an appellate court may overturn the imposition of
consecutive sentences only if it finds, clearly and convincingly, that the record does not
support the sentencing court's findings or that the sentence is otherwise contrary to law."
State v. Hargrove, 10th Dist. No. 15AP-102, 2015-Ohio-3125, ¶ 22.
{¶ 25} Here, a review of the sentencing transcript readily reveals the trial court made
all the factual findings required by R.C. 2929.14(C)(4) and that the trial court explained its
Nos. 20AP-242 and 20AP-243 8
reasoning for imposing consecutive sentences. Furthermore, we do not find, clearly and
convincingly, that the record fails to support the trial court's findings or that the sentence
is otherwise contrary to law. Indeed, contrary to appellant's assertion, we find there was
more than ample evidence in the record to support the trial court's findings and imposition
of consecutive sentences under R.C. 2929.14(C)(4) and 2929.41(A) and as mandated by the
Supreme Court in Bonnell, 2014-Ohio-3177. Accordingly, appellant's first assignment of
error is overruled.
{¶ 26} In his second assignment of error, appellant contends the trial court erred in
imposing maximum sentences for his offenses for each count when the record did not
support the findings of the various factors required by R.C. 2929.12. Again, we disagree.
{¶ 27} "A trial court's imposition of a maximum prison term is not contrary to law
as long as the court sentences the offender within the statutory range for the offense, and
in so doing, considers 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.
J.L.H., 10th Dist. No. 19AP-369, 2019-Ohio 4999, ¶ 5, citing State v. Santos, 8th Dist. No.
103964, 2016-Ohio-5845, ¶ 12. "Although a trial court must consider the factors in R.C.
2929.11 and 2929.12, there is no requirement that the court state its reasons for imposing
a maximum sentence, or for imposing a particular sentence within the statutory range." Id.Likewise, "[t]here is no requirement in R.C. 2929.12 that the trial court states on the record
it has considered the statutory criteria concerning seriousness and recidivism or even
discussed them." Id., citing State v. Hayes, 5th Dist. No. 18CA10, 2019-Ohio-1629, ¶ 49,
citing State v. Polick, 101 Ohio App.3d 428, 431 (4th Dist.1995).
{¶ 28} As we have previously observed, the " ' "overriding purposes of felony
sentencing are to protect the public from future crime and to punish the offender." ' "
J.L.H., 2019-Ohio-4999 at ¶ 6, quoting State v. Smith, 3d Dist. No. 13-15-17, 2015-Ohio-
4225, ¶ 10, quoting R.C. 2929.11(A). " 'In advancing these purposes, sentencing courts are
instructed to "consider the need for incapacitating the offender, deterring the offender and
others from future crime, rehabilitating the offender, and making restitution to the victim
of the offense, the public, or both." ' " Id., quoting Smith at ¶ 10, quoting R.C. 2929.11(A).
" 'In accordance with these principles, the trial court must consider the factors set forth in
R.C. 2929.12(B)-(E) relating to the seriousness of the offender's conduct and the likelihood
Nos. 20AP-242 and 20AP-243 9
of the offender's recidivism.' " Id., quoting Smith at ¶ 10, citing R.C. 2929.12(A). " ' "A
sentencing court has broad discretion to determine the relative weight to assign the
sentencing factors in R.C. 2929.12." ' " Id., quoting Smith at ¶ 15, quoting State v.
Brimacombe, 195 Ohio App.3d 524, 2011-Ohio-5032, ¶ 18 (6th Dist.), citing State v. Arnett,
88 Ohio St.3d 208, 215 (2000).
{¶ 29} Here, we find appellant's sentences are within the permissible statutory range
and that the record shows the trial court properly considered the criteria found in R.C.
2929.11 and 2929.12. Furthermore, the court's judgment entry specifically indicates that
the court considered the purposes and principles of sentencing set forth in R.C. 2929.11,
the factors set forth in R.C. 2929.12, and that it weighed the factors as required by R.C.
2929.13 and 2929.14. This court has consistently held that a trial court's inclusion of
language in a sentencing entry affirmatively stating that it considered the purposes and
principles of sentencing set forth in R.C. 2929.11 and the factors set forth in R.C. 2929.12
defeats any claim that the trial court failed to consider those statutory guidelines. See, e.g.,
State v. Maxwell, 10th Dist. No. 18AP-341, 2019-Ohio-2191, wherein we stated, " '[t]he
inclusion of such language in a judgment entry belies a defendant's claim that the trial court
failed to consider the R.C. 2929.12 factors.' " Id. at ¶ 7, quoting State v. Anderson, 10th Dist.
No. 16AP-810, 2017-Ohio-7375, ¶ 11. See also State v. Frederick, 10th Dist. No. 13AP-630,
2014-Ohio-1960, ¶ 14, citing State v. Ibrahim, 10th Dist. No. 13AP-167, 2014-Ohio-666,
¶ 10, citing State v. Peterson, 10th Dist. No. 12AP-646, 2013-Ohio-1807, ¶ 31. Thus, the
trial court clearly complied with the requirements of R.C. 2929.11 and 2929.12.
{¶ 30} Moreover, to the extent appellant argues that the record does not support the
trial court's imposition of maximum sentences and that the maximum sentences were too
harsh, we observe that the trial court explained that it was imposing the maximum sentence
for each offense due to appellant's extensive criminal history which dated back to over 20
years, because appellant had failed to appear at the first scheduled sentencing, because the
court felt appellant failed to accept full responsibility for his actions, and because appellant
had "devastated lives" in this case. As noted previously, a trial court has broad discretion
to assign weight to any of the factors in R.C. 2929.12. Anderson, 2017-Ohio-7375, at ¶ 14
(trial court, in exercising sentencing discretion, determines weight afforded to any
Nos. 20AP-242 and 20AP-243 10
particular statutory factors, mitigating grounds, or other relevant circumstances); Maxwell
at ¶ 8.
{¶ 31} We further note that appellant does not argue that the sentences were outside
the range of sentences established by statute. Merely because the trial court imposed more
than the minimum sentence for each offense does not render the imposition of sentence
contrary to law. Maxwell at ¶ 8, citing State v. Robinson, 10th Dist. No. 15AP-910, 2016-
Ohio-4638, ¶ 18 (a trial court does not abuse its discretion in imposing the maximum
sentence where that sentence is within the statutory range of permissible sentences).
Accordingly, appellant's second assignment of error is overruled.
{¶ 32} Therefore, having overruled appellant's first and second assignments of
error, we affirm the judgments of the Franklin County Court of Common Pleas.
Judgments affirmed.
KLATT and MENTEL, JJ., concur.