State v. Curtis , 2022 Ohio 1691 ( 2022 )

[Cite as State v. Curtis, 2022-Ohio-1691.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MIAMI COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2021-CA-19
:
v. : Trial Court Case No. 2020-CR-468
:
BLAKE L. CURTIS : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 20th day of May, 2022.
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MATTHEW C. JOSEPH, Atty. Reg. No. 0090869, Miami County Prosecutor’s Office, 201
West Main Street, Troy, Ohio 45373
Attorney for Plaintiff-Appellee
KYLE J. LENNEN, Atty. Reg. No. 0085726, 120 West Second Street, Suite 820, Dayton,
Ohio 45402
Attorney for Defendant-Appellant
.............
WELBAUM, J.
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{¶ 1} Defendant-appellant, Blake L. Curtis, appeals from his conviction in the
Miami County Court of Common Pleas after pleading guilty to one count of felonious
assault and one count of aggravated assault. Specifically, Curtis challenges the trial
court’s decision to impose consecutive sentences on grounds that the trial court’s history-
of-criminal-conduct finding under R.C. 2929.14(C)(4)(c) was unsupported by the record.
Curtis also contends that the prison terms imposed by the trial court were excessive given
that he was a first-time felony offender. For the reasons outlined below, the judgment of
the trial court will be affirmed, but the matter will be remanded to the trial court for the sole
purpose of issuing a nunc pro tunc sentencing entry that accurately reflects the history-
of-criminal-conduct findings that the trial court made at the sentencing hearing.
Facts and Course of Proceedings
{¶ 2} On November 9, 2020, a complaint was filed in the Miami County Municipal
Court charging Curtis with two second-degree-felony counts of felonious assault. After
the complaint was filed, Curtis waived his right to a preliminary hearing and the matter
was bound over to the Miami County Court of Common Pleas. Once the matter was
bound over, Curtis waived his right to be prosecuted by indictment. The State thereafter
filed a bill of information charging Curtis with one count of felonious assault in violation of
R.C. 2903.11(A)(1), a felony of the second degree, and one amended count of
aggravated assault in violation of R.C. 2903.12(A)(2), a felony of the fourth degree. The
charges stemmed from allegations that Curtis ran over the father of his former fiancée
with his vehicle and then punched him in the head while he was pinned underneath the
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vehicle.
{¶ 3} On January 22, 2021, Curtis pled guilty as charged in the bill of information.
The trial court accepted Curtis’s guilty plea and thereafter sentenced Curtis to an
indefinite term of 6 to 9 years in prison for the felonious assault and a definite term of 16
months in prison for the aggravated assault. After considering the statutory criteria under
R.C. 2929.14(C)(4), the trial court ordered Curtis’s prison terms to be served
consecutively. In doing so, the trial court sentenced Curtis to a total, indefinite term of 7
years and 4 months to 10 years and 4 months in prison.
{¶ 4} Curtis now appeals from his conviction, raising two assignments of error for
review.
First Assignment of Error
{¶ 5} Under his first assignment of error, Curtis contends that the trial court
improperly imposed consecutive sentences based on his history of criminal conduct. We
disagree.
{¶ 6} When reviewing felony sentences, appellate courts must apply the standard
of review 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, ¶ 7. Under that statute, an appellate court may increase,
reduce, or modify a sentence, or it may vacate the sentence and remand for resentencing,
only if it clearly and convincingly finds either: (1) the record does not support the
sentencing court’s findings under certain statutes (including R.C. 2929.14(C)(4), which
concerns the imposition of consecutive sentences); or (2) the sentence is otherwise
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contrary to law. Id. at ¶ 9, citing R.C. 2953.08(G)(2).
{¶ 7} Pursuant to R.C. 2929.14(C)(4), a trial court may impose consecutive
sentences if it finds that: (1) consecutive service 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) one or more of the following three findings are satisfied:
(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.
(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)(a)-(c).
{¶ 8} “[A] trial court is required to make the findings mandated by R.C.
2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing
entry[.]” State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus.
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“[W]here a trial court properly makes the findings mandated by R.C. 2929.14(C)(4), an
appellate court may not reverse the trial court’s imposition of consecutive sentences
unless it first clearly and convincingly finds that the record does not support the trial court’s
findings.” State v. Withrow, 2016-Ohio-2884, 64 N.E.3d 553, ¶ 38 (2d Dist.); Marcum at
¶ 22. This is a very deferential standard of review, as “the question is not whether the
trial court had clear and convincing evidence to support its findings, but rather, whether
we clearly and convincingly find that the record fails to support the trial court’s findings.”
(Citation omitted.) Withrow at ¶ 38. In applying that standard of review, “the
consecutive nature of the trial court’s sentencing should stand unless the record
overwhelmingly supports a contrary result.” (Citation omitted.) Id. at ¶ 39. “[A]s 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.” Bonnell at ¶ 29.
{¶ 9} In this case, Curtis does not dispute that the trial court made the statutorily-
required consecutive-sentence findings at the sentencing hearing and incorporated them
into the sentencing entry. Instead, Curtis challenges the trial court’s finding under
section (c) of R.C. 2929.14(C)(4), i.e., that his history of criminal conduct demonstrates
that consecutive sentences are necessary to protect the public from future crime by him.
According to Curtis, this finding is not supported by the record because it is based only
on a single juvenile adjudication for assault and his criminal conduct in the instant case.
Although Curtis agrees that juvenile adjudications can be used as prior criminal history
for purposes of imposing consecutive sentences, see State v. Lipker, 2d Dist. Clark No.
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2012-CA-55, 2013-Ohio-3278, ¶ 16, Curtis argues that a single juvenile adjudication is
insufficient to support the trial court’s history-of-criminal-conduct finding. Curtis also
argues that it was erroneous for the trial court to consider his criminal conduct in the
instant case when making the history-of-criminal-conduct finding. For these reasons,
Curtis claims that the imposition of consecutive sentences was improper and that his
sentence should be vacated.
{¶ 10} In support of his claims, Curtis cites to a decision of the Eighth District Court
of Appeals, State v. Batiste, 2020-Ohio-3673, 154 N.E.3d 1220 (8th Dist.). In Batiste,
the trial court imposed consecutive sentences for various offenses committed by the
defendant and relied on two factors when making its history-of-criminal-conduct finding:
(1) the defendant’s prior juvenile adjudication for robbery; and (2) the criminal conduct for
which the defendant was being sentenced. Id. at ¶ 18. On appeal, the Batiste court
held that the trial court had erroneously relied on the criminal conduct that the defendant
was being sentenced for when making its history-of-criminal-conduct finding, as the court
explained that said finding “does not include the offenses of the case at issue.” Id. at
¶ 19, citing State v. Green, 8th Dist. Cuyahoga No. 102421, 2015-Ohio-4078, ¶ 17, and
State v. Ferrell, 8th Dist. Cuyahoga No. 100659, 2014-Ohio-4377, ¶ 46. The court in
Batiste also held that the “use of an offender’s juvenile criminal history is generally
reserved for instances where the offender has an extensive juvenile history.” (Emphasis
sic.) Id. at ¶ 20. Because the defendant in Batiste only had one juvenile adjudication
for robbery, the Eighth District found that the record did not support the trial court’s history-
of-criminal-conduct finding and thus did not support the imposition of consecutive
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sentences. Id. at ¶ 18-21.
{¶ 11} Curtis contends that, like Batiste, the trial court in this case based its history-
of-criminal-conduct finding on a single juvenile adjudication and his criminal conduct in
the instant case. The record, however, establishes otherwise. Unlike the defendant in
Batiste, Curtis’s history of criminal conduct included more than just a single juvenile
adjudication and the instant criminal offenses. The record establishes that Curtis had
juvenile adjudications for assault in 2010 and underage consumption of alcohol and drugs
in 2011. Curtis also had adult misdemeanor convictions for criminal damaging in 2015
and disorderly conduct in 2017, with the disorderly conduct conviction being amended
from an original charge of resisting arrest. Between 2010 and 2012, Curtis acquired
several charges as a juvenile for failure to comply, obstructing official business, and
assault, all of which were dismissed. As an adult, Curtis was also charged with
obstructing official business and possession of controlled substances in 2013, with those
charges being dismissed as well. In addition, at the time of sentencing, Curtis had a
pending charge for aggravated menacing that arose after he committed the offenses in
this case. The record indicates that the aggravated menacing charge stemmed from
allegations that Curtis threatened to kill the son-in-law of the victim’s neighbor, who had
tried to stop Curtis from punching the victim during the incident in question.
{¶ 12} We note that “[b]y referring to the offender’s history of criminal conduct, R.C.
2929.14(C)(4)(c) ‘does not limit the trial court’s review to an offender’s history of criminal
convictions.’ ” (Emphasis sic.) State v. Hiles, 3d Dist. Union No. 14-20-21, 2021-Ohio-
1622, ¶ 26, quoting State v. Russell, 11th Dist. Lake No. 2019-L-138, 2020-Ohio-3243,
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¶ 140; State v. Steele, 8th Dist. Cuyahoga No. 105085, 2017-Ohio-7605, ¶ 13-17. “ ‘[I]t
is settled law that a sentencing judge can take into account facts relating to other charges,
even charges that have been dismissed or which resulted in an acquittal.’ ” Hiles at ¶ 26,
quoting State v. Esmail, 7th Dist. Columbiana No. 13 CO 35, 2014-Ohio-2297, ¶ 11;
Steele at ¶ 10. Therefore, it was appropriate to consider Curtis’s dismissed charges and
the pending charge for aggravated menacing when making the history-of-criminal-
conduct finding under R.C. 2929.14(C)(4)(c).
{¶ 13} In addition to the aforementioned juvenile adjudications, misdemeanor
convictions, and charges, when making the history-of criminal-conduct finding, the trial
court considered the instant felonious assault and aggravated assault offenses. In this
court’s view, “history of criminal conduct” includes all criminal conduct the offender
engaged in prior to sentencing. The language of R.C. 2929.14(C)(4)(c) in no way
indicates that the trial court may not consider the offenses of the case at issue. Certainly,
those offenses cannot be the sole basis underlying the trial court’s history-of-criminal-
conduct finding, but they may nevertheless be considered as part of the offender’s
criminal history. Therefore, we disagree with the portion of Batiste holding otherwise.
{¶ 14} Even without considering the instant felonious assault and aggravated
assault offenses, the record indicates that within a span of 10 years Curtis consistently
engaged in violent or non-compliant conduct, which resulted in his acquiring multiple
charges, juvenile adjudications, and misdemeanor convictions. Therefore, we do not
clearly and convincingly find that the record fails to support the trial court’s history-of-
criminal-conduct finding. For this reason, Curtis’s claim that the trial court improperly
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imposed consecutive sentences lacks merit.
{¶ 15} That said, Curtis also claims that the trial court made a factually inaccurate
statement in the sentencing entry with regard to the history-of-criminal-conduct finding.
Specifically, Curtis points to a portion of the sentencing entry in which the trial court stated
that Curtis had “served three prior prison terms and committ[ed] the instant offenses while
on community control.” Sentencing Entry (Mar. 12, 2021), p. 4. The State concedes
that the foregoing statement is incorrect, but claims that the statement was merely a
clerical mistake.
{¶ 16} In support of this claim, the State points to the transcript of the sentencing
hearing, which establishes that the trial court never considered or mentioned Curtis’s
being on community control during the offenses in question and specifically stated that:
“in mitigation [Curtis has] not served any previous prison term.” Sentencing Trans. (Mar.
8, 2021), p. 25. The trial court also wrote in the sentencing entry that: “While the
defendant does not have any prior felony convictions or non-compliance, he was
adjudicated as a juvenile and all of his prior convictions as a juvenile and as an adult,
involve violence.” (Emphasis added.) Sentencing Entry at 3. This statement
indicates, and the record establishes, that all of Curtis’s adult convictions were for
misdemeanor offenses. Generally speaking, jail terms, not prison terms, are imposed
for misdemeanor offenses. R.C. 2929.24(A)(1); R.C. 2929.34(C); State v. Leach, 6th
Dist. Lucas No. L-09-1327, 2011-Ohio-866, ¶ 7. Therefore, the trial court’s incorrect
statement regarding Curtis’s serving three prior prison terms contradicts statements that
the trial court made both at the sentencing hearing and in the sentencing entry.
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{¶ 17} Taking all the foregoing into consideration, as well as the criminal conduct
reported in Curtis’s PSI, we agree with the State and find that the incorrect statement in
the sentencing entry was a clerical mistake. “Clerical mistakes in judgments, orders, or
other parts of the record, and errors in the record arising from oversight or omission, may
be corrected by the court at any time.” Crim.R. 36. Such errors can be corrected using
a nunc pro tunc entry, which “may be used to ‘reflect what the trial court did decide but
recorded improperly.’ ” State v. McIntyre, 2d Dist. Montgomery No. 25502, 2013-Ohio-
3281, ¶ 5, quoting State v. Miller, 127 Ohio St.3d 407, 2010-Ohio-5705, 940 N.E.2d 924,
¶ 15. Given the clerical mistake in Curtis’s sentencing entry, it is appropriate to remand
the matter to the trial court for purposes of issuing a nunc pro tunc entry that accurately
reflects the history-of-criminal conduct findings that the trial court made at the sentencing
hearing.
{¶ 18} For the foregoing reasons, Curtis’s first assignment of error is overruled as
to the imposition of consecutive sentences and sustained as to the incorrect statement in
the sentencing entry.
Second Assignment of Error
{¶ 19} Under his second assignment of error, Curtis contends that the indefinite
term of 6 to 9 years in prison he received for felonious assault and the definite term of 16
months in prison he received for aggravated assault are excessive given that he is a first-
time felony offender. Specifically, Curtis argues that his prison sentences do not comport
with R.C. 2929.11 because the trial court failed to use minimum sanctions to accomplish
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the purposes of felony sentencing. We disagree.
{¶ 20} As previously noted, this court must apply the standard of review contained
in R.C. 2953.08(G)(2) when reviewing felony sentences. Marcum, 146 Ohio St.3d 516,
2016-Ohio-1002, 59 N.E.3d 1231, at ¶ 7. Under that statute, “an appellate court may
increase, reduce, or modify a sentence, or it may vacate the sentence and remand for
resentencing, only if it ‘clearly and convincingly’ finds either (1) that the record does not
support certain specified findings or (2) that the sentence imposed is contrary to law.”
State v. Mayberry, 2d Dist. Montgomery No. 27530, 2018-Ohio-2220, ¶ 41, quoting R.C.
2953.08(G)(2). Because we have already reviewed the trial court’s consecutive-
sentence findings under R.C. 2929.14(C)(4), and because the trial court was not required
to make any of the other findings listed under R.C. 2953.08(G)(2), we need only determine
whether Curtis’s sentence is clearly and convincingly contrary to law.
{¶ 21} “A sentence is not clearly and convincingly contrary to law where the trial
court ‘considers the principles and purposes of R.C. 2929.11, as well as the factors listed
in R.C. 2929.12, properly imposes postrelease control, and sentences the defendant
within the permissible statutory range.’ ” State v. Grieco, 2d Dist. Montgomery No.
28542, 2020-Ohio-6956, ¶ 21, quoting State v. Julious, 12th Dist. Butler No. CA2015-12-
224, 2016-Ohio-4822, ¶ 8; State v. Haddad, 10th Dist. Franklin Nos. 16AP-459, 16AP-
464, 2017-Ohio-1290, ¶ 19, citing State v. Gore, 10th Dist. Franklin No. 15AP-686, 2016-
Ohio-7667, ¶ 8.
{¶ 22} “[N]either R.C. 2929.11 nor 2929.12 requires a trial court to make any
specific factual findings on the record.” State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-
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6729, 169 N.E.3d 649, ¶ 20, citing State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669,
951 N.E.2d 381, ¶ 31. “Nor is a trial court required to make any particular finding before
imposing the authorized maximum sentence.” State v. Loffing, 2d Dist. Clark No. 2021-
Ohio-CA-44, 2022-Ohio-408, ¶ 9, citing State v. Clark, 2d Dist. Champaign No. 2020-CA-
19, 2021-Ohio-1427, ¶ 22. “The trial court has full discretion to impose any sentence
within the authorized statutory range[.]” State v. King, 2013-Ohio-2021, 992 N.E.2d 491,
¶ 45 (2d Dist.).
{¶ 23} In this case, the transcript of the sentencing hearing and the sentencing
entry establish that the trial court considered the principles and purposes of felony
sentencing set forth in R.C. 2929.11 and the seriousness and recidivism factors set forth
in R.C. 2929.12 prior to issuing its sentencing decision. See Sentencing Trans. (Mar. 8,
2021), p. 21-30; Sentencing Entry (Mar. 12, 2021), p. 1-2. The record also establishes
that the trial court properly imposed post-release control and imposed prison terms that
were within the authorized statutory range for second and fourth-degree felonies. See
R.C. 2967.28, R.C. 2929.14(A)(2)(a), and R.C. 2929.14(A)(4). Because the trial court
considered the criteria under R.C. 2929.11 and R.C. 2929.12, properly imposed post-
release control, and imposed prison terms within the authorized statutory range, we do
not clearly and convincingly find that Curtis’s prison sentences are contrary to law.
{¶ 24} This ends our inquiry regarding Curtis’s prison sentence, as “ ‘[n]othing in
R.C. 2953.08(G)(2) permits an appellate court to independently weigh the evidence in the
record and substitute its judgment for that of the trial court concerning the sentence that
best reflects compliance with R.C. 2929.11 and 2929.12.’ ” State v. Saunders, 2d Dist.
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Champaign No. 2021-CA-32, 2022-Ohio-1424, ¶ 11, quoting Jones at ¶ 42. This court
must simply determine whether the sentences imposed are contrary to law. State v.
Dorsey, 2d Dist. Montgomery No. 28747, 2021-Ohio-76, ¶ 18, citing Jones.
{¶ 25} Because Curtis’s prison sentences are not contrary to law, his second
assignment of error is overruled.
Conclusion
{¶ 26} The judgment of the trial court is affirmed, but the matter is remanded to the
trial court for the sole purpose of issuing a nunc pro tunc sentencing entry that accurately
reflects the history-of-criminal-conduct findings that the trial court made at the sentencing
hearing.
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EPLEY, J. and LEWIS, J., concur.
Copies sent to:
Matthew C. Joseph
Kyle J. Lennen
Hon. Stacy M. Wall