State v. Smith , 2022 Ohio 420 ( 2022 )


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  • [Cite as State v. Smith, 
    2022-Ohio-420
    .]
    IN THE COURT OF APPEALS OF OHIO
    THIRD APPELLATE DISTRICT
    DEFIANCE COUNTY
    STATE OF OHIO,
    PLAINTIFF-APPELLEE,                     CASE NO. 4-21-04
    v.
    MICHAEL A. SMITH,                              OPINION
    DEFENDANT-APPELLANT.
    STATE OF OHIO,
    PLAINTIFF-APPELLEE,                     CASE NO. 4-21-05
    v.
    MICHAEL A. SMITH,                              OPINION
    DEFENDANT-APPELLANT.
    STATE OF OHIO,
    PLAINTIFF-APPELLEE,                     CASE NO. 4-21-06
    v.
    MICHAEL A. SMITH,                              OPINION
    DEFENDANT-APPELLANT.
    Case Nos. 4-21-04, 4-21-05, 4-21-06, 4-21-07
    STATE OF OHIO,
    PLAINTIFF-APPELLEE,                          CASE NO. 4-21-07
    v.
    MICHAEL A. SMITH,                                  OPINION
    DEFENDANT-APPELLANT.
    Appeals from Defiance County Common Pleas Court
    Trial Court Nos. 20 CR 13938, 21 CR 14246, 20 CR 14023 and 20 CR 14128
    Judgments Affirmed
    Date of Decision: February 14, 2022
    APPEARANCES:
    Timothy C. Holtsberry for Appellant
    Russell R. Herman for Appellee
    MILLER, J.
    {¶1} Defendant-appellant, Michael A. Smith, appeals the March 29, 2021
    judgments of sentence of the Defiance County Court of Common Pleas. For the
    reasons that follow, we affirm.
    -2-
    Case Nos. 4-21-04, 4-21-05, 4-21-06, 4-21-07
    {¶2} This case arises from a series of interactions between Smith and his
    previous romantic partner, M.L. On April 8, 2020, M.L. complained to the Defiance
    Police Department of ongoing harassment she was experiencing from Smith.
    Specifically, M.L. complained that on that day, Smith left two harassing voicemails.
    Although the voicemails came from an unknown number, due to their previous
    interactions with Smith, M.L. and her daughter recognized the male voice in the
    recordings as belonging to Smith. In addition, M.L. reported finding a grocery bag
    containing angel figurines on her porch. Also, on April 13, 2020, M.L. reported
    returning to her residence and found various items and a card signed by Smith.
    {¶3} On April 13, 2020, a complaint was filed in the Defiance Municipal
    Court charging Smith with menacing by stalking in violation of R.C.
    2903.211(A)(1), a fourth-degree felony. Furthermore, on April 15, 2020, the trial
    court granted M.L. a protection order pursuant to R.C. 2903.213 against Smith. On
    April 17, 2020, Smith waived a preliminary hearing and was bound over to the
    Defiance County Grand Jury. On June 11, 2020, the Defiance County Grand Jury
    indicted Smith on two counts in case number 20 CR 13938: Count One of menacing
    by stalking in violation of R.C. 2903.211(A)(1), a fourth-degree felony, and Count
    Two of violating a protection order in violation of R.C. 2919.27(A)(2), a third-
    degree felony. Smith appeared for arraignment on July 10, 2020 and entered a plea
    of not guilty to the counts in the indictment.
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    Case Nos. 4-21-04, 4-21-05, 4-21-06, 4-21-07
    {¶4} On July 5, 2020, M.L. reported to the Defiance Police Department that
    on June 5, 2020, she began receiving “constant” text messages from the same
    unknown number. M.L. also recounted that on July 4 and 5, 2020, she received
    “constant” telephone calls from a restricted number. M.L. advised that when she
    answered the phone, Smith threatened to hurt M.L.’s friend with whom she was
    spending the weekend. On July 4 and 5, 2020, Smith also left two voicemails on
    M.L.’s phone.
    {¶5} On July 6, 2020, a complaint was filed in the Defiance Municipal Court
    charging Smith with violating a protection order in violation of R.C. 2919.27(A)(2).
    Smith waived a preliminary hearing and was bound over to the Defiance County
    Grand Jury on July 8, 2020. Subsequently, on July 23, 2020, the grand jury indicted
    Smith in case number 20 CR 14023 on two counts of violating a protection order in
    violation of R.C. 2919.27(A)(2), fifth-degree felonies. On August 3, 2020, Smith
    appeared for arraignment on this case and entered not guilty pleas to the counts in
    the indictment.
    {¶6} Then, on October 8, 2020, the Defiance County Grand Jury indicted
    Smith in case number 20 CR 14128 of three additional counts of violating a
    protection order in violation of R.C. 2919.27(A)(2). Counts One, Two, and Three
    alleged that Smith violated the protection order against M.L. in July 2020, August
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    2020, and September 2020, respectively. On October 13, 2020, Smith appeared for
    arraignment and entered pleas of not guilty.
    {¶7} On November 9, 2020, Smith appeared for a change-of-plea hearing in
    all three of his pending cases. With respect to case number 20 CR 13938, Smith
    withdrew his pleas of not guilty and entered no contest pleas to both counts in the
    indictment. With respect to case number 20 CR 14023, Smith withdrew his plea of
    not guilty to Count One and entered a no contest plea. In exchange, the State agreed
    to recommend dismissal of Count Two at the sentencing hearing. With respect to
    case number 20 CR 14128, Smith withdrew his plea of not guilty to Count One and
    entered a no contest plea. In exchange, the State agreed to recommend dismissal of
    Counts Two and Three at the sentencing hearing. The trial court accepted Smith’s
    no contest pleas and entered findings of guilty. On November 12, 2020, the trial
    court filed its judgment entries of conviction.
    {¶8} Based on behavior that occurred while Smith was incarcerated on the
    pending cases, the Defiance County Grand Jury issued a fourth indictment against
    Smith on February 25, 2021 in case number 21 CR 14246. This indictment charged
    him with two additional counts of violating a protection order in violation of R.C.
    2919.27(A)(2), fifth-degree felonies. The indictment alleged that Smith again
    violated the protection order against M.L. in January 2021 and February 2021,
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    respectively. On March 4, 2021, Smith appeared for arraignment on case number
    21 CR 14246 and pleaded not guilty to the counts in the indictment.
    {¶9} On March 24, 2021, the parties appeared for a hearing on Smith’s four
    pending cases. First, with respect to case number 21 CR 14246, Smith withdrew
    his pleas of not guilty and entered pleas of no contest to the counts in the indictment.
    The trial court accepted Smith’s pleas and found him guilty of the counts in the
    indictment.
    {¶10} The trial court then proceeding to sentencing. In case number 20 CR
    13938, the trial court sentenced Smith to 17 months in prison on Count One and 30
    months in prison on Count Two to be served consecutively to each other for an
    aggregate of 47 months. With respect to case number 20 CR 14023, the trial court
    imposed a sentence of 11 months in prison. In case number 20 CR 14128, the trial
    court sentenced Smith to 11 months in prison. With respect to case number 21 CR
    14246, the trial court sentenced Smith to 11 months in prison on Count One and 11
    months in prison on Count Two to be served concurrently to each other. Further,
    the trial court ordered the sentences in case numbers 20 CR 14023 and 20 CR 14128
    to be served concurrently to each other but the remainder of the sentences to be
    served consecutively for an aggregate of 69 months in prison.
    {¶11} Finally, the State recommended the dismissal of Count Two in case
    number 20 CR 14023 and Counts Two and Three in case number 20 CR 14128.
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    Accordingly, the trial court dismissed the aforementioned counts. On March 29,
    2021, the trial court filed its judgment entries of sentence in case numbers 20 CR
    13938, 20 CR 14023, and 20 CR 14128 and its judgment entry of conviction and
    sentence in case number 21 CR 14246.
    {¶12} On April 23, 2021, Smith filed notices of appeal. He raises one
    assignment of error for our review.
    Assignment of Error
    Trial court erred as it did not make the proper findings to impose
    consecutive sentences.
    {¶13} In his assignment of error, Smith argues the trial court erred by failing
    to make the findings necessary to impose consecutive sentences. Specifically,
    Smith argues that the record does not support the trial court’s decision to impose
    consecutive sentences because the record does not support the trial court’s R.C.
    2929.14(C)(4) consecutive-sentence findings. Here, Smith does not challenge the
    length of any of the sentences imposed. Rather, he challenges only the trial court’s
    determination that the sentences should be served consecutively to each other.
    Accordingly, we limit our review to a consideration of whether the trial court made
    the necessary findings prior to imposing consecutive sentences and whether those
    findings are supported by the record.
    {¶14} Under R.C. 2953.08(G)(2), an appellate court may reverse a sentence
    “only if it determines by clear and convincing evidence that the record does not
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    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.’” Id.
    at ¶ 22, quoting Cross v. Ledford, 
    161 Ohio St. 469
     (1954), paragraph three of the
    syllabus.
    {¶15} “Except as provided in * * * [R.C. 2929.14(C)], * * * a prison term,
    jail term, or sentence of imprisonment shall be served concurrently with any other
    prison term, jail term, or sentence of imprisonment imposed by a court of this state,
    another state, or the United States.” R.C. 2929.41(A). R.C. 2929.14(C) provides,
    in relevant part:
    (4) If multiple prison terms are imposed on an offender for
    convictions of multiple offenses, the court may require the offender
    to serve the prison terms consecutively if the court finds that the
    consecutive sentence is necessary to protect the public from future
    crime or to punish the offender and 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 if the court also finds
    any 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 [R.C. 2929.16, 2929.17, or 2929.18], 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
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    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.
    {¶16} “R.C. 2929.14(C)(4) requires a trial court to make specific findings on
    the record before imposing consecutive sentences.” State v. Nienberg, 3d Dist.
    Putnam Nos. 12-16-15 and 12-16-16, 
    2017-Ohio-2920
    , ¶ 17. “Specifically, the trial
    court must find: (1) consecutive sentences are necessary to either protect the public
    or punish the offender; (2) the sentences would not be disproportionate to the
    offense committed; and (3) one of the factors in R.C. 2929.14(C)(4)(a), (b), or (c)
    applies.” 
    Id.
    {¶17} When imposing consecutive sentences, the trial court must make the
    findings required by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate
    those findings into its sentencing entry. State v. Bonnell, 
    140 Ohio St.3d 209
    , 2014-
    Ohio-3177, ¶ 29, 37. In complying with this requirement, the trial court “has no
    obligation to state reasons to support its findings.” Id. at ¶ 37. “[P]rovided that the
    necessary findings can be found in the record and are incorporated into the
    sentencing entry,” a trial court need not recite a “talismanic incantation” of the
    language of R.C. 2929.14(C)(4) to properly impose consecutive sentences. Id.
    {¶18} At the sentencing hearing, the trial court only made the following
    statement regarding consecutive sentences:
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    It’s the Court’s belief given your just absolute unwillingness to
    comply with the law that consecutive terms are necessary to protect
    the public and specifically this victim, and so as not to demean the
    seriousness of your conduct, consecutive terms are necessary that
    cumulative prison will be a sixty-nine month prison term.
    (Mar. 24, 2021 Tr. at 21-22).
    {¶19} Furthermore, in each of the judgment entries of sentence, the trial
    court made the following findings:
    Based on all of the foregoing considerations and upon consideration
    of the statutory sentencing factors, the Court now finds that
    consecutive terms are necessary to adequately protect the public and
    are not disproportionate given the nature of these offenses, the
    seriousness of the conduct and the danger the offender poses to the
    public including the risk that the Defendant will reoffend * * *.
    (Case No. 20 CR 13938, Doc. No. 32); (Case No. 20 CR 14023, Doc. No. 24); (Case
    No. 20 CR 14128, Doc. No. 20); (Case No. 21 CR 14246, Doc. No. 8). In reviewing
    the record, it is clear to us that the trial court determined consecutive sentences: (1)
    were necessary to protect the public from future crime, (2) are not disproportionate
    to the seriousness of Smith’s conduct and the danger he poses to the public, and (3)
    were necessary to protect the public from future crime due to Smith’s history of
    criminal conduct.
    {¶20} Admittedly, the trial court’s consecutive-sentencing findings at the
    sentencing hearing and in the judgment entry of sentence are scant. However,
    reading the consecutive-sentencing findings the trial court made at the hearing in
    context and in conjunction with the findings made in the judgment entry, we can
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    discern that the trial court engaged in an appropriate analysis of the sentencing
    factors before imposing consecutive sentences.
    {¶21} Although, at the sentencing hearing, the trial court did not expressly
    use the term “disproportionate” in its consecutive-sentence findings, by stating that
    consecutive terms are necessary “so as not to demean the seriousness of [Smith’s]
    conduct,” it is clear the trial court conducted the necessary proportionality analysis
    and made the required finding. See State v. Rodriguez, 3d Dist. Defiance No. 4-16-
    16, 
    2017-Ohio-1318
    , ¶ 12 (finding that “[a]lthough the trial court could have been
    clearer in the language used at the hearing,” the trial court’s statements regarding
    the quantity of drugs involved in the offense and the danger to public “equate” to a
    finding that consecutive sentences are not disproportionate); State v. Fields, 10th
    Dist. Franklin No. 16AP-417, 
    2017-Ohio-661
    , ¶ 20 (holding that the trial court made
    a proportionality finding “even though the trial court employed the language of R.C.
    2929.14(C)(4)(b), rather than the specific language of R.C. 2929.14(C)(4).”); State
    v. Dixon, 10th Dist. Franklin No. 17AP-884, 
    2018-Ohio-3759
    , ¶ 10 (finding the trial
    court engaged in a proportionality analysis even though it did not use the statutory
    language).
    {¶22} Additionally, the trial court did not specifically state that Smith’s
    “history of criminal conduct” demonstrates that consecutive sentences are necessary
    to protect the public from future crime by Smith. However, in the context of the
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    sentencing hearing, it is clear the trial court considered Smith’s criminal history
    when imposing consecutive sentences.            Specifically, prior to making the
    consecutive-sentencing findings, the trial court conducted a lengthy review of
    Smith’s criminal history, which spanned decades, and included prior convictions for
    violating protection orders. (Mar. 24, 2021 Tr. at 20-21). In addition, the trial court
    reviewed the factual history of the present offenses, all of which involved the same
    victim, and which spanned several months in duration.             (Id. at 11-12, 21).
    Accordingly, in context, the trial court’s statement regarding Smith’s “absolute
    unwillingness to comply with the law” clearly references Smith’s extensive criminal
    history, including his history of violating protection orders and his continued
    harassment of the victim.
    {¶23} Finally, it is clear from the record that both parties understood and
    agreed that at least some portion of the sentences imposed would be consecutive.
    Specifically, at the sentencing hearing, the parties referenced a negotiated plea
    agreement that the parties intended to enter prior to Smith’s indictment for case
    number 21 CR 14246. This agreement consisted of a joint-recommendation of a
    cumulative sentence of 59 months in prison which necessarily included several
    consecutive sentences.      (Mar. 24, 2021 Tr. at 2-3).        Smith’s trial counsel
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    acknowledged this understanding by requesting that the trial court “keep [the
    sentence] at fifty-nine months.”1 (Id. at 17).
    {¶24} Having found that the trial court made the necessary findings prior to
    imposing consecutive sentences, we next address Smith’s argument that the record
    does not support the trial court’s consecutive-sentencing findings. Specifically,
    Smith complains that the record does not support the trial court’s findings that
    consecutive sentences were necessary to protect the public or proportionate to
    Smith’s behavior. We disagree.
    {¶25} Smith argues that the record does not support the trial court’s findings
    that consecutive sentences are proportionate or that consecutive sentences were
    necessary to protect the public or victim from future crime by Smith because (1) he
    did not engage in violence against the victim and (2) the victim invited Smith’s
    behavior. We will address both of Smith’s arguments in turn.
    {¶26} First, with respect to Smith’s allegation that he did not engage in
    violence against the victim, and thus, consecutive sentences are inappropriate, we
    find Smith’s argument to be misplaced. First, Smith was not charged with domestic
    violence. Furthermore, we are not aware of, and Smith fails to direct us to any
    1
    It is evident from the record that, prior to the filing of case number 21 CR 14246, the intention of the parties
    was to jointly recommend a sentence of less than five years to allow Smith to apply for judicial release after
    180 days. (See Nov. 9, 2020 Tr. at 3-4); (Mar. 24, 2021 Tr. at 2-4, 17). The joint recommendation included
    consecutive terms in order to arrive at the 59-month recommendation; however, the State agreed not to
    oppose Smith’s timely-filed motion for judicial release.
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    authority requiring a finding of physical violence for the trial court to impose
    consecutive sentences for menacing by stalking or violating a protection order.
    Moreover, although Smith attempts to downplay his conduct by contrasting
    domestic violence with his behavior of “only * * * call[ing] her repeatedly,” the
    record indicates that in the several months that Smith was incarcerated for menacing
    by stalking and violating a protection order, Smith contacted the victim more than
    600 times. (Mar. 24, 2021 Tr. at 11-12). The calls were described as a “persistent”
    and an “everyday occurrence” which consisted of “multiple calls per day” despite a
    protection order being in place. (Id.). Moreover, the record indicates that when the
    victim did not answer his telephone calls, Smith persisted to attempt to contact her
    using a third party. (Id. at 11). Accordingly, although the conduct underlying the
    offenses may not have included physical violence, Smith’s conduct is, nevertheless,
    an egregious violation of the applicable statutes.
    {¶27} Next, Smith argues that the consecutive sentences are not proper
    because M.L. was the only person harmed by Smith’s behavior and M.L. invited his
    contact with her. However, there is no requirement that the offender’s conduct must
    be directed toward multiple victims in order for the trial court to find that
    consecutive sentences are necessary to protect the public. Additionally, although
    M.L. is the only victim named in the indictments, the record reveals that Smith made
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    physical threats against M.L.’s friend upon discovering M.L. spending the weekend
    with this individual.
    {¶28} We are also not persuaded by Smith’s argument that the trial court
    erred by ordering consecutive sentences because the victim invited contact from
    Smith. The Supreme Court of Ohio has clarified that “[p]rotection orders are about
    the behavior of the respondent and nothing else. How or why a respondent finds
    himself at the petitioner’s doorstep is irrelevant.” State v. Lucas, 
    100 Ohio St.3d 1
    ,
    
    2003-Ohio-4778
    , ¶ 39. Moreover, the record indicates that the victim answered the
    phone on some occasions “because she feels it’s the only way that he’ll stop calling
    her on those days * * *.” (Mar. 24, 2021 Tr. at 12). The record reveals that M.L.
    has been a long-standing victim of Smith. In addition to the fact that the last three
    cases occurred while the first case was pending, M.L. was also the victim of Smith’s
    prior convictions for menacing by stalking dating back to 2012. (Id. at 20).
    Furthermore, Smith’s continued actions involving M.L., combined with his criminal
    history spanning decades, demonstrate Smith’s unwillingness to follow court orders
    and supports the trial court’s finding that Smith’s history of criminal conduct
    demonstrates that consecutive sentences are necessary to protect the public and are
    not disproportionate to the offenses.
    {¶29} Finally, although we conclude the findings the trial court made at the
    sentencing hearing and in the judgment entry of sentence were sufficient to support
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    consecutive-sentencings, we caution trial courts that even in cases where the
    defendant’s conduct is so egregious that the need for consecutive sentencing may
    seem obvious, the trial court still must pause and expressly make the necessary
    findings both at the sentencing hearing and in its subsequent journal entry.
    {¶30} Accordingly, because the trial court made the findings required by
    R.C. 2929.14(C)(4) before imposing consecutive sentences and those findings are
    supported by the record, defendant-appellant’s consecutive sentences are not clearly
    and convincingly unsupported by the record or otherwise contrary to law.
    {¶31} Smith’s assignment of error is overruled.
    {¶32} Having found no error prejudicial to the appellant herein in the
    particulars assigned and argued, we affirm the judgments of the Defiance County
    Common Pleas Court.
    Judgments Affirmed
    ZIMMERMAN, P.J. and WILLAMOWSKI, J., concur.
    /jlr
    -16-
    

Document Info

Docket Number: 4-21-04, 4-21-05, 4-21-06, 4-21-07

Citation Numbers: 2022 Ohio 420

Judges: Miller

Filed Date: 2/14/2022

Precedential Status: Precedential

Modified Date: 2/14/2022