Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
Nos. CR-12-561797-A, CR-13-578409-A, CR-14-584010-A,
CR-14-584791-A, and CR-14-586073-A
ATTORNEY FOR APPELLANT Erin R. Flanagan Erin R. Flanagan,
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor BY: Anthony Thomas Miranda Assistant
BEFORE: S. Gallagher, J., McCormack, P.J., and Boyle, J.
JOURNAL ENTRY AND OPINION
C. GALLAGHER, J.
Douglas Roberts, also known as Franklin Jenkins, appeals the
imposition of consecutive sentences following a limited
remand in State v. Jenkins, 8th Dist. Cuyahoga No.
101899, 2015-Ohio-2762. Roberts claims that the record does
not support the R.C. 2929.14(C)(4) finding that consecutive
service of his multiple sentences is proportionate to the
seriousness of the offender's conduct and the danger the
offender poses to the public. The parties also agree that
there is a typographical error in the final sentencing entry.
We affirm the conviction but remand for the limited purpose
of issuing a nunc pro tunc entry to correct the clerical
In Jenkins, the imposition of consecutive sentences,
culminating in the aggregate prison term of 18 years and 11
months, was reversed under the authority of State v.
Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d
659, because the trial court had not made the second finding
under R.C. 2929.14(C)(4) - that the consecutive sentences
would not be "disproportionate to the seriousness of the
offender's conduct and the danger the offender poses to
the public." Upon remand, the trial court made the
omitted finding and reimposed the original, aggregate term.
Roberts appeals once again, and accordingly, we adopt the
facts as stated from Jenkins:
The sentence resulted after [Roberts's] guilty pleas in
five separate cases, and included consecutive terms.
In the first case, Cuyahoga C.P. No. CR--561797-A,
[Roberts] pled to robbery. He was originally sentenced to
community control sanctions and ordered to participate in a
community-based treatment program. The trial court informed
him that he would be sentenced to a four-year prison term if
he violated his community control sanctions.
[Roberts's] second case was Cuyahoga C.P. No.
CR--578409-A, in which he pled to breaking and entering.
The trial court sentenced him to an 11-month prison term, but
suspended the sentence so that he could continue to
participate in the treatment program. The court continued his
community control sanctions for 18 months, to run consecutive
to the first case.
Several months later, [Roberts] entered guilty pleas in three
other separate cases. In Cuyahoga C.P. No. CR-14-584010-A, he
pled to escape; in Cuyahoga C.P. No. CR-14-586073-A, he pled
to two counts of burglary; and in Cuyahoga C.P. No.
CR-14-584791-A, he pled to burglary with a notice of prior
In August 2014, the trial court held a sentencing hearing.
The court terminated [Roberts's] community control
sanctions in Case Nos. CR--561797-A and CR--578409-A,
and sentenced him to four years and 11 months, respectively,
on those cases. In Case No. CR-14-584010-A, [Roberts] was
sentenced to six months; in Case No. CR-14-586073-A, he was
sentenced to seven years on each of the two burglary counts,
to be served concurrent to each other; and in Case No.
CR-14-584791-A, he was sentenced to seven years. With the
exception of the six-month sentence in Case No.
CR-14-584010-A and the concurrent terms on the two burglary
charges in Case No. CR-14-586073-A, the trial court ordered
all the other terms to be served consecutively, for an
aggregate sentence of 18 years and 11 months.
Jenkins at ¶ 2-6. Thus, the 18-year, 11-month
aggregate prison sentence was not the maximum aggregate term
at the trial court's disposal.
In his second, third, and fourth assignments of error,
Roberts challenges the validity of the underlying sentences,
claiming (1) the prior conviction specification was contrary
to law because the trial court did not rule on or reference
the qualifying conviction at the resentencing hearing; (2)
the trial court erred in imposing costs in the resentencing
entry although the costs were properly imposed in the
original sentencing; and (3) the trial court erred in
ordering restitution in the resentencing hearing without
first establishing the amounts due through evidence
introduced at the resentencing hearing.
We cannot address those three assigned errors, all of which
challenge aspects of the underlying sentence that were not
part of the limited remand. Jenkins, 8th Dist.
Cuyahoga No. 101899, 2015-Ohio-2762, at ¶ 12. "It
is well recognized that the doctrine of res judicata bars
claims that were raised or could have been raised on direct
appeal." State v. Fountain, 8th Dist. Cuyahoga
Nos. 92772 and 92874, 2010-Ohio-1202, ¶ 9, citing
State v. Davis, 119 Ohio St.3d 422, 2008-Ohio-4608,
894 N.E.2d 1221. The trial court was without authority to
address anything but the consecutive sentencing findings.
State v. Ferrell, 8th Dist. Cuyahoga No. 100659,
2014-Ohio-4377, ¶ 47; State v. Nia,
2014-Ohio-2527, 15 N.E.3d 892, ¶ 22 (8th Dist.)
("the trial court is limited on remand to only the
question raised regarding the required findings pursuant to
R.C. 2929.14(C)(4) to justify consecutive sentences").
Jenkins remanded the matter solely for "the
trial court to consider whether consecutive sentences are
appropriate under R.C. 2929.14(C)(4), and, if so, to make the
required findings on the record." Jenkins at
¶ 12, citing Nia at ¶ 22; State v.
Frost, 8th Dist. Cuyahoga No. 100498, 2014-Ohio-2645,
¶ 10; State v. Dennison, 10th Dist. Franklin
No. 15AP-592, 2016-Ohio-8361, ¶ 67.
Having said that, the parties agree that there appears to be
a typographical error in the final sentencing entry in
Cuyahoga C.P. No. CR-14-586073-A. The trial court imposed
restitution in the amount of $10, 280.60 payable to one of
the victims. The state and Roberts believe that amount should
have been $1, 028.60 as established at the original
sentencing hearing. A trial court retains continuing
jurisdiction to correct clerical errors in a judgment by nunc
pro tunc entry to reflect that which actually was decided.
State ex rel. Womack v. Marsh, 128 Ohio St.3d 303,
2011-Ohio-229, 943 N.E.2d 1010, ¶ 13, citing State
ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353,
2006-Ohio-5795, 856 N.E.2d 263, ¶ 18-19, and Crim.R. 36
("[c]lerical 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"). Although Roberts failed to address this issue in
Jenkins, in light of the state's concession, we
remand for the limited purpose of issuing a nunc pro tunc
sentencing entry to correct the restitution amount to reflect
the restitution demonstrated at the original sentencing
hearing. See State v. McGee, 8th Dist. Cuyahoga No.
104566, 2017-Ohio-1363, ¶ 10.
In his first assignment of error, Roberts claims that the
consecutive sentencing findings are not supported by the
record. R.C. 2929.14(C)(4) authorizes the trial court to
order consecutive sentences if, as is pertinent to this case,
consecutive service (1) is necessary to protect the public
from future crime or to punish the offender; (2) is not
disproportionate to the seriousness of the offender's
conduct and to the danger the offender poses to the public;
and additionally, (3) if the offender committed the offense
while awaiting trial or sentencing, under community control
monitoring, or under postrelease control for a prior offense.
State v. Jones, 8th Dist. Cuyahoga No. 104152,
2016-Ohio-8145, ¶ 5, citing State v. Smeznik,
8th Dist. Cuyahoga Nos. 103196 and 103197, 2016-Ohio-709,
The trial court made all the required findings, and Roberts
is not challenging that aspect of his sentences. Instead,
Roberts claims that the record does not support the second
finding, that consecutive sentences are not disproportionate
to the seriousness of the offender's conduct and to the
danger the offender poses to the public because the trial
court referred to his criminal history collectively as eight
"aggravated burglaries" Further, Roberts claims
that the trial court was required to find that the harm
caused by the offenses was so great or unusual that no single
prison term adequately reflected the seriousness of the
offender's conduct under R.C. 2929.14(C)(4)(b).
In this case, Roberts contends that the consecutive sentences
were disproportionate to his conduct and the danger he poses
to the public because the trial court could not conclude that
the multiple offenses he committed while serving community
control sanctions, were "so great and unusual that no
single prison term for any of the offenses committed as part
of any of the course of conduct adequately reflects the
seriousness of the offender's conduct" under R.C.
2929.14(C)(4)(b). This conclusion, however, inappropriately
combines the proportionality finding with another,
independent finding, one that the trial court was not
required to make in this particular case because it is
undisputed that Roberts committed the new crimes while
serving community control sanctions, under R.C.
2929.14(C)(4)(a). Only one of the subdivision (a)-(c)
findings is necessary to support consecutive service of
Further, the off-the-cuff generalization of Roberts's
history of criminal conduct is a minor distinction that does
not undermine the trial court's ultimate conclusion when
the totality of the sentencing hearing is considered. If the
court made the required findings in order to impose
consecutive sentences, we must affirm those sentences unless
we "clearly and convincingly find that the record does
not support the court's findings. R.C. 2953.08(G)(2);
State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453,
¶ 19 (8th Dist). The statute is written in the negative;
that is, an appellate court does not need to clearly and
convincingly find that the record supports the findings in
order to affirm, but instead must clearly and convincingly
find that the record does not support the findings in order
to reverse or modify a sentence. Venes; State v.
Higginbotham, 10th Dist. Franklin Nos. 17AP-147 and
17AP-150, 2017-Ohio-7618, ¶ 11, citing State v.
Moore, 11th Dist. Geauga No. 2014-G-3183,
2014-Ohio-5182, ¶ 29, and State v. Hale, 5th
Dist. Perry No. 14-CA-00014, 2014-Ohio-5028; State v.
Timpe, 12th Dist. Clermont No. CA2015-04-034,
2015-Ohio-5033, ¶ 9; State v. Thompson, 9th
Dist. Wayne No. 15AP0016, 2016-Ohio-4689, ¶ 45;
State v. Creech, 4th Dist. Scioto No. 16CA3730,
2017-Ohio-6951, ¶ 11; State v. Cochran, 2d
Dist. Clark No. 2016-CA-33, 2017-Ohio-217, ¶ 7. This is
a deferential standard of appellate review. State v.
Rahab, 150 Ohio St.3d 152, 2017-Ohio-1401, 80 N.E.3d
431, ¶ 10.
The record amply reflects that consecutive sentences are not
disproportionate to Roberts's conduct or the danger he
poses to the public. Roberts committed numerous burglaries,
aggravated burglaries, robberies, receiving stolen property,
and breaking and entering crimes against numerous victims
over the span of his criminal career dating back to the
mid-1980s. Most of that time was spent in prison. Tr.
10:21-24. To put this in perspective, at the end of 2004,
Roberts pleaded guilty to burglary and was sentenced to two
years in prison. In 2006, Roberts reoffended and almost a
year later was sentenced to five years in prison for two
burglaries. In 2012, Roberts pleaded guilty to robbery and
was sentenced to community control. In 2013, Roberts pleaded
guilty to breaking and entering and was sentenced to an
additional term of community control. That led to the 2014
cases, which were the result of three more burglaries.
That the trial court, in an aside, generalized Roberts's
past convictions as aggravated burglaries does not undermine
the proportionality finding because the trial court was
expressly looking at the past offenses as being in the
"same genre of conduct" as the current offenses.
The trial court was not focused on the aggravated nature of
the crimes. The record supports the trial court's
finding. More than ten of Roberts's convictions involved
some form of burglary or theft offense. As the trial court
explained to Roberts,
You break into people's homes. You deprive them of their
safety, deprive them of their goods, and you continue to
engage in the same conduct despite the fact you've been
down to prison before, despite the fact that I gave you the
opportunity to address that behavior through community
sanctions. I don't believe it's disproportionate
given the fact that you now have - I think it's eight
aggravated burglaries. You've got an escape. You know,
there's no changing your behavior.
context, the trial court's generalization does not amount
to the proportionality finding not being supported by the
record. There must be more. See, e.g., State v.
Spencer, 8th Dist. Cuyahoga No. 101131, 2014-Ohio-5430,
¶ 12 (criminal nonsupport is not an inherently violent
crime, and when that fact is coupled with several misstated
facts recounting the offender's criminal history and the
lack of any criminal behavior for 24 years, it was clearly
and convincingly found that the record did not support the
finding that consecutive sentences imposed for three counts
of criminal nonsupport were not disproportionate to the
danger the offender posed to the public).
In this case, we cannot conclude - much less by clear and
convincing evidence find - that the record does not support
the second finding that consecutive sentences are not
disproportionate to Roberts's conduct and the danger he
poses to the public. Roberts's history of criminal
conduct demonstrates the need to prevent Roberts from harming
the public through a lengthy incarceration. When Roberts is
not incarcerated, he is burglarizing people's homes. The
purpose of R.C. 2929.14(C)(4) is to prevent this type of
career criminal from perpetuating a cycle of criminality upon
the public. Moreover, R.C. 2929.12 provides that the
sentencing court "has discretion to determine the most
effective way to comply with the purposes and principles of
sentencing set forth in section 2929.11 of the Revised Code[,
]" including the minimum sanction necessary to
accomplish protecting the public from Roberts and others. In
exercising that discretion, the trial court expressly
considered the need to incapacitate Roberts as a serial
burglar and the need to protect the public from being
victimized by Roberts.
In a similar case, a panel from this court affirmed a longer
aggregate sentence for an offender who committed a similar
number of burglaries while serving community control
sanctions. State v. Aniton, 8th Dist. Cuyahoga No.
102440, 2015-Ohio-4080, ¶ 4. Importantly,
Aniton rejected the offender's argument that
consecutive sentences should be reserved only for the worst
offenders who commit offenses that actually injure the
public. Id. at ¶ 15-16. The defendant had an
extensive criminal history and one of drug dependency, but no
violent offenses. Id. at ¶ 7-8. The victim of
the home invasion, however, was traumatized and
psychologically harmed. Id. at ¶ 16. The trial
court expressed its disappointment in first granting leniency
to the offender, who then committed several crimes while
serving community control. Id. at ¶ 8. On these
facts, it was easily concluded that not only did the
defendant fail to demonstrate that the record did not support
the findings with respect to his 21-year aggregate sentence,
but that the trial court's consecutive sentence findings
actually were "clearly and convincingly
supported by the record." (Emphasis added.) Id.
at ¶ 16.
Similar to Aniton, Roberts has an extensive history
of criminal conduct, Roberts traumatized his victims as a
result of the home invasions, and the trial court noted its
failed attempt to rehabilitate Roberts by imposing community
control sanctions on the earlier offenses. More importantly,
Roberts could have received a longer aggregate sentence, but
the trial court imposed a shorter, aggregate term than the
one affirmed in Aniton. Accordingly, we cannot
clearly and convincingly find that the aggregate sentence is
disproportionate to Roberts's criminal conduct in general
and the danger he poses to the public by continually
burglarizing homes and robbing victims. Roberts's first
assignment of error is overruled.
The dissent maintains that we should modify the consecutively
imposed sentences to concurrent ones because the crimes
committed were not inherently egregious or
violent. We must caution against this mind-set.
Consecutive sentences are not imposed upon a consideration
limited to the offender's conduct as it relates to the
convictions. In fact, even within the individual sentencing
structure, the trial court may look beyond the offender's
conduct as it relates to the charged crimes. State v.
Steele, 8th Dist. Cuyahoga No. 105085, 2017-Ohio-7605,
For the purpose of consecutive sentencing review, this
concept is more pronounced. "Conduct" under R.C.
2929.14(C)(4) is "understood 'to encompass more than
just the facts supporting conviction on a particular
offense.'" Dennison, 10th Dist. Franklin
No. 15AP-592, 2016-Ohio-8361, at ¶ 61, quoting State
v. Diaz, 8th Dist. Cuyahoga No. 102582, 2015-Ohio-4382,
¶ 9. The cumulative length of an offender's
incarceration is "attributable to the number of
offenses he committed." (Emphasis sic.) State v.
Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d
1073, ¶ 16. Thus, appellate courts must broadly review
the entirety of the offender's criminal conduct in
reviewing consecutive sentence findings. State v.
Moore, 2014-Ohio-5135, 24 N.E.3d 1197, ¶ 33 (8th
Dist). Indeed, R.C. 2929.14(C)(4) provides in part that
consecutive service may be imposed if the trial court finds
"that consecutive sentences are not disproportionate to
the seriousness of the offender's conduct and to
the danger the offender poses to the public." (Emphasis
added.) Id. "Had the legislature intended to
limit appellate review to whether consecutive sentences are
not disproportionate to the seriousness of the crime itself
(as opposed to the offender's conduct and the danger the
offender poses to the public) it could have done so."
Roberts was not sentenced to more than 18 years in prison for
stealing a bottle of Pepsi or for any other trivialized
characterization of his individual crimes. Roberts's
sentences on each of the individual offenses were less than
the maximum ones authorized by law for each offense. Some of
those individual terms were imposed to be served
consecutively, meaning the aggregate term was imposed based
on the number of offenses committed and Roberts's history
of criminal behavior. The fact that the newest crimes may
have been less severe than the ones he committed ...