[Cite as State v. Smith,
2011-Ohio-2037.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 95396 and 95397
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
CHAKA S. SMITH
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-535288 and CR-525115
BEFORE: Kilbane, A.J., S. Gallagher, J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: April 28, 2011
ATTORNEY FOR APPELLANT
Kelly A. Gallagher
P.O. Box 306
Avon Lake, Ohio 44012
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
John Hanley
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, A.J.:
{¶ 1} In these consolidated appeals, defendant-appellant, Chaka Smith, challenges the
concurrent five-year prison terms imposed in Case Nos. CR-525115 and CR-535288. For the
reasons set forth below, we affirm.
{¶ 2} With regard to Case No. CR-525115, the record indicates that on June 16, 2009,
defendant was indicted on two counts of robbery. On July 29, 2009, defendant pled guilty to
robbery as charged in Count 2, and Count 1 was nolled. At this time, the trial court advised
defendant as follows:
“THE COURT: This charge is a felony of the third degree, and your
possible prison sentence is anywhere from one to five years … in prison.
Do you understand?
…
I am going to sentence you to two years of community control. During this
time, you will be under the supervision of the probation department. …
Other than that, I am not going to load up a bunch of conditions. Here’s the
main condition. You violate once, you will be sentenced to five years in
prison. So if you don’t report, if you test positive for anything from
marijuana on up to cocaine or heroin or anything that you particularly enjoy, I
have got to impose a prison term on that. If you want, I could give you one
year today. Do you want to do that and get it over with?
THE DEFENDANT: No.
THE COURT: You have two months of credit. It will be a 10-month
treatment.
…
THE COURT: If you violate, you have got five years. ….”
{¶ 3} Thereafter, on the same day, the trial court sentenced defendant to two years of
community control sanctions.
{¶ 4} On January 25, 2010, the trial court scheduled a probation violation hearing at
the request of the Cuyahoga County Probation Department, to determine whether defendant
violated her community control sanctions. Defendant did not appear at the scheduled
February 4, 2010 hearing.
{¶ 5} On March 12, 2010, defendant was involved in an incident with her stepfather,
Jerry Henderson. On March 17, 2010, defendant made her initial appearance in Case No.
CR-535288, which arose in connection with this new matter.
{¶ 6} On March 19, 2010, the trial court heard the probation violation matter from
Case No. CR-525115. The court subsequently determined that defendant violated the terms
of her community control sanctions because she tested positive for cocaine use on December
16, 2009, and failed to attend the hearing on February 4, 2010. The trial court did not
determine the sanction to be imposed, however, and deferred that issue pending the “resolution
of Ohio v. Chaka Smith, Case Number CR 535288.”
{¶ 7} On March 25, 2010, defendant was indicted in Case No. CR-535288 on two
counts of attempted murder, one count of felonious assault, and one count of domestic
violence with a furthermore clause alleging that defendant had previously been convicted of
aggravated assault, a fourth degree felony. The State subsequently amended the domestic
violence charge to delete the furthermore clause, a misdemeanor. Thereafter, on May 19,
2010, defendant pled guilty to felonious assault and misdemeanor domestic violence, and the
remaining charges were dismissed.
{¶ 8} On June 15, 2010, the trial court held an additional hearing on the probation
violation issue. At this time, defendant waived the issue of probable cause. The probation
officer reported that defendant tested positive for cocaine use, failed to appear for a probation
violation hearing on February 4, 2010, and had entered guilty pleas to felonious assault and
misdemeanor domestic violence on May 19, 2010.
{¶ 9} At this time, defendant’s counsel spoke and indicated that the offenses stemmed
from defendant’s inability to control her emotions. Her counsel explained that she is now
dealing with her substance abuse and anger issues, and her experience in treatment has helped
her to get her life in order. Defendant’s counsel explained that defendant had the opportunity
to go into transitional housing, but her mother insisted that she was needed at home to help
care for her younger siblings. Defendant returned home, where events occurred leading to
new charges being field against her. Defendant’s counsel additionally explained that
defendant did stab her stepfather in the shoulder during an argument. His injuries were
serious but not life threatening, and he has indicated that he suffers no long-term damage.
Defendant then told the court that she had received inpatient treatment for only nine days, and
she wished that it had been longer since it helped her.
{¶ 10} The court imposed sentence in both matters and stated:
“[H]aving considered Revised Code 2929.11 and 12 in both cases, I believe a
prison term is appropriate. In case no. 535288 I will order, on count 3, you
are sentenced to the Ohio Reformatory for Women for five years, and count 4
you are sentenced to time served. That was a misdemeanor.
In 525115, community control will be terminated and you will be sentenced to
the Ohio Reformatory for Women for five years. Both of these sentences
include three years mandatory post release control called PRC.
…
These sentences will run concurrent. You are talking a total five year
sentence.”
{¶ 11} Defendant now appeals and asserts the following assignment of error as to both
sentences:
“The appellant’s sentence was an abuse of discretion.”
{¶ 12} Within this assignment of error, defendant asserts that the trial court abused its
discretion in imposing a five-year sentence in this matter.
{¶ 13} In State v. Foster, 109 Ohio St.3d 1,
2006-Ohio-856,
845 N.E.2d 470, the Ohio
Supreme Court held that trial courts were no longer required to make findings when “imposing
maximum, consecutive, or more than the minimum sentences.” The Foster court then
severed these provisions from the Ohio Revised Code and held that “[t]rial courts have full
discretion to impose a prison sentence within the statutory range and are no longer required to
make findings or their reasons for imposing maximum, consecutive, or more than the
minimum sentences.”
Id., at paragraph seven of the syllabus.
{¶ 14} In Oregon v. Ice (2009), 555 U.S. 160,
129 S.Ct. 711,
172 L.Ed.2d 517, the
United States Supreme Court upheld a statute that required judicial fact finding when imposing
consecutive sentences, and concluded that the Sixth Amendment to the United States
Constitution is not violated when sentencing judges, rather than juries, make the findings of
facts necessary for the imposition of consecutive, rather than concurrent, sentences for
multiple offenses. Id. at 716-720.
{¶ 15} Recently, in State v. Hodge, 128 Ohio St.3d 1,
2010-Ohio-6320,
941 N.E.2d
768, the Ohio Supreme Court rejected the argument that the decision in Ice automatically and
retroactively reinstates the consecutive-sentencing statutes that were excised in Foster. The
court stated:
“[T]he decision of the United States Supreme Court in [Ice] does not revive
Ohio’s former consecutive-sentencing statutory provisions, R.C.
2929.14(E)(4) and 2929.41(A), which were held unconstitutional in [Foster].
Because the statutory provisions are not revived, trial court judges are not
obligated to engage in judicial fact-finding prior to imposing consecutive
sentences unless the General Assembly enacts new legislation requiring that
findings be made.
The trial court in this case did not err in imposing consecutive sentences
without applying R.C. 2929.14(E)(4) and 2929.41(A)[.]” Hodge at ¶39, 40.
{¶ 16} The Hodge court held that trial court judges are not obligated to engage in
judicial fact-finding prior to imposing consecutive sentences unless the General Assembly
enacts new legislation requiring that findings be made. Id.; Accord State v. Reed, Cuyahoga
App. No. 91767, 2009-Ohio-2264; State v. Lockhart, Cuyahoga App. No. 95093,
2011-Ohio-936.
{¶ 17} Therefore, subsequent to Foster, appellate courts must apply a two-step
approach when reviewing a defendant’s sentence. State v. Kalish, 120 Ohio St.3d 23,
2008-Ohio-4912,
896 N.E.2d 124. “First, they must examine the sentencing court’s
compliance with all applicable rules and statutes in imposing the sentence to determine
whether the sentence is clearly and convincingly contrary to law. If this first prong is
satisfied, the trial court’s decision shall be reviewed under an abuse-of-discretion standard.”
Id.
{¶ 18} The court explained that as part of its analysis of whether the sentence is
“clearly and convincingly contrary to law,” an appellate court must ensure that the trial court
considered the purposes and principles of R.C. 2929.11 and the factors listed in R.C. 2929.12.
{¶ 19} R.C. 2929.11(A) provides that:
“A court that sentences an offender for a felony shall be guided by the
overriding purposes of felony sentencing[,] … to protect the public from
future crime by the offender and others and to punish the offender. To
achieve those purposes, the sentencing court shall 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.”
{¶ 20} The goal of felony sentencing pursuant to R.C. 2929.11(B) is to achieve
“consistency” not “uniformity.” State v. Klepatzki, Cuyahoga App. No. 81676,
2003-Ohio-1529. The trial court is not required to make express findings that the sentence is
consistent with other similarly situated offenders. State v. Cadiou, Cuyahoga App. No.
91696,
2009-Ohio-1789. Furthermore, an appellate court is not required to review the record
to determine whether the trial court “imposed a sentence that is lockstep with others, but
whether the sentence is so unusual as to be outside the mainstream of local judicial practice.”
State v. Dawson, Cuyahoga App. No. 86417,
2006-Ohio-1083. The defendant must raise this
issue before the trial court and present some evidence, however minimal, in order to provide a
starting point for analysis and to preserve the issue for appeal. State v. Woods, Cuyahoga
App. No. 82789,
2004-Ohio-2700.
{¶ 21} Under R.C. 2929.12(A), “a court that imposes a sentence under this chapter
upon an offender for a felony 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. In exercising that discretion, the court shall consider the factors set forth in divisions
(B) and (C) of this section relating to the seriousness of the conduct and the factors provided
in divisions (D) and (E) of this section relating to the likelihood of the offender’s recidivism
and, in addition, may consider any other factors that are relevant to achieving those purposes
and principles of sentencing.”
{¶ 22} In Kalish, the Supreme Court also made clear that even after Foster, “where the
trial court does not put on the record its consideration of R.C. 2929.11 and 2929.12, it is
presumed that the trial court gave proper consideration to those statutes.” Id. at fn. 4, citing
State v. Adams (1988), 37 Ohio St.3d 295,
525 N.E.2d 1361, paragraph three of the syllabus.
{¶ 23} Applying all of the foregoing, we find that the trial court did not err in
sentencing appellant. On July 29, 2009, at the time that defendant pled guilty to the charge
of robbery, and prior to the occurrence of the second matter involving the stabbing of
defendant’s stepfather, the court informed defendant that, potentially, she faced from one to
five years of imprisonment on that charge. The court specifically apprised her that she would
receive a five-year sentence for the robbery charge if she violated the terms of community
control.
{¶ 24} Later, after defendant pled guilty to the additional charges of felonious assault
and misdemeanor domestic violence, the court imposed a single, concurrent five-year term for
both the robbery conviction and the felonious assault and domestic violence convictions.
That is, the court imposed the five-year term announced at the July 29, 2009 hearing in Case
No. CR-525115, despite the fact that defendant had also, at the time of the sentencing,
admitted to felonious assault and domestic violence in Case No. CR-535288. Therefore, the
court imposed no additional penalty despite the fact that defendant had committed the
additional serious offenses.
{¶ 25} Moreover, the sentence was within the statutory range of penalties for robbery
in violation of R.C. 2911.02(A)(3), i.e., one, two, three, four, or five years in prison. R.C.
2929.14(A)(3). The sentence was also within the range of penalties for felonious assault, a
felony of the second degree, R.C. 2903.11(A)(2), i.e., two, three, four, five, six, seven, or eight
years in prison. R.C. 2929.14(A)(2).
{¶ 26} Further, the trial court stated that it had considered the purposes and goals of
sentencing set forth in R.C. 2929.11. There was no evidence that the sentence is so unusual
as to be outside the mainstream of local judicial practice.
{¶ 27} In addition, the record indicates that the trial court considered the factors
outlined in R.C. 2929.12, including the seriousness of the conduct, the likelihood of recidivism
in relation to defendant’s substance abuse and emotional issues, and also considered her
limited inpatient treatment as well as her housing issues.
{¶ 28} In accordance with the foregoing, the court complied with the applicable
statutes in imposing the sentence, and it is not clearly and convincingly contrary to law. We
find no abuse of discretion. Accordingly, appellant’s assignments of error are overruled.
Judgment affirmed.
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.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE
SEAN C. GALLAGHER, J., and
EILEEN A. GALLAGHER, J., CONCUR
