State v. Franklin

[Cite as State v. Franklin, 

.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                       :

                 Plaintiff-Appellee,                 :
                                                              No. 107454
                 v.                                  :

NICHOLAS FRANKLIN,                                   :

                 Defendant-Appellant.                :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: September 19, 2019


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-17-622587-C


                                               Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Daniel A. Cleary, Assistant Prosecuting
                 Attorney, for appellee.

                 Allison S. Breneman, for appellant.


EILEEN T. GALLAGHER, P.J.:

                   Defendant-appellant, Nicholas Franklin (“Nicholas”), appeals from

his sentence following a guilty plea. He raises the following assignment of error for

review:

        1. The trial court erred in imposing consecutive sentences.
              After careful review of the record and relevant case law, we affirm

Nicholas’s sentence.

                        I. Procedural and Factual History

              In November 2017, Nicholas and his codefendants, Holley Hentges

and Malicke Franklin, were named in an eight-count indictment, charging them

each with aggravated murder in violation of R.C. 2903.01(A); aggravated murder in

violation of R.C. 2903.01(B); murder in violation of R.C. 2903.02(B); three counts

of aggravated burglary in violation 2911.11(A)(1); felonious assault in violation of

R.C. 2903.11(A)(1); and kidnapping in violation of R.C. 2905.01(A)(3). The

indictment stemmed from the aggravated burglary of victims, R.H. and T.L., and the

death of victim, C.F., who was killed during the defendants’ commission of an

aggravated burglary.1

              In June 2018, Nicholas entered into a plea agreement with the state.

Following an extensive Crim.R. 11 colloquy, Nicholas pleaded guilty to involuntary

manslaughter in violation of R.C. 2903.04(A), as amended in Count 1; and

aggravated burglary in violation of R.C. 2911.11(A)(1), as amended in Count 4. The

remaining counts were nolled. The trial court accepted Nicholas’s guilty plea,

referred Nicholas to the probation department for a presentence investigation

report, and set the matter for sentencing.




      1  The record reflects that codefendant Hentges is the mother of Nicholas and
Malicke. In addition, R.H. is the sister of Hentges. R.H. was engaged to be married to
C.F. at the time of the incident.
               Nicholas’s sentencing hearing was held in July 2018. During the

hearing, defense counsel asked the trial court to consider relevant mitigating factors,

including Nicholas’s lack of a felony record, his sincere remorse, and the scope of his

involvement in the underlying criminal incident. Counsel described Nicholas as a

“minor participant” in the aggravated burglary that resulted in C.F.’s “unintended”

death. Counsel asserted that no weapons were utilized during the incident and that

Nicholas only got involved in the altercation with C.F. because of his mother,

codefendant Hentges, and the influence she has on Nicholas. For these reasons,

counsel suggested that a three-year prison sentence was appropriate.

               Nicholas also addressed the court. He accepted responsibility for his

actions and apologized to the victim’s family.

               The trial court then heard from the state and family members of C.F.

Relevant to this appeal, the state disputed defense counsel’s interpretation of

Nicholas’s involvement in C.F.’s death. The state indicated that the three defendants

entered the victim’s home without his consent and with the intent “to invoke serious

physical harm that led to [C.F.’s] death.” Regarding Nicholas, the state informed the

court that “witnesses saw him punching and striking [C.F.] down in the lower area

of his abdomen where two broken ribs were — his ninth and tenth rib[s] were

broken.” The state explained that this was significant because “that’s what ruptured

the spleen that led to [C.F.] internally bleeding.” Thus, the state opined that

Nicholas “basically did one of the death shots.” Finally, the state dismissed defense

counsel’s reference to Hentges’s influence over Nicholas, stating “[Nicholas], who
was an adult, could have told his mother no. … [The defendants] went over there

in agreed force and placed force on [the victims].”

              Upon consideration, the trial court sentenced Nicholas to nine years

in prison on each count, to run consecutively, for an aggregate prison term of 18

years.

              Nicholas now appeals from his sentence.

                              II. Law and Analysis

              In his sole assignment of error, Nicholas argues the trial court erred

by imposing consecutive sentences. He contends that the trial court’s imposition of

maximum consecutive terms was “contrary to the felony sentencing guidelines.”

              We review felony sentences under the standard set forth in R.C.

2953.08(G)(2). State v. Marcum, 

, 

, 

, ¶ 16. R.C. 2953.08(G)(2) provides that when reviewing felony sentences, a

reviewing court may overturn the imposition of consecutive sentences where the

court “clearly and convincingly” finds that (1) “the record does not support the

sentencing court’s findings under R.C. 2929.14(C)(4),” or (2) “the sentence is

otherwise contrary to law.” The imposition of consecutive sentences is contrary to

law if a trial court fails to make the findings mandated by R.C. 2929.14(C)(4). State

v. Morris, 

, 

, ¶ 24 (8th Dist.), citing State v. Bonnell,

, 

, 

.

              R.C. 2929.14(C)(4) provides that in order to impose consecutive

sentences, the trial court must find that consecutive sentences are (1) necessary to
protect the public from future crime or to punish the offender, (2) that such

sentences would not be disproportionate to the seriousness of the conduct and to

the danger the offender poses to the public, and (3) that one of the following applies:

      (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 postrelease 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.

               Compliance with R.C. 2929.14(C)(4) requires the trial court to make

the statutory findings at the sentencing hearing, which means that “‘the [trial] court

must note that it engaged in the analysis’ and that it ‘has considered the statutory

criteria and specifie[d] which of the given bases warrants its decision.’” 

, quoting State v. Edmonson, 

, 

 (1999).

Further, the reviewing court must be able to discern that the record contains

evidence to support the findings. State v. Davis, 8th Dist. Cuyahoga No. 102639,

, ¶ 21, citing 

. A trial court is not, however, required

to state its reasons to support its findings, nor is it required to precisely recite the

statutory language, “provided that the necessary findings can be found in the record

and are incorporated in the sentencing entry.” 

.
              On appeal, Nicholas does not argue that the trial court failed to make

the requisite consecutive sentencing findings under R.C. 2929.14(C)(4). Rather,

Nicholas contends that the record does not support the trial court’s findings.

According to Nicholas, “there was nothing put on the record, no facts at all, that

would make this case deserving of a maximum consecutive sentence of 18 years in

prison.” He further asserts that his lack of a criminal history, his sincere remorse,

and his “minimal” role in the victim’s death are factors that support the imposition

of concurrent sentences.

              Contrary to Nicholas’s position on appeal, the trial court was not

required to place facts on the record or state reasons in support of its consecutive

sentence findings. State v. Johnson, 8th Dist. Cuyahoga No. 106450, 2018-Ohio-

3670, ¶ 49, citing 

. Where the trial court made the requisite

consecutive sentencing findings, R.C. 2953.08(G)(2) requires this court to affirm an

order of consecutive service unless we “clearly and convincingly” find that the record

does not support the court’s findings in support of consecutive sentences. State v.

Simmons, 8th Dist. Cuyahoga No. 107144, 

.             “This is an

extremely deferential standard of review.” State v. Venes, 

, 

, ¶ 21 (8th Dist.).

              After careful review of the record in its entirety, we find no basis to

conclude that the record does not support the court’s findings under R.C.

2929.14(C)(4). In this case, the trial court carefully considered Nicholas’s familial

relationship with the victims, discussed the great harm caused by the multiple
offenses, weighed the need to protect the public, and evaluated the proportionality

of the punishment to Nicholas’s conduct. The trial court described the crimes

committed by Nicholas as “extremely violent” and discussed the ongoing trauma

caused to C.F.’s family. The court further rejected defense counsel’s characterization

of Nicholas’s involvement in the crimes as being “minimal,” stating:

      A man [was] beaten to death by three people in front of his fiancée and
      the other occupants of the home. … [The] three of you did it together,
      you’re all equally responsible and that’s the way the Court sees it.

              On this record, Nicholas has not demonstrated that the trial court’s

findings relied on facts that were demonstrably wrong. See State v. Perkins, 8th

Dist. Cuyahoga Nos. 106877 and 107155, 

; State v. Williams, 8th

Dist. Cuyahoga No. 100488, 

.           Instead, Nicholas merely

reiterates the mitigation arguments that were previously raised before the court

during the sentencing hearing. Thus, Nicholas’s position seems to suggest that the

trial court abused its discretion by not giving enough weight to the relevant factors

he believes weigh heavily in favor of concurrent sentences.            However, R.C.

2953.08(G)(2) makes clear that our standard of review is not whether the

sentencing court abused its discretion. See Perkins at ¶ 17.

              We note that Nicholas’s lack of a criminal history did not render the

imposition of consecutive sentences to be inappropriate in this case. As this court

has previously explained, even where a defendant has no criminal history,

consecutive sentences may be imposed if the court makes one of the alternative

findings under R.C. 2929.14(C)(4)(a) or (b). State v. Nave, 8th Dist. Cuyahoga No.
107032, 

. Here, the court found R.C. 2929.14(C)(4)(b) applied,

stating that Nicholas’s commission of the involuntary manslaughter and aggravated

burglary offenses caused harm that “is so great or unusual that a single term is not

adequate to reflect the seriousness of the conduct.” As stated, it cannot be concluded

that the record clearly and convincingly does not support this finding given the

circumstances of C.F.’s death.

               The record further reflects that the trial court considered Nicholas’s

claims of remorse under R.C. 2929.12 when imposing a term of imprisonment on

each first-degree felony offense. At the sentencing hearing and again in the final

entry of conviction, the trial court expressly stated that it considered all sentencing

factors as required by law, including the recidivism factors that were offered by

defense counsel for consideration. Thus, while Nicholas disagrees with the trial

court’s decision to exercise its discretion to impose consecutive sentences, we find

the trial court fulfilled each of its obligations under the applicable sentencing

statutes.

               Based on the foregoing, we cannot clearly and convincingly find that

the record fails to support the trial court’s findings under R.C. 2929.14(C)(4). In

addition, the record reflects that the trial court’s findings were properly

incorporated into the sentencing journal entries as required under Bonnell.

               Nicholas’s sole assignment of error is 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. Case

remanded to the trial court for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



EILEEN T. GALLAGHER, PRESIDING JUDGE

EILEEN A. GALLAGHER, J., CONCURS;
LARRY A. JONES, SR., J., DISSENTS WITH SEPARATE OPINION


LARRY A. JONES, SR., J., DISSENTING:

              Respectfully, I dissent. The record in this case does not support the

imposition of consecutive sentences.

              Our review of felony sentencing must be “meaningful.” See State v.

Bratton, 6th Dist. Lucas Nos. L-12-1219 and L-12-1220, 

, ¶ 8, citing

State v. Carter, 11th Dist. Portage No. 2003-P-0007, 

. In order to

conduct a “meaningful review,” we are required to review the entire record,

including any reports that were submitted to the court (i.e., a presentence,

psychiatric or other investigative report), the trial record, and any statements made

to or by the court at sentencing. See R.C. 2953.08(F)(1)-(3).
               After reviewing the entire record, if we clearly and convincingly

determine that the “record does not support the trial court’s findings under relevant

statutes or that the sentence is otherwise contrary to law,” then we have the

authority to “increase, reduce, or otherwise modify a sentence that is appealed under

this section or may vacate the sentence and remand the matter to the sentencing

court for resentencing.” R.C. 2953.08(G)(2); State v. Marcum, 

,

, 

, ¶ 1.

               Under R.C. 2929.41(A) there is a presumption that prison sentences

for multiple offenses be served concurrently. As the majority mentions, pursuant to

R.C. 2929.14(C)(4), the trial court may order consecutive sentences if it makes

certain findings. The trial court made these findings; but I would clearly and

convincingly find that the record does not support the imposition of consecutive

sentences.

               The reasons the trial court gave with regard to the finding that

“consecutive sentences are not disproportionate to the seriousness” of Nicholas’s

conduct and to the danger he poses to the public do not support this finding. One

of the troubles I have with the sentences is in regard to the trial court’s finding that

a single prison sentence would not adequately reflect the seriousness of the crime.

Involuntary manslaughter and aggravated burglary are, without debate, serious

crimes. The court found that all three defendants’ actions resulted in C.F.’s death.

This fact alone, however, has nothing to do with the relative seriousness of

Nicholas’s individual conduct in this case.
               The court noted that Nicholas was present only at the behest of his

mother. The prosecutor stated: “If it weren’t for [the mother], they probably

wouldn’t have gone over there.” Each defendant was convicted and sentenced; I

would find that imputing each defendant’s conduct to the other defendants as a

ground to impose consecutive sentences unfair ─ the defendants were not charged

and convicted as co-conspirators; they were codefendants. This record does not

reflect that the court judged Nicholas separate from his mother and brother. In fact,

quite the opposite occurred. The court specifically stated: “[The] three of you did it

together, you’re all equally responsible and that’s the way the Court sees it.”

               Another trouble I have is with the trial court’s findings that

consecutive sentences were necessary to protect the public from future crime by the

defendants, and that consecutive sentences were not disproportionate to the danger

Nicholas poses to the public. Implicit in those findings is a finding that, based on

the defendant’s prior criminal history, he is likely, if not incarcerated to consecutive

terms, to offend again. Nicholas, however, had no felony prior record.2 Thus, on

this record, I cannot agree that there exists a need to impose consecutive sentences




2 Additionally, courts should consider that lengthy prison sentences do not make the
public safer, in part, because “long-term sentences produce diminishing returns for public
safety as individuals ‘age out’ of the high-crime years.” Mauer, Long-Term Sentences:
Time to Reconsider the Scale of Punishment, 87:1 UMKC.L.Rev. 121 (2018). In other
words, the risk an individual may pose to public safety declines with age and each
successive year of incarceration is likely to produce diminishing returns for public safety.
Id. at 122.
to protect the public from future crime by Nicholas, or that they are not

disproportionate to the danger he poses to the public.

               The record also does not support the finding that “the harm caused

by the multiple offenses was so great or unusual that no single prison term for any

of the offenses committed as part of a single course of conduct adequately reflects

the seriousness of the offender’s conduct.” Although the parties stipulated at

sentencing that the two offenses were not allied offenses of similar import, the fact

remains that the criminal conduct in which Nicholas engaged to help commit these

two offenses occurred within a single episode. Moreover, as mentioned, both the

state and the trial court acknowledged that Nicholas was present at the scene

because of his mother and, if not for her, the crimes probably would have not

occurred. Finally, while each offense Nicholas committed is serious, neither is made

materially more serious by the particular conduct the other offense involves.

               Therefore, I clearly and convincingly find that imposition of

consecutive sentences is disproportionate to the seriousness of the conduct in which

Nicholas engaged when he committed these two offenses. Because the record does

not support the trial court’s finding on this issue, I would modify Nicholas’s sentence

to a concurrent term.