State v. Adams

[Cite as State v. Adams, 

.]

                              COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                   :

                Plaintiff-Appellee,              :
                                                            No. 111637
                v.                               :

DONALD J. ADAMS,                                 :

                Defendant-Appellant.             :


                               JOURNAL ENTRY AND OPINION

                JUDGMENT: AFFIRMED
                RELEASED AND JOURNALIZED: March 16, 2023


      Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-21-662542-A, CR-21-662548-A, CR-21-664646-A, CR-21-666081-A,
                   CR-21-666093-A, and CR-22-667709-A


                                           Appearances:

                Michael C. O’Malley, Cuyahoga County Prosecuting
                Attorney, and Carl M. Felice, Assistant Prosecuting
                Attorney, for appellee.

                Cullen Sweeney, Cuyahoga County Public Defender, and
                Aaron T. Baker, Assistant Public Defender, for appellant.


LISA B. FORBES, J.:

                   Donald J. Adams (“Adams”) appeals his six-year prison sentence,

which was imposed after he pled guilty to various theft offenses in six separate
criminal cases. After reviewing the facts of the case and pertinent law, we affirm the

trial court’s decision.

I.   Facts and Procedural History

               On March 29, 2022, Adams pled guilty to eight counts of fifth-degree

felony theft in violation of R.C. 2913.02 in six cases. On May 25, 2022, the court

sentenced Adams to 12 months in prison for each theft. The court ran six of the eight

counts consecutively for an aggregate prison term of 72 months. The court also

ordered Adams to pay $33,850 in restitution. It is from this sentence that Adams

appeals, raising the following assignments of error for our review:

       I.     The trial court, by considering uncharged, unproven, and vague
       allegations of criminal conduct in sentencing Mr. Adams to maximum,
       consecutive sentences, deprived Mr. Adams of his liberty without due
       process and of his constitutional rights to a grand jury indictment, to
       trial by an impartial jury, to proof of the charges against him beyond a
       reasonable doubt, to confront the witnesses against him, and to
       otherwise present a defense.

       II.   Because the trial court’s findings that consecutive sentences
       were appropriate are tainted by the trial court’s consideration of
       uncharged, unproven, and vague allegations of criminal conduct in
       sentencing as a whole, the record does not support the trial court’s
       consecutive sentencing findings.

       III. Trial counsel for Mr. Adams failed to provide effective assistance
       of counsel, guaranteed by both the United States Constitution, and the
       Ohio Constitution, when he failed to object both to the recitation of the
       victim impact statement of K.W. and when he failed to object to the trial
       court’s reliance upon that statement.
II. Victim-Impact Statement

      A. Use of Victim-Impact Statement at Sentencing Hearing

               At Adams’s sentencing hearing, the prosecutor read into the record a

statement from one of the victims in the case at hand.

      [K.W.] would have said this, Judge: He felt like he was cheated and
      strung along. He wanted to tell you that there were many other people
      who were involved, many other victims but didn’t come forward. He
      points to one of his neighbors up the street, and he also mentions two
      guys who were laborers that worked for Mr. Adams that were never
      paid their money for the work that they completed for him.

               The court read into the record the following portion of another victim-

impact statement that was filed in this case. “I understand that the Court has to deal

with more horrendous crimes where victims have paid the ultimate price. However,

just because this is a non-violent crime, Mr. Adams should not be able to commit

crimes like this and get away with it. The emotional and financial impact on my

family and all the other victims will be felt for years to come.” Several other victim-

impact statements were made part of the record in the instant case, although they

were not singled out at Adams’s sentencing hearing.

               The court explained that it did not “typically sentence to prison on

non-violent crimes.” However, as to Adams, the court stated, “sometimes in order

to contain a problem that we have in the community incarceration is the only

option.” The court stated that there were 13 victims in the six cases at issue, and

Adams committed these offenses shortly after his release from prison. According to

the court, “this is how you conduct your business, this is how you make a living ….”

The court noted that Adams had “underlying issues, … underlying traumas and
addictions,” but that other “people with addictions and mental health issues …

don’t leave this many victims in their wake.”

               The court concluded that it “considered the record, the oral

statements made here today, the pre-sentence investigation report, the treatment

plan provided by Recovery Resources, the victim-impact statements and the oral

statements made [at] the plea negotiations. … I have to take into account how

likely is it that Mr. Adams is going to be released and then pick up where he left off.”

               The court then stated the following:

      There is one thing I want to add. This is to the victims. I think we all
      consider ourselves to be smart, intelligent people. When you get taken
      like this, there is a lot of shame that goes along with that. No one wants
      to be made a fool of. It’s no fault of their own, but that shame is a
      human emotion. It comes with being ripped off.

      So when [K.W.] says that there were many other victims that didn’t
      come forward, I can understand why. We’re here today on 13, but I am
      not confident that they got everyone.

      B. Law and Analysis

               We first note that Adams did not object to the use of any victim-

impact statements at his sentencing hearing. However, on appeal Adams focuses on

the use of K.W.’s victim-impact statement. Pursuant to Crim.R. 52(B), “[p]lain

errors or defects affecting substantial rights may be noticed although they were not

brought to the attention of the court.” It is well-established law that a “failure to

object waives all but plain error.” State v. Harris, 8th Dist. Cuyahoga No. 110982,

.
               To review for plain error, courts must engage in a three-part test.

State v. Barnes, 

, 

 (2002).

      First, there must be an error, i.e., a deviation from a legal rule. …
      Second, the error must be plain. To be “plain” within the meaning of
      Crim.R. 52(B), an error must be an “obvious” defect in the trial
      proceedings. … Third, the error must have affected “substantial
      rights.” We have interpreted this aspect of the rule to mean that the
      trial court’s error must have affected the outcome of the trial.

(Emphasis sic.) 

.

               Pursuant to R.C. 2930.14(A), “[b]efore imposing sentence upon …

a defendant … for the commission of a criminal offense …, the court shall permit

the victim and victim’s representative, if applicable, to be heard orally, in writing, or

both during the sentencing or disposition proceeding.” See also R.C. 2929.19(A) (At

a defendant’s sentencing hearing, the victim “may present information relevant to

the imposition of sentence in the case.”).

               Pursuant to R.C. 2930.14(B), “[t]he court shall consider a statement

made by a victim or victim’s representative under division (A) of this section along

with other factors that the court is required to consider in imposing sentence or in

determining the order of disposition.” See also State v. Simonoski, 8th Dist.

Cuyahoga No. 98496, 

 (concluding that the court’s

consideration of a victim-impact statement “was appropriate in determining the

sentence to be imposed. Pursuant to R.C. 2930.14, the victims can give oral or

written statements at the hearing in which they detail the harm suffered and

sanction that should be imposed.”).
              R.C. 2930.14(B) further states that “[i]f the statement includes new

material facts, the court shall not rely on the new material facts unless it continues

the sentencing … or takes other appropriate action to allow the defendant … an

adequate opportunity to respond to the new material facts.”

              We first find that the court complied with R.C. 2930.14(A) by

permitting the victims in the multiple cases at issue to make statements, including

the statement by K.W. that was read into the record. Next, we find that the court

complied with R.C. 2930.14(B) by considering these statements when imposing

Adams’s sentence. Finally, we conclude that the victim-impact statements at issue

did not include new material facts that the court relied on as envisioned by

R.C. 2930.14(B). While the statements referenced the possibility of other victims,

the court made it clear at the sentencing hearing that Adams was being sentenced

for the crimes in the six cases at issue, which encompassed 13 victims. See State v.

Lewis, 8th Dist. Cuyahoga No. 99395, 

 (“[J]ust as a trial court

may consider prior arrests (i.e., not just prior convictions) for other crimes, it may

also consider prior uncharged acts” when sentencing a defendant.). (Emphasis sic.)

See also U.S. v. Doyle, 

 (2d Cir.1965) (“The aim of the sentencing

court is to acquire a thorough acquaintance with the character and history of the

man before it. Its synopsis should include the unfavorable, as well as the favorable,

data, and few things could be so relevant as other criminal activity of the defendant,

particularly activity closely related to the crime at hand. … To argue that the

presumption of innocence is affronted by considering unproved criminal activity is
as implausible as taking the double jeopardy clause to bar reference to past

convictions.”).

               We find that the court did not err by allowing K.W.’s victim-impact

statement to be read into the record at Adams’s sentencing hearing. Furthermore,

the court did not err by referencing this statement prior to imposing Adams’s

sentence. Accordingly, we find no violation of the myriad constitutional rights

Adams sets forth in his first assignment of error. This assignment of error is

overruled.

III. Consecutive Sentencing

               “[T]o impose consecutive terms of imprisonment, 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,

, 

, 

.                  Pursuant to

R.C. 2929.14(C)(4), the court must find consecutive sentences are “necessary to

protect the public from future crime or to punish the offender”; “not

disproportionate to the seriousness of the offender’s conduct and to the danger the

offender poses to the public”; and at least one of the following three factors:

      (a) The offender committed one or more of the multiple offenses while
      the offender was awaiting trial or sentencing, was under a sanction
      …, 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.

              Pursuant to the Ohio Supreme Court’s recent holding in State v.

Gwynne, Slip Opinion No. 

, the trial court also “must consider

the number of sentences that it will impose consecutively along with the defendant’s

aggregate sentence that will result.” Gwynne additionally clarified the standard for

an appellate court’s review of consecutive sentences under R.C. 2953.08(G)(2):

“[U]pon a de novo review of the record, an appellate court may reverse or modify a

defendant’s consecutive sentences — including the number of consecutive sentences

imposed — when it clearly and convincingly finds that the record does not support

the trial court’s findings.” Gwynne at ¶ 12. “In other words, the consecutive-

sentence findings are not simply threshold findings that, once made, permit any

amount of consecutive sentence stacking.” Id. at ¶ 13.

              Upon review of the sentencing hearing transcript in the case-at-hand,

we find that the trial court made the appropriate findings under R.C. 2929.14(C)(4)

and incorporated these findings into its sentencing journal entry.

              When sentencing Adams, the court stated on the record that it took

the following things into consideration: Adams’s “history of theft [which] goes back

… to 1992” and includes a “string of passing bad checks with the drug possessions,

drug trafficking, more thefts, drugs and theft.” The court noted that Adams has been

sentenced to prison, jail, and probation. The court stated that it had to “consider

protecting the public from future crime by” Adams.
              The court also considered the “overriding principles and purposes of

felony sentencing, to protect the public from future crime by you and to punish you

using the minimum sanctions that the Court determines accomplish those purposes

without imposing an unnecessary burden on state or local government resources.”

The court further considered “the need for incapacitation, deterrence and

rehabilitation” as well as “the seriousness and recidivism factors.” Furthermore, the

court found “that the sentence is not disproportionate to the seriousness of the

conduct and the danger posed by [Adams], and that two or more offenses are part

of one or more course of conduct and that the harm caused is so great or unusual

that a single prison term would not adequately reflect the seriousness of the conduct

….”

              Additionally, the court considered the number of sentences it

imposed consecutively as well as the resulting aggregate sentence. Adams pled

guilty to 8 theft offenses, each one of which is subject to a maximum sentence of 12

months in prison. The court ran six of the eight 12-month sentences consecutively,

for an aggregate sentence of 72 months. In other words, the court exercised its

discretion by not imposing all eight sentences consecutively. Upon a de novo review,

we clearly and convincingly find that the record supports the trial court’s findings

and the imposition of consecutive sentences under R.C. 2929.14(C)(4), as well as the

six consecutive sentences actually imposed.

              Accordingly, Adams’s second assignment of error is overruled.
IV. Ineffective Assistance of Counsel

               To succeed on a claim of ineffective assistance of counsel, a defendant

must establish that his or her attorney’s performance was deficient and that the

defendant was prejudiced by the deficient performance. Strickland v. Washington,

, 

, 

 (1984). However, “a court need not

determine whether counsel’s performance was deficient before examining the

prejudice suffered by the defendant as a result of the alleged deficiencies. The object

of an ineffectiveness claim is not to grade counsel’s performance.” 

. See

also State v. Bradley, 

, 

 (1989).

               Adams argues that his trial counsel was ineffective for failing “to

object both to the recitation of the victim-impact statement of K.W. and when he

failed to object to the trial court’s reliance upon that statement.” The Ohio Supreme

Court has held that the “failure to object to error, alone, is not enough to sustain a

claim of ineffective assistance of counsel. To prevail on such a claim, a defendant

must first show that there was a substantial violation of any of defense counsel’s

essential duties to his client and, second, that he was materially prejudiced by

counsel’s ineffectiveness.” State v. Holloway, 

, 

 (1989).

               Adams has failed to show that his trial counsel was ineffective. Any

objection would have been futile as the victim-impact statement in question was

properly before the court at sentencing and there is no evidence that the court relied

upon K.W.’s statement when sentencing Adams, although the court considered
K.W.’s statement.    Moreover, the R.C. 2929.14(C)(4) factors overwhelmingly

support the imposition of consecutive sentences in this case. Shortly after being

released from prison, Adams went on a theft crime spree involving 13 victims, six

cases, eight convictions, and $33,850 in restitution.

              Accordingly, Adams’s third and final 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

convictions 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.



LISA B. FORBES, JUDGE

KATHLEEN ANN KEOUGH, P.J., and
EILEEN A. GALLAGHER, J., CONCUR