State v. Diggs

[Cite as State v. Diggs, 

.]

                                    COURT OF APPEALS OF OHIO

                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA


STATE OF OHIO,                                  :

                 Plaintiff- Appellee,           :
                                                           No. 113509
        v.                                      :

JERMAINE DIGGS,                                 :

                 Defendant-Appellant.           :

                 _______________________________________

                                    JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: August 15, 2024


              Criminal Appeal from the Cuyahoga County Court of Common Pleas
                                 Case No. CR-22-676339-A


                                            Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Mason P. McCarthy, Assistant Prosecuting
                 Attorney, for appellee.

                 Mary Elaine Hall, for appellant.


MICHELLE J. SHEEHAN, P.J.:

                  Defendant-appellant, Jermaine Diggs, appeals the trial court’s

imposition of consecutive sentences following his convictions for felony assault and
vandalism. Because the trial court made the appropriate findings when imposing

consecutive sentences and we cannot find that the record does not clearly and

convincingly support those findings, we affirm the judgment appealed.

               On November 29, 2022, Diggs was indicted for eight felonies: two

counts of felonious assault, one count of abduction, one count of domestic violence,

two counts of assault upon a peace officer, one count of obstructing official business,

and one count of vandalism. On October 10, 2023, Diggs entered pleas to one count

of aggravated assault, a felony of the fourth degree; one count of assault upon a peace

officer, a felony of the fourth degree; and one count of vandalism, a felony of the fifth

degree.

             The charges for which Diggs was convicted stem from his actions in

November 2022. At that time, Maple Heights, Ohio police officers arrested Diggs

for an assault on S.S. S.S. suffered multiple lacerations and required surgery to her

eye after being attacked by Diggs with a broken liquor bottle. After his arrest and

while in jail, Diggs flooded the toilet in his cell causing damage to property. He then

fought with police officers who were attempting to subdue him.

               At the sentencing hearing, the trial court noted Diggs’s extensive

criminal history that included 13 prior cases for assault and domestic violence. It

further noted that Diggs, when placed on probation, was a consistent probation

violator. The trial court imposed an 18-month sentence on each assault charge, a

12-month sentence on the vandalism charge, and ordered the sentences to run
consecutively. In total, Diggs was sentenced to an aggregate prison sentence of four

years.

                 Diggs’s sole assignment of error in his appeal reads:

         The trial court below failed to include a finding under R.C.
         2929.14(C)(4)(b) on the record that the defendant-appellant,
         Jermaine Diggs’ plea to Count One/Aggravated Assault/F-4, Count
         5/Assault on a Peace Officer/F-4 and Count 8/Vandalism/F -5 were
         part of a least two multiple offenses . . . committed as one or more
         courses of conduct . . . required to impose consecutive sentences. . . .

(Emphasis in original.)

                 Within this assignment of error, Diggs asserts two separate

arguments. First, he alleges the trial court did not make the findings mandated by

R.C. 2929.14(C) when imposing consecutive sentences because it did not state the

reasons underlying its findings. Second, he asserts the record does not support the

trial court’s decision to impose consecutive sentences. The State argues that the trial

court made the statutory findings in order to impose consecutive sentences and that

the record supports the imposition of consecutive sentences.

                 A trial court may impose consecutive sentences if it makes the

findings contained in R.C. 2929.14(C), which 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 service 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 section 2929.16, 2929.17, or 2929.18 of the
      Revised Code, 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.

(Emphasis added.) When imposing consecutive sentences, the trial court is not

required to recite the statutory language nor is it required to state the reasons that

support its findings where such support may be found in the record. State v. Percy,

 (8th Dist.).

               In cases in which the trial court makes the appropriate findings to

impose consecutive sentences, “our review of the record is limited to determine

whether the record clearly and convincingly does not support the imposition of

consecutive sentences.” State v. Hoffman, 

 (8th Dist.), citing

R.C. 2953.08(G); State v. Gwynne, 

 (plurality opinion) (“[A]n

appellate court is directed that it must have a firm belief or conviction that the record

does not support the trial court’s findings before it may increase, reduce, or

otherwise modify consecutive sentences.”). The standard of proof of clear and

convincing evidence “is more than a mere ‘preponderance of the evidence,’ but not

to the extent of such certainty as is required ‘beyond a reasonable doubt’ in criminal
cases, and which will produce in the mind of the trier of facts a firm belief or

conviction as to the facts sought to be established.” Cross v. Ledford, 

 (1954), paragraph three of the syllabus.

               At the sentencing hearing, the trial court made the following findings:

      Court finds the sentences are necessary to protect the public from
      future crime and the Court finds that consecutive sentences are
      necessary to punish the offender.

      Court further finds that consecutive sentences are not
      disproportionate to the seriousness of the offender’s conduct, that
      consecutive sentences are not disproportionate to the danger the
      offender poses to the public, and finally, the Court does find the
      offender’s history of criminal conduct demonstrates consecutive
      sentences are necessary to protect the public from future crime by the
      offender.

               We find that the trial court made the findings required by

R.C. 2919.14(C)(4).

             The record in this case provides that Diggs was being sentenced for

three felonies: one charge of aggravated assault, one charge of assault upon a peace

officer, and one charge of vandalism. One victim suffered several lacerations and

required surgery. Diggs had 13 prior cases for domestic violence or assault, with

nine offenses having been committed against police officers. The trial court noted

that when Diggs was placed on probation in the past, he violated probation. Further,

while on probation for a prior assault against a police officer offense, Diggs violated

probation 8 times. Based on this record, we cannot say the record clearly and

convincingly does not support the imposition of consecutive sentences.

               Judgment affirmed.
      It is ordered that appellee recover of 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.


_________________________________
MICHELLE J. SHEEHAN, PRESIDING JUDGE

ANITA LASTER MAYS, J., and
FRANK DANIEL CELEBREZZE, III, J., CONCUR