[Cite as State v. Sumlin,
2025-Ohio-550.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff- Appellee, :
Nos. 113976 and 113977
v. :
MICHAEL SUMLIN, :
Defendant-Appellant. :
_______________________________________
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 20, 2025
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-23-685927-A and CR-23-678291-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, Connor Davin, and Karen Greene, Assistant
Prosecuting Attorneys, for appellee.
Charles Ruiz-Bueno Co., LPA, and J. Charles Ruiz-Bueno,
for appellant.
MICHELLE J. SHEEHAN, J.:
Defendant-appellant Michael Sumlin, a.k.a. Michael Brown
(“Sumlin/Brown”), appeals the trial court’s imposition of consecutive sentences
following his convictions in two separate cases. Because the trial court made the
appropriate findings when imposing consecutive sentences and we cannot clearly
and convincingly find that the record does not support those findings, we affirm the
judgment appealed.
I. Procedural History and Relevant Facts
A. Indictments
CR-23-678291-A1
On February 7, 2023, in Cuyahoga C.P. No. CR-23-678291-A,
Sumlin/Brown was charged in an eight-count indictment for offenses that occurred
on January 25, 2023. The indictment charged him with two counts of gross sexual
imposition, felonies of the fourth degree; three counts of rape, felonies of the first
degree; and three counts of unlawful sexual conduct with a minor, felonies of the
fourth degree. That same day, a warrant was issued on the indictment. A capias was
sent to the sheriff the following day. A summons was sent to Sumlin/Brown by
certified mail on February 9, 2023, advising him that his arraignment on the
enclosed indictment was scheduled for February 28, 2023. The summons was
received and signed for on February 13, 2023.
On February 28, 2023, the date of the arraignment, the trial court
issued an order noting that the February 7, 2023 capias remained in effect.
1 The indictment is captioned State v. Michael J. Brown.
As a result of his failure to appear at the initial February 28, 2023
arraignment hearing, Sumlin/Brown was not arraigned in this case until October
10, 2023.
CR-23-685927-A2
On October 24, 2023, in Cuyahoga C.P. No. CR-23-685927,
Sumlin/Brown was charged in a four-count indictment for offenses that occurred on
April 25, 2023. The indictment charged him with one count of attempted
aggravated murder, a felony of the first degree; attempted murder, a felony of the
first degree; aggravated robbery, a felony of the first degree; and felonious assault, a
felony of the second degree.
Sumlin/Brown was arraigned on October 27, 2023.
B. Plea and Sentencing
On March 13, 2024, Sumlin/Brown entered into a plea agreement with
the State. In Case No. CR-23-678291-A, he pleaded guilty to gross sexual
imposition, a felony of the fourth degree, and attempted kidnapping, a felony of the
second degree, with sexual motivation specifications. In Case No. CR-23-685927-A,
he pleaded guilty to robbery, a felony of the second degree, and felonious assault, a
felony of the second degree, with a three-year firearm specification, as amended.
Sumlin/Brown was labeled a Tier II sex offender.
2 The indictment is captioned State v. Michael Sumlin.
Sentencing was held on April 2, 2024. In Case No. CR-23-678291-A,
the trial court sentenced Sumlin/Brown to one year on the gross sexual imposition
offense and two years on the attempted kidnapping offense. The sentences were run
concurrently for a total of two years in Case No. CR-23-678291-A.
In Case No. CR-23-685927-A, the court sentenced Sumlin/Brown to
three years on the robbery offense and three to four and a half years on the felonious
assault offense to run consecutively to the mandatory three-year prison term
imposed on the firearm specification accompanying the felonious assault charge.
The underlying sentences were run concurrently for a total of three to four and a half
years and run consecutively to the three-year prison sentence imposed on the
firearm specification.
The trial court further ordered the prison sentences imposed on each
case to run consecutively. The trial court made the following findings:
The court does find that consecutive sentences [are] 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 Defendant’s conduct and to the danger the offender poses to the
public. The offender committed — the court finds the offender
committed the crime in case number 685927 while he was under
indictment in case number 678291.
On May 28, 2024, Sumlin/Brown filed a delayed appeal from the
sentencing entries issued in each case and requested the cases be consolidated. This
court granted leave to file a delayed appeal and consolidated the cases for appellate
purposes.
Sumlin/Brown’s sole assignment of error reads:
The trial court committed prejudicial error by imposing consecutive
sentences without making the findings required by Ohio Revised Code
§ 2929.14(C)(4).
II. Law and Analysis
Prior to imposing consecutive sentences, a trial court is required to
make certain findings set forth in R.C. 2929.14(C)(4). One finding a court may make
is that the offender was “awaiting trial” when the offender committed one or more
of the multiple offenses. R.C. 2929.14(C)(4)(a). In his sole assignment of error,
Sumlin/Brown contends that the record does not support the trial court’s finding
that he was “awaiting trial” in Case No. CR-23-678291-A when he committed the
offenses set forth in Case No. CR-23-685927-A.3 The State responds claiming that
since Sumlin/Brown was under indictment and had been served in Case
No. CR-23-678291-A when he committed the offenses in Case No. CR-23-685927-A,
he was necessarily “awaiting trial” for the purposes R.C. 2929.14(C)(4)(a). We agree
that he was “awaiting trial” when he committed the offenses charged in Case
No. CR-23-685927-A.
A. Applicable Law
A trial court may impose consecutive sentences if it makes the
requisite findings set forth in R.C. 2929.14(C)(4). Specifically, the trial court must
find that the consecutive sentences are 1) “necessary to protect the public from
3 Sumlin/Brown also claims that the court failed to make a finding under
R.C. 2929.14(C)(4)(b). This is not in dispute.
future crime or to punish the offender”; 2) “not disproportionate to the seriousness
of the offender’s conduct and to the danger the offender poses to the public; and
3) the trial court must make one of the following findings set forth in
R.C. 2929.14(C)(4)(a)-(c):
(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.
R.C. 2929.14(C)(4).
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,
2024-Ohio-664, ¶ 10 (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, 2023-Ohio-3977, ¶ 35 (8th Dist.), citing
R.C. 2953.08(G); State v. Gwynne,
2023-Ohio-3851, ¶ 15. (“[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,
161 Ohio St. 469 (1954), paragraph three
of the syllabus.
B. Sumlin/Brown Was “Awaiting Trial” in Case
No. CR-23-678291-A When He Committed the Offenses in
Case No. CR-23-685927-A
Sumlin/Brown does not dispute that the trial court made, or
attempted to make, the appropriate findings on the record, which included a finding
under subsection (a) of R.C. 2929.14(C)(4). Rather, he claims that the trial court’s
determination that he was under indictment in Case No. CR-23-678291-A does not
support a finding that he was “awaiting trial” as contemplated in subsection (a).
It is undisputed that Sumlin/Brown committed the offenses in Case
No. CR-23-685927-A while he was under indictment in Case No. CR-23-678291-A.
The question thus becomes whether Sumlin/Brown was “awaiting trial” when he
committed the offenses in Case No. CR-23-685927-A. We conclude he was.
The phrase “awaiting trial” in R.C. 2929.14(C)(4)(a) is not defined in
the Ohio Revised Code. “‘The primary goal of statutory construction is to ascertain
and give effect to the legislature’s intent,’ as expressed in the plain meaning of the
statutory language.” State v. Pountney, 2018-Ohio-22, ¶ 20, quoting State v. Lowe,
2007-Ohio-606, ¶ 9. In doing so, the words and phrases of the statute must “be read
in context and construed according to the rules of grammar and common usage.”
R.C. 1.42. Thus, “our duty is ‘to give effect to the words used, not to delete words
used or to insert words not used.’” State v. Maxwell,
2002-Ohio-2121, ¶ 10, quoting
Columbus-Suburban Coach Lines, Inc. v. Pub. Util. Comm.,
20 Ohio St.2d 125, 127
(1969). The general rule is that “‘[i]f the meaning of the statute is unambiguous and
definite, it must be applied as written and no further interpretation is necessary.’”
Diller v. Diller,
2023-Ohio-1508, ¶ 16, quoting State ex rel. Savarese v. Buckeye
Local School Dist. Bd. of Edn.,
74 Ohio St.3d 543, 545 (1996).
We begin our analysis by looking at the plain language of the statute,
specifically the phrase “awaiting trial.” The word await is defined as “to wait for.”
Online, https://www.merriam-webster.com/dictionary/await (accessed Jan. 30,
2025) [https://perma.cc/375F-AUXM]. Simply put, the phrase “awaiting trial”
means “to wait for trial.” In other words, if a trial is forthcoming, the offender is
“awaiting trial.”
The General Assembly has recognized that the return of an
indictment contemplates a trial is forthcoming. Pursuant to R.C. 2939.22, when a
grand jury returns an indictment, “[t]he court shall assign such indictments for trial
under section 2945.02 of the Revised Code, and recognizances of defendants and
witnesses shall be taken for their appearance in court.” (Emphasis added.)
In this case, Sumlin/Brown was indicted in Case No. CR-23-678291-A
on February 7, 2023. A summons for the indictment was sent to his address via
certified mail on February 9, 2023, and it was received and signed for on
February 13, 2023. Two months later, when Sumlin/Brown committed the offenses
in CR-23-685927-A, a trial on the pending indictment in Case No. CR-23-678291-A
was forthcoming. Sumlin/Brown was therefore “awaiting trial” when he committed
the latter offenses.
Sumlin/Brown argues that he could not have been “awaiting trial”
since he was capias and had not yet been arraigned, nor had a trial date been set in
Case No. CR-23-678291-A when he committed the offenses in Case
No. CR-23-685927-A. The plain language of the phrase “awaiting trial” is not as
narrow as Sumlin/Brown interprets it. R.C. 2929.14(C)(4)(a) does not require an
offender to have been arraigned or a trial date be set in order for an offender to be
“awaiting trial.” Rather, it simply requires that the offender was waiting for trial,
irrespective of whether trial has been formally set or an arraignment has been held.
Here, Sumlin/Brown had been served with the indictment and had notice that a trial
was forthcoming at the time he committed the offenses in Case
No. CR-23-685927-A. Sumlin/Brown’s interpretation of the statute would require
us to read limiting words and phrases into the statute that the General Assembly
could have, but chose not to, include. We decline to read words into the statute
where there are none. Maxwell, 2002-Ohio-2121, at ¶ 10.
Finally, Sumlin/Brown contends that a grand jury indictment issued
in secret is not the same as “awaiting trial.” However, Sumlin/Brown’s indictment
was not a secret at the time he committed the offenses in Case No. CR-23-685927-A.
Rather, the indictment in CR-23-678291-A had been publicly docketed pursuant to
R.C. 2939.22 and Crim.R. 6(F); a summons with a copy of the enclosed indictment
was sent via certified mail to Sumlin/Brown’s address pursuant to Crim.R. 4(D)(3),
where it was served by the clerk in the manner prescribed by Civ.R. 4.1(A)(1)(a); and
the letter was received and signed for. As such, the indictment in Case
No. CR-23-678291-A was not a secret when Sumlin/Brown committed the offenses
in Case No. CR-23-685927-A.
After a thorough review of the record and applicable law, we find that
Sumlin/Brown was “awaiting trial” as contemplated by R.C. 2929.14(C)(4)(a) when
he committed the offenses charged in Case No. CR-23-685927-A. Sumlin/Brown
has failed to clearly and convincingly demonstrate that the record fails to support
the trial court’s findings necessary to impose consecutive sentences. Accordingly,
we overrule Sumlin/Brown’s sole assignment of error and affirm the judgment of
the trial court.
III. Conclusion
The trial court properly made the necessary findings in order to
impose consecutive sentences. Furthermore, since Sumlin/Brown committed the
offenses charged in Case No. CR-23-685927-A while “awaiting trial” in Case
No. CR-23-678291-A, we cannot find that the record does not clearly and
convincingly support the trial court’s consecutive-sentence findings. We need not
consider Sumlin/Brown’s challenge to R.C. 2929.14(C)(b) because subsection (a) is
supported by the record. Accordingly, we affirm the sentences imposed by the trial
court.
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, JUDGE
EILEEN A. GALLAGHER, A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
