[Cite as State v. Jones,
2024-Ohio-3308.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 113598
v. :
TYWON JONES, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: August 29, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-22-670421-B
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Steven N. Szelagiewicz, Assistant
Prosecuting Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
Aaron T. Baker, Assistant Public Defender, for appellant.
FRANK DANIEL CELEBREZZE, III, J.:
Appellant Tywon Jones (“appellant”) challenges his conviction and
sentence in the Cuyahoga County Court of Common Pleas. After a thorough review
of the applicable law and facts, we affirm the judgment of the trial court.
I. Factual and Procedural History
Appellant was indicted on 29 counts of various sex-related offenses,
including rape, gross sexual imposition, sexual battery, endangering children, and
disseminating matter harmful to juveniles, stemming from unlawful sexual conduct
that he had with three of his own children and a child of his girlfriend.1 The children
were ages six through ten at the time of the incidents, and appellant was accused of
touching and raping them orally, digitally, vaginally, and anally.
Appellant pled guilty to amended charges, consisting of three counts of
sexual battery, felonies of the third degree, in violation of R.C. 2907.03(A)(1), and
one count of gross sexual imposition, a felony of the third degree, in violation of R.C.
2907.05(A)(4). The State and appellant offered a joint recommended sentence of
seven to ten years.
At the plea hearing, the State outlined the charges to which appellant
would plead and stated that there was an agreed recommended sentence of seven to
ten years. The State acknowledged that the court did not have to follow the
recommendation and noted the potential for a maximum sentence of 20 years.
Appellant’s trial counsel stated that he had explained to appellant “the statutory
penalties associated with the counts in the indictment as well as the reduced counts”
that were being offered to appellant.
1 Appellant’s girlfriend, Deonna Daniels, was a codefendant in the case and pled
guilty to one count of endangering children, a felony of the third degree, in violation of
R.C. 2919.22(A).
The court noted that appellant was pleading to four high-tier felonies
and advised him of the maximum penalties for the charges he was facing. The court
specifically informed appellant that it could sentence him concurrently or
consecutively on the four counts and that his maximum exposure for prison time
was 20 years. Appellant indicated that he understood.
At the conclusion of the advisements, the court asked counsel for the
State and appellant whether it had complied with Crim.R. 11; both counsel indicated
that it had. The court also inquired of appellant whether he was satisfied with his
counsel and whether there was anything about his case or the proceedings that he
did not understand. He indicated that he was satisfied with his attorney and that
there was nothing that he did not understand. He then proceeded to enter guilty
pleas to the amended charges.
At the sentencing hearing, appellant’s counsel urged the court to
impose a sentence in the agreed-upon seven to ten years range, specifically
requesting seven years. When asked if he wanted to say anything to the court,
appellant stated, “My lawyer said everything for me, Your Honor. He spoke enough
for me, Your Honor.” The State recommended a sentence of ten years.
The trial court sentenced appellant to four years on each count, to run
consecutively for a total of 16 years. The court stated:
[T]his Court does not condonance [sic] these types of crimes with
children or anyone, really, but your children is even more heinous to
the Court. And the Court notes that you are 30, which means that you
have plenty of time to recommit this crime with other children or even
adults, as you get older.
And this Court does not believe that any sentence on one count would
— I think it would seriously demean. Your injury, of course, to the
children is exacerbated by their physical age. Your relationship with
the victims facilitated the offense, and you are a parent or other
custodian or a household member. And it was committed, according
to the statements, in the vicinity of one or more children other than the
victim.
So this Court finds that recidivism is more likely and that your conduct
is more serious. And the Court is going to run these sentences
consecutive, as I believe your recommendation of seven to ten years
contemplates that. And I’m sure that was part of the great reduction
on these counts that you were able to negotiate for.
The court further noted that no one sentence would be adequate and
that the sentences were necessary to protect the public from future crime. The court
also stated that appellant’s history of criminal conduct as a juvenile was factored
into the sentence and that a prison term of 16 years was not disproportionate to
appellant’s conduct in this case.
Appellant then filed the instant appeal, raising three assignments of
error for our review:
1. The trial court committed structural error and plain error when it
violated appellant’s Sixth Amendment right to be present at every stage
of the trial court proceedings.
2. The trial court failed to strictly or substantially comply with Crim.R.
11 by not ascertaining that appellant understood that the trial court
could sentence him in excess of the seven to ten years in prison jointly
recommended by the parties.
3. The trial court’s consecutive sentencing of appellant was in error as
a result of not making the required findings to justify such a sentencing,
and further, even if the proper findings had been made, they were
clearly and convincingly not supported by the record.
II. Law and Analysis
In his first assignment of error, appellant argues that the trial court
violated his right to be present at every stage of the trial court proceedings.
Specifically, appellant appears to contend that he had a right to be present at the
sentencing hearing of his codefendant. He bases this assertion on the court’s
reference at appellant’s sentencing hearing to statements that had been made at the
codefendant’s sentencing hearing.
“The Confrontation Clause of the Sixth Amendment of the United
States Constitution guarantees a defendant’s right to be present in the courtroom at
every stage of the trial.” State v. Boynton, 2018-Ohio-4429, ¶ 34 (8th Dist.), citing
Illinois v. Allen,
397 U.S. 337, 343 (1970). See also Ohio Constitution, article I, § 10;
Crim.R. 43. We acknowledge that appellant has a right to be present at his own
proceedings; however, appellant has cited no authority for the proposition that he
has a right to be present at a codefendant’s proceedings. To the extent that appellant
is arguing that the trial court erred in considering evidence outside of his sentencing
hearing, we find that argument lacks merit.
This court has addressed a similar situation in State v. Wagner, 2023-
Ohio-1215 (8th Dist.), where Wagner claimed that he was prejudiced because the
trial court referenced evidence and testimony from his codefendant’s trial at
Wagner’s sentencing. This court found that Wagner was not prejudiced because
“[t]he trial court had an independent basis for issuing its sentence through the
record and information provided by the prosecutor.” Id. at ¶ 38. The Wagner Court
further noted:
We are mindful that in a case like this where there are multiple
codefendants, the likelihood of the trial court hearing evidence outside
of the record in one or more of the cases is heightened. Nevertheless,
this evidence was not extraneous to the court’s required considerations,
nor can we find that the evidence affected the outcome of the
proceedings.
In the instant matter, appellant has not demonstrated that he had a
right to be present at his codefendant’s sentencing. Further, he has not
demonstrated that he was prejudiced by the court’s consideration of statements
made by the codefendant at her sentencing hearing. Appellant’s first assignment of
error is overruled.
In his second assignment of error, appellant argues that the trial court
did not comply with Crim.R. 11 by failing to advise appellant that the court retained
the discretion to sentence him in excess of the joint recommendation of seven to ten
years.
Crim.R. 11 requires that the defendant be fully aware of the potential
consequences of his plea. “‘Where a sentence recommendation is an integral part of
a plea agreement, the failure to inform the defendant of potential changes may result
in a plea that was not entered into knowingly, voluntarily, or intelligently.’” State v.
Dunbar, 2007-Ohio-3261, ¶ 139 (8th Dist.), quoting State v. Allgood,
1991 Ohio
App. LEXIS 2972, *9 (9th Dist. June 19, 1991).
“‘A trial court is vested with sound discretion when implementing plea
agreements.’” State v. Orlando, 2013-Ohio-2335, ¶ 14 (8th Dist.), quoting
Dunbar
at ¶ 112. And the court is not obligated to follow the negotiated plea entered into
between the state and the defendant.
Id. “However, before the trial court imposes
a longer prison sentence than what is recommended in the plea agreement, due
process requires the trial court to put the defendant on notice of that possibility
before accepting the guilty plea.” State v. Williams,
2017-Ohio-2662, ¶ 4 (8th Dist.).
“A trial court does not err by imposing a sentence greater than ‘that
forming the inducement for the defendant to plead guilty when the trial court
forewarns the defendant of the applicable penalties, including the possibility of
imposing a greater sentence than that recommended by the prosecutor.’” State v.
Buchanan, 2003-Ohio-4772, ¶ 13 (5th Dist.), quoting State v. Darmour,
38 Ohio
App.3d 160 (8th Dist. 1987), syllabus (finding no abuse of discretion when the trial
court forewarns a defendant that it will not consider itself bound by any sentencing
agreement and defendant fails to change his plea after being advised); State v. Tucci,
2002-Ohio-6903 (7th Dist.) (before the court sentences the defendant, it must
ascertain that the defendant understands that it can impose a higher sentence than
that recommended by the prosecution and that no one promised him anything less
than the maximum sentence).
In the instant matter, the court stated to appellant several times that
he was facing a maximum sentence of 20 years. We must note that appellant does
not argue that his plea was not knowing, voluntary, and intelligent because he
believed that he would receive the joint, recommended sentence of seven to ten
years. Compare State v. Jordan, 2024-Ohio-2361 (8th Dist.) (appellant’s challenge
to the voluntariness of his plea was meritorious where appellant specifically argued
and established that he believed, based on the plea colloquy, that he would receive
the agreed, recommended sentence). Accordingly, we find that the trial court did
not err in imposing a sentence greater than the joint recommended sentence.
Appellant’s second assignment of error is overruled.
Appellant’s third assignment of error argues that the trial court failed
to make the required findings to justify consecutives sentences and that, even if they
were, such findings were not supported by the record.
We review felony sentences under the standard set forth in R.C.
2953.08(G)(2). State v. Marcum, 2016-Ohio-1002, ¶ 1, 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.”
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.
Appellant does not specifically state which finding the trial court
failed to make. As set forth above, the court stated that consecutive sentences were
necessary to protect the public from future crime and to punish the offender and
that the sentences would not be disproportionate to the seriousness of the conduct.
The court further found that appellant’s history of criminal conduct demonstrated
that consecutive sentences were necessary to protect the public from future crime.
Conformity 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.’” State v.
Bonnell, 2014-Ohio-3177, ¶ 26, quoting State v. Edmonson,
86 Ohio St.3d 324
(1999). To this end, a reviewing court must be able to ascertain from the record
evidence to support the trial court’s findings.
Bonnell at ¶ 29. “A trial court is not,
however, required to state its reasons to support its findings, nor is it required to
[recite verbatim] the statutory language, ‘provided that the necessary findings can
be found in the record and are incorporated in the sentencing entry.’” State v.
Sheline,
2019-Ohio-528, ¶ 176 (8th Dist.), quoting
Bonnell at ¶ 37.
After reviewing the record, we find that the trial court properly made
all required findings under R.C. 2929.14(C)(4) to support the imposition of
consecutive sentences. The record reflects that the trial court did not specifically
state that consecutive sentences would not be disproportionate to the danger
appellant poses to the public; however, when viewed in their entirety, the trial
court’s statements on the record clearly indicate that the trial court considered
proportionality with regard to both the seriousness of appellant’s conduct and the
danger he posed to the public. State v. Blevins, 2017-Ohio-4444, ¶ 23 (8th Dist.);
see also State v. Hollis,
2020-Ohio-5258, ¶ 23 (8th Dist.) (“[T]he trial court’s
statements during the sentencing hearing, when viewed in their entirety, clearly
indicate that the trial court considered proportionality[.]”).
Appellant further contends that the record does not support the trial
court’s finding that consecutive sentences were necessary to protect the public from
future crime or to punish the offender. He alarmingly asserts that there is no
indication that the public needed protection from appellant since the offenses of
which he was convicted were all against children in his own home. In addition, he
argues that there was no indication of any threats against any victims or others and
that he did not try to violate the no-contact order. Finally, he states that there was
no evidence presented as to the level of harm done to the child victims.
At the sentencing hearing, the trial court noted that the ages of the
four victims in this matter ranged from six to ten years at the time that appellant
committed the offenses against them. In justifying the imposition of consecutive
sentences, the court noted:
Your injury, of course, to the children is exacerbated by their physical
age. Your relationship with the victims facilitated the offense, and you
are a parent or other custodian or a household member. And it was
committed, according to the statements, in the vicinity of one or more
children other than the victim.
So this Court finds that recidivism is more likely and that your conduct
is more serious . . . .
The court also referenced appellant’s age of 30 years old at the time of
sentencing and its concern that he would have “plenty of time to recommit this crime
with other children or even adults, as [he got] older.”
We cannot clearly and convincingly conclude that the record does not
support the trial court’s R.C. 2929.14(C)(4) findings. Appellant’s third assignment
of error is overruled.
III. Conclusion
Appellant’s Sixth Amendment rights were not violated by his absence
at his codefendant’s sentencing. In addition, the trial court did not err in imposing
a sentence greater than the jointly recommended sentence.
Further, the trial court made the requisite findings during the
sentencing hearing under R.C. 2929.14(C)(4), and the findings are clearly and
convincingly supported by the record. The imposition of consecutive sentences was
not contrary to law.
All of appellant’s assignments of error are overruled, and the
judgment of the trial court is 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.
FRANK DANIEL CELEBREZZE, III, JUDGE
KATHLEEN ANN KEOUGH, A.J., and
EMANUELLA D. GROVES, J., CONCUR
