State v. Watts

[Cite as State v. Watts, 2017-Ohio-532.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION

No. 104269

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

DWAYNE A. WATTS, II

DEFENDANT-APPELLANT

JUDGMENT:

AFFIRMED

Criminal Appeal from the

Cuyahoga County Court of Common Pleas

Case No. CR-15-596694-A

BEFORE: Keough, A.J., E.A. Gallagher, J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: February 16, 2017

ATTORNEY FOR APPELLANT

Jeffrey Froude

P.O. Box 771112

Lakewood, Ohio 44107

ATTORNEYS FOR APPELLEE

Michael C. O’Malley

Cuyahoga County Prosecutor

By: Hannah Smith

Assistant Prosecuting Attorney

The Justice Center, 9th Floor

1200 Ontario Street

Cleveland, Ohio 44113

KATHLEEN ANN KEOUGH, A.J.:

{¶1} Defendant-appellant, Dwayne A. Watts, II (“Watts”), appeals his sentence.

For the reasons that follow, we affirm.

{¶2} In June 2015, Watts was named in a single count indictment charging him

with felonious assault, in violation of R.C. 2903.11(A)(1), a second-degree felony. The

indictment also contained notice of prior conviction and a repeat violent offender

specification (“RVO”) pursuant to R.C. 2941.149(A). The charges arose after Watts

attacked his then-girlfriend, causing her to go into a coma. As a result of the attack, the

victim suffered nasal and mandible fractures, severe brain trauma, and respiratory failure.

{¶3} In October 2015, Watts pleaded guilty to the indictment as charged. The

trial court sentenced him to ten years in prison — eight years on the base charge of

felonious assault and an additional two years on the repeat violent offender specification.

Watts now appeals his sentence.

{¶4} When reviewing Watts’s felony sentence, this court may increase, reduce,

modify a sentence, or vacate and remand for resentencing if we clearly and convincingly

find that the record does not support the sentencing court’s statutory findings under R.C.

2929.14(B)(2), or the sentence is contrary to law. R.C. 2953.08(G)(2). A sentence is

contrary to law if (1) the sentence falls outside the statutory range for the particular

degree of offense, or (2) the trial court failed to consider the purposes and principles of

felony sentencing set forth in R.C. 2929.11 and the sentencing factors in R.C. 2929.12.

State v. Hinton, 8th Dist. Cuyahoga No. 102710, 2015-Ohio-4907, ¶ 10, citing State v.

Smith, 8th Dist. Cuyahoga No. 100206, 2014-Ohio-1520, ¶ 13.

{¶5} In his sole assignment of error, Watts contends that his sentence is contrary to

law because the trial court erred in enhancing his sentence under the RVO specification

without making the requisite findings. Specifically, he contends that the record does not

establish the criteria set forth in R.C. 2929.14(B)(2)(a) or (b). We disagree.

{¶6} Under certain circumstances, RVO sentencing is mandatory. R.C.

2929.14(B)(2) provides, in relevant part:

(b) The court shall impose on an offender the longest prison term authorized

or required for the offense and shall impose on the offender an additional

definite prison term of one, two, three, four, five, six, seven, eight, nine, or

ten years if all of the following criteria are met:

(i) The offender is convicted of * * * a specification of the

type described in section 2941.149 of the Revised Code that

the offender is a repeat violent offender.

(ii) The offender within the preceding twenty years has been

convicted of or pleaded guilty to three or more offenses

described in division (CC)(1) of section 2929.01 of the

Revised Code, including all offenses described in that

division of which the offender is convicted or to which the

offender pleads guilty in the current prosecution and all

offenses described in that division of which the offender

previously has been convicted or to which the offender

previously pleaded guilty, whether prosecuted together or

separately.

(iii) The offense * * * of which the offender currently is

convicted * * * is * * * any felony of the first degree that is an

offense of violence and the court does not impose a sentence

of life imprisonment without parole, or any felony of the

second degree that is an offense of violence and the trier of

fact finds that the offense involved an attempt to cause or a

threat to cause serious physical harm to a person or resulted in

serious physical harm to a person.

(c) For purposes of division (B)(2)(b) of this section, two or more offenses

committed at the same time or as part of the same act or event shall be

considered one offense, and that one offense shall be the offense with the

greatest penalty.

{¶7} In addition, R.C. 2929.14(B)(2)(e) provides that “[w]hen imposing a sentence

pursuant to division (B)(2)(a) or (b) of this section, the court shall state its findings

explaining the imposed sentence.”

{¶8} In this case, the trial court was apprised of Watts’s criminal history by the

prosecutor and the presentence investigation report prepared for sentencing. Although

the court considers the present offense for the purposes of R.C. 2929.14(B)(2)(b)(ii), the

record demonstrates that Watts has been previously convicted of only one offense that

would satisfy the “three in twenty” requirement under R.C. 2929.14(B)(2)(b)(ii) — a

2008 aggravated robbery conviction. All of Watts’s other prior criminal convictions do

not consist of offenses that would satisfy the offenses described in R.C. 2929.01(CC),

which could be counted toward the “three in twenty” threshold. Accordingly, Watts is

not subject to a mandatory RVO sentence.

{¶9} Nevertheless, Watt could qualify for discretionary RVO sentencing pursuant

to R.C. 2929.12(B)(2)(a). That section provides, in pertinent part:

(a) If division (B)(2)(b) of this section does not apply, the court may impose

on an offender, in addition to the longest prison term authorized or required

for the offense, an additional definite prison term of one, two, three, four,

five, six, seven, eight, nine, or ten years if all the following criteria are met:

(i) The offender is convicted of * * * a specification of the

type described in section 2941.149 of the Revised Code that

the offender is a repeat violent offender.

(ii) The offense of which the offender currently is convicted *

* * is * * * any felony of the first degree that is an offense of

violence and the court does not impose a sentence of life

imprisonment without parole, or any felony of the second

degree that is an offense of violence and the trier of fact finds

that the offense involved an attempt to cause or a threat to

cause serious physical harm to a person or resulted in serious

physical harm to a person.

(iii) The court imposes the longest prison term for the offense

that is not life imprisonment without parole.

(iv) The court finds that the prison terms imposed pursuant to

division (B)(2)(a)(iii) of this section * * * are inadequate to

punish the offender and protect the public from future crime,

because the applicable factors under section 2929.12 of the

Revised Code indicating a greater likelihood of recidivism

outweigh the applicable factors under that section indicating a

lesser likelihood of recidivism.

(v) The court finds that the prison terms imposed pursuant to

division (B)(2)(a)(iii) of this section * * * are demeaning to

the seriousness of the offense, because one or more of the

factors under section 2929.12 of the Revised Code indicating

that the offender’s conduct is more serious than conduct

normally constituting the offense are present, and they

outweigh the applicable factors under that section indicating

that the offender’s conduct is less serious than conduct

normally constituting the offense.

{¶10} In this case, Watts was convicted of felonious assault, a second-degree

felony that is an offense of violence, and its accompanying repeat violent offender

specification. The trial court sentenced Watts to the maximum term of imprisonment on

the felonious assault charge. In satisfying the “recidivism and seriousness findings”

under section R.C. 2929.14(B)(2)(a)(iv) and (v), the trial court stated,

The Court, again, in noting especially the seriousness and recidivism

factors that there is a prior history of criminal convictions in this case, there

are multiple convictions, and many are offenses of violence, burglary. The

defendant has been convicted previously of burglary as well as aggravated

robbery and aggravated assault. He’s also violated a protection order, prior

domestic violence case and a gross sexual imposition case, has resisted

arrest, and has been arrested, convicted two times of stalking violations as

well. The record, then, does support the repeat violent offender

specification that has been stated in the indictment.

I will note that certainly of interest and importance in terms of

sentencing is the impact on the victim here. I have looked at the photos,

State’s Exhibits 3, 4 and 7, and those should be made part of the record for

this hearing. Those do indicate serious injury. I know at the time of plea

the state was reserving the right to charge the defendant with murder in case

the victim did die and I’m glad to see that [the victim] is present in court

and is apparently stable.

I can’t say she’s all better because she herself has acknowledged that

things are not all better and things are probably not going to be the same as

they were ever again based on these injuries. One life has been changed

forever with this and whatever brought her to that place was simply being in

the wrong place at the wrong time with the wrong person.

What I have to deal with now is you, Mr. Watts; you know, why you

were the wrong person on that day, why you’ve been the wrong person in

your past, and how much longer are you going to remain the wrong person

going forward because that certainly does play into the Court’s role here in

determining the length of sentence.

Certainly the Court acknowledges that a prison sentence is necessary

in order to protect the public and not demean the serious of the offense.

The fact is how long. Based on the injuries here and certainly your past

history and the fact that there does seem to be a problem with impulse

control over the past, you know, and that’s continued here, and the

seriousness of these injuries certainly does compel the Court to find that the

maximum sentence is appropriate in this case.

The Court is going to impose a prison sentence of eight years on the

charge of felonious assault and I do believe that the impact on the victim is

serious enough to justify the Court adding additional time under the repeat

violent offender specification of two years on to that sentence which would

then run consecutive to that time, so that would be a total of ten years on

this charge.

(Tr. 45-48.)

{¶11} The trial court’s findings are sufficient to support the recidivism and

seriousness factors required under R.C. 2929.14(B)(2)(a)(iv) and (v), respectively.

Similar to the conclusion that “talismanic” words are not required when imposing

consecutive sentences under R.C. 2929.14(C)(4), there are no magic words that must be

recited by the trial court when making the RVO findings under R.C. 2929.14(B)(2)(a).

As long as the reviewing court can discern from the record that the trial court engaged in

the correct analysis and can determine that the record contains evidence to support the

findings, the sentence on the RVO specification should be upheld. See, e.g., State v.

Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 29 (reviewing

consecutive sentence findings).

{¶12} Upon review of the record, this court concludes that the trial court

considered the appropriate recidivism and seriousness factors, made the required findings,

gave the necessary reasons for its findings, and properly applied the statutory guidelines

before sentencing Watts on the repeat violent offender specification. Accordingly, we

clearly and convincingly find that the record supports the sentence, and that the sentence

is not contrary to law.

{¶13} Watts’s assignment of error is overruled.

{¶14} 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. 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.

KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE

EILEEN A. GALLAGHER, J., and

SEAN C. GALLAGHER, J., CONCUR