State v. Smith

[Cite as State v. Smith, 2022-Ohio-4396.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :

No. 111604

v. :

KRYSTAL A. SMITH, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: December 8, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-21-664419-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting

Attorney, and Alicia Harrison, Assistant Prosecuting

Attorney, for appellee.

Cullen Sweeney, Cuyahoga County Public Defender, and

Robert B. McCaleb, Assistant Public Defender, for

appellant.

MARY J. BOYLE, J.:

Defendant-appellant, Krystal A. Smith (“Smith”), challenges the trial

court’s imposition of consecutive sentences for her drug possession convictions,

contending that the court did not make the appropriate findings as required by R.C.

2929.14. For the reasons set forth below, we affirm.

I. Facts and Procedural History

In November 2021, Smith was charged with codefendant, Melissa

Hotchkiss (“Hotchkiss”), in a four-count indictment.1 Count 1 charged Hotchkiss

with drug possession. Counts 2-4 charged Smith with fifth-degree felony drug

possession of methamphetamine (Count 2), cocaine (Count 3), and a fentanyl mix

(Count 4). These charges arose from a traffic stop for an alleged turn signal

infraction. Smith was driving with a suspended license at that time. Drugs were

found in the car during the tow inventory and on Hotchkiss’s person.

In May 2022, Smith entered into a plea agreement with plaintiff-

appellee, the state of Ohio, in which she pled guilty to Counts 2 and 4 and Count 3

was nolled. The court continued the matter for a presentence-investigation report

(“PSI”) and was set for a sentencing hearing in June 2022.

At the sentencing hearing, Smith explained to the court that she had

experienced a relapse to her drug addiction. Smith asked the court for community

control or inpatient treatment so that she could be allowed to visit with her nine-

month-old son. The state deferred to the trial court’s judgment, stating that it “is

aware that the Court has reviewed the [PSI], the defendant’s history, [and] the facts

1 At time of the release of this opinion, codefendant Hotchkiss has not filed a notice

of appeal.

of the case[.]” (June 7, 2022, tr. 30.) The following discussion was had when the

court imposed its sentence:

[COURT]: I have studied your record and your record is one of — as

far as I can see, it’s mostly of self abuse through your addiction, that

you are abusing yourself. You have put other people in danger through

your OVI and some of your thefts maybe. I’m not one hundred percent

sure if you put other people in danger or not. The attempted escape, I

don’t know with that — you did have — I thought you had a driving

under suspension. Maybe that was someone else. Maybe — there it is,

driving under suspension, driving without a license, violation of turn

signal.

[DEFENSE COUNSEL]: I don’t see an OVI.

[COURT]: I just said I don’t see the OVI, but so many of our OVIs are

pled down. I don’t know if this was or not. She also has resisting arrest,

obstructing business, things that you do put other people into jeopardy,

maybe not as much as an OVI.

In any event, your criminal record dates back to 2009 — right, 2009, in

Utah.

You’ve been a multi-state offender.

In any event, [Smith], with the love and help of your parents and all of

these court cases, you have not seen fit to take your addiction very

seriously.

***

[T]he fact is that it is a serious thing when you’re using

methamphetamines, as well as fentanyl, which are the two drugs you’ve

pled guilty to. So — and I know that according to your mother’s letter,

you’ve been clean now for the three months that you’ve been in county

jail; is that correct?

[SMITH]: Yes, ma’am.

[COURT]: And I know from my 12 years experience on this bench, that

three months is not enough for anyone to say they’re clean — * * * and

it needs to be much longer than that. I am sentencing you to the Ohio

State Reformatory For Women, on [Count] 2, 12 months; on Count 4,

12 months. I’m going to run those consecutive, because two years is not

disproportionate to the 13 years of addiction that you’ve had. And

you’ve obviously committed one or more of these offenses while you

were already on sentencing, I believe, to Lake County. And numerous

other cases that you are awaiting trial or disposition of cases. And this,

of course, is part of one or more courses of conduct, using different

drugs. And I didn’t count up how many cases you have. As I said, it’s

been 13 years of drug addiction and the aftermath of that. So we do

need to protect the public from future crime by you.

Now, if you earn your way — if you stay clean, take as many 12-step

program meetings as they offer, if you take other courses that they offer

while you are at the prison, and you don’t have any write-ups from your

days in prison, no misconduct, I will, at the appropriate time, consider

bringing you out on judicial release, but you have to earn it.

(June 7, 2022, tr. 35-38.)

In the corresponding journal entry, the trial court stated:

The Court considered all required factors of the law.

The Court finds that prison is consistent with the purpose of R.C.

2929.11.

The Court imposes a prison sentence at the Ohio Reformatory for

Women of 24 month(s).

The court imposes a sentence of 12 months on Count 2.

The court imposes a sentence of 12 months on Count 4.

Counts 2 and 4 are to run consecutive.

The court imposes prison terms consecutively finding that consecutive

service of the prison term is necessary to protect the public from future

crime or to punish defendant; that the consecutive sentences are not

disproportionate to the seriousness of defendant’s conduct and to the

danger defendant poses to the public; and that, the defendant

committed one or more of the multiple offenses while the defendant

was awaiting trial or sentencing or was under a community control or

was under post-release control for a prior offense, or at least two of the

multiple offenses were committed in this case as part of one or more

courses of conduct, and the harm caused by said multiple offenses 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 defendant’s conduct, or defendant’s history of

criminal conduct demonstrates that consecutive sentences are

necessary to protect the public from future crime by defendant.

As a result of the conviction(s) in this case and the imposition of a

prison sentence, and pursuant to [R.C. 2967.28(C), Smith] will/may be

subject to a period of post-release control of: up to 2 years of PRC at the

discretion of the parole board.

***

[Smith] to receive jail time credit for 54 day(s), to date.

The court hereby enters judgment against the defendant in an amount

equal to the costs of this prosecution.

***

The court elects to not suspend [Smith’s] driving privileges.

(Journal Entry, June 7, 2022.)

It is from this order that Smith now appeals, raising the following

single assignment of error for review:

Assignment of Error I: The trial court erred in imposing

consecutive sentences.

II. Law and Analysis

A. Standard of Review

An appellate court reviews felony sentences under R.C.

2953.08(G)(2). State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d

649, ¶ 27, citing State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d

1231. Under R.C. 2953.08(G)(2)(a) and (b), an appellate court “may increase,

reduce, or otherwise modify a sentence * * * or may vacate the sentence and remand

the matter * * * for resentencing” if it “clearly and convincingly” finds “[t]hat the

record does not support the sentencing court’s findings under * * * division (B)(2)(e)

or (C)(4) of section 2929.14” or “[t]hat the sentence is otherwise contrary to law.”

“A sentence is contrary to law if it falls outside the statutory range for

the offense or if the sentencing court fails to consider the purposes and principles of

sentencing set forth in R.C. 2929.11 and the sentencing factors in R.C. 2929.12.” 2

State v. Angel, 8th Dist. Cuyahoga No. 110456, 2022-Ohio-72, ¶ 8, citing State v.

Pawlak, 8th Dist. Cuyahoga No. 103444, 2016-Ohio-5926.

B. Smith’s 24-Month Sentence

Smith contends that the court erred when it ordered that her drug

possession convictions be served consecutively because the trial court failed to make

the “disproportionality” finding required by R.C. 2929.14(C)(4) and the trial court’s

findings on the necessity of consecutive sentences to protect the public or punish the

offender were not supported by the record.

Trial courts must engage in the three-step analysis of R.C.

2929.14(C)(4) before imposing a consecutive sentence. State v. Stoker, 8th Dist.

Cuyahoga No. 110029, 2021-Ohio-1887, ¶ 22, citing State v. Gohagan, 8th Dist.

Cuyahoga No. 107948, 2019-Ohio-4070. First, the trial court must find that

“consecutive service is necessary to protect the public from future crime or to punish

the offender.” Second, the trial court must find that “consecutive sentences are not

2 We note that Smith’s 12-month sentence on each count is within the statutory

range for a fifth-degree felony, which allows for a prison term of six, seven, eight, nine,

ten, 11, or 12 months. R.C. 2929.14(A)(5).

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

offender poses to the public.” Third, the trial court must find that at least 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 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).

“The failure to make the above findings renders the imposition of

consecutive sentences contrary to law.” Gohagan at ¶ 29, citing State v. Lawson,

8th Dist. Cuyahoga No. 105038, 2017-Ohio-4189, ¶ 9, citing State v. Balbi, 8th Dist.

Cuyahoga No. 102321, 2015-Ohio-4075. R.C. 2929.14(C)(4) directs that for each

step of this analysis, the trial court must “find” the relevant sentencing factors before

imposing consecutive sentences. R.C. 2929.14(C)(4). Trial courts, however, do not

need to recite the statutory language word for word, nor are they required to “give a

talismanic incantation of the words of the statute[.]” State v. Bonnell, 140 Ohio

St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 29, ¶ 37. “[A]s long as the reviewing

court can discern that the trial court engaged in the correct analysis and can

determine that the record contains evidence to support the findings, consecutive

sentences should be upheld.” Id. at ¶ 29.

Here, Smith challenges the first two steps of the analysis and

concedes that the third step was met. Therefore, our discussion will focus on the

first two steps — the findings that consecutive service is necessary to protect the

public from future crime or to punish the offender and consecutive sentences are

not disproportionate to the seriousness of the offender’s conduct and the danger the

offender poses to the public.

1. The Necessity of Consecutive Sentences to Protect the Public or

Punish the Offender

Smith first argues there is nothing in the trial court’s findings

announced at the sentencing or in the sentencing journal entry that clearly and

convincingly demonstrated a particular need to protect the public, such that

consecutive sentences are “necessary.” Smith argues that while the court included

the necessary language in the sentencing journal entry, the court did not engage in

any discernable analysis at the sentencing hearing.

In the instant case, the trial court considered Smith’s criminal history,

which stems back to 2009 in Utah. Smith’s criminal record includes her various

drug convictions and additional criminal offenses, including but not limited to,

driving while under suspension, resisting arrest, obstructing official business, theft,

attempted vehicle burglary, and attempted escape. (June 7, 2022, tr. 35-36.) The

court further noted that “it is a serious thing when you’re using methamphetamines,

as well as fentanyl[.]” (June 7, 2022, tr. 37.) The court, when considering Smith’s

13 years of drug addiction, stated that “we do need to protect the public from future

crime by you.” (June 7, 2022, tr. 38.) Because of this long history, the trial court

acknowledged the need to keep Smith in prison but also advised Smith that the court

would consider judicial release if she stayed clean, attended the drug rehabilitation

programs, and had no write-ups while in prison. (June 7, 2022, tr. 37-38.)

Therefore, based on the foregoing, we find that Smith’s repeated criminal and drug

activity supports the trial court’s finding that a consecutive sentence is necessary to

protect the public from future harm.

2. The Proportionality Finding

Smith next argues that while the trial court stated that “two years is

not disproportionate,” it considered proportionality in relation Smith’s “13 years of

addiction” and not the proportionality of the sentence to her conduct and the danger

she poses to the public as the statute provides.

R.C. 2929.14(C)(4) requires the court to find “that consecutive

sentences are not disproportionate to the seriousness of the offender’s conduct and

to the danger the offender poses to the public.” The essential question in this step

of the analysis “is whether the record of the sentencing hearing makes it clear that

the court considered (1) the seriousness of the offender’s conduct and (2) the danger

the offender poses to the public and compared those factors to the sentence imposed

on the defendant and determined that comparison supported the imposition of the

consecutive sentence.” State v. Tolbert, 8th Dist. Cuyahoga No. 110249, 2022-Ohio-

197, ¶ 48. We note that this court will typically determine that the required findings

are present

where the trial court discussed at least one of the proportionality

findings and also made factual conclusions that would support both

required findings. See State v. Hicks, 8th Dist. Cuyahoga No. 107055,

2019-Ohio-870, ¶ 14; State v. Hollis, 8th Dist. Cuyahoga No. 109092,

2020-Ohio-5258, ¶ 23; State v. Kamal, 8th Dist. Cuyahoga No. 109781,

2021-Ohio-2261, ¶ 14 (note the Kamal court reversed but only because

the journal entry did not include the findings made at the sentencing

hearing); State v. Morris, 2016-Ohio-7614, 73 N.E.3d 1010, ¶ 27 (8th

Dist.); State v. Bennett, 8th Dist. Cuyahoga Nos. 108700 and 108749,

2020-Ohio-3453, ¶ 12; State v. Delmonico, 8th Dist. Cuyahoga No.

108578, 2020-Ohio-3368, ¶ 59; State v. Brown, 8th Dist. Cuyahoga

No. 108699, 2020-Ohio-1615, ¶ 15; State v. Forston, 8th Dist.

Cuyahoga No. 108332, 2020-Ohio-569, ¶ 12.

***

This court has also affirmed consecutive sentences where the trial court

does not use the exact language of proportionality but nonetheless

considered the principle. See State v. McGowan, 8th Dist. Cuyahoga

No. 105806, 2018-Ohio-2930, ¶ 19 (affirmed trial court where it

discussed the need to “try to match the conduct with the sentence”);

State v. Reed, 8th Dist. Cuyahoga Nos. 108544, 108629 and 108630,

2020-Ohio-1610, ¶ 23 (this court affirmed sentencing where the trial

court determined that consecutive sentence would not be

disproportionate without using that language).

Tolbert at ¶ 45, 47.

Here, when imposing the consecutive sentence, the trial court stated

that “I’m going to run those consecutive, because two years is not disproportionate

to the 13 years of addiction that you’ve had. * * * So we do need to protect the public

from future crime by you.” (June 7, 2022, tr. 37-38.) The court also stated that these

offenses were committed while serving a prior sentence and while awaiting trial or

disposition of additional cases. (June 7, 2022, tr. 37.) The court further stated that

these offenses were part of one or more courses of conduct. (June 7, 2022, tr. 38.)

The foregoing record demonstrates that the trial court made the

requisite findings when imposing consecutive sentences. The trial court stated that

the sentences “shall not be disproportionate” before considering the seriousness of

Smith’s conduct and that her criminal and drug history demonstrated that

consecutive sentences were necessary to protect the public. These factual

conclusions support both required proportionality findings. Additionally, the trial

court incorporated its findings, including disproportionality, into its sentencing

entry. When viewed in its entirety, the record indicates that the trial court

considered the proportionality requirement.

Therefore, the sole assignment of error is overruled.

III. Conclusion

Smith’s 24-month consecutive sentence is not contrary to law and the

record clearly and convincingly supports the trial court’s findings under R.C.

2929.14(C)(4).

Accordingly, judgment 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. 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.

MARY J. BOYLE, JUDGE

MICHELLE J. SHEEHAN, P.J., and

CORNELIUS J. O’SULLIVAN, JR., J., CONCUR