[Cite as State v. Clarke, 2016-Ohio-8306.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                       No. 104397



                                       STATE OF OHIO
                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                 JAH’KING D. CLARKE
                                                        DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-15-597935-D

               BEFORE:           Blackmon, J., E.A. Gallagher, P.J., and S. Gallagher, J.

              RELEASED AND JOURNALIZED:                      December 22, 2016
ATTORNEYS FOR APPELLANT

Robert Tobik
Cuyahoga County Public Defender

By: Jeffrey Gamso
Cuyahoga County Public Defender
Assistant Public Defender
310 Lakeside Ave., Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Glen Ramdhan
Andrew J. Santoli
Assistant County Prosecutors
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113




PATRICIA ANN BLACKMON, J.:
       {¶1} Jah’King D. Clarke (“Clarke”) appeals from the trial court’s sentencing him

to consecutive prison terms totaling 23 years and assigns the following error for our

review:

       I. The trial court committed error when it imposed consecutive sentences
       without making the necessary findings.

       {¶2} Having reviewed the record and pertinent law, we affirm the trial court’s

decision. The apposite facts follow.

       {¶3} On January 31, 2015, Clarke got into a verbal altercation with a group of

men in a vehicle parked at a lot in Maple Heights. During the argument, Clarke reached

into a black Audi and pulled out two guns. Clarke emptied the magazines of both guns

into the parked vehicle, killing one man. There were three additional people in the car

who were not injured. A surveillance camera in the parking lot captured video footage

of the incident. Clarke left the scene and fled to Alabama, where he was eventually

apprehended in July 2015. The police recovered 13 shell casings from the parking lot

and determined that all of the bullets came from Clarke’s guns.

       {¶4} On February 26, 2016, Clarke pled guilty to voluntary manslaughter in

violation of R.C. 2903.03(A), a first-degree felony, with a three-year firearm

specification; felonious assault in violation of R.C. 2903.11(A)(2), a second-degree

felony; and tampering with evidence in violation of R.C. 2921.12(A)(1), a third-degree

felony.

       {¶5} On March 30, 2016, the court sentenced Clarke to prison as follows: ten

years for voluntary manslaughter; three years for the firearm specification; eight years for
felonious assault; and two years for tampering with evidence. The court ran all sentences

consecutively, for an aggregate term of 23 years in prison. It is from this order that

Clarke appeals.

                        Felony Sentencing Standard of Review

        {¶6} R.C. 2953.08(G)(2) provides, in part, that when reviewing felony sentences,

the appellate court’s standard of review is not whether the sentencing court abused its

discretion; rather, if this court “clearly and convincingly” finds that (1) “the record does

not support the sentencing court’s findings under” R.C. Chapter 2929 or that (2) “the

sentence is otherwise contrary to law,” then we may conclude that the court erred in

sentencing. See also State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d

1231.

        {¶7} A sentence is not clearly and convincingly contrary to law “where the trial

court considers the purposes and principles of sentencing under R.C. 2929.11 as well as

the seriousness and recidivism factors listed in R.C. 2929.12, properly applies

post-release control, and sentences a defendant within the permissible statutory range.”

State v. A.H., 8th Dist. Cuyahoga No. 98622, 2013-Ohio-2525, ¶ 10.

        {¶8} Pursuant to R.C. 2929.11(A), the two overriding purposes of felony

sentencing are “to protect the public from future crime by the offender and others,” and

“to punish the offender using the minimum sanctions that the court determines

accomplish those purposes * * *.”         Additionally, the sentence imposed shall be

“commensurate with and not demeaning to the seriousness of the offender’s conduct and
its impact on the victim, and consistent with sentences imposed for similar crimes

committed by similar offenders.” R.C. 2929.11(B).

       {¶9} Furthermore, in imposing a felony sentence, “the court shall consider the

factors set forth in [R.C. 2929.12(B) and (C)] relating to the seriousness of the conduct

[and] the factors provided in [R.C. 2929.12(D) and (E)] relating to the likelihood of the

offender’s recidivism * * *.”      R.C. 2929.12.     However, this court has held that

“[a]lthough the trial court must consider the principles and purposes of sentencing as well

as the mitigating factors, the court is not required to use particular language or make

specific findings on the record regarding its consideration of those factors.” State v.

Carter, 8th Dist. Cuyahoga No. 103279, 2016-Ohio-2725, ¶ 15.

                                 Consecutive Sentences

       {¶10} Additionally, “to impose consecutive terms of imprisonment, a trial court is

required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing

and incorporate its findings into its sentencing entry * * *.” State v. Bonnell, 140 Ohio

St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. Pursuant to R.C. 2929.14(C)(4), the

court must find consecutive sentences are “necessary to protect the public from future

crime or to punish the offender;”      “not disproportionate to the seriousness of the

offender’s conduct and to the danger the offender poses to the public”; and at least one of

the following three factors:

       (a) The offender committed one or more of the multiple offenses while the
       offender was awaiting trial or sentencing, was under a sanction * * *, 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.

      {¶11} In the instant case, Clarke argues that the court failed to find that

consecutive sentences were not disproportionate to the danger Clarke poses to the public.

Clarke argues that the court instead found that consecutive sentences “were not

disproportionate to the danger he posed previously to” the murder victim and the assault

victims.

      {¶12} Our review of the sentencing hearing transcript shows that the court made

the proper findings before imposing consecutive sentences. Specifically as to Clarke’s

argument, the court stated that his “conduct certainly is serious enough to warrant

consecutive sentences either to protect the public in the future and also to punish the

offender for that conduct.” (Tr.132.)

      {¶13} Additionally, the court made the other required statutory findings as follows:

The court found that Clarke was “using two handguns fired almost simultaneously

towards [the victims] at reasonably close distance * * * given the proximity of the rounds

striking where they [did].” The court found that Clarke, who was 22 years old at the time

of the shooting, had two prior cases involving a weapon, one of which resulted in a felony

conviction. The court determined that consecutive sentences were appropriate, because

“we have a different set of victims [including] the felonious assault involving three

victims.”
      {¶14} The court continued as follows:

      [G]iven the seriousness of the charge and the actions by Mr. Clarke as
      demonstrated by the presentation of the video * * * indicate that Mr. Clarke
      was placing at least four people at risk. Three were fortunate; one was not.
       And the conduct certainly is serious enough to warrant consecutive
      sentences either to protect the public in the future and also to punish the
      offender for that conduct.

      The total number of years together is not disproportionate to the seriousness
      of his conduct and it’s not disproportionate to the danger that he posed to
      both.

      Coupled with that is Mr. Clarke’s conduct thereafter. If there was in my

      view a true belief of self defense, Mr. Clark wouldn’t have run. But he

      did. The video shows that [his] intent was to leave, leave immediately, and

      have no consequences or concern for any of the people left in that parking

      lot, three of who were not injured and one of whom died. And not only did

      [he] leave, [he] left the jurisdiction.

      {¶15} The court additionally found that Clarke had “a record involving weapons”

and was “unable to control [himself] in that regard * * *.” Finally, the court found that

Clark “intended to use both weapons and run through [the] magazine[s] until there were

no rounds left. It wasn’t a one-or two-shot situation. [Clarke was] intending to use every

force of violence those weapons were to produce.”

      {¶16} Furthermore, the court’s sentencing journal entry states, in part, as follows:

      The court imposes prison terms consecutively finding that consecutive

      service 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, 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.

      {¶17} Upon review, we find that the court made the findings required under R.C.
2929.14(C)(4), including that consecutive sentences are not disproportionate to the danger
Clarke poses to the public. Clarke’s sole assigned error is overruled.

      {¶18} Sentence 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 be sent to the Cuyahoga County Court of

Common Pleas 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.




PATRICIA ANN BLACKMON, JUDGE

EILEEN A. GALLAGHER, P.J., and
SEAN C. GALLAGHER, J., CONCUR
