[Cite as State v. Jones, 2016-Ohio-8145.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 104152




                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                            LEE JONES
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-14-590112-A

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

        RELEASED AND JOURNALIZED: December 15, 2016
ATTORNEY FOR APPELLANT

Ruth R. Fischbein-Cohen
3552 Severn Road #613
Cleveland, Ohio 44118


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Mary Weston
Assistant Prosecuting Attorney
Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:

       {¶1} Appellant Lee Jones disagrees with the trial court’s decision to impose his

ten-year prison term on a single rape count to be served consecutive to four other rape

convictions Jones is already serving. There is no error in Jones’s sentence, and therefore,

we affirm.

       {¶2} The facts are relatively straightforward and undisputed. Jones approached a

stranger on the street, struck the victim in the face, and dragged her around a corner to

rape and further beat her. For this, Jones agreed to plead guilty to a single count of rape.

       {¶3} This was not an isolated occurrence for Jones. In 1995, he was adjudicated

delinquent for rape and remanded to the Ohio Department of Youth Services. In 2003,

Jones was convicted of two separate rapes, leading to a five-year concurrent prison term.

In 2007 and 2008, Jones was convicted of four rapes, each of a separate victim. That

time, Jones was sentenced to ten years on each count to be served consecutive to each

other. In this case, the trial court accepted Jones’s guilty plea and sentenced him to ten

years, to be served consecutive to the rest of his sentences.

       {¶4} Jones advances three arguments: (1) that the R.C. 2929.14(C)(4) findings are

not supported by the record; 1 (2) that his aggregate sentence violates the Eighth

Amendment prohibition against cruel and unusual punishment; and (3) that the trial court


       1
        Jones has not challenged whether, and thus concedes that, the trial court made the findings
under the standard set forth in State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659.
should have credited Jones for the time being served on his prior convictions during the

pendency of his current case, to reduce the current ten-year term imposed.

       {¶5} R.C. 2929.14(C)(4) permits the court to order consecutive service of

sentences if consecutive service (1) is necessary to protect the public from future crime or

to punish the offender; (2) is not disproportionate to the seriousness of the offender’s

conduct and to the danger the offender poses to the public; and additionally (3) if (a) the

offender committed the offense while awaiting trial or sentencing, under community

control monitoring, or under postrelease control for a prior offense, (b) at least two of the

offenses caused harm so great and unusual that no single term for any offense adequately

reflects the seriousness of the offender’s conduct, or (c) the offender’s history of criminal

conduct demonstrates the necessity of consecutive sentences to protect the public from

future crime.    State v. Smeznik, 8th Dist. Cuyahoga Nos. 103196 and 103197,

2016-Ohio-709, ¶ 6. We must affirm an order imposing consecutive service of the

prison terms, once the findings are made, unless it can be clearly and convincingly found

that the record does not support the sentencing judge’s findings. R.C. 2953.08(G)(2).

This is an “extremely deferential” standard of review and one written in the negative.

State v. Kirkman, 8th Dist. Cuyahoga No. 103683, 2016-Ohio-5326, ¶ 6.

       {¶6} Despite this extremely deferential standard, Jones asks this court to determine

“whether it was necessary to give a maximum and consecutive sentence, even where

prison might have been the only option.” The scope of consecutive-sentencing review

provided in R.C. 2953.08(G)(2)(a) — that the appellate court clearly and convincingly
finds that the record does not support the R.C. 2929.14(C)(4) findings — does not

provide appellate courts the latitude to answer that question. It was the trial court’s sole

responsibility to determine whether consecutive sentences were necessary, and if so, to

make the required findings before imposing sentences to be consecutively served. An

appellate court’s responsibility is to determine whether the defendant demonstrated that

the findings made by the trial court are clearly and convincingly not supported by the

record. Stated another way, if the record supporting the individual findings is debatable

or the trial court could reasonably have made the findings based on its consideration of

the record, it cannot be concluded that the record clearly and convincingly does not

support the findings.

       {¶7} Within this framework, Jones contends that (1) the public needs no protection

from Jones because he will be 69 years old when released from his previous aggregate

prison term, and thus, the additional ten-year prison term serves no protective purpose; (2)

the state failed to demonstrate that this particular rape involved more cruelty or unusual

treatment than what is inherent in any other rape case; and (3) nothing in the record

indicates that more than one act was committed. On all these points, although it could be

debated whether the record sufficiently supports the findings, we cannot conclude that the

record clearly and convincingly does not support the findings.

       {¶8}   Jones’s    third   contention   can    be   summarily     rejected.      R.C.

2929.14(C)(4)(a)–(c) are presented as three alternatives to the third finding. Only one

need be supported by the record in order to affirm. We agree with Jones that under R.C.
2929.14(C)(4)(b), in order to impose consecutive service, it could be found that the harm

caused by two or more of the multiple offenses was so great and unusual that no single

term adequately reflects the seriousness of the offender’s conduct. However, it could

also be found, as the trial court did in this case, that the offender’s history of criminal

conduct demonstrates that consecutive sentences are necessary to protect the public from

future crime. Subdivision (C)(4)(c) is inherently intertwined with the first and second

findings,2 and therefore, we need not consider whether the record supports the finding

under subdivision (C)(4)(b). In light of the trial court’s express consideration of Jones’s

history of criminal conduct and the need to protect the public from Jones, any analysis of

the subdivision (C)(4)(b) finding would be rendered moot whether we conclude that the

first two findings are or are not supported by the record.

       {¶9} Having said that, we reject Jones’s first two contentions, which focus on the

first and second findings in support of consecutive sentences, that consecutive sentences

are necessary to protect the public from future crime and are not disproportionate to the

offender’s conduct.      The crux of his argument rests with the misplaced belief that

appellate review of consecutive sentence findings is guided by the R.C. 2929.12(B)–(E)

sentencing factors and that appellate courts must consider the weight given to any one

sentencing factor in reviewing whether the record supports the findings. According to


       2
          It is conceivable that an offender lacking a history of criminal conduct could still pose a
danger to the public from future crime, even though the subdivision (C)(4)(c) finding would not be
supported by the record. In cases for which the offender does have a criminal history, however, the
first two findings necessarily overlap with the third.
Jones, he is already serving a lengthy sentence for other crimes, and his conduct was not

more serious than conduct normally constituting the offense because none of the R.C.

2929.12(B) factors were present. See, e.g., State v. Kay, 2d Dist. Montgomery No.

26344, 2015-Ohio-4403. In Kay, the court improperly “balanced” the “only” recidivism

factor, lack of remorse under R.C. 2929.12(D)(5), against numerous factors that weighed

against recidivism under R.C. 2929.12(E) and determined that the record did not support

the R.C. 2929.14(C)(4) finding that the consecutive service was necessary to protect the

public. Even though the trial court concluded that the lack of remorse was of greater

weight and thus importance, the appellate panel believed that the factors against

recidivism outnumbered the lack-of-remorse recidivism factor and, according to the

panel, the R.C. 2929.14(C)(4) finding was therefore not supported by the record. Id.

       {¶10} The trial court in this case rejected Jones’s view of the mitigating factors

and found that keeping Jones off the street for ten additional years was necessary to

protect the public because of his penchant for committing rapes against strangers. What

Jones seeks is for an appellate panel to consider the sentencing factors a second time and

give greater weight to the mitigating factors than the trial court had, presumably in

reliance on the Ohio Supreme Court’s dicta that it is “fully consistent for appellate courts

to review those sentences that are imposed solely after consideration of the factors in R.C.

2929.11 and 2929.12 * * *[,]” even though the sentence is “not clearly and convincingly

contrary to law[,] if the appellate court finds by clear and convincingly evidence that the
record does not support the sentence.”          State v. Marcum, 146 Ohio St.3d 516,

2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23.

       {¶11} Allowing appellate review of sentences that are not contrary to law is

seemingly at odds with the “unambiguous and definite” language of R.C. 2953.08(G)(2)

and the first paragraph of Marcum itself, holding that “an appellate court may vacate or

modify a felony sentence on appeal only if it determines by clear and convincing evidence

that the record does not support the trial court’s findings if applicable or that the sentence

is otherwise contrary to law.” Marcum at ¶ 1, 9; see also State v. Ongert, 8th Dist.

Cuyahoga No. 103208, 2016-Ohio-1543; State v. Saracco-Rios, 12th Dist. Madison Nos.

CA2016-02-011 and CA2016-03-014, 2016-Ohio-7192, ¶ 18; State v. Eichele, 11th Dist.

Geauga No. 2015-G-0050, 2016-Ohio-7145, ¶ 30; State v. Madison, 10th Dist. Franklin

Nos. 15AP-994 and 15AP-995, 2016-Ohio-7127, ¶ 12; State v. Adjei, 1st Dist. Hamilton

No. C-160207, 2016 Ohio App. LEXIS 3637, *3 (Sept. 9, 2016). Regardless, nothing in

Marcum indicates that an appellate court is to supplant its judgment for that of the trial

court and reconsider the weight to be given any one sentencing factor in the guise of

appellate review.

       {¶12} Further, this notion that appellate courts must review each of the R.C.

2929.12 factors within the consecutive-sentencing review to determine whether the

offender’s conduct is more serious than conduct normally constituting the offense under

R.C. 2929.12 or to determine the likelihood of recidivism for the purpose of determining

whether the record supports the consecutive-sentence finding, as undergone in Kay, 2d
Dist. Montgomery No. 26344, 2015-Ohio-4403, has been rejected by this court. State v.

Kirkman, 8th Dist. Cuyahoga No. 103683, 2016-Ohio-5326, ¶ 7. To begin with, the

Second District has since moved away from Kay. State v. Withrow, 2d Dist. Clark No.

2015-CA-24, 2016-Ohio-2884, ¶ 39 (clarifying that the dissent in Kay was correct that a

consecutively imposed sentence stands unless the record overwhelmingly supports a

contrary result). Moreover, such an approach ignores the highly deferential standard

under R.C. 2953.08(G)(2) and reduces appellate analysis to an arbitrary “we’ll know it

when we see it” standard. Had the legislature intended for the R.C. 2929.12 sentencing

factors to be a mandatory consideration within the consecutive-sentence framework, the

sections would have been cross-referenced. See, e.g., R.C. 2929.20(J) (“[a] court shall

not grant a judicial release under this section to an eligible offender who is imprisoned for

a felony of the first or second degree * * * unless the court, with reference to factors

under section 2929.12 of the Revised Code” makes specific findings). It is evident that

the legislature was aware of what statutory language was necessary to incorporate the

sentencing factors into other sentencing-related findings.         The absence of the R.C.

2929.20(J)-type reference in R.C. 2929.14(C)(4) speaks volumes.

       {¶13} Appellate courts could very well disagree with the sentence imposed;

however, disagreement over debatable issues, such as the weight or importance of any

one factor or finding, is not grounds to reverse the consecutively imposed sentence under

R.C. 2953.08(G)(2). Id.3 This is not to say that trial courts cannot be guided by the


       There is a debate over this concept of “meaningful” appellate review of sentences. Withrow
       3
sentencing factors in considering the consecutive-sentence findings; we simply recognize

that no court is required to constrain itself to those factors for consecutive-sentencing

purposes according the unambiguous and definite language of R.C. 2929.14(C)(4).

        {¶14} Even so, appellate courts cannot reweigh sentencing factors within the scope

of reviewing whether the record supports the consecutive-sentence findings. To begin

with, it has been consistently maintained that a trial court need only consider the

sentencing factors pursuant to R.C. 2929.11 and 2929.12. Ongert, 8th Dist. Cuyahoga

No. 103208, 2016-Ohio-1543, ¶ 12, citing State v. Karlowicz, 8th Dist. Cuyahoga No.

102832, 2016-Ohio-925; see also State v. D.S., 10th Dist. Franklin No. 15AP-790,

2016-Ohio-2856, ¶ 15 (“[a]lthough appellant appears to disagree with the trial court’s


at ¶ 51 (Donovan, P.J., dissenting) (deferential standard of review does not immunize the appellate
court from providing a “meaningful” review); but see State v. Warner, 8th Dist. Cuyahoga No.
100197, 2014-Ohio-1519, ¶ 14 (noting “[t]he fact that the trial court’s decision to discount the
factors [the defendant] thinks most important is unpalatable to him and others does not render the
sentence entered contrary to law under Ohio’s sentencing review process.” “[I]t is not in the
province of an appellate court to create a new standard of review solely because the legislature
arguably prohibited any ‘meaningful’ review over an offender’s final sentence.”). The problem with
this concept is that it ultimately turns appellate panels into sentencing courts because the panel
inevitably weighs the sentencing factors to supplant its judgment for that of the trial court, the tribunal
actually tasked by voters and the state constitution with sentencing criminal offenders. See Kay.
Appellate panels lack the interaction with the offender, the victim, and the witnesses, a vital aspect of
sentencing. As Jones phrased his arguments, so have numerous criminal defendants before him.
They ask the panel to reject the trial court’s discretion and give greater weight to the mitigating
factors rejected by the trial court. Appellate courts review for errors of law. What is being asked is
not to review for error, but to impose a different sentence altogether or to remand to the trial court to
reconsider the sentence imposed based on the offender’s interpretation of the facts. This could very
well be a matter of semantics; however, the importance of what is being sought should not be
disregarded. We must tread lightly on this slippery slope and avoid the temptation in cases where
the sentence seems harsh, but the record is debatable. Otherwise, we risk judicially circumscribing
the trial court’s sentencing discretion and turn appellate panels into fact-centric, sentencing tribunals.
analysis and application of the purposes and principles of sentencing set forth by R.C.

2929.11 and the statutory factors set forth by R.C. 2929.12, such disagreement does not

make a sentence that falls within the applicable statutory range contrary to law.”). The

weight given to the sentencing factors is discretionary, and that discretion purely rests

with the trial court. All that R.C. 2929.11 and 2929.12 require is for the trial court to

consider the factors. Ongert at ¶ 10; State v. Montanez-Roldon, 8th Dist. Cuyahoga No.

103509, 2016-Ohio-3062, ¶ 10-11 (R.C. 2953.08 precluded appellate review of the trial

court’s discretion in weighing the consistency in sentencing principles under R.C.

2929.11(B) because the final sentence was within the applicable statutory range and the

trial court expressly indicated it considered all the required statutory factors and

principles). Even if the trial court considered the R.C. 2929.11 and 2929.12 factors in

the scope of the consecutive-sentence determination, the appellate court is prohibited

from injecting itself into that discretionary function.

       {¶15} Although the analogy may be simplistic, it can be said that the appellate

court’s role is to look at the forest while the trial court focuses on the trees. The

appellate court looks at the record as a whole, in the context of the claimed error(s) and

through the lens of a statutorily limited review, to ensure that the individual trees

constituting the forest exist. It cannot be the role of the appellate court to reassess the

weight the trial court gave to that evidence or information underlying a finding. That

discretion lies with the trial court, and our review is not for an abuse of discretion. We

are to give deference to the trial court’s exercise of discretion and can statutorily vacate,
reverse, or modify a sentence only if we find by clear and convincing evidence that the

record does not support the findings.

       {¶16} Thus, our consecutive-sentencing review is limited to determining whether

the record supports the findings actually made; it is not an invitation to determine or

criticize how well the record supports the findings.       Withrow, 2d Dist. Clark No.

2015-CA-24, 2016-Ohio-2884, at ¶ 37. Appellate courts are prohibited from substituting

their judgment for that of the trial court because any such substitution would eviscerate

the trial court’s sentencing discretion. Id. It is one thing to reverse a conviction if the

trial court finds the defendant’s criminal history supported the imposition of consecutive

sentences, but the defendant was a first-time offender. In that case, the record clearly

and convincingly does not support the finding that the history of criminal conduct

demonstrates the necessity of consecutive sentences.       In addition, if the trial court

mischaracterizes the history of criminal conduct (for instance, expressing its belief that

consecutive service was necessary to protect the public because the offender has a history

of violent offenses, when in fact the past conduct was limited to petty, nonviolent

offenses), there may be grounds to determine that the consecutive findings are clearly and

convincingly not supported by the record. On the other hand, if the defendant had a

criminal record and the trial court simply referenced the general history of criminal

conduct, but again the severity of that record is debatable because all prior conduct was

petty and nonviolent, it is not incumbent upon an appellate court to reconsider the weight

placed on the individual factors for the purpose of reviewing the trial court’s finding,
especially by reconsidering the likelihood of recidivism factors under R.C.

2929.12(D)–(E). See, e.g., State v. Bonnell, 5th Dist. Delaware No. 14 CAA 10 0063,

2015-Ohio-2367, ¶ 24 (on remand following the Ohio Supreme Court’s decision in State

v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, the trial court

concluded that although 101 months appears disproportionate to stealing $117 in change,

the only method of preventing the defendant from reoffending was prison, and therefore,

consecutive sentences were necessary). The trial court, hypothetically speaking, would

implicitly have considered the severity of the crimes committed in reviewing the criminal

history and making the finding that the criminal history weighs in favor of consecutive

sentences in exercising its sentencing discretion.

       {¶17} Moreover, this court has continuously applied the above principles in

practice, and deferred to the trial court when the issue was the weight of the record in

support of the consecutive-sentence findings. State v. Primm, 8th Dist. Cuyahoga No.

103548, 2016-Ohio-5237, ¶ 68 (after reciting the trial court’s findings, the panel

concluded in its entirety that “we cannot ‘clearly and convincingly’ find that the record

does not support the court’s findings.”); State v. Balbi, 8th Dist. Cuyahoga No. 102321,

2015-Ohio-4075, ¶ 11 (consecutive service imposed on charges stemming from

possession of child pornography was affirmed because the nature of the crime as charged

reflects the severity of harm caused to the children depicted in the images); State v.

Kessler, 8th Dist. Cuyahoga No. 82956, 2003-Ohio-6052, ¶ 16 (maximum consecutive
sentences for the rape of a minor was warranted because the defendant committed one of

the “most heinous types of crimes that can be committed against children”).

      {¶18} Jones’s age upon release from the prison terms he is currently serving was

considered by the trial court, along with the nature of the crime committed against the

victim. Although it is conceivable that some jurists could possibly debate the need to

protect the public from what will be a 69-year-old serial rapist or whether the victim

suffered more than was inherent in any other rape, that type of debate does not impact the

determination of whether the record clearly and convincingly does not support the

findings — although in this case it appears that the need to keep a serial rapist with no

indicia of remorse behind bars for as long as possible is beyond question. Jones’s

request to reweigh the sentencing factors and give greater weight to mitigating ones in

order to arrive at the conclusion that only concurrent service of his newest sentence is

warranted, is not the type of appellate review contemplated within the ambits of R.C.

2953.08(G)(2). For this reason, we overrule Jones’s argument. We cannot conclude

that the findings are clearly and convincingly not supported by the record based on the

arguments presented.

      {¶19} Finally, we summarily overrule Jones’s remaining two arguments, that

consecutive service of his sentence amounts to cruel and unusual punishment under the

Eighth Amendment of the U.S. Constitution and that the trial court should have credited

the days he served for his other sentences to his current sentence. Neither argument is

novel; both are premised on similar, overruled arguments.
      {¶20} In State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d

1073, ¶ 1, the Ohio Supreme Court held that the imposition of an aggregate 134-year

prison term did not constitute cruel and unusual punishment in violation of the Eighth

Amendment.     “Where none of the individual sentences imposed on an offender are

grossly disproportionate to their respective offenses, an aggregate prison term resulting

from consecutive imposition of those sentences does not constitute cruel and unusual

punishment.” Id. at syllabus. The ten-year sentence imposed on the individual count to

which Jones pleaded guilty is not grossly disproportionate to the offense. Further, the

50-year, aggregate prison term is far less than the 134-year prison term affirmed in

Hairston. Jones’s sentence cannot be considered cruel or unusual.

      {¶21} And in State v. DeMarco, 8th Dist. Cuyahoga No. 96605, 2011-Ohio-5187,

¶ 11, it was concluded that an offender cannot seek jail-time credit for time spent in

confinement on unrelated matters. In this case, Jones was serving his prison terms in the

unrelated cases pending the disposition of the underlying case. Jones essentially is

seeking to count the time served on his aggregate term twice.          Although such an

argument is tenable when concurrent terms of prison are involved, the Ohio Adm.Code

5120-2-04(G), provides a different rule for calculating jail-time credit for offenders

serving consecutive terms. In such cases, the code instructs that jail-time credit be only

applied to the aggregate term once.           State v. Fugate, 117 Ohio St.3d 261,

2008-Ohio-856, 883 N.E.2d 440, ¶ 10-11. Jones is not entitled to jail-time credit in this

case because his time spent in prison during the duration of the case related to his prison
terms in his earlier convictions. Having already tallied the time served according to the

rule, the trial court did not err by omitting a time-served calculation in this case.

       {¶22} Having overruled Jones’s two assigned errors, we affirm the conviction.

       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 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.



SEAN C. GALLAGHER, JUDGE

EILEEN A. GALLAGHER, P.J., CONCURS WITH SEPARATE OPINION; MARY J.
BOYLE, J., CONCURS IN JUDGMENT ONLY


EILEEN A. GALLAGHER, P.J., CONCURRING WITH SEPARATE OPINION:

       {¶23} I concur with the judgment of the majority opinion. I write separately to

note my disagreement with paragraphs 10 and 11 of the majority opinion that I believe

conflict with the legal analysis set forth in State v. Jones, 8th Dist. Cuyahoga Nos. 103290

and 103302, 2016-Ohio-7702, ¶ 100-108.             Furthermore, I find the discussion in

paragraphs 10 and 11 to be unnecessary and outside the scope of the present appeal.
