[Cite as State v. Brown, 2016-Ohio-5401.]



                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                      No. 103201



                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                    ANTONIO BROWN
                                                      DEFENDANT-APPELLANT




                                   JUDGMENT:
                             AFFIRMED AND REMANDED


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                   Case No. CR-13-579563

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

          RELEASED AND JOURNALIZED:                     August 18, 2016
                                                -i-
ATTORNEY FOR APPELLANT

Robert A. Dixon
4403 St. Clair Ave.
Cleveland, Ohio 44103


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Gregory J. Ochocki
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:

       {¶1} Antonio Brown (“Brown”) appeals from the trial court’s imposition of

consecutive felony sentences for his convictions of sex offenses and assigns the following

error for our review:

       I. The lower court erred by imposing consecutive sentences without
       making findings of fact required by R.C. 2929.14(C)(4) and/or by relying
       upon unsubstantiated unproven allegations at sentencing to fulfill statutorily
       required findings in violation of the appellant’s right to due process of law.

       {¶2} Having reviewed the record and pertinent law, we affirm the decision of the

trial court and remand for further proceedings consistent with this opinion. The apposite

facts follow.

       {¶3} On May 4, 2014, Brown pled guilty to one count of rape, one count of

attempted rape, and two counts of gross sexual imposition. On June 10, 2014, the court

sentenced Brown on the rape, which is a first-degree felony punishable by three to 11

years in prison, and the attempted rape, which is a second-degree felony punishable by

two to eight years in prison. The court merged the two gross sexual imposition counts

into the respective rape and attempted rape counts, and sentenced Brown to ten years on

the rape and seven years on the attempted rape, to run consecutively, for an aggregate

prison term of 17 years. This court granted Brown’s motion to file a delayed appeal from

his sentence.

                        Felony Sentencing Standard of Review
       {¶4} 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. 2929.14(C)(4),” 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, Slip Opinion No. 2016-Ohio-1002.

                                 Consecutive Sentences

       {¶5} “[T]o 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.

       {¶6} At the sentencing hearing in the case at hand, the court made the following

findings on the record:

       The Court finds that consecutive sentences are necessary to protect the
       public from future crimes, and the Court finds that the prosecutor has
       indicated, and it is included in the probation report as well as in her
       recitation this morning that there have been other family members that have
       been sexually assaulted by you. And, therefore, you pose a danger to
       others as you continue with criminal activity of sexual assault.

       The Court further finds that consecutive sentences are necessary to punish
       the offender. The Court finds that consecutive sentences are not
       disproportionate to the seriousness of the offender’s conduct.

       The Court finds that consecutive sentences are not disproportionate to the
       danger the offender poses to the public.

       The Court finally finds that your conduct demonstrates that consecutive
       sentences are necessary to protect the public from future crimes by the
       offender.

       The Court believes that because of your history where you continue to
       sexually assault members of your family that you continue to pose a danger
       to your community, to your family members, and that some of the language
       that you use while you were exploiting these young people poses even more
       of a dangerous situation than some of the sexual contact that you had with
       them.

       Therefore the Court believes that consecutive sentences are necessary.

       {¶7} According to the record, Brown’s offenses involved two separate victims,

both of whom were family members, and the offenses were alleged to have occurred on

the same day. Brown argues that although there were previous allegations involving

other family-member victims, these accusations were unsupported and did not result in
indictments. Brown further argues that the court improperly relied upon these unproven

allegations in sentencing him for the sex offenses in the case at hand.

       {¶8} However, the allegations of abuse of other family members are contained in

Brown’s presentence investigation report. Furthermore, one of the victim’s mothers

testified at the sentencing hearing that she knew Brown molested other family members,

but she “held it in for 30 years.”

       {¶9} “Criminal wrongdoing, even without convictions, is part of an accused’s

social history and thus properly included in a presentence investigation report.” State v.

Richey, 64 Ohio St.3d 353, 358, 595 N.E.2d 915 (1992). Pursuant to R.C. 2929.19(B), at

a felony sentencing hearing, the court “shall consider the record, any information

presented at the hearing by any person * * *, and, if one was prepared, the presentence

investigation report * * *.” Thus, the court properly considered Brown’s social history

and conduct in imposing the 17-year sentence.

       {¶10} In Brown’s appellate brief and at oral argument, Brown’s counsel contended

that, despite the statutory nature of felony sentencing, the court’s consideration of

Brown’s “uncharged conduct” violated his due process rights.              In support of this

argument, Brown cites two cases. First, is Townsend v. Burke, 334 U.S. 736, 741, 68

S.Ct. 1252, 92 L.Ed. 1690 (1948), in which the United States Supreme Court held that a

sentence “predicated on misinformation or misreading of court records” of a defendant

who is not represented by counsel violates due process. Townsend does not apply to the

instant case, because Brown was represented by counsel, and nothing in the record

suggests that the accusations in question were false.
       {¶11} The second case Brown cited is State v. Hawkins, 8th Dist. Cuyahoga No.

102185, 2015-Ohio-3140, ¶ 17, in which this court ordered the trial court to resentence

the defendant on limited remand, because the court failed “to make the statutory findings

and incorporate them in the sentencing journal entry” before imposing consecutive

sentences. Upon review of the instant case, we find that the court made the required

findings pursuant to R.C. 2929.14(C)(4), and that these findings are supported by clear

and convincing evidence in the record. Accordingly, Brown’s sole assigned error is

overruled.

       {¶12} However, we note, and the state concedes, that the trial court failed to

incorporate its R.C. 2929.14(C)(4) findings in its journal entry. “[B]ecause a court

speaks through its journal, the court should also incorporate its statutory findings into the

sentencing entry.”     (Citation omitted.)      State v. Bonnell, 140 Ohio St.3d 209,

2014-Ohio-3177, 16 N.E.3d 659, ¶ 29.

       A trial court’s inadvertent failure to incorporate the statutory findings in the
       sentencing entry after properly making those findings at the sentencing
       hearing does not render the sentence contrary to law; rather, such a clerical
       mistake may be corrected by the court through a nunc pro tunc entry to
       reflect what actually occurred in open court.

Id. at ¶ 30.

       {¶13} In light of Bonnell, this matter is remanded to the trial court for the limited

purpose of issuing a nunc pro tunc journal entry incorporating its consecutive sentence

findings.

       {¶14} Judgment affirmed and remanded to the lower court for proceedings

consistent with this opinion.
      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
EILEEN T. GALLAGHER, J., CONCUR
