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Date: 01-29-2021
Case Style:
STATE OF OHIO v. LATRALE NELSON TRAVIS
Case Number: 109370
Judge: LARRY A. JONES, SR.
Court: COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
Plaintiff's Attorney: Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Allison Cupach, Assistant Prosecuting
Attorney
Defendant's Attorney:
OR
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Description:
Cleveland, Ohio - Criminal defense attorney represented Latrale Nelson Travis with appealing from the order imposing consecutive sentences for burglary and felonious assault charges.
} In 2019, Travis was charged with one count of aggravated burglary,
two counts of felonious assault, and one count of kidnapping involving two
unrelated incidents that occurred less than 30 minutes apart. Travis entered into a
plea deal with the state of Ohio and agreed to plead guilty to an amended count of
burglary and two counts of felonious assault. The trial court sentenced him to ten
years in prison, with three years of postrelease control.
{¶ 3} Travis appeals his sentence, raising the following assignment of error
for our review:
I. The trial court erred by ordering Appellant to serve a consecutive
sentence without making the appropriate findings required by R.C.
2929.14 and HB 86.
Further facts will be discussed under the assignment of error.
{¶ 4} In his sole assignment of error, Travis contends that the trial court
erred in sentencing him to consecutive sentences because it failed to make the
requisite statutory findings.
{¶ 5} There are two ways a defendant can challenge consecutive sentences
on appeal. State v. Tidmore, 8th Dist. Cuyahoga No. 107369, 2019-Ohio-1529,
¶ 15; State v. Johnson, 8th Dist. Cuyahoga No. 102449, 2016-Ohio-1536, ¶ 7. First,
the defendant can argue that consecutive sentences are contrary to law because the
trial court failed to make the findings required by R.C. 2929.14(C)(4). See R.C.
2953.08(G)(2)(b). Second, the defendant can argue that the record clearly and
convincingly does not support the findings made under R.C. 2929.14(C)(4). See
R.C. 2953.08(G)(2)(a).
{¶ 6} To impose consecutive sentences, the trial court must find that (1)
consecutive sentences are necessary to protect the public from future crime or to
punish the offender, (2) consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender poses to the
public, and (3) 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.
{¶ 7} R.C. 2929.14(C)(4). Only one of the three findings under R.C.
2929.14(C)(4)(a)-(c) must be made to support the imposition of consecutive
sentences. Id. The trial court must make the required statutory findings at the
sentencing hearing and incorporate those findings into its sentencing journal
entry. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659,
syllabus.
{¶ 8} To make the requisite findings under the statute, ‘“the [trial] court
must note that it engaged in the analysis’ and that it ‘has considered the statutory
criteria and specifie[d] which of the given bases warrants its decision.”’ Id. at ¶ 26,
quoting State v. Edmonson, 86 Ohio St.3d 324, 326, 715 N.E.2d 131 (1999). “[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. When considering
whether the trial court has made the requisite findings, an appellate court must
view the trial court’s statements on the record “in their entirety.” See, e.g., State v.
Blevins, 2017-Ohio-4444, 93 N.E.3d 246, ¶ 25 (8th Dist.).
{¶ 9} Travis contends that the trial court did not make the appropriate
findings to justify a consecutive sentence. Although the trial court was required to
make only one of the three findings in R.C. 2929.14(C)(4)(a)-(c), the trial court
found that all applied. Pursuant to R.C. 2929.14(C)(4)(a), the court found that
Travis committed the burglary and felonious assault while he was under
postrelease control for another case. Pursuant to R.C. 2929.14(C)(4)(b), the court
found that “a single term does not adequately reflect the seriousness of the
conduct,” basing its finding on the following:
[t]here are two victims that were assaulted by the defendant in June
of 2018. Both of those victims were strangers to the defendant and
the defendant was a stranger to them. Both of the victims were
engaging in normal adult life behavior and not anticipating becoming
victims of a violent offense. These incidents happened closely related
in time, I think maybe 25 minutes apart.
{¶ 10} And, under R.C. 2929.14(C)(4)(c), the court found that consecutive
sentences were necessary to protect the public from future crime based on Travis’s
criminal history. Finally, the trial court incorporated its findings into its journal
entry.
{¶ 11} An appellate court “may increase, reduce, or otherwise modify a
sentence” or it “may vacate the sentence and remand the matter to the sentencing
court for resentencing” if it “clearly and convincingly finds” that “the record does
not support the sentencing court’s findings” under R.C. 2929.14(C)(4). R.C.
2953.08(G)(2). ‘“Clear and convincing evidence is that measure or degree of proof
* * * which will produce in the mind of the trier of facts a firm belief or conviction
as to the facts sought to be established.”’ State v. Franklin, 8th Dist. Cuyahoga No.
107482, 2019-Ohio-3760, ¶ 29, quoting Cross v. Ledford, 161 Ohio St. 469, 120
N.E.2d 118 (1954), paragraph three of the syllabus. It is “an extremely deferential
standard of review.” State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 21 (8th
Dist.).
{¶ 12} Travis does not argue that the record does not support consecutive
sentences; thus, he has waived all but plain error on review. Moreover, our review
of the transcript shows that his sentence is supported by the record. Travis, who
has a lengthy criminal record and was on postrelease control when he committed
the crimes in this case, brutally attacked two women who were strangers to him
and in unrelated incidents that occurred less than 30 minutes apart. The trial
court made all the requisite statutory findings and incorporated those findings into
its journal entry.
{¶ 13} In light of the above, the sole assignment of error is overruled.
Outcome: } Judgment affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: