[Cite as State v. Cox,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 102629

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

DENITRA COX DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-584453-A

BEFORE: S. Gallagher, J., McCormack, P.J., and E.T. Gallagher, J.

RELEASED AND JOURNALIZED: January 7, 2016 ATTORNEY FOR APPELLANT

Thomas A. Rein 700 West St. Clair, Suite 212 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

BY: Ronni Ducoff Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 SEAN C. GALLAGHER, J.:

{¶1} Defendant-appellant, Denitra Cox (“Cox”), appeals her conviction on two

misdemeanor child endangering counts, one felony child endangering count, and two

felony abduction counts. The victims of the offenses were Cox’s three minor children.

The trial court sentenced Cox to eight years on the second-degree felony child

endangering charge, 36 months on each of the abduction charges, and time served on each

of the misdemeanor child endangering charges. The court ordered that the sentences be

served consecutively for an aggregate 14-year prison term. Cox now appeals her

sentences. For the following reasons, we affirm.

{¶2} In the first assignment of error, Cox argues the trial court erred by imposing

consecutive sentences without making the findings required by R.C. 2929.14(C). We

disagree.

{¶3} There is a presumption in Ohio that prison sentences should be served

concurrently, unless the trial court makes the findings outlined in R.C. 2929.14(C)(4) to

justify consecutive service of the prison terms. R.C. 2929.41(A). R.C. 2929.14(C)(4)

requires the court to 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, as applicable to the current case, (3) the harm caused by

two or more of the multiple offenses, committed as part of one or more courses of conduct, was so great or unusual that no single prison term adequately reflects the

seriousness of the offender’s conduct.

{¶4} In State v. Bonnell,

,

,

, the Ohio Supreme Court held that

a word-for-word recitation of the language of the statute is not required, and as 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.

The failure to make the findings results in the final sentence being “contrary to law.” Id.

at ¶ 37.

{¶5} In imposing the consecutive sentences in the current case, the trial court stated, in relevant part:

By the way, I do want to add that [(1)] the sentences, I feel, do adequately protect the community and punish the defendant here, and [(2)] it certainly cannot demean the seriousness of the crime of each one of these counts, which, [(3)] as I said, are separate victims, separate dates and take into consideration the age of each of the victims and the relationship with them to the defendant here.

Thus, the trial court first considered (1) whether consecutive service was necessary to

protect the public and to punish the defendant. The court also recognized that (2)

consecutive sentences were not disproportionate to Cox’s conduct. Although the trial

court spoke in terms of “demeaning the seriousness of the crimes,” the import of the

finding supersedes the language used. Bonnell. There is no practical difference

between the trial court finding the consecutive service of the prison sentences does not

demean the seriousness of Cox’s conduct underlying her crimes and that the same is not

disproportionate. See also State v. Wells, 8th Dist. Cuyahoga No. 100365,

(under pre-Bonnell case law, the panel concluded that the evidence

demonstrated that the harm caused to the victim was so great that a lesser sentence would

demean the seriousness of the crimes, and therefore, the disproportionate finding could be

satisfied on remand for the findings to be expressly made). In light of the fact that the

trial court’s findings were articulated in the same order as the statutory findings and the

second finding was meant to address the disproportionate finding, we can conclude the

trial court made the statutory findings. We agree with the dissent’s analysis, and in a

different context, the difference between the trial court’s use of the demeaning and

disproportionate language could be dispositive. In this case, the difference is not

relevant to the outcome.

{¶6} Finally, the trial court found that (3) Cox committed multiple offenses against

three child victims, and weighed the harms caused against the victims to their relationship

with Cox. The trial court’s final finding thus satisfied R.C. 2929.14(C)(4)(b), that the

harm caused by two or more of the multiple offenses justified the imposition of

consecutive service. As a result, we can discern from the record that the trial court

engaged in the correct analysis and made the required findings. We acknowledge that it

would have been a better practice to recite the statute’s verbiage to avoid any ambiguity

on appeal; however, the slight deviation from the statutory language satisfied the

requirements all the same.

. We overrule Cox’s first assignment of error.

{¶7} In the second assignment of error, Cox argues the trial court erred by failing

to merge allied offenses of similar import. Cox did not raise an allied offense issue or

otherwise object to the sentences imposed by the trial court. She has forfeited her allied offenses claim, except to the extent that it constitutes plain error. State v. Rogers,

,

,

, citing State v. Quarterman,

,

,

.

{¶8} Pursuant to Crim.R. 52(B), appellate courts have discretion to correct

“‘[p]lain errors or defects affecting substantial rights notwithstanding the accused’s

failure to meet his obligation to bring those errors to the attention of the trial court.”

Rogers at ¶ 22. To prevail under a plain error analysis, the appellant bears the burden of

demonstrating that the trial court “deviated from a legal rule,” or that there was “an

‘obvious’ defect in the proceedings” that resulted in prejudice, i.e., the outcome of the

proceedings would have been different. Id. at ¶ 17-22.

{¶9} Under R.C. 2941.25(A), when the same conduct by the defendant “can be

construed to constitute two or more allied offenses of similar import, the indictment or

information may contain counts for all such offenses, but the defendant may be convicted

of only one.” In State v. Ruff,

,

,

, the

Ohio Supreme Court outlined the test courts should employ when deciding whether two

or more offenses are allied offenses that merge into a single conviction under R.C.

2941.25. In a newly refined test, the Ruff court held that multiple offenses do not merge

if (1) the offenses are dissimilar in import or significance, (2) the offenses were

committed separately or against separate victims, or (3) the offenses were committed with

separate animus or motivation.

at syllabus.

{¶10} Cox pleaded guilty to second-degree child endangering as alleged in Count

8 of the indictment. Count 8 alleged that Cox neglected the medical needs of her son on or about October 1, 2012, to April 29, 2013, and that the neglect of medical care resulted

in serious physical harm to the child. This count is unrelated to the offenses committed

against Cox’s daughters. Nor was Cox’s son a victim in either of Cox’s abduction

convictions, which crimes were committed against two separate victims. As a result,

none of the offenses against the three separate victims merge.

{¶11} As it relates to the counts involving the same child, in Count 15, Cox

pleaded guilty to an amended charge of abduction, which she committed against C.J. on

or about February 1, 2013, to August 21, 2013. In Count 18, Cox pleaded guilty to an

amended charge of child endangering, which she also committed against C.J. on or about

October 1, 2012, to February 28, 2013. These offenses were committed on different

dates and are therefore separate acts not subject to merger. Ruff.

{¶12} Finally, in Counts 23 and 30, Cox pleaded guilty to an amended charge of

abduction and an amended child endangering charge, respectively. The indictment

alleged that Cox committed both of these offenses against Z.C. on or about February 1,

2013, and August 31, 2013. Although these offenses were committed within the same

period of time, the facts alleged in the indictment indicate they were separate acts

committed at different times. The act of child endangering alleged in Count 23 occurred

when Cox left Z.C. alone and she burned herself. The abduction charge was based on

Cox restraining Z.C., a completely separate act from the child endangering. Therefore,

the offenses alleged in Counts 23 and 30 were separate offenses committed at different

times and are not subject to merger. Ruff,

,

,

. The second and final assignment of error is overruled. {¶13} Cox’s conviction 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. 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

TIM McCORMACK, P.J., CONCURS; EILEEN T. GALLAGHER, J., DISSENTS WITH SEPARATE OPINION

EILEEN T. GALLAGHER, J., DISSENTING:

{¶14} I respectfully dissent and would hold that the trial court failed to make a

finding that a consecutive sentence was not disproportionate to Cox’s conduct or to the

danger she poses to the public. The majority contends “[t]here is no practical difference

between the trial court finding the consecutive service of the prison sentences does not

demean the seriousness of Cox’s conduct underlying her crimes and that the same is not

disproportionate.” However, I believe ensuring that a particular penalty is sufficient to

punish an offender is only half the proportionality analysis. {¶15} The requirement that a sentence not demean the seriousness of an offense is

designed to make sure that the penalty is severe enough to punish the offender for a

particular offense. Indeed, R.C. 2929.14(C)(4) requires the trial court to find that

consecutive service is necessary to punish the offender.

{¶16} Proportionality, however, requires that a particular penalty be commensurate

with the criminal conduct. A punishment may be insufficient to achieve a particular

penological purpose because the offender is under-punished. Conversely, a punishment

may be disproportionate if the penalty exceeds the amount of punishment necessary to

achieve the legislature’s penological purpose, i.e., retribution and deterrence. State v.

Cook,

,

(1998) (describing traditional aims of

punishment as retribution and deterrence).

{¶17} The concept of proportionality signifies both a floor (the least acceptable

punishment for a particular crime) and a ceiling (the highest-permissible punishment for a

particular crime). Ideally, punishments fall within the range of available punishments

and are sufficient, but not greater than necessary, to achieve a desired penological

purpose and are therefore proportionate. See, e.g., State v. Geddes, 8th Dist. Cuyahoga

No. 88186,

(holding that an aggregate 30-year consecutive prison

term was disproportionate to defendant’s conduct). See also Berry, Promulgating

Proportionality, 46 Ga. L.Rev. 69, 90 (2011); Ristroph, How (Not) to Think Like A

Punisher, 61 Fla. L.Rev. 727, 744 (2009).

{¶18} The United States Supreme Court adopted the principle of proportionality by

concluding that the Eighth Amendment privilege against cruel and unusual punishment contains a proportionality guarantee. See Gregg v. Georgia,

,

,

(1976) (finding that a punishment is excessive if it is grossly out of

proportion to the severity of the crime). In Coker v. Georgia,

,

,

(1977), the Supreme Court used the proportionality doctrine to

support its finding that the death penalty was an unconstitutionally excessive punishment

for the rape of an adult woman. The court explained that “the Eighth Amendment bars

not only those punishments that are ‘barbaric’ but also those that are ‘excessive’ in

relation to the crime committed.”

.

{¶19} Thus, proportionality, as a principle of law, is a criterion of fairness injected

into the sentencing process. R.C. 2929.14(C)(4) lists proportionality as a separate and

distinct finding in addition to the other findings enumerated in that section and in addition

to the purposes and goals of criminal sentencing set forth in R.C. 2929.11 and 2929.12.

State v. Gatewood, 8th Dist. Cuyahoga No. 101271,

, ¶ 13, citing State v.

Venes,

,

, ¶ 17 (8th Dist.). The failure to make each

separate finding renders the sentence “contrary to law.” State v. Bonnell,

,

,

.

{¶20} This court has consistently demanded that the trial court make a separate

proportionality finding beyond finding that consecutive service does not demean the

seriousness of the defendant’s conduct. For example, in State v. Norris, 8th Dist.

Cuyahoga No. 102104,

, ¶ 29, we held a consecutive sentence was

contrary to law even though the court found that no single prison term for any of the

offenses adequately reflected the seriousness of the offender’s conduct because the court failed to make separate finding of proportionality. See also State v. McGee, 8th Dist.

Cuyahoga No. 99704,

(same); State v. Lebron, 8th Dist. Cuyahoga

No. 97773,

(same).

{¶21} The trial court in this case found that consecutive service did not “demean

the seriousness of the crime.” This finding indicates the court found that consecutive

prison terms were necessary to punish Cox. R.C. 2929.14(C)(4). The trial court also

noted there were two separate victims of tender age. Thus the court found that the harm

caused by “two or more of the multiple offenses, committed as part of one or more

courses of conduct, 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,” as required by R.C. 2929.14(C)(4)(a)-(c). See

R.C. 2929.14(C)(4)(b).

{¶22} However, the court never mentioned the word “disproportionate,” nor does

the court use any other language to describe a finding that a consecutive sentence “fits the

crime” or is “not excessive.” Although the trial court is not required to recite any

particular magic words when making its findings, we must be able to discern from the

record that the trial court engaged in the correct analysis. Bonnell,

,

,

.

{¶23} Cox’s consecutive sentence does not “demean the seriousness” of her

conduct because she was not under-punished. It is doubtful that consecutive sentences could ever demean1 the seriousness of the offender’s conduct. As previously stated, the

purpose of the proportionality finding in R.C. 2929.14(C)(4) is to prevent

over-punishment. For example, in making the proportionality finding, the trial court

could find that concurrent sentences would demean the seriousness of the offense.

{¶24} There is no way to ascertain from the court’s statements whether the court

considered and found that a consecutive sentence would not punish Cox excessively for

her conduct. Therefore, I would find Cox’s sentence to be contrary to law because the

trial court failed to consider whether consecutive sentences are disproportionate to the

seriousness of Cox’s conduct. For this reason, I respectfully dissent.

1 The word “demean” implies minimizing or lowering in status. See Collins Dictionary, http://collinsdictionary.com/dictionary/english/ demeaning (accessed Dec. 7, 2015).