Opinion
Court of Appeals No. L-19-1170
09-11-2020
State of Ohio Appellee v. Jeffrey Steven Michalak Appellant
Julia R. Bates, Lucas County Prosecuting Attorney, and Maggie E. Koch, Assistant Prosecuting Attorney, for appellee. Laurel A. Kendall, for appellant.
Trial Court No. CR0201901085 DECISION AND JUDGMENT Julia R. Bates, Lucas County Prosecuting Attorney, and Maggie E. Koch, Assistant Prosecuting Attorney, for appellee. Laurel A. Kendall, for appellant. MAYLE, J.
{¶ 1} Defendant-appellant, Jeffrey Michalak, appeals the August 2, 2019 judgment of the Lucas County Court of Common Pleas, convicting him of two counts of felonious assault and accompanying firearms specifications, and sentencing him to a total prison term of 18 years. For the following reasons, we affirm the trial court judgment.
I. Background
{¶ 2} On January 16, 2019, Jeffrey Michalak was indicted on two counts of felonious assault, violations of R.C. 2903.11(A)(2) and (D), second-degree felonies, two firearms specifications under R.C. 2941.145(A), (B), (C), and (F), and a firearms specification under R.C. 2941.146(A), (B), and (D). On July 18, 2019, he entered a plea of guilty to both counts of felonious assault, one specification under R.C. 2941.145, and an amended specification under R.C. 2941.141(A) and (B). The trial court accepted Michalak's plea, made a finding of guilt, ordered a presentence investigation report ("PSI"), and continued the matter for sentencing.
{¶ 3} On August 1, 2019, the trial court sentenced Michalak to seven years in prison on Count 1 and three years on the firearms specification attached to Count 1, and seven years in prison on Count 2 and one year on the firearms specification attached to Count 2. It ordered all prison terms to be served consecutively for a total prison term of 18 years. The trial court initially entered a judgment that unintentionally omitted the sentence imposed for Count 2, so it issued a nunc pro tunc judgment, journalized on August 6, 2019, correcting this error.
{¶ 4} Michalak appealed and assigns the following error for our review:
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT REFUSED TO FOLLOW THE AGREED SENTENCING RECOMMENDATION FOR A MAXIMUM SENTENCE OF TEN (10) YEARS, AND SENTENCED APPELLANT TO CONSECUTIVE
SENTENCES TOTALLING EIGHTEEN (18) YEARS, WITHOUT FINDINGS OF FACT ON THE RECORD TO SUPPORT THE IMPOSITION OF CONSECUTIVE SENTENCES.
II. Law and Analysis
{¶ 5} While Michalak assigns one error for our review, his appeal raises two issues: (1) whether the trial court erred in imposing a sentence that exceeded the sentence recommended by the state; and (2) whether the trial court erred in imposing consecutive sentences without making findings of fact on the record.
{¶ 6} We review a challenge to a felony sentence under R.C. 2953.08(G)(2). R.C. 2953.08(G)(2) provides that an appellate court may increase, reduce, or otherwise modify a sentence or may vacate the sentence and remand the matter to the sentencing court for resentencing if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court's findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
A. The Trial Court's Rejection of the Recommended Sentence
{¶ 7} Michalak first argues that the trial court erred in imposing an 18-year total prison term instead of imposing the 10-year total prison term recommended by the state. Michalak contends that the trial court could have imposed a sentence within the maximum term recommended by the state by imposing concurrent sentences of six years on the felonious assault convictions which, when added with the mandatory three-year and one-year terms required for the firearms specifications, would total 10 years. Instead, it imposed seven-year consecutive sentences which, when added together with the mandatory three-year and one-year firearms specifications, totaled 18 years.
{¶ 8} The state responds that the trial court was not obligated to impose the recommended sentence and Michalak was specifically advised of this fact before he entered his plea—a point acknowledged by Michalak in his brief.
{¶ 9} It is well-accepted that "[a] trial court is not bound to accept the state's recommended sentence in a plea agreement," and "[a] trial court does not err in imposing a sentence greater than that recommended by the state under a negotiated plea agreement where the trial court forewarns the defendant of the applicable penalties, including the possibility of imposing a greater sentence than that recommended by the prosecutor." (Internal quotations and citations omitted.) State v. Harder, 6th Dist. Ottawa No. OT-14-005, 2015-Ohio-795, ¶ 7. Here, the trial court told Michalak of the applicable penalties and forewarned him that it was not obligated to impose the state's recommended sentence:
Court: And you understand that there is a sentencing recommendation as part of this plea agreement, the State of Ohio is recommending a cap of 10 years, that is to both of these charges including the gun specifications. Do you understand that the court is not bound by
that sentencing recommendation and is free to deviate from that, I can sentence you as I see fit?
The Defendant: Yes, Your Honor.
{¶ 10} The parties informed the court that Michalak has a case pending in Wood County, and there was a recommendation that any sentence in that case be ordered to be served concurrently to this case. In response to a question from Michalak about this, the court informed him that the Wood County court also was not bound to accept the state's recommendation.
The Court: * * * But similarly to this case, that judge can do what he or she sees fit to sentence, okay?
The Defendant: Right, right.
The Court: * * * [T]hat Wood County case is not before me and I don't have jurisdiction over it, so it's still just these recommendations that neither I nor the Wood County judge are bound by. Does that make sense?
The Defendant: Yeah, yeah.
{¶ 11} Because the trial court was not bound by the state's recommendation, and it informed Michalak of this fact before accepting his plea, we find no error in the trial court's decision to impose a sentence that exceeded the state's 10-year recommended sentence.
B. The Imposition of Consecutive Sentences
{¶ 12} Michalak next argues that the trial court erred in imposing consecutive sentences. He argues that there were not sufficient facts in the record to support consecutive sentences. He acknowledges that the trial court made the findings required under R.C. 2929.14(C)(4), but he maintains that there "was no recitation of the facts of the case, read into the record, either during the plea, or at sentencing." He insists that this court should, therefore, find that there is no way to determine that the trial court engaged in the proper analysis because "there is no evidence on the record concerning safety of the public or the need to punish the offender more than he would with concurrent sentences, in support of why the sentences should be served consecutively." Without the ability to review the basis for the findings, he contends, we should find that the sentences should run concurrently.
{¶ 13} The state responds that the court is not required to articulate the reasons for its findings under R.C. 2929.14(C)(4); the court's "mere regurgitation" is sufficient to support the imposition of consecutive sentences. And here, it maintains, the court specifically stated that it examined "the record, oral statements, any victim impact statement, [and] PSI prepared," considered the principles and purposes of sentencing under R.C. 2929.11, and balanced the seriousness and recidivism factors under R.C. 2929.12. It found that consecutive sentences were "necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public"; "the offenses were committed as part of one or more courses of conduct that the harm caused was so great or unusual that no single prison term for any of the offenses committed as a part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct"; and "[Michalak's] criminal history requires consecutive sentences."
{¶ 14} R.C. 2929.14(C)(4) provides, in pertinent part, as follows:
If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public, and if the court also finds any of the following:
* * *
(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.
{¶ 15} While the sentencing court is required to make findings under R.C. 2929.14(C)(4) before imposing consecutive sentences, it is not required to give reasons explaining the findings. State v. Kubat, 6th Dist. Sandusky No. S-13-046, 2015-Ohio-4062, ¶ 33.
{¶ 16} Here, the PSI—which the court specifically stated that it reviewed—contained a detailed recitation of the facts giving rise to Michalak's convictions. Briefly stated, on December 30, 2018, Michalak walked into an occupied bar and fired three shots toward the bartender. Three days later, he fired five shots at a vehicle after its driver honked at him on Secor Road; four bullets struck the victim's vehicle. The PSI also recites Michalak's lengthy criminal history. At sentencing, two of the victims—the owner of the bar and the driver of the vehicle—provided impact statements. The court observed that during her impact statement, the bar owner "shook uncontrollably, reliving the horrors of that day," while the bartender, also present in court, "held back tears." It remarked that the victims of both incidents "saw their lives flash before their eyes" as a consequence of Michalak's conduct.
{¶ 17} Based on the information before it, the trial court concluded that (1) consecutive sentences were necessary to protect the public from future crime or to punish the defendant and were not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public; (2) the multiple offenses were committed as part of one or more courses of conduct, and the harm caused 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; and (3) the offender's history of criminal conduct demonstrates that consecutive sentences are necessary. We find that the record supports the trial court's findings.
{¶ 18} Accordingly, we find Michalak's assignment of error not well-taken.
III. Conclusion
{¶ 19} We find Michalak's assignment of error not well-taken. The trial court was not obligated to accept the sentence recommended by the state where it specifically advised Michalak of this fact, and the record supports the trial court's findings that consecutive sentences were appropriate under R.C. 2929.14(C)(4). We, therefore, affirm the August 2, 2019 judgment of the Lucas County Court of Common Pleas. Michalak is ordered to pay the costs of this appeal under App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J.
Christine E. Mayle, J.
Gene A. Zmuda, P.J.
CONCUR. /s/_________
JUDGE /s/_________
JUDGE /s/_________
JUDGE