STATE OF OHIO -vs- NATHANIEL SMITH

Canton, Ohio - Criminal defense attorney represented Nathaniel Smith with appealing the August 31, 2020 judgment of the Licking County Court of Common Pleas charge.

A recitation of the underlying facts is unnecessary to our resolution of this

appeal.

{¶ 3} On August 12, 2020 we issued our opinion in Smith's first appeal, State v.

Smith, Licking App. No. 2019CA119, 2020-Ohio-4048, which we affirmed in part and

reversed in part. We reversed Smith's sentence because during his sentencing hearing,

the trial court failed to make the findings mandated by R.C. Section 2929.14(C)(4) before

imposing consecutive sentences and to incorporate those findings into its sentencing

entry. Id. ¶¶ 46-47.

{¶ 4} The matter was remanded for a new sentencing hearing which took place

on August 31, 2020. The trial court sentenced Smith as follows:

So, at this time, I would say that the court would impose terms of two

years in the state penitentiary on Count No. 1, two years on the state

penitentiary on Count No. 2, and a six-month sentence on Count No.

3. I'd order that Counts 1 and 2 run consecutively with each other

and concurrently with Count No. 3 for a four-year term.

I'd find consecutive sentences are necessary to protect the public,

punish the Defendant, not disproportionate to the crimes he's Licking County, Case No. 2020CA61 3

committed or others imposed on others for similar conduct. And I'd

find that they're necessitated by his criminal history * * *.

{¶ 5} Transcript of resentencing (T.) at 10.

{¶ 6} The trial court then discussed Smith's lengthy criminal history which began

in 1997. T. 10-11.

{¶ 7} The trial court's August 31, 2020 sentencing judgment entry states in

relevant part:

It is, therefore, ordered that the Defendant serve a stated prison term

of two (2) years on Count one and two (2) years on Count 2 at the

Orient Reception Center. Further, the Court imposes a term of six

months in jail on count 3. Counts 1 and 2 are ordered to run

consecutively with each other and concurrently with count 3 for an

aggregate term of four (4) years.

The Court has decided that the offender shall serve the prison terms

consecutively, pursuant to R.C. 2929.14(C)(4), because the Court

finds that the consecutive sentences are 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 the Court also finds the following: Licking County, Case No. 2020CA61 4

The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from

future crime by the offender.

* * *

{¶ 8} Smith filed an appeal and the matter is now before this court for

consideration. He raises one assignment of error:

I

{¶ 9} "THE TRIAL COURT UNLAWFULLY ORDERED SMITH TO SERVE

CONSECUTIVE SENTENCES, IN VIOLATION OH HIS RIGHTS TO DUE PROCESS,

GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AND THE

FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION."

{¶ 10} In his sole assignment of error, Smith argues his consecutive sentences

must be vacated because the trial court imposed the sentences in contravention of the

sentencing statutes. We disagree.

{¶ 11} We review felony sentences using the standard of review set forth in R.C.

2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22.

R.C. 2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a

sentence and remand for resentencing where we clearly and convincingly find that either

the record does not support the sentencing court's findings under R.C. 2929.13(B) or (D),

2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law.

{¶ 12} Clear and convincing evidence is that evidence "which will provide in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be established.” Licking County, Case No. 2020CA61 5

Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the

syllabus. "Where the degree of proof required to sustain an issue must be clear and

convincing, a reviewing court will examine the record to determine whether the trier of

facts had sufficient evidence before it to satisfy the requisite degree of proof.” Cross, 161

Ohio St. at 477, 120 N.E.2d 118.

{¶ 13} "In order to 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, but it has no obligation to state

reasons to support its findings.” State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177,

16 N.E.3d 659, syllabus. "[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.” Id. at ¶ 29.

{¶ 14} We first note Smith concedes the trial court made the findings mandated by

R.C. 2929.14(C)(4). Appellant's brief at 4. He argues, however, that consecutive

sentences are reserved for the most serious offenses and offenders and that the record

here fails to support a conclusion that he committed the most serious offense or is among

the most serious offenders. Smith further argues consecutive sentences are not

warranted because he has suffered several deaths in his family over the past year and

because he needs to be with his 72-year-old mother.

{¶ 15} In support of his arguments, Smith states he was not armed during the

instant offenses which consisted of one count each of domestic violence against his wife

and daughter, and a count of aggravated menacing against a neighbor who attempted to Licking County, Case No. 2020CA61 6

help the women. The offenses involved Smith running out of his house cursing and

screaming at his wife. When his daughter got in his way, he picked her up, threw her

around, and struck her in the face. As Smith cocked his fist to assault his wife, a neighbor

drove up to the scene and asked Smith to calm down. Smith asked the neighbor if he

wanted to fight and then threatened to shoot him in the face. State v. Smith, Licking App.

No. 2019CA119, 2020-Ohio-4048, ¶¶ 5-6. Smith argues he is not the worst offender and

did not commit the worst form of the offense because these events did not alarm his wife

and daughter and neither suffered serious injury. These events, however, constitute

Smith's third case of domestic violence. Id. ¶ 8.

{¶ 16} Smith further ignores the trial court's discussion of his extensive prior record

during the resentencing hearing. The court noted Smith's criminal history began in 1994

with murder, continued to the present and includes convictions for felon in possession of

a firearm in 1996 and 2004, drug possession in 2000, manufacturing and delivering a

controlled substance in 2002 and 2004, resisting an officer during service of process,

criminal sexual conduct, fraudulent activity, accosting children for immoral purpose and

domestic violence in 2008, domestic violence for knowingly assaulting a pregnant woman

in 2009, and abduction, assault and menacing in 2010. Several of these charges resulted

in incarceration. T. 10-11.

{¶ 17} We find that the trial court made the appropriate findings before imposing

consecutive sentences. We further find the record supports the trial court's conclusion

that in light of the nature of the instant offense and Smith's criminal history, Smith's

conduct demonstrates consecutive sentences are necessary to protect the public from Licking County, Case No. 2020CA61 7

future crime by Smith and to punish Smith. Accordingly, we clearly and convincingly find

that the record supports the sentence, and that the sentence is not contrary to law.

{¶ 18} The sole assignment of error is overruled.

The judgment of the Licking County Court of Common Pleas is affirmed.