[Cite as State v. Jones, 2017-Ohio-9020.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 105527

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

CARDELL JONES

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED; REMANDED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case Nos. CR-16-610564-A and CR-16-610565-A 

BEFORE: S. Gallagher, J., Kilbane, P.J., and Blackmon, J. 

RELEASED AND JOURNALIZED: December 14, 2017 
ATTORNEY FOR APPELLANT 

Erin E. Hanson 

McGinty Hilow & Spellacy Co., L.P.A 

The Rockefeller Building, Suite 1300 

614 W. Superior Avenue 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEE

Michael C. O’Malley 

Cuyahoga County Prosecutor 

By: Carl Mazzone 

 Eben McNair 

Assistant Prosecuting Attorneys 

Justice Center - 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
SEAN C. GALLAGHER, J.: 

{¶1} Cardell Jones appeals the imposition of consecutive sentences for three sex 

offenses. We affirm. 

{¶2} The facts are not well developed. Jones is in his mid-thirties and met the 

victim when dating and living with the victim’s mother. The victim was under the age of 

16 during the time that Jones engaged in a two-and-one-half- year sexual relationship 

with her, which resulted in the birth of two children. On those facts, Jones pleaded guilty 

to two counts of sexual battery under R.C. 2907.03(A)(5), based on the fact that Jones is 

the victim’s natural or adoptive parent, stepparent, guardian, custodian, or person in loco 

parentis of the victim. Jones also pleaded guilty to unlawful sexual conduct with a minor 

under R.C. 2907.04(A). All counts were felonies of the third degree, subject to a prison 

term of up to five years. 

{¶3} Jones also had an unrelated weapons charge that carried a maximum one-year 

sentence. Thus, as part of the plea deal, Jones faced a maximum of 16 years in prison if 

all terms were imposed consecutive to the others. At sentencing, Jones contended that a 

lengthy sentence should not be imposed because he has other children at home. The trial 

court considered what was required by law and sentenced Jones to four years on each sex 

offense, to be served consecutively, and 12 months on the weapons charge to be served 

concurrently to all other prison terms — resulting in an aggregate prison term of 12 years. 

 In his sole assignment of error, Jones claims that the consecutive sentencing findings are 
not supported by the record because his sexual relationship with the victim was 

consensual. 

{¶4} R.C. 2929.14(C)(4) authorizes the trial court to order consecutive sentences 

if, as is pertinent to this case, consecutive service (1) is necessary to protect the public 

from future crime or to punish the offender; (2) is not disproportionate to the seriousness 

of the offender’s conduct and to the danger the offender poses to the public; and 

additionally, (3) at least two of 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 offense committed adequately reflects the seriousness of the 

offender’s conduct. State v. Jones, 8th Dist. Cuyahoga No. 104152, 2016-Ohio-8145, ¶ 

5, citing State v. Smeznik, 8th Dist. Cuyahoga Nos. 103196 and 103197, 2016-Ohio-709, 

¶ 6. 

{¶5} At the sentencing hearing, the trial court made all the required findings, and 

Jones is not challenging that aspect of his sentences. Instead, Jones claims that the 

record does not support the alternative findings under R.C. 2929.14(C)(4)(a)-(c), that the 

harm caused by the offenses was so great or unusual that no single prison term adequately 

reflected the seriousness of the offender’s conduct under R.C. 2929.14(C)(4)(b) or the 

offender’s history of criminal conduct demonstrates the necessity of consecutive 

sentences to protect the public from future crime under R.C. 2929.14(C)(4)(c). As will 

be discussed, the record amply supports the former finding, and therefore, we need not 

review the latter because any error in that respect would be harmless. Crim.R. 52(A). 
Only one of the subdivision (a)-(c) findings is necessary to support consecutive service of 

prison terms. R.C. 2929.14(C)(4). We do note that the trial court did not include the 

subdivision (b) finding in the final sentencing entry, so we must remand for the limited 

purpose of issuing a nunc pro tunc entry to reflect that which occurred at the sentencing 

hearing. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, 

syllabus. 

{¶6} Jones claims that the two-and-one-half-year incestuous relationship with the 

victim, who was under the age of 16 during the time, was consensual, so that the finding 

under R.C. 2929.14(C)(4)(b) — that the harm caused by Jones’s conduct was not so great 

or unusual that no single term adequately reflects the seriousness of Jones’s conduct — is 

not supported by the record. Jones’s argument demonstrates that he has failed to 

comprehend the charges to which he pleaded guilty and the type of conduct that is 

prohibited by law. Jones pleaded guilty to incestuous conduct with a child under the age 

of 16.1

 R.C. 2907.03(A)(5). “Consent” would not be considered a mitigating factor or a 

defense in this case. State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 

512, ¶ 14 (the incest statute is meant to protect children from adults with authority over 

them); State v. Snuggs, 3d Dist. Henry Nos. 7-16-03 and 7-16-05, 2016-Ohio-5466, ¶ 8. 

 1

“Incestuous conduct is also included, though defined in broader terms [than] formerly, so as 

to include not only sexual conduct by a parent with his child, but also sexual conduct by a step-parent 

with his step-child, a guardian with his ward, or a custodian or person in loco parentis with his 

charge.” 1974 Committee Comment to H 511, R.C. 2907.03.
{¶7} Further, even if consent were relevant as a mitigating factor, there is no 

evidence in the record that the sexual battery offenses involved consensual sexual 

conduct. The state conceded that the conduct forming the basis of the separate and 

distinct violation of the unlawful sexual conduct with a minor statute was consensual for 

the purposes of the registration requirements for that offense, but the record is silent as to 

the nature of the sexual conduct forming the basis of the sexual battery counts. In the 

presentence investigation report, Jones claimed that the victim’s mother consented to 

Jones’s sexual relationship with the victim. Nothing in the record demonstrates that the 

victim consented to the sexual conduct underlying the sexual battery counts. 

{¶8} We cannot clearly and convincingly find that the record does not support the 

findings under R.C. 2953.08(G). Jones engaged in a prolonged sexual relationship with 

an underage victim under his care in some capacity, and moreover, he fathered two 

children for whom the underage victim is responsible. This supports the finding that the 

harm caused was so great and unusual that no single prison term adequately reflects 

Jones’s conduct under R.C. 2929.14(C)(4)(b). State v. Clyde, 6th Dist. Erie Nos. 

E-16-045 and E-16-048, 2017-Ohio-8205, ¶ 14 (16-year, aggregate term of prison on four 

counts of sexual battery in violation of R.C. 2907.03(A)(5) affirmed based on the number 

of offenses committed against the young victim and the defendant’s failure to take 

responsibility for the criminal conduct); see also State v. Nierman, 6th Dist. Ottawa No. 

OT-15-020, 2017-Ohio-672, ¶ 2 (15-year aggregate term on three counts under R.C. 

2907.03(A)(5) affirmed); State v. Harrington, 11th Dist. Trumbull No. 2006-T-0122, 
2007-Ohio-5784, ¶ 26 (20-year, aggregate sentence affirmed for several counts, including 

violations of R.C. 2907.03(A)(5)). 

{¶9} In this case, the victim was under Jones’s care, and the criminal conduct 

repeatedly occurred over a lengthy period of time. Further, Jones did not help his 

situation when discussing the crimes with the probation department. In the presentence 

investigation report, it was noted that Jones claimed that “he is only guilty of unlawful 

sexual contact with a minor and not sexual battery or gross sexual imposition because the 

victim’s mother gave her to him.” Jones also expressed his desire to withdraw his plea 

because he was not guilty of the sexual battery counts to which he pleaded guilty. We 

cannot clearly and convincingly find that the trial court’s findings are not supported by 

this record. R.C. 2953.08(G). 

{¶10} The convictions are affirmed, but the case is remanded for the limited 

purpose of issuing a nunc pro tunc entry to reflect the R.C. 2929.14(C)(4)(b) finding 

made during the sentencing hearing. 

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 correction and 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 

MARY EILEEN KILBANE, P.J., and 

PATRICIA ANN BLACKMON, J., CONCUR