[Cite as State v. Mitchell, 2016-Ohio-2632.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 103232

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

KEITH MITCHELL

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-11-557620-A 

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

RELEASED AND JOURNALIZED: April 21, 2016 
ATTORNEY FOR APPELLANT

Kelly A. Gallagher 

P.O. Box 45551 

Westlake, OH 44145 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

By: Maxwell Martin 

Assistant County Prosecutor 

9th Floor, Justice Center 

1200 Ontario Street 

Cleveland, OH 44113 
TIM McCORMACK, P.J.: 

{¶1} Defendant-appellant Keith Mitchell appeals from his consecutive sentences. 

 For the reasons that follow, we affirm. 

{¶2} In February 2012, Mitchell was charged in an eight-count indictment 

involving two victims: rape of Victim 1 in violation of R.C. 2907.02(A)(2), with a 

three-year firearm and sexually violent predator specification (Counts 1 and 2); 

kidnapping of Victim 1 in violation of R.C. 2905.01(A)(4) and (A)(3), with three-year 

firearm, sexually violent predator, and sexual motivation specifications (Counts 3 and 4, 

respectively); rape of Victim 2 in violation of R.C. 2907.02(A)(2), with a sexually 

violent predator specification (Count 5); kidnapping of Victim 2 in violation of R.C. 

2905.01(A)(4) and (A)(3), with sexually violent predator and sexual motivation 

specifications (Counts 6 and 7, respectively); and felonious assault of Victim 2 in 

violation of R.C. 2903.11(A)(1) (Count 8). 

{¶3} In May 2015, Mitchell withdrew his previously entered not guilty plea and 

pleaded guilty to an amended indictment. Under the plea agreement, Mitchell pleaded 

guilty to amended charges (Counts 1 and 5) of gross sexual imposition in violation of 

R.C. 2907.05(A)(1). In exchange for Mitchell’s guilty plea on the two amended 

charges, the state agreed to delete the firearm and sexually violent predator specifications 

and requested the remaining charges be dismissed. The court accepted Mitchell’s guilty 

plea, found him guilty, and scheduled the matter for sentencing. At the sentencing 
hearing, the court heard statements from Mitchell, defense counsel, and the state. 

Thereafter, the court imposed a sentence of 12 months imprisonment on each count and 

ordered them to be served consecutively. The court also notified Mitchell of his 

reporting requirements as a Tier I sex offender and that he is subject to a mandatory 

five-year period of postrelease control on each count. 

{¶4} Mitchell now appeals his sentence, challenging the court’s imposition of 

consecutive sentences. Mitchell contends that the record does not support consecutive 

sentence findings made by the trial court. In support of his argument, Mitchell claims 

that the present offenses occurred in 2002 and 2005, his criminal history does not include 

prior allegations of sexually oriented offenses, and the present offenses allegedly involved 

“drug transactions and sexual favors being traded,” thereby making Mitchell’s offenses 

“less violent than other cases before the court.” 

{¶5} R.C. 2953.08(G)(2) provides that when reviewing felony sentences, the 

appellate court may overturn the imposition of consecutive sentences where the reviewing 

court “clearly and convincingly” finds that (1) “the record does not support the sentencing 

court’s findings under R.C. 2929.14(C)(4),” or (2) “the sentence is otherwise contrary to 

law.” Our review of a claim that the record does not support the trial court’s findings 

under R.C. 2929.14(C)(4) is “‘extremely deferential.’” State v. Balbi, 8th Dist. 

Cuyahoga No. 102321, 2015-Ohio-4075, ¶ 5, quoting State v. Venes, 2013-Ohio-1891, 

992 N.E.2d 453, ¶ 21 (8th Dist.). 
{¶6} In Ohio, there is a presumption 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. State v. Cox, 8th Dist. Cuyahoga No. 

102629, 2016-Ohio-20, ¶ 3; R.C. 2929.41(A). R.C. 2929.14(C)(4) provides that in order 

to impose consecutive sentences, the trial court must find that consecutive sentences are 

necessary to protect the public from future crime or to punish the offender, that such 

sentences would not be disproportionate to the seriousness of the conduct and to the 

danger the offender poses to the public, and that 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 postrelease 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. 

State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 20-22. 

{¶7} Compliance with R.C. 2929.14(C)(4) requires the trial court to make the 

statutory findings at the sentencing hearing, “and by doing so it affords notice to the 

offender and to defense counsel.” Bonnell at ¶ 29. “Findings,” for these purposes, 

means that “‘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). Further, the reviewing court must be able to determine that the record 

contains evidence to support the findings. State v. Davis, 8th Dist. Cuyahoga No. 

102639, 2015-Ohio-4501, ¶ 21, citing Bonnell at ¶ 29. 

{¶8} A trial court is not, however, required to state its reasons to support its 

findings, nor is it required to give a rote recitation of the statutory language, “provided 

that the necessary findings can be found in the record and are incorporated in the 

sentencing entry.” Id. at ¶ 37. And the failure to make consecutive sentence findings 

is contrary to law. Balbi, 8th Dist. Cuyahoga No. 102321, 2015-Ohio-4075, at ¶ 4. 

{¶9} Here, prior to imposing a sentence, the court heard from defense counsel, 

who informed the court that the present offenses date back to 2002 and 2005 and were 

actually indicted in 2011, when Mitchell was — and is currently — serving an 81⁄2 years 

federal prison sentence. Counsel conceded that Mitchell has a lengthy criminal history 

and, as a “33-year-old man * * *, unfortunately, spent a good percentage of his adult life 

in prison.” Counsel provides, however, that none of the prior offenses are sexually 

oriented offenses and states that the current offenses “may have had a flavor that involved 

drug transactions and sexual favors being traded * * * [and is] less violent than it might 

be in other circumstances.” In further mitigation, defense counsel offered that Mitchell 

is remorseful, “a good, intelligent man,” and he no longer wishes to engage in that 

previous lifestyle “where he’s trying to explain away bad behavior with another bad 
behavior.” Mitchell offered an apology to the victims, and he expressed a desire to 

“mov[e] forward, living a better lifestyle.” 

{¶10} The state then addressed the court, noting that one of the victims is deceased 

and the other victim did not wish to personally address the court. The prosecutor noted, 

however, that the second victim “was less concerned with the amount of time [in prison 

Mitchell] received and more concerned with him being labeled a sex offender.” Counsel 

further noted that the victim wished for Mitchell to accept responsibility for his crime and 

acknowledge that his actions were wrong. The state requested a prison sentence for 

Mitchell. 

{¶11} Thereafter, the trial court stated that it considered the principles and 

purposes of sentencing and the statements from Mitchell, defense counsel, and the state. 

The court noted that it also considered Mitchell’s “abysmal record” and concluded that 

consecutive sentences were necessary: 

[T]he reason I am doing this is, number one, I believe it is necessary to 

punish you and to protect the public. I also think consecutive sentences 

are necessary because there [are] two victims. I don’t think you should get 

a discount for committing two crimes just because you’re pleading guilty. 

And particularly, it’s two different victims. 

So I believe there should be a sentence of prison for each victim in this 

matter. I also find that the harm is so great or unusual that a single term 

does not adequately reflect the seriousness of your conduct. 

These are sex offenses. And it is a horrific violation of the victims. And 

so I believe that’s a factor as well. I also find that your criminal history 

shows consecutive terms are needed to protect the public. 
{¶12} The court proceeded to outline Mitchell’s “significant” criminal history, 

noting offenses that began in 2001. Mitchell’s criminal conduct included aggravated 

burglary, burglary, drug possession, failure to comply with the order or signal of a police 

officer, receiving stolen property, and vandalism. The court also noted a probation 

violation in one matter. 

{¶13} As demonstrated in the record above, in imposing consecutive sentences, the 

trial court noted Mitchell’s “abysmal” and “significant” criminal history, outlining 

numerous offenses. Although defense counsel provides that the offenses presently 

before the court occurred more than ten years ago, the record demonstrates that Mitchell 

has been in a federal prison for much of the last ten years. Further, while Mitchell 

suggests that his offenses may be “less violent” than other crimes, the trial court 

emphasized that Mitchell engaged in sex offenses that were a “horrific violation” of two 

different victims on separate occasions. Thus, the trial court concluded that “the harm is 

so great or unusual that a single term does not adequately reflect the seriousness of your 

conduct.” 

{¶14} In light of the foregoing, we find that the court engaged in the correct 

analysis in determining whether consecutive sentences were appropriate and necessary. 

Additionally, we cannot clearly and convincingly find that the record does not support the 

trial court’s findings. “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.” Bonnell, 140 Ohio St.3d 

209, 2014-Ohio-3177, 16 N.E.3d 659, at ¶ 29. 

{¶15} Mitchell’s sole assignment of error is overruled. 

{¶16} Judgment affirmed. 

It is ordered that appellee recover of 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. 

________________________________________ 

TIM McCORMACK, PRESIDING JUDGE 

EILEEN T. GALLAGHER, J., and 

MARY J. BOYLE, J., CONCUR