State v. Diehl, 2019 Ohio 3818

Background

In 2013 Amanda Ter Doest (aka Diehl) pled guilty to two counts of grand theft (4th-degree felonies) and one count of theft (5th-degree felony); the court imposed five years of community control and "reserved" prison terms of 18, 18, and 12 months (to run consecutively) if she violated, but did not make R.C. 2929.14(C)(4) findings when reserving consecutive terms.
Multiple probation revocation petitions were filed over the years for missed restitution payments and new thefts; a 2017 petition alleged new grand theft/forgery charges and unpaid restitution (only ~$27,160 paid of ~$99,935 ordered).
Appellant admitted the violations at a 2018 revocation hearing. At sentencing (May 18, 2018) the trial court revoked community control and imposed the three reserved prison terms consecutively (total 48 months); the court stated reasons but did not expressly find the consecutive terms were not disproportionate under R.C. 2929.14(C)(4).
Appellant argued on appeal that (1) the court erred by imposing consecutive sentences without required statutory findings and (2) the court refused to consider her gambling addiction as mitigating evidence under R.C. 2929.12(C)(4).
The Sixth District held the original reservation of consecutive terms was contrary to law because the required findings were not made, so consecutive terms could not be imposed on revocation; it found the trial court did consider appellant’s gambling claim and did not err on that point, reversed in part, remanded for resentencing, and certified a conflict to the Ohio Supreme Court on the proper standard of appellate review.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial court could impose consecutive prison terms on revocation when consecutive terms were reserved originally without R.C. 2929.14(C)(4) findings	Diehl: consecutive sentences were imposed without the statutorily required findings at the time of reservation	State: trial court’s statements at revocation demonstrated sufficient findings to impose consecutive terms	Reservation of consecutive terms at original sentencing without the required findings was contrary to law; therefore consecutive terms could not be imposed on revocation (first assignment well-taken on other grounds)
Whether trial court failed to consider mitigating evidence of gambling compulsion under R.C. 2929.12(C)(4)	Diehl: presented diagnosis, treatment completion, Gambler’s Anonymous evidence; court ignored mitigating evidence	State: trial court did consider gambling claim but found it inconsistent with record and outweighed by thefts while on community control	Trial court satisfied its duty to consider the gambling evidence; no reversible error on mitigation (second assignment not well-taken)
Proper standard of appellate review for sentences imposed following community-control revocation	Diehl: appellate review governed by R.C. 2953.08(G)(2) (limited, statutory standard)	State/counterdecisions: other districts have applied abuse-of-discretion	Sixth District applied R.C. 2953.08(G)(2) and certified a conflict to the Ohio Supreme Court for resolution

Key Cases Cited

State v. Marcum, 146 Ohio St.3d 516 (Ohio 2016) (addresses standard of review for felony sentences and applicability of R.C. 2953.08)
State v. Bonnell, 140 Ohio St.3d 209 (Ohio 2014) (imposition of consecutive sentences without required R.C. 2929.14(C)(4) findings is contrary to law)
State v. Barnhouse, 102 Ohio St.3d 221 (Ohio 2004) (trial court must give notice if it may impose consecutive prison terms as penalties for multiple community-control violations)
State v. Brooks, 103 Ohio St.3d 134 (Ohio 2004) (notice requirement under former R.C. 2929.19(B) for imposing prison as penalty for community-control violation)
State v. Jackson, 150 Ohio St.3d 362 (Ohio 2016) (revocation hearing is a new sentencing hearing requiring compliance with sentencing statutes)
State v. Underwood, 124 Ohio St.3d 365 (Ohio 2010) (consecutive sentences are discretionary, not mandatory)