2013 Ohio 2081
Ohio Ct. App.2013Background
- Fisher pleaded guilty to four counts of trafficking cocaine in 2011CR0674 and received five years of community control with a statutory warning of possible prison terms for violations.
- In 2011CR0688 Fisher pled guilty to one count of domestic violence and received five years of community control with a similar warning.
- Probation filed motions to revoke on October 13, 2011, leading to a November 14, 2011 revocation hearing.
- At the hearing, the State sought to have Fisher stipulate to violations and to reduce his total sentence by 24 months in exchange for truthful testimony, resulting in a 56-month total term.
- The court ultimately imposed a 56-month total sentence (20 months for 0674 plus 36 months for 0688) after the agreement and then journalized on November 21, 2011.
- HB 86 amendments to R.C. 2929.14 and 2929.41 became effective September 30, 2011, requiring explicit findings for consecutive sentences and applicability to sentences imposed after that date.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the court fail to make HB 86 findings before imposing consecutive sentences? | Fisher argues HB86 required explicit findings. | State contends the sentence was valid under the joint agreement. | Yes; lacking statutory findings, mandating remand for resentencing. |
Key Cases Cited
- State v. Nistelbeck, 10th Dist. No. 11AP-874, 2012-Ohio-1765 (Ohio Ct. App. 2012) (prison term not imposed until community control is revoked under HB86)
- State v. West, 2012-Ohio-4615 (2nd Dist. 2012) (consecutive sentences require HB86 findings before imposition)
- State v. Marshall, 2013-Ohio-1481 (Ohio Ct. App. 2013) (adopts Nistelbeck/West reasoning on HB86 findings)
- State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746 (Supreme Court of Ohio 2004) (requires notice of specific prison term for violation of probation conditions)
- State v. Fauntleroy, 5th Dist. No. CT2012-0001, 2012-Ohio-4955 (Ohio Ct. App. 2012) (no talismanic language required; must show proper analysis)
- State v. Murrin, 2004-Ohio-3962 (8th Dist. 2004) (requires proper analysis to impose consecutive sentences)
- State v. Jones, 2012-Ohio-2075 (1st Dist. 2012) (consecutive sentences require statutory findings)