2014 Ohio 3887
Ohio Ct. App.2014Background
- Indicted for felonious assault (second degree) in Franklin County; pled guilty; trial court imposed community control for three years with restitution, costs, and a fine, plus 90 days in jail concurrent with another case.
- On Sept. 19, 2013, this court reversed the sentence for failing to make required 2929.13(D)(2) findings to overcome the presumption of imprisonment.
- On Oct. 30, 2013, resentencing occurred; the court sentenced appellee to three years on community control with conditions and the usual financial obligations.
- Nov. 1, 2013 judgment entry memorialized the resentencing.
- The State challenges the trial court’s findings under 2929.13(D)(2) and the sufficiency of the record’s support for those findings, and argues the sentence violates the prison-presumption rule.
- Court ultimately reverses and remands for resentencing to comply with statutory guidelines, sustaining one assignment and overruling others.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court made the required 2929.13(D)(2) findings. | State argues findings were not made or explicit. | Fisher contends findings were made and supported by record. | Yes, findings were made and supported. |
| Whether the record supports the court's 2929.13(D)(2) conclusions. | Record does not support lesser-recidivism findings. | Record adequately weighs 2929.12 factors in favor of community control. | No; record does not support the lesser-recidivism conclusion; remand required for reevaluation under 2929.12(D)(4) and 2929.13(D)(2). |
| Whether the sentence under community control violates the prison presumption. | Imposition of community control contrary to law. | Sentence complies with statute given weighing of factors. | No; but remand required for proper 2929.12(D)(4) consideration. |
Key Cases Cited
- Milhoan II, State v. Milhoan, 2014-Ohio-310 (10th Dist. 2014) (affirmative 2929.13(D)(2) findings sufficient; weighing of 2929.12 factors supported without formulaic recitation)
- Fisher, State v. Fisher, 2013-Ohio-4063 (10th Dist. 2013) (reversed for lacking required findings; later remanded)
- Saur, State v. Saur, 2011-Ohio-6662 (10th Dist. 2011) (trial court need not detail every reasoning; must consider 2929.12 factors)
- Stevens, State v. Stevens, 2013-Ohio-5218 (10th Dist. 2013) (recognizes general consideration of 2929.12 factors suffices)
- Arnett, State v. Arnett, 88 Ohio St.3d 208 (2000) (weighing of 2929.12 factors; discretion in assigning weight to factors)