State v. Kay
2015 Ohio 4403
Ohio Ct. App.2015Background
- Linda Rocia Kay was convicted of murder, aggravated robbery, aggravated burglary, felonious assault (merged), and tampering with evidence for the May 21, 2012 killing of Robert Munday and related conduct (money taken, disposal of vehicle, gambling/spending of proceeds).
- At initial sentencing the trial court imposed merged terms totaling 43 years to life, to be served consecutively; Kay appealed.
- This court affirmed the convictions but remanded solely for the trial court to decide whether the sentences should run concurrently or consecutively.
- On remand the trial court reimposed the original maximum terms and again ordered them consecutive; the court made the statutory consecutive-sentence findings at the hearing but did not tie them to specific supporting facts in the entry.
- The present appeal challenges the imposition of maximum, consecutive sentences (arguing disproportionality and disparity with a co-defendant’s lesser sentence) and the failure to include required findings in the sentencing entry.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held | |
|---|---|---|---|---|
| Whether the trial court erred in imposing consecutive sentences on remand | State: trial court made the statutory findings at resentencing; remand limited to consecutive v. concurrent decision | Kay: record does not clearly support the R.C. 2929.14(C)(4) findings (low recidivism risk, lack of aggravating factors, no unusual harm) | Reversed: appellate court found the record clearly and convincingly does not support the required consecutive-sentence findings and ordered sentences for the primary offenses to run concurrently (firearm spec remains consecutive) | |
| Whether trial court’s failure to include statutory findings in the written entry requires correction | State: findings were made at hearing; remand scope limited | Kay: sentencing entry must contain the statutory findings per Bonnell | Moot: because concurrent sentences were ordered on appeal, correcting an entry to add consecutive findings was unnecessary | |
| Whether the appellate review may consider maximum sentence length on remand | State: remand limited to consecutive v. concurrent — maximum-sentence challenge not preserved | Kay: argued disparity and disproportionality with co-defendant | Not considered: court declined to review maximum-sentence claims because they were outside the scope of the limited remand | |
| Standard of review for consecutive-sentence findings | State: apply R.C. 2953.08(G)(2) review of record for clear-and-convincing lack of support | Kay: same — asserts record fails to support findings | Court applied R.C. 2953.08(G)(2) and concluded the record clearly and convincingly failed to support consecutive findings; dissent argued the standard is highly deferential and would uphold the trial court | Court modified sentence per statutory-review standard (R.C. 2953.08(G)(2)) |
Key Cases Cited
- State v. Bonnell, 16 N.E.3d 659 (Ohio 2014) (trial courts need not articulate detailed reasons on the record, but sentencing entries must be reviewable and appellate courts must determine whether the record supports consecutive-sentence findings)
- Hopkins v. Dyer, 820 N.E.2d 329 (Ohio 2004) (discussing the doctrine of law of the case and limitations of remand)
- State v. Rodeffer, 5 N.E.3d 1069 (2d Dist. 2013) (appellate courts apply R.C. 2953.08(G)(2) when reviewing felony sentences; extremely deferential standard framed in statute)
- State v. Venes, 992 N.E.2d 453 (Ohio App. 2013) (explaining that R.C. 2953.08(G)(2) requires the appellate court to clearly and convincingly find the record does not support trial-court findings rather than requiring clear-and-convincing evidence at trial.)