State v. Montgomery
2015 Ohio 3255
Ohio Ct. App.2015Background
- Defendant Albert L. Montgomery was convicted after a bench trial of three counts of trafficking in cocaine and one count of illegal manufacture of drugs; two counts carried school-zone enhancements.
- At the original May 2013 sentencing the court merged Counts 3 and 4 for sentencing and the State elected to sentence on Count 4; the court imposed 8 years on Counts 1, 2, and 4 with Counts 1 and 2 concurrent and both consecutive to Count 4 (aggregate 16 years).
- This court previously affirmed convictions but reversed in part and remanded because the trial court failed to make the statutory findings required by R.C. 2929.14(C)(4) before imposing consecutive sentences.
- On remand the trial court held a resentencing hearing in November 2014 and again imposed the same sentences (8 years on Counts 1, 2, and 4; Counts 1 and 2 concurrent, consecutive to Count 4).
- Montgomery appealed, raising three issues: (1) whether the State made the required election between merged counts at resentencing; (2) whether the trial court’s consecutive-sentence findings were supported and properly journalized; and (3) whether the trial court impermissibly applied the federal "sentencing package" doctrine.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| State's election as to merged Counts 3 and 4 at resentencing | State: the prior election to sentence on Count 4 remained operative and was implicitly confirmed on remand | Montgomery: the court sentenced on Count 4 without an express State election at the November 2014 hearing, violating Crim.R. 43 and due process | Court: no plain error; the State’s prior explicit election and its statement at resentencing implicitly confirmed election to sentence on Count 4; entry correctly reflects election |
| Validity/support of R.C. 2929.14(C)(4) findings for consecutive terms | State: trial court made required findings at the resentencing hearing and the record supports them | Montgomery: findings unsupported by record; remorse negates need for consecutive terms; findings not journalized or linked to specific offenses | Court: findings were made at hearing and supported by criminal history and school-zone offenses; omission in judgment entry is clerical and requires limited remand for a nunc pro tunc entry (no new hearing) |
| Requirement to journalize statutory findings in sentencing entry | State: omission is clerical under Bonnell and can be corrected by nunc pro tunc entry | Montgomery: omission requires resentencing | Court: agree omission is clerical; remand limited to journaling R.C. 2929.14(C)(4) findings nunc pro tunc — no new sentencing hearing required |
| Application of the sentencing-package doctrine | State: Ohio law rejects the federal doctrine; resentencing to same terms for same offenses allowed | Montgomery: court re-imposed a 16-year package to match the prior aggregate, reflecting impermissible package reasoning | Court: Saxon bars the doctrine in Ohio; court did not apply sentencing-package doctrine — reimposition was for the same offenses and appropriate on remand |
Key Cases Cited
- State v. Whitfield, 124 Ohio St.3d 319 (2010) (State chooses which allied offense to be sentenced on)
- State v. Bonnell, 140 Ohio St.3d 209 (2014) (trial court must make R.C. 2929.14(C)(4) findings at hearing and incorporate them in the journal entry; reasons not required; omission can be corrected nunc pro tunc if findings were made at hearing)
- State v. Saxon, 109 Ohio St.3d 176 (2006) (Ohio rejects the federal sentencing-package doctrine)
- State v. Barnes, 94 Ohio St.3d 21 (2002) (plain-error standard requires an obvious error that affects substantial rights)