STATE OF OHIO, Plaintiff-Appellee, v. RAYMONE D. BANKS, Defendant-Appellant.
CASE NO. 2012-L-110
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO
August 26, 2013
2013-Ohio-3865
DIANE V. GRENDELL, J.
ΟΡΙΝΙΟN. Criminal Appeal from the Lake County Court of Common Pleas, Case No. 12 CR 000307. Judgment: Affirmed as modified and affirmed.
Matthew C. Bangerter, 1360 West 9th Street, Suite 200, Cleveland, OH 44113 (For Defendant-Appellant).
DIANE V. GRENDELL, J.
{1} Defendant-appellant, Raymone D. Banks, appeals his convictions, following a jury trial in the Lake County Court of Common Pleas, for Aggravated Robbery, Felonious Assault, two counts of Having Weapons While Under Disability, and Discharge of a Firearm on or near a Prohibited Premises, as well as his sentence of 27 years in prison. The issues to be determined by this court are whether convictions for the foregoing charges are supported by the weight and sufficiency of the evidence when
{2} On July 5, 2012, the Lake County Grand Jury issued an Indictment, charging Banks with the following: one count of Aggravated Robbery (Count One), a felony of the first degree, in violation of
{3} A jury trial was held in this matter on July 17-18, 2012. The following pertinent testimony and evidence were presented.
{4} Reginald Hall described the April 27, 2012 incident giving rise to the charges against Banks, in which Hall was shot and robbed by Banks. Hall explained that he had known Banks since around 2006 and that they had been friends who had
{5} According to Hall, he drove up to South Saint Clair Street, in Painesville, Ohio, near some apartment buildings, where Banks entered his car. As soon as Banks got in the car, he turned around and pulled out a gun, which Hall described as a black Glock. Banks told Hall to give him his money and started going through the car‘s glove compartment and center console. Hall testified that Banks stated, “give me everything, I‘m gonna shoot you.” Hall gave him everything he had, including $500, but Banks still stated, “I‘m going to shoot you.” Hall grabbed the gun, tried to move it away, and was shot in the leg. Hall explained that after the first shot, Banks pulled the gun back up, Hall grabbed it again, and Banks shot again, missing him and hitting the driver‘s side window. Banks shot at him a third time and hit him in the forearm. Hall stated that the last shot went off while he was still reaching for the gun.
{6} Hall described some of the money later recovered from Banks as his, and stated that he recognized it because he had a “colorful $50,” as well as an “old” $10, which he kept because it brought him luck.
{7} Hall admitted during cross-examination that he had sold drugs in the past, but he was not doing so on the date of the shooting. He denied meeting Banks for the purpose of selling him marijuana on that date.
{9} Sergeant Toby Burgett testified that on the date of the shooting, he responded to a call at an Arby‘s parking lot, where Hall had parked his car after being shot. Burgett saw Hall was inside of his vehicle, “screaming in pain.”
{10} Sergeant Burgett then went to the scene of the shooting, located around 224 South Saint Clair Street, and saw broken glass on the roadway. After being provided information from witnesses, he and other officers discovered the location of Banks, in an apartment located near the shooting. Banks had removed his clothing and was sleeping. After being asked to dress, he put on a dark pair of jeans and a black hoodie. $600 was found in his jeans pocket. A subsequent search of the apartment revealed a Glock firearm, located in a laundry basket.
{11} Burgett said Hall described the denominations of money that were taken from him by Banks and that they were similar to the denominations found in Banks’ jeans. Hall was able to identify Banks in a lineup as well.
{12} Upon searching Hall‘s car, a phone was discovered, which matched the number that Hall said Banks had used to call him. A small bag of marijuana was also found inside of the car. A spent bullet was located on the floor of the driver‘s side, as well as a shell casing on the driver‘s seat. The driver‘s side window was shattered, there was a hole in the driver‘s side door, a hole in the driver‘s seat, and a mark on the driver‘s side door jam, which appeared to be a bullet deflection. Sergeant Burgett
{13} Detective Michael Bailey stated that upon responding to the 911 call, Hall stated that “Ray” had robbed and shot him. Upon arrest, Banks identified the black clothing, which was ultimately tested for gunshot residue, and where the money was located, as belonging to him. The phone used by Banks to call Hall was located inside of Hall‘s car, under the passenger seat. That phone showed a series of calls to Hall‘s phone.
{14} Martin Lewis, a forensic scientist at the Ohio Bureau of Criminal Identification and Investigation, testified regarding the gunshot residue test he performed in this matter. He explained that gunshot residue was found on Banks’ clothing, including near the cuffs of his sweatshirt, but not on the samples taken from his hands.
{15} Raymond Jorz, a fingerprint and firearms examiner for the Lake County Crime Laboratory, testified that no fingerprints were found on the Glock firearm submitted for testing. Jorz explained that there were two safeties on the Glock pistol and that it is “not very difficult” to depress the trigger, although it was not a “hair trigger,” and a shooter would have to pull the trigger to fire the gun with three and a quarter pounds of pressure.
{16} Banks testified on his own behalf. He stated that he knew Hall from purchasing marijuana from him on approximately thirty occasions in the past. On the day prior to the incident, he purchased marijuana from Hall at a gas station. On April 27, he called Hall using a borrowed cell phone to buy more marijuana.
{18} Banks stated that he did not tell police during subsequent interviews that Hall tried to shoot him because he felt that they would “try to turn the situation around on” him. He explained that during the struggle, Hall was the one with his finger on the trigger and Banks did not gain control of the gun until all of the shots had been fired.
{19} On July 19, 2012, the jury found Banks guilty of each of the counts as contained in the Indictment. This verdict was memorialized in the trial court‘s July 20, 2012 Judgment Entry.
{20} A sentencing hearing was held in this matter on August 27, 2012. The court found Banks to be a repeat violent offender, pursuant to a stipulation regarding Banks’ prior crimes. Banks’ counsel argued that Hall facilitated the offense through his
{21} Banks timely appeals and raises the following assignments of error:
{22} “[1.] The trial court erred to the prejudice of the defendant-appellant when it returned a verdict of guilty against the manifest weight of the evidence.
{23} “[2.] The trial court erred to the prejudice of the defendant-appellant in denying his motion for acquittal made pursuant to
{24} “[3.] The trial court erred to the prejudice of the defendant-appellant by failing to merge allied offenses of similar import.
{25} “[4.] The trial court erred by sentencing the defendant-appellant to a term of imprisonment where its findings were not supported by the record.”
{26} Since Banks’ first and second assignments of error address the sufficiency and manifest weight of the evidence, we will address them jointly.
{28} Weight of the evidence, in contrast to its sufficiency, involves “the inclination of the greater amount of credible evidence.” (Citation omitted.) (Emphasis deleted.) Thompkins at 387. Whereas the “sufficiency of the evidence is a test of adequacy as to whether the evidence is legally sufficient to support a verdict as a matter of law, * * * weight of the evidence addresses the evidence‘s effect of inducing belief.” (Citation omitted). State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25. “In other words, a reviewing court asks whose evidence is more persuasive - the state‘s or the defendant‘s?” Id. The reviewing court must consider all the evidence in the record, the reasonable inferences, and the credibility of the witnesses, to determine whether, “in resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” (Citation omitted.) Thompkins at 387.
{30} In order to convict Banks of Aggravated Robbery, the State was required to prove, beyond a reasonable doubt, that, “in attempting or committing a theft offense,” he had “a deadly weapon on or about [his] person or under [his] control” and that he “either display[ed] the weapon, brandish[ed] it, * * * or use[d] it.”
{31} Banks argues generally that his convictions were against the manifest weight and sufficiency of the evidence and raises several specific arguments regarding the weight of certain pieces of evidence. First, he argues that Hall was not a credible witness, emphasizing that he changed his story and lied to the police. Hall‘s credibility relates to each of the charges, since he was the only witness to the shooting and the events that occurred inside of the vehicle.
{32} Banks points out that Hall lied about selling marijuana to Banks both previously and at the time of the shooting. Hall did admit to using marijuana, which was consistent with the fact that some was found in his vehicle. However, there was no evidence to show that Hall was selling marijuana on the date of the shooting, other than Banks’ testimony. Banks also fails to explain how these facts are relevant to establish how the shooting occurred and whether Banks was responsible.
{34} Finally, while Banks argues that Hall also changed his story about why he had $500 on the date of the shooting, this minor difference in his testimony regarding what he was using the money for does not invalidate his testimony. The jury could still determine that he was credible, especially given that this detail bears little relation to the facts of the crimes that were committed.
{35} It must also be emphasized that the issue of credibility of witnesses is for the trier of fact to determine. State v. Awan, 22 Ohio St.3d 120, 123, 489 N.E.2d 277 (1986) (the determination of a witness’ credibility lies “with the finder of fact and an appellate court may not substitute its own judgment“). “[T]he factfinder is free to believe all, part, or none of the testimony of each witness appearing before it.” Warren v. Simpson, 11th Dist. Trumbull No. 98-T-0183, 2000 Ohio App. LEXIS 1073, 8 (Mar. 17, 2000). The jury was in the best position to consider the testimony of both Banks and Hall to determine how the shooting occurred and whether Banks robbed Hall.
{36} As to the Felonious Assault, Hall knew Banks and was able to identify him as the shooter. There is no question that the shots fired hit Hall and that he was injured. Further, the record contains evidence and testimony that corroborated Hall‘s version of events, that Banks threatened him with a gun, robbed him, and shot him. This includes testimony that no bullets or evidence of shots fired were found on the passenger side of
{37} As to the Aggravated Robbery, Hall testified that Banks took $500, while pointing the gun at him. A large sum of money was found in the jeans Banks admitted were his. Hall was able to describe the denominations that were taken from him. Detective Bailey also described that the center console of Hall‘s car was open, which was consistent with Hall‘s testimony that Banks was looking through the car for items to take. While Banks argues that there was no proof that the console was not always open, the testimony was still consistent with Hall‘s version of the events. Based on the foregoing, the manifest weight and sufficiency of the evidence support convictions for Aggravated Robbery and Felonious Assault. See State v. Anderson, 11th Dist. Portage No. 2008-P-0002, 2008-Ohio-6413, ¶¶ 60-61 (upholding conviction for Felonious Assault when the defendants and victims gave conflicting stories of the events surrounding the crimes).
{38} Banks also argues that there was inconsistent evidence regarding the gunshot residue test because it does not show who actually fired the gunshots, residue was found on Banks’ clothing but not his hands, and Hall‘s clothing was never tested. Lewis, the forensic scientist, explained that the gunshot residue was found on the
{39} Finally, Banks argues that the State implied that he made several calls to Hall on the date of the shooting, but there is no record of who made these calls, since the phone alleged to have been used by Banks belonged to another individual. Hall, however, testified that he talked to Banks on that phone number and that he received several calls from the number. Phone records of the calls were presented to the jury. Again, it is for the jury to decide how much weight to give this evidence, especially given that it bears little relation to the events surrounding the charges in the present case. Banks fails to explain how the number of phone calls made by him to Hall affects whether a shooting and robbery occurred.
{40} Regarding the firearm related offenses, to convict Banks of Discharge of a Firearm on or near a Prohibited Premises, the State was required to prove that he “[d]ischarge[d] a firearm upon or over a public road or highway.”
{41} As to Having Weapons While Under Disability, the State was required to prove that Banks did “knowingly acquire, have, carry, or use any firearm or dangerous ordnance,” and that he was convicted of “any felony offense of violence” or felonies involving the “illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse.”
{42} The first and second assignments of error are without merit.
{43} In his third assignment of error, Banks argues that the trial court erred in failing to merge the Felonious Assault charge with the Discharge of a Firearm charge, since they were allied offenses. He also argues that the trial court erred by failing to merge the Aggravated Robbery and Felonious Assault charges.
{44} The State “concedes that Count 5, discharge of a firearm on or near a prohibited premises merges with felonious assault.” It argues, however, that Aggravated Robbery and Felonious Assault do not merge because the conduct and animus for each charge was different.
{46} ”
{47} “When determining whether two offenses are allied offenses of similar import subject to merger under
{48} In determining whether offenses are allied offenses of similar import under
R.C. 2941.25(A) , the question is whether it is possible to commit one offense and commit the other with the same conduct, not whether it is
possible to commit one without committing the other. * * * If the offenses correspond to such a degree that the conduct of the defendant constituting commission of one offense constitutes commission of the other, then the offenses are of similar import.
{49} If the multiple offenses can be committed by the same conduct, then the court must determine whether the offenses were committed by the same conduct, i.e., “a single act, committed with a single state of mind.” Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, at ¶ 50 (Lanzinger, J., dissenting).
{50} If the answer to both questions is yes, then the offenses are allied offenses of similar import and will be merged.
{51} Conversely, if the court determines that the commission of one offense will never result in the commission of the other, or if the offenses are committed separately, or if the defendant has separate animus for each offense, then, according to
R.C. 2941.25(B) , the offenses will not merge.
{52} Johnson at ¶¶ 48-51.
{53} We first point out that Banks did not object to the trial court‘s failure to merge the counts in question. The Supreme Court of Ohio, however, has held that the “imposition of multiple sentences for allied offenses of similar import is plain error.” (Citation omitted.) Underwood at ¶ 31.
{54} As to the Felonious Assault and Discharge of a Firearm on or near a Prohibited Premises, the State concedes that these charges should have been merged.
{55} In addition, in the present matter, the two offenses were committed with the same act and a single animus and should have merged. Banks fired the gun at Hall while in the car, which resulted in at least one bullet exiting the car, while the car was on the roadway. The bullet was discharged as a part of the assault on Hall. State v. Hodges, 1st Dist. Hamilton No. C-110630, 2013-Ohio-1195, ¶ 17 (where the record did not reflect a separate intent to fire into a home, but the defendant‘s “immediate motive was clearly to injure [the victim] after their verbal altercation had escalated,” there was no separate animus and the crimes should merge). Therefore, the trial court erred in failing to merge the two charges.
{56} In light of the foregoing error, modification of Banks’ sentence by this court is proper. “Section 3(B)(2), Article IV of the Ohio Constitution establishes that courts of appeals ‘shall have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court
{57} Based on the foregoing, we modify the trial court‘s judgment, merging the Discharge of a Firearm on or near a Prohibited Premises conviction into the Felonious Assault conviction for the purposes of sentencing, since the State indicated to this court that it would elect such a merger. We also modify the trial court‘s judgment by vacating Banks’ sentence for Discharge of a Firearm on or near a Prohibited Premises, which was two years in prison. This does not alter Banks’ total term to be served, since the sentence was ordered to be served concurrently with other sentences.
{58} Regarding the Felonious Assault and the Aggravated Robbery charges, merger was not warranted and no error was made by the trial court, since there was a separate animus for each of the crimes. Banks entered Hall‘s vehicle with a gun and told Hall to give him everything that he had. After Hall had done so, Banks then stated he was going to shoot Hall. After Hall tried to get the gun away from Banks, he was
{59} The third assignment of error is with merit, only with respect to the trial court‘s failure to merge the Felonious Assault and Discharge of a Firearm on or near a Prohibited Premises charges. It is without merit as to the remaining merger issue.
{60} In his fourth assignment of error, Banks argues that the court failed to give careful and substantial deliberation to the relevant statutory considerations related to his sentencing and failed to give him the minimum sanction without imposing a burden on government resources under
{61} Subsequent to State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, appellate courts have applied a two step approach in reviewing felony sentences. First, courts “examine the sentencing court‘s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the trial court‘s
{62} A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing, which are “to protect the public from future crime by the offender and others and to punish the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources.”
{63} There is no “mandate” for the sentencing court to engage in any factual finding under these statutes. Rather, “[t]he court is merely to ‘consider’ the statutory factors.” Foster at ¶ 42.
{64} In the present matter, the court explicitly stated in its judgment that it considered the requisite factors under
{66} Although Banks also points out that his remorse should have been taken into consideration by the court, the trial court stated that it weighed this factor. It did not find Banks remorseful and that he did not accept responsibility for the crime. “[A] reviewing court must defer to the trial court as to whether a defendant‘s remarks are indicative of genuine remorse because it is in the best position to make that determination.” (Citation omitted.) State v. Davis, 11th Dist. Lake No. 2010-L-148, 2011-Ohio-5435, ¶ 15.
{67} Finally, Banks emphasizes that the court must use the “minimum sanctions” that the court determines accomplishes the purposes of sentencing “without imposing an unnecessary burden on state or local government resources.”
{69} The fourth assignment of error is without merit.
{70} For the foregoing reasons, the judgment of the Lake County Court of Common Pleas, sentencing Banks for Aggravated Robbery and Discharge of a Firearm on or near a Prohibited Premises, is affirmed as modified. In all other respects, the judgment is affirmed. Costs to be taxed against the parties equally.
COLLEEN MARY O‘TOOLE, J., concurs in part, dissents in part with a concurring/dissenting opinion.
COLLEEN MARY O‘TOOLE, J., concurs in part, dissents in part, with a Concurring/Dissenting Opinion.
{71} I concur with the majority‘s well-reasoned opinion regarding assignments of error one and two. However, I respectfully dissent on assignments of error three and four.
{72} With regard to the aggravated robbery and felonious assault charges, the majority contends under the third assignment of error that merger was not warranted and no error was made by the trial court because a separate animus existed for each of the crimes. Based on the facts presented, I disagree.
{73} This writer wishes to expand on the majority‘s citations regarding allied offenses and the judicial doctrine of merger by providing the following background:
{74} Our review of an allied offenses question is de novo. State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, ¶ 12. ”
{75}
{76} “(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
{77} “(B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.”
{78} ”
{80} By way of background, the method employed by courts in determining whether two crimes constitute allied offenses of similar import has evolved. In State v. Rance, 85 Ohio St.3d 632 (1999), the Supreme Court of Ohio held that “[u]nder an
{81} The Supreme Court of Ohio revisited the allied offenses analysis again in 2010 and overruled Rance in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314. Under the new analysis, which this court later relied upon and embraced in State v. May, 11th Dist. No. 2010-L-131, 2011-Ohio-5233, “[w]hen determining whether two offenses are allied offenses of similar import subject to merger under
{82} “In determining whether offenses are allied offenses of similar import under
{83} “If the multiple offenses can be committed by the same conduct, then the court must determine whether the offenses were committed by the same conduct, i.e., ‘a single act, committed with a single state of mind.’ * * *
{84} “If the answer to both questions is yes, then the offenses are allied offenses of similar import and will be merged.
{85} “Conversely, if the court determines that the commission of one offense will never result in the commission of the other, or if the offenses are committed separately, or if the defendant has [a] separate animus for each offense, then, according to
{86} This court went on to state in May, supra, at ¶ 50-51:
{87} “‘In departing from the former test, the court developed a new, more context-based test for analyzing whether two offenses are allied thereby necessitating a merger. In doing so, the court focused upon the unambiguous language of
{89} In this case, the issue is whether aggravated robbery and felonious assault are allied offenses of similar import subject to merger for purposes of sentencing, which we review de novo. Williams, supra, at ¶ 12.
{90} Aggravated robbery, under
{91} Felonious assault, under
{92} Applying Johnson, aggravated robbery and felonious assault are allied offenses of similar import, as it is possible to commit one offense and commit the other with the same conduct. See State v. Sanders, 8th Dist. No. 97383, 2012-Ohio-3566, ¶ 23. Again, under
{93} Thus, although aggravated robbery and felonious assault are allied offenses, the specific facts of this case must be reviewed to determine whether appellant committed the charged offenses separately or with a separate animus so as to permit multiple punishments. Although the majority finds that the facts do not support merger, I find the opposite.
{94} In this case, the record establishes that appellant evidenced the same animus in committing these offenses. Looking to the conduct of the accused, this was a single act with a single state of mind. The test under Johnson is not whether the elements line up, which is the essence of the Rance analysis. Rather, the test is whether the crimes were committed by the same conduct.
{95} There is no separate animus or conduct separating the harm to Mr. Hall from the robbery. The offenses were committed in the same course of conduct, i.e., appellant‘s plan to rob Mr. Hall. In the course of the robbery and without any separate intent, Mr. Hall was shot and a stray bullet flew over the road. It is nonsensical to believe that appellant committed a robbery, then decided separately to shoot Mr. Hall, then decided separately to shoot across the road. Thus, under Johnson, the offenses should merge.
{96} “‘[T]he purpose of
{97} Based on the facts of this case, the offenses of aggravated robbery and felonious assault are allied offenses of similar import, were committed with the same animus, and should have merged. Therefore, I believe the trial court erred in stacking those offenses along with the firearm and RVO specifications. Appellant‘s sentence was excessive as he should not have been sentenced separately for each offense.
{98} In addition, regarding appellant‘s sentence, the majority under the fourth assignment of error improperly applies State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, in light of H.B. 86.
{99} Prior to 2006, Ohio sentencing law created presumptions that offenders be given minimum, concurrent terms of incarceration. See former
{101} In applying Foster, the Ohio Supreme Court later held in 2008 that appellate courts must apply a two-step procedure for review of a felony sentence. Kalish, supra. In the first step, the Kalish Court held that appellate courts shall examine the sentencing court‘s compliance with “all applicable rules and statutes in imposing the sentence” to determine whether the sentence is clearly and convincingly contrary to law, the standard found in
{102} This writer notes that Kalish, an appeal from this court, State v. Kalish, 11th Dist. No. 2006-L-093, 2007-Ohio-3850 (O‘Toole, J., concurring in part, dissenting in part) is a plurality opinion. Therefore, it is merely persuasive. See State v. Azbill, 11th Dist. No. 2007-L-092, 2008-Ohio-6875, ¶ 24, fn.2, citing State v. Bassett, 8th Dist. No. 90887, 2008-Ohio-5597. Although the plurality in Kalish indicated that this court did not review the sentence to ensure that the trial court clearly and convincingly complied with the pertinent laws, it nevertheless affirmed this court‘s judgment, albeit on different grounds.
{104} On September 30, 2011, Ohio‘s sentencing statutes were revised pursuant to H.B. 86. The Ohio General Assembly enacted a new, but slightly different, requirement of judicial fact-finding under H.B. 86, containing many amendments to criminal sentencing provisions. For example, H.B. 86 revived the language provided in former
{105} In reviewing a felony sentence,
{106} “(2) The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court.
{107} “The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court‘s standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
{108} “(a) That the record does not support the sentencing court‘s findings under division (B) or (D) of section
{109} “(b) That the sentence is otherwise contrary to law.”
{110} The Eighth District recently stated in Venes, supra, at ¶ 20-21:
{111} “It is important to understand that the ‘clear and convincing’ standard applied in
{113} Although trial courts have full discretion to impose any term of imprisonment within the statutory range, they must consider the sentencing purposes in
{114} The majority correctly points out that H.B. 86 did not amend the language contained in
{115} “(A) A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing. The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both.”
{116} “However, there is still no ‘mandate’ for the sentencing court to engage in any factual findings under
{117} In this case, appellant was sentenced after H.B. 86 was enacted. Thus, H.B. 86 applies here. Therefore, this court should review the trial court‘s sentence under H.B. 86 to determine if it is clearly and convincingly contrary to law. See Venes, supra, at ¶ 10; Kinstle, supra, at ¶ 47; Cochran, supra, at ¶ 52. Thus, in light of H.B. 86, I believe my colleagues improperly apply Kalish, an outdated plurality opinion. Whether raised or not, courts shall review the imposition of multiple sentences for plain error, consistent with the principles and purposes of sentencing under
{118} For the foregoing reasons, I concur in part and dissent in part.