2006 Ohio 244 | Ohio Ct. App. | 2006
{¶ 2} Specifically, Appellant asserts that: 1) the record fails to support the trial court's findings regarding a prior prison term and criminal history, 2) the trial court failed to state its reasons for imposing consecutive sentences and relied on an impermissible sentencing factor in imposing consecutive sentences, 3) the trial court violated R.C.
{¶ 3} Because we find that Appellant's first, second, and third assignments of error have merit, we reverse the judgment of the trial court and remand for re-sentencing. Appellant's fourth and fifth assignments of error are overruled. Our decision with regard to assignments of error one, two, and three renders Appellant's sixth assignment of error moot.
{¶ 4} The record reveals the following facts pertinent to this appeal. On June 21, 2004, Appellant was indicted on one count of Tampering with Evidence, a third degree felony, in violation of R.C.
{¶ 5} Appellant was sentenced to: 1) two years on the first count, 2) seven years on the second count, 3) to be served consecutively, 4) post-release control on both counts, 5) and was ordered to pay the costs of prosecution. Essentially, Appellant was sentenced to non-minimum, consecutive terms of imprisonment, totaling nine years.
{¶ 6} It is from these sentences that Appellant now brings his appeal, assigning the following errors for our review:
{¶ 7} "I. THE RECORD FAILS TO SUPPORT THE TRIAL COURT'SFINDINGS: 1) THAT APPELLANT HAD PREVIOUSLY SERVED A PRISON TERM;AND 2) THAT APPELLANT'S CRIMINAL HISTORY DEMONSTRATES THATCONSECUTIVE SENTENCES ARE NECESSARY TO PROTECT THE PUBLIC FROMFUTURE CRIME BY APPELLANT. ACCORDINGLY, THE COURT'S IMPOSITION OFMORE THAN THE MINIMUM SENTENCE AND ITS IMPOSITION OF CONSECUTIVESENTENCES ARE CONTRARY TO LAW. APPELLANT'S SENTENCES VIOLATE HISRIGHTS UNDER R.C. §
{¶ 13} Appellant's first, second and third assignments of error allege that the trial court failed to comply with several of Ohio's sentencing statutes when it imposed non-minimum, consecutive sentences on Appellant. Sentencing courts are required, when imposing sentence, to make certain findings, and, in some cases, state their reasons for making those findings, both at the sentencing hearing and in the sentencing entry. R.C.
{¶ 14} An appellate court may not reverse a sentence unless its finds, by clear and convincing evidence, that the sentence is not supported by the record or that it is contrary to law. R.C.
{¶ 15} Appellant's first assignment of error asserts that the record fails to support the trial court's findings that he had previously served a prison term and that his criminal history demonstrates that consecutive sentences were necessary to protect the public from future crime. In his second assignment of error, Appellant asserts that the trial court failed to properly state its reasons for imposing consecutive sentences and relied on an improper sentencing factor in ordering that the sentences be served consecutively. In support of these assertions, Appellant offers the following colloquy, which took place during the sentencing hearing:
"THE COURT: Well, does the State know what this man's prior record is?
MR. GRIMSHAW: Not completely, Your Honor, but we see from a CCH print out that there was apparently an arrest back in '96 for aggravated robbery but we don't know what the results were for that. We do appear to have a felony drug offense somewhere in the early part of I think 2000. I believe he's been incarcerated on that.
THE COURT: It was a drug offense?
MR. GRIMSHAW: A drug offense, I believe, I'm not really sure and I know there are charges that were against him in Lawrence County. We've been bringing him back from Lawrence County but I am not sure what the status is on those. So we're not really prepared as of right now to tell you with 100% certainty what his previous record is.
THE COURT: Mr. Apel, do you wish to enlighten the court as to a prior record? I know he has served a prior prison term. My understanding is that he is on post-release control now.
MR. APEL: That is about all I know Your Honor."
{¶ 16} Subsequently, and presumably based solely on the foregoing exchange,1 the court made the following findings:
"THE COURT: I find that the defendant has served a prior prison term and is currently on post release control and further has charges pending in Lawrence County involving drugs and that charge in Lawrence County involves a felony."
{¶ 17} Regarding the imposition of non-minimum sentences, R.C.
"(B) * * * if the court imposing a sentence upon an offender for a felony elects or is required to impose a prison term on the offender, the court shall impose the shortest prison term authorized for the offense pursuant to division (A) of this section, unless one or more of the following applies:
(1) The offender was serving a prison term at the time of the offense, or the offender previously had served a prison term.
(2) The court finds on the record that the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public from future crime by the offender or others."
{¶ 18} We find that the foregoing exchange fails to satisfy the requirements under R.C.
{¶ 19} Because the trial court did not rely on a pre-sentence investigation, we can only assume that the trial court based its findings on the sparse information provided by the prosecution.2 Defense counsel's acquiescence in the trial court's assumption that Appellant had served a prior prison term and was currently on post-release control was equivocal at best. Because it is unclear whether Appellant had served a prior prison term and because the trial court did not make any findings under R.C.
{¶ 20} Regarding the imposition of consecutive sentences, R.C.
"(4) If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section
(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender."
{¶ 21} The court must make its statutorily enumerated findings and state its reasons supporting those findings, not only in the journal entry, but at the sentencing hearing. R.C.
"The Court finds that consecutive sentences are necessary to protect the public and to punish the offender and it's not disproportionate to the conduct and the danger that the offender poses. The Court further finds that this crime was committed while you were under a sanction being post release control, and find that your criminal history shows that consecutive terms are necessary to protect the public and the harm is so great or unusual that a single term does not adequately reflect the seriousness of the conduct."
{¶ 22} While the trial correctly recited the required statutory language, we find that it failed to state its reasons for imposing consecutive sentences. In Scheer, we found that the trial court did not clearly align its reasons with its findings, recognizing that although the court's reasons for imposing the sentences might be gleaned from the transcript as a whole, the Supreme Court of Ohio has indicated that strict compliance with the sentencing statutes will be required.Scheer,
{¶ 23} Here, the trial court found that consecutive sentences were required, but failed to specifically state its reasons for making those findings. Additionally, in order to satisfy R.C.
{¶ 24} Appellant further asserts that the trial court relied on an impermissible sentencing factor when imposing consecutive sentences. During the sentencing hearing, but prior to the actual imposition of sentence, the trial court stated as follows:
"I find that the defendant has served a prior prison term and is currently on post release control and further has charges pending in Lawrence County involving drugs and that charge in Lawrence County involves a felony."
{¶ 25} R.C.
{¶ 26} As a result, we find that Appellant's second assignment of error has merit, both in regards to the trial court's failure to properly state its reasons for imposing consecutive sentences and also in regards to the trial court's reliance on the impermissible sentencing factor of a charged, but unproven crime. Accordingly, we reverse the sentence and remand to the trial court for re-sentencing.
{¶ 27} Appellant asserts in his third assignment of error that the trial court violated R.C.
{¶ 28} R.C.
{¶ 29} In the case sub judice, the trial court informed Appellant during the sentencing hearing that:
"Post release control is our new parole system in the State of Ohio. In this particular case I'm going to tell you that it'smandatory, that the maximum term on it is five years, but you'll enter into an agreement with the Parole Authority on how you are going to conduct your life. If you violate that agreement certain things could happen to you. You could spend time in the county jail, the agreement could be modified to become more restrictive upon your life style, the period of time you're on it could beincreased up to a maximum of five years * * *." (Emphasis added).
The trial court's judgment entry stated:
"The Court has further notified the defendant that post release control is optional in this case up to a maximum of 3 years on Count 1, and mandatory in this case up to a maximum of 5 yearson Count 2 * * *." (Emphasis added).
{¶ 30} It is apparent from the foregoing that the trial court failed to advise Appellant that he would receive five years of mandatory post-release control in connection with his conviction for a first degree felony, as specified in R.C.
{¶ 31} Additionally, in response to Appellant's first, second, and fourth assignments of error, Appellee asserts a waiver argument. Appellee argues that because Appellant failed to object to the sentencing errors during the sentencing hearing, he has failed to preserve the issues for appeal. We disagree.
{¶ 32} In State v. Wheeler, Washington App. No. 04CA1, 2004-Ohio-6598, on facts similar to the case sub judice, we held that "it is unwise to apply a plain error analysis for several reasons. First, it appears that this issue was not raised inComer, but was nevertheless considered by the Ohio Supreme Court. See
{¶ 33} In his fourth assignment of error Appellant argues that the trial court violated his rights under the
{¶ 34} The sentencing scheme at issue in Blakely was a determinate system that required particular sentences in response to particular sets of facts. Blakely,
{¶ 35} The United States Supreme Court recently reinforced the distinction between determinate and indeterminate sentencing when it applied Blakely to the federal sentencing guidelines inUnited States v. Booker (Jan. 12, 2005), Nos. 04-104, 04-105,
{¶ 36} This court has found that the sentencing factors found by the judges as part of Ohio's sentencing scheme differ from the facts at issue in both United States v. Apprendi,
{¶ 37} Further, relying on an Eighth District case, we have previously reasoned that "Blakely does not address the issue of whether multiple sentences for separate crimes should be served concurrently or consecutively." Wheeler, supra, citing Statev. Madsen, Cuyahoga App. No. 82399,
{¶ 38} In his fifth assignment of error, Appellant argues that the trial court denied his rights to due process and equal protection under the Ohio and United States Constitutions and abused its discretion by sentencing him to pay an undetermined amount in costs under R.C.
{¶ 39} During the sentencing hearing, the trial court ordered the following:
"It will be the sentence of this Court that you be assessed no fine but be ordered to pay costs of prosecution [on the charge of possession of crack cocaine]. * * * On the charge of tampering with evidence, a felony of the third degree, it will be the sentence of this Court that you be assessed no fine but be ordered to pay costs of prosecution * * *." (Emphasis added).
{¶ 40} However, in the sentencing entry, the trial court stated the following:
"Defendant is to pay the costs of this prosecution taxed at $____, for which execution is hereby awarded. Said court costs are to include the $41.00 as mandated by O.R.C. section
{¶ 41} Clearly, there is a discrepancy between the sentencing hearing transcript and the sentencing entry. Appellant only challenges the trial court's imposition of costs under 2929.18 (A)(4), which includes "[a] state fine or costs as defined in section
{¶ 42} R.C.
{¶ 43} Although preferable for appellate review, a trial court need not explicitly state in its judgment entry that it considered a defendant's ability to pay a financial sanction. Rather, courts look to the totality of the record to see if the requirement has been satisfied. As we noted in State v. Slater, Scioto App. No. 01CA2806, 2002-Ohio-5343 at ¶ 8, compliance with the statute can be shown when a court considers a pre-sentence investigation report (PSI) that details pertinent financial information (see e.g. Martin, supra; Karnes, supra) or when a transcript reflects that a court at least considered a defendant's ability to pay. See e.g. State v. Finkes, Franklin App. No. 01AP-310, 2002-Ohio-1439; State v. McDonald, Delaware App. No. 01CA08033, 2002-Ohio-1122.
{¶ 44} In the case sub judice, we find no indication in the record that the trial court considered appellant's ability to pay the financial sanction that it imposed under R.C.
{¶ 45} Appellant also seems to argue that the trial court failed to conduct an inquiry into his ability to pay, as required by R.C.
{¶ 46} Appellant's sixth and final assignment of error alleges ineffective assistance of counsel. Because the errors alleged by Appellant have already been addressed in the handling of assignments of error one, two, and four, we decline to address this assignment of error as it has been rendered moot.
REVERSED IN PART, AFFIRMED IN PART AND REMANDED.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Ohio Supreme Court an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Ohio Supreme Court in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Exceptions.
Harsha, P.J. Abele, J.: Concur in Judgment Opinion.
