STATE OF OHIO v. WILBURN ERIC BEVER
Case No. 13CA21
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY
RELEASED 02/18/2014
2014-Ohio-600
Hoover, J.
APPEARANCES:
Stephen K. Sesser, Benson, McHenry & Sesser, LLC, Chillicothe, Ohio, for Appellant.
James E. Schneider, Washington County Prosecuting Attorney, and Alison L. Cauthorn, Washington County Assistant Prosecuting Attorney, Marietta, Ohio, for Appellee.
Hoover, J.
{1} Defendant-appellant, Wilburn Eric Bever, appeals from the sentences he received in the Washington County Common Pleas Court after he еntered guilty pleas to one count of sexual battery and one count of gross sexual imposition. In his sole assignment of error, Bever contends, inter alia, that the trial court did not make the necessary statutory findings prior to imposing consecutive sentences for his conviсtions. Because the record reflects that Bever‘s claim has merit, the portion of the judgment imposing consecutive sentences is vacated, and the case is remanded for resentencing.
{2} Bever was originally indicted in this case for one count of rape, a first dеgree felony in violation of
{3} Eventually, Bever entered into a plea agreement with the state. In exchange for the state‘s amendment of the rape charge, to a charge of sexual battery - a second degree felony in violation of
{4} A sentencing hearing was held and the trial court heard from defense counsel, Bever, and the assistant county prosecutor. At the conclusion of the hearing, the trial court ordered that Bever serve 7-years for the sexual battery conviction and 60-months for the gross sexual imposition conviction. The triаl court further ordered that the sentences be served consecutively, for a total aggregate sentence of 12-years. Prior to imposing the sentences, the trial court noted the following:
The sentences that the Court will give are consecutive. It‘s necessary to рrotect the public and punish the offender and to protect them from future crime. It‘s not disproportionate to the seriousness of offender‘s conduct. The - there are multiple offenses; these are sex offenses and they‘re his own children.
{5} Furthermore, in its sentencing entry, the trial court noted the following findings with respect to the imposition of consecutive sentences:
- Imposition of consecutive sentences is necessary to protect the public from future crime or to punish the offender.
- Imposition of consecutive sentenсes is not disproportionate to the seriousness of the offenders conduct and to the danger the offender poses to the public.
- Harm so great or unusual that a single term does not adequately reflect seriousness of the conduct.
{6} On appeal, Bever assеrts the following assignment of error:
Assignment of Error:
THE TRIAL COURT ERRED IN THAT IT ABUSED ITS DISCRETION WHEN IT SENTENCED APPELLANT TO A CUMULATIVE PRISON TERM OF TWELVE YEARS FOR BOTH CHARGES IN THIS MATTER.
{7} Bever argues, in part, that his sentence is improper because the trial court failed to follow the mandate of
{8} In previous cases, this Court has consistently applied the standard set forth in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, when reviewing felony sentences. See, e.g., State v. Swayne, 4th Dist. Adams No. 12CA952, 12CA953, & 12CA954, 2013-Ohio-3747, ¶ 26. Under the Kalish standard of review, “[f]irst, we ‘must 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. ” Id., quoting Kalish at ¶ 4. “If the sentence is not clearly and convincingly contrary to law, we must review the trial court‘s decision for an abuse of discretion.” Id., citing Kalish at ¶ 4.
{9} However, several Ohio appellate districts have declined to use the Kalish approach in favor of the standard of review set forth in
{10} The Kalish decision was an outgrowth of the Ohio Supreme Court‘s ruling in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, which declared portions of Ohio‘s felony sentencing statutes, requiring judicial fact finding, unconstitutional. In Kalish, thе Ohio Supreme Court held that the “standard of review in
{12} In 2011, the Ohio legislature passed 2011 Am.Sub.H.B. No. 86 (“H.B. 86“). This new legislation, effective September 30, 2011, revived the judicial fact-finding requirement for consecutive sentences, but did not revive the requirement for maximum and more than the minimum sentences. White, 2013-Ohio-4225, 997 N.E.2d 629 at 7. H.B. 86 also reenacted the standard of review provisions of
(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.
The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this sectiоn 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 authоrized by this division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court‘s findings under division (B) or (D) of
section 2929.13 , division (B)(2)(e) or (C)(4) ofsection 2929.14 , or division (I) ofsection 2929.20 of the Revised Code , whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{13} In determining whether this Court should apply the statutory standard in
{14}
{15}
{16} Under
(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 2929.16 ,2929.17 , or2929.18 of the Revised Code , or was under post-release control for a prior offense.(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 оf 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.
{17} While the sentencing court is required to make these findings, it is not required to give reasons explaining the findings. Howze at ¶ 18; State v. Stamper, 12th Dist. Butler No. CA2012-08-166, 2013-Ohio-5669, ¶ 23. Furthermore, the sentencing court is not required to recite any “magic” or “talismanic” words when imposing consecutive sentences. Clay at ¶ 64; Howze at ¶ 18; Stamper at ¶ 23. However, it must be clear from the record that the sentencing court actually made the required statutory findings. Clay at ¶ 64; Howze at ¶ 18; Stamper at ¶ 23. A failure to make the findings required by
{18} In the instant case, Bever does not argue that his sentence was clearly and convincingly contrary to law. Rather, Bever contends that the trial court‘s dеcision to run his 7-year prison term for sexual battery consecutively to his 60-month prison term for gross sexual imposition resulted in an “abuse of discretion.” As noted above, this court‘s standard for review “is not whether the sentencing court abused its discretion.”
{19} A review of the record reveals that the trial court made only two of the three findings required under
{20} The trial court came close to finding that
{22} Because the trial court did not make all of the
{23} We hereby vacate the portion of the trial court‘s judgment imposing consecutive sentences and remand this matter to the trial court for resentencing. See State v. Corker, 10th Dist. Franklin Nos. 13AP-264, 13AP-265, & 13AP-266, 2013-Ohio-5446, ¶ 38 (“[W]hen the trial court fails to articulate the appropriate findings required by
JUDGMENT AFFIRMED IN PART, VACATED IN PART, AND CAUSE REMANDED.
{24} The error assigned for our review is based upon a claim that sentence is contrary to law because the court failed to make the findings required by
It is ordered that the trial court‘s JUDGMENT BE AFFIRMED IN PART, VACATED IN PART, and CAUSE REMANDED for proceedings consistent with this decision. Appellee shall pay the costs hеrein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Washington 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 Supreme Court of Ohio an application for a stay during the pendency of the proceedings in that court. If a stay is continued by this entry, it will terminate at the earliest of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to the 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.
Harsha, J.: Concurs in Judgment Only with Opinion.
McFarland, J.: Concurs in Judgment Only.
For the Court
By:
Marie Hoover, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.