State v. BischoffState v. Bischoff
DECISION AND JUDGMENT ENTRY
{¶ 1} Robert Bischoff, Jr. appeals the sentence of the Adams County Court of Common Pleas. Bischoff argues, in part, that the trial court violated his right to due process of law when it sentenced him to consecutive sentences despite the considerations mandated by R.C.
I.
{¶ 2} On March 19, 2003, an Adams County grand jury indicted Bischoff on: (1) one count of engaging in a pattern of corrupt activity in violation of R.C.
{¶ 3} Bischoff requested a pre-sentence hearing, which the trial court held on September 19, 2003. At that hearing Bischoff presented four witnesses on his behalf. Each witness testified that he or she had known Bischoff for a number of years and never knew him to sell drugs. They also testified they overheard the police informant in the case offer to buy drugs from Bischoff and that Bischoff denied each offer. The witnesses also testified to Bischoff‘s poor health at the time just preceding his arrest. According to the testimony, Bischoff suffered from a blood clot in his leg, which caused him considerable pain. They also testified that Bischoff needed transportation to the local VA hospital, but none of the witnesses were able to provide him with a ride. The police informant, did not testify at the pre-sentence hearing.
{¶ 4} At the sentencing hearing, Bischoff‘s counsel argued against imprisonment on the basis that the factors listed in R.C.
{¶ 5} The trial court sentenced Bischoff to sixteen months imprisonment on all three counts of drug trafficking, a fine of $1,000 on each count, and suspended his driver‘s license for one year. In addition, the trial court ordered that Bischoff serve the sentences consecutively. At the sentencing hearing, the trial court stated: “The Court * * * finds that a combination of community control sanction would demean the serious of the offender‘s conduct. That a prison sentence is commensurate with the seriousness of the defendants’ conduct. And that a prison sentence does not place an unnecessary burden on the state government and resources. The Court further finds that a prison sentence is necessary to protect the public from future crime by the offender. The Court further finds that the defendant has previously served two prison sentences in 1971 and 1982, both of which involved trafficking in drugs. The defendant was placed on probation in 1982 and his probation was subsequently revoked for new offenses, which included complicity and the sale of intoxicating liquor, and keeping a place where intoxicating liquor was sold. The defendant‘s criminal history clearly demonstrates that consecutive sentences are necessary to protect the public from future crime by the defendant.” (Sic.)
{¶ 6} Bischoff appeals and raises the following assignment of error: “Defendant was denied due process of law in receiving consecutive sentences.”
II.
{¶ 7} In his sole assignment of error, Bischoff raises two issues. First, Bischoff argues that the imposition of consecutive sentences violates his right to due process of law when: (1) the drug trafficking charges arose out of a controlled buy sought by the State through an informant and (2) the defendant has other mitigating factors, such as a low likelihood of recidivism because his last offense occurred in 1982; he has led a law-abiding life since 1982; and the offenses occurred under circumstances that are not likely to reoccur. Second, Bischoff argues that the trial court violated his right to due process of law when it merely recited the statutory factors necessary for imposing consecutive sentences without stating its reasons for finding those factors applicable.
{¶ 8} Pursuant to R.C.
{¶ 9} Generally, a trial court should impose concurrent sentences. R.C.
{¶ 10} “(a) The offender committed multiple offenses while the offender was awaiting trial or sentencing, was under a sanction pursuant to section
{¶ 11} Bischoff argues, in part, that the trial court‘s imposition of consecutive sentences violates his right to due process of law because certain mitigating factors tending to show that his offense was less serious. In support, Bischoff cites R.C.
{¶ 12} In his brief, Bischoff fails to argue that the trial court improperly applied R.C.
{¶ 13} Bischoff‘s argument that the trial court failed to recite the reasons for its findings under R.C.
{¶ 14} Bischoff contends that the trial court made the tri-partite findings required by R.C.
{¶ 14} At the sentencing hearing, the trial court found: (1) “that a prison sentence is necessary to protect the public from future crime by [Bischoff];” (2) “[t]hat a prison sentence is commensurate with the seriousness of [Bischoff‘s] conduct;” and (3) that Bischoff‘s “criminal history clearly demonstrates that consecutive sentences are necessary to protect the public from future crime by the defendant.” In its first two findings, which are required by R.C.
{¶ 15} The third finding is within the mandates of R.C.
III.
{¶ 16} Bischoff erroneously argues that the trial court improperly sentenced him to consecutive sentences pursuant to R.C.
Judgment Reversed and Cause Remanded.
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE REVERSED and the cause remanded to the trial court for further proceedings consistent with this opinion and that costs herein be taxed to the appellee.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Adams County Court of Common Pleas to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as the date of this Entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.