STATE OF OHIO v. BONNIE BITTNER
Appellate Case No. 2013-CA-116; Trial Court Case No. 2013-CR-605
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
August 8, 2014
2014-Ohio-3433
OPINION
Rendered on the 8th day of August, 2014.
RYAN A. SAUNDERS, Assistant Clark County Prosecuting Attorney, Atty. Reg. No. 0091678, 50 East Columbia Street, Fourth Floor, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee
HILARY LERMAN, Atty. Reg. No. 0029975, 249 Wyoming Street, Dayton, Ohio 45409 Attorney for Defendant-Appellant
WELBAUM, J.
Facts and Course of Proceedings
{¶ 2} On September 3, 2013, Bittner was indicted on five counts of forgery in violation of
{¶ 3} At Bittner‘s sentencing hearing, the trial court reviewed her criminal record and noted that she had prior convictions for grand theft, involuntary manslaughter, theft, tampering with records, and aggravated arson. The court further noted that Bittner received consecutive prison sentences for those offenses, which amounted to a ten-and-one-half-year prison term. Additionally, the trial court indicated that at the time of her forgery offenses, Bittner was on post-release control, as she was under the supervision of the Adult Parole Authority and had 14 months remaining in the program. While Bittner apologized for her behavior and said that she was ready to accept the consequences for her actions, the trial court noted that it was unclear
{¶ 4} On November 27, 2013, after considering the foregoing factors, the purposes and principles of felony sentencing in
{¶ 5} Bittner now appeals from the trial court‘s imposition of consecutive sentences, raising one assignment of error for review.
Assignment of Error
{¶ 6} Bittner‘s sole assignment of error is as follows:
THE COURT SENTENCED APPELLANT TO CONSECUTIVE SENTENCES WITHOUT ADEQUATELY FOLLOWING
{¶ 7} Under her sole assignment of error, Bittner argues that the trial court erred in imposing consecutive sentences without making the required findings under
{¶ 8} As a preliminary matter, we note that
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:
(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) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶ 9} We also observed in Rodeffer that:
“the clear and convincing standard used by
R.C. 2953.08(G)(2) is written in the negative. It does not say that the trial judge must have clear and convincing evidence to support its findings. Instead, it is the court of appeals that must clearly and convincingly find that the record does not support the court‘s findings.” * * * “In other words, the restriction is on the appellate court, not the trial judge. This is an extremely deferential standard of review.”
Rodeffer at ¶ 31, quoting State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 21 (8th Dist.).
{¶ 10} As noted earlier, Bittner argues that the trial court erred in imposing consecutive
(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, or 2929.18 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 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.
{¶ 11} “[A] trial court is required to make the findings mandated by
{¶ 12} In this case, the trial court considered various factors before imposing consecutive sentences. Specifically, the court considered Bittner‘s prior criminal history, that she was on post-release control at the time of her forgery offenses, and that the victims of her forgery offenses suffered serious economic harm. The court also questioned the sincerity of Bittner‘s remorse and noted that she exhibited a moderate risk of recidivism based on the Ohio Risk Assessment System. After considering these factors, the trial court made the following consecutive-sentence findings at Bittner‘s sentencing hearing:
The Court finds that consecutive sentences are necessary to protect the public from future crime and to punish the offender. Consecutive sentences are not disproportionate to the seriousness of the Defendant‘s conduct and to the danger the offender poses to the public. Further find [sic] the Defendant committed the offenses while under the supervision of the Adult Parole Authority and her criminal history demonstrates that consecutive sentences are necessary to protect the public from future crime by the Defendant.
Disposition Trans. (Nov. 27, 2013), p. 7-8.
{¶ 13} The trial court incorporated the foregoing findings in its sentencing entry, which stated the following:
The Court has decided that the offender shall serve the prison terms consecutively, pursuant to
R.C. 2929.14(C)(4) , because the court finds that consecutive service is necessary to protect the public from future crime and to punish the offender and that consecutive sentences are not disproportionate to the seriousness of theoffender‘s conduct and to the danger the offender poses to the public, and the Court also finds that the defendant committed one of the offenses while under the supervision of the adult parole authority, and that the defendant‘s criminal history demonstrates the consecutive sentences are necessary to protect the public from future crime by the defendant.
Judgment Entry of Conviction (Nov. 27, 2013), Clark County Court of Common Pleas Case No. 13-CR-0605, Docket No. 8, p. 3.
{¶ 14} The trial court‘s language at the sentencing hearing and in its sentencing entry establishes that it made all the required consecutive-sentence findings under
{¶ 15} We do not clearly and convincingly find that the record does not support the trial court‘s consecutive-sentence findings. Furthermore, we do not clearly and convincingly find that Bittner‘s sentence is otherwise contrary to law. “[A] sentence is not contrary to law when the trial court imposes a sentence within the statutory range, after expressly stating that it had considered the purposes and principles of sentencing set forth in
{¶ 16} For the foregoing reasons, the trial court did not err in imposing consecutive prison sentences, as the court made all the required findings under
{¶ 17} Bittner‘s sole assignment of error is overruled.
Conclusion
{¶ 18} Having overruled Bittner‘s sole assignment of error, the judgment of the trial court is affirmed.
HALL, J., concurs.
DONOVAN, J., concurring:
{¶ 19} In Rodeffer, cited in the majority opinion, we held that we would no longer use an abuse-of-discretion standard in reviewing a sentence in a criminal case, but would apply the standard of review set forth in
{¶ 20} In the case before us, I find no error in the sentence imposed. Bittner‘s sentence is neither clearly and convincingly unsupported by the record, an abuse of discretion, nor contrary to law. Accordingly, I would affirm.
Copies mailed to:
Ryan A. Saunders
Hilary Lerman
Hon. Richard J. O‘Neill