2020-Ohio-4662
Ohio Ct. App. 10th
2020

State of Ohio, Plaintiff-Appellee, v. Antony K. Bland, Defendant-Appellant.

No. 19AP-826 (C.P.C. No. 19CR-505) and No. 19AP-827 (C.P.C. No. 19CR-5137)

IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT

September 29, 2020

[Cite as State v. Bland, 2020-Ohio-4662.]

(REGULAR CALENDAR)

D E C I S I O N

Rendered on September 29, 2020

On brief: Ron O‘Brien, Prosecuting Attorney, and Sheryl L. Prichard, for appellee.

On brief: Todd W. Barstow, for appellant.

APPEALS from the Franklin County Court of Common Pleas

DORRIAN, J.

{¶ 1} Defendant-appellant, Antony K. Bland, appeals from judgments of conviction and sentence entered by the Franklin County Court of Common Pleas pursuant to guilty pleas on multiple charges in two criminal cases. For the following reasons, we affirm in part and reverse in part.

I. Facts and Procedural History

{¶ 2} The guilty pleas resulting in the judgments of conviction and sentence at issue in these appeals involve multiple incidents: Bland‘s confession to committing a drive-by shooting and subsequent recantation of that confession, and an automobile theft. We will briefly summarize the facts of these incidents as presented at the plea hearing.

A. Drive-By Shooting Confession and Recantation

{¶ 3} On November 1, 2017, an individual in a vehicle fired multiple gunshots at the home of Samantha Taylor. Taylor, who was outside the house at the time of the shooting, identified Bland‘s son, Matthew McClain, as the shooter. McClain was arrested and charged with three counts of felonious assault, one count of improperly discharging a firearm at or into a habitation, and one count of improperly handling firearms in a motor vehicle. The case proceeded to a jury trial in September 2018. At trial, Bland testified he fired the shots at Taylor‘s home and that McClain was not involved. The jury found McClain not guilty on all charges.

{¶ 4} Based on the confession at his son‘s trial, Bland was indicted in February 2019 in Franklin C.P. No. 19CR-517 (“Case 19CR-517“) on one count of felonious assault, one count of improperly discharging a firearm at or into a habitation or a school safety zone, one count of discharge of a firearm on or near prohibited premises, and one count of improperly handling firearms in a motor vehicle. Bland subsequently recanted the testimony he gave at his son‘s trial, alleging his son offered him $10,000 to make the false confession. Bland waived indictment and plaintiff-appellee, State of Ohio, filed a bill of information in Franklin C.P. No. 19CR-5137 (“Case 19CR-5137“) charging Bland with one count of perjury.

B. Automobile Theft

{¶ 5} In January 2019, Bland stole an automobile from a parking lot in west Columbus. After the owner reported the vehicle stolen, the Columbus Division of Police were able to use the vehicle‘s built-in GPS to determine its location. Officers in the area located the vehicle and attempted to pull it over. Bland stopped the vehicle and fled on foot but was apprehended a short distance away. When arrested, Bland was in possession of a debit card and driver‘s license belonging to the owner of the stolen vehicle. Based on this incident, Bland was indicted in Franklin C.P. No. 19CR-505 (“Case 19CR-505“) on one count of grand theft of a motor vehicle, one count of receiving stolen property, and one count of theft.

C. Guilty Pleas and Sentencing

{¶ 6} On October 7, 2019, Bland entered guilty pleas to the charges in Cases 19CR-505 and 19CR-5137. At the state‘s request, the trial court entered a nolle prosequi on the charges in Case 19CR-517. The state and defense did not make a joint sentencing recommendation and the state indicated it would seek the maximum penalties on all charges.

{¶ 7} The trial court conducted a sentencing hearing on November 8, 2019. The trial court concluded the grand theft of a motor vehicle and receiving stolen property charges in Case 19CR-505 were allied offenses of similar import and merged for purposes of sentencing. The state elected to have Bland sentenced on the grand theft of a motor vehicle conviction. The trial court imposed a sentence of 12 months incarceration for grand theft of a motor vehicle and 12 months incarceration for receiving stolen property, with the sentences to be served concurrently. The trial court also imposed 12 months incarceration on the theft conviction in Case 19CR-505, consecutive to the sentences on the first two counts. In Case 19CR-5137, the court imposed 36 months incarceration, to be served consecutively to the sentences imposed in Case 19CR-505, for a total term 5 years of incarceration across both cases. The trial court issued a judgment entry in each case on November 8, 2019, imposing the sentences pronounced at the sentencing hearing.

II. Assignments of Error

{¶ 8} Bland appeals and assigns the following two assignments of error for our review:

  1. I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY IMPOSING MULTIPLE SENTENCES FOR ALLIED OFFENSES OF SIMILAR IMPORT.
  2. II. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY IMPROPERLY SENTENCING HIM TO CONSECUTIVE TERMS OF INCARCERATION IN CONTRAVENTION OF OHIO‘S SENTENCING STATUTES.

III. Analysis

A. Allied Offenses of Similar Import

{¶ 9} Bland argues in his first assignment of error that the trial court erred by imposing sentences on both the grand theft of a motor vehicle and receiving stolen property convictions in Case 19CR-505 because they were allied offenses of similar import. Bland urges this court to remand the case for a new sentencing hearing and resentencing. The state concedes the two offenses are allied offenses of similar import, and the trial court erred by imposing sentences on both convictions. However, the state asserts resentencing is not necessary, claiming this court can vacate the sentence imposed on the receiving stolen property conviction and remand with instructions to the trial court to prepare an amended judgment entry.

{¶ 10} Ohio‘s allied offenses statute provides that “[w]here 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.” R.C. 2941.25(A). The Supreme Court of Ohio has held that “when a trial court concludes that an accused has in fact been found guilty of allied offenses of similar import, it cannot impose a separate sentence for each offense.” State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, ¶ 28. “Rather, the court has a mandatory duty to merge the allied offenses by imposing a single sentence, and the imposition of separate sentences for those offenses—even if imposed concurrently—is contrary to law because of the mandate of R.C. 2941.25(A).” Id. See also State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 26 (“[A] trial court is prohibited from imposing individual sentences for counts that constitute allied offenses of similar import. A defendant‘s plea to multiple counts does not affect the court‘s duty to merge those allied counts at sentencing. This duty is mandatory, not discretionary.“). The defendant in Williams was convicted on multiple charges, including two counts of aggravated murder and one count of murder. Williams at ¶ 6. At the sentencing hearing, the trial court found that the murder and aggravated murder convictions merged and the state elected sentencing on one of the aggravated murder convictions. Notwithstanding that finding, in the sentencing entry, the trial court imposed separate prison sentences on the murder conviction and the two aggravated murder convictions, to be served concurrently. Id. at ¶ 7. On appeal, the Supreme Court held the sentence imposed by the trial court was contrary to law because it imposed concurrent sentences for allied offenses of similar import. Id. at ¶ 32.

{¶ 11} In the present case, the trial court concluded at the sentencing hearing that the grand theft of an automobile and receiving stolen property convictions in Case 19CR-505 were subject to merger:

Court: So let‘s first deal with case number 505, [the prosecutor] has conceded that merger is necessary pursuant to 2941.25, subsection (A). When the same conduct by a 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 maybe [sic] convicted of only one. And so for purposes of sentencing in case number 505, Counts One and Two, I presume, counsel will merge?

[Prosecutor]: Yes, Your Honor. Well, yeah. I don‘t know the exact lengths, but, yeah, we‘ll elect to proceed on Count One.

Court: Thank you.

(Nov. 8, 2019 Tr. at 30.) Notwithstanding the conclusion that the convictions were allied offenses of similar import, the trial court proceeded to impose sentences on both convictions:

Court: And so I will then proceed to sentencing as to Count One, the Court is going to impose a prison term of 12 months with the Department of Rehabilitation and Correction. As to Count Two, the Court will impose a prison term of 12 months. That will run concurrent for purposes of sentencing with Count One.

(Nov. 8, 2019 Tr. at 32.) The final judgment entry of conviction and sentence in Case 19CR-505 likewise imposed concurrent 12-month prison terms on the grand theft of a motor vehicle and receiving stolen property convictions. Thus, as in Williams, this is a case where the record demonstrates the trial court recognized at the sentencing hearing that certain convictions merged for purposes of sentencing and the state elected sentencing on one of those convictions, but the trial court erroneously imposed concurrent sentences on the merged convictions. See Williams at ¶ 7.

{¶ 12} The Williams decision noted that “a resentencing hearing limited to correcting the void sentence is a proper remedy for a trial court‘s failure to comply with mandatory sentencing laws.” Id. at ¶ 30. However, the court further held that “a resentencing is not required in all cases,” noting that Article IV, Section 2(B)(2)(f) of the Ohio Constitution gave it authority to modify a judgment in a case certified by a court of appeals. Id. at ¶ 31. Applying that authority, the Williams court modified the court of appeals’ judgment to vacate the sentences imposed on the murder and aggravated murder convictions the trial court had found to be subject to merger. Id. at ¶ 33. While conceding the trial court erred by imposing concurrent sentences on Bland for the grand theft of a motor vehicle and receiving stolen property convictions in Case 19CR-505, the state argues this court should follow Williams and vacate the sentence imposed on the receiving stolen property conviction without remanding for a resentencing hearing. This court has previously recognized that “[u]nder Williams, a remand for a resentencing hearing is not required in order to vacate an erroneous conviction where the trial court has determined at the original sentencing hearing that merger applies and the state has made an election of which charge to pursue for sentencing.” State v. Cruz-Altunar, 10th Dist. No. 18AP-951, 2019-Ohio-2298, ¶ 15. Although vacating an erroneously imposed conviction without remanding for a resentencing hearing is an appropriate remedy in some cases, as discussed more fully below, we conclude the trial court erred in this case with respect to the imposition of consecutive sentences. Therefore, we find it necessary to remand for a resentencing hearing in this case.

{¶ 13} Because we conclude the trial court erred by imposing a concurrent sentence on the receiving stolen property conviction in Case 19CR-505, we sustain Bland‘s first assignment of error.

B. Consecutive Sentences

{¶ 14} In his second assignment of error, Bland claims the trial court erred by failing to make the findings required for the imposition of consecutive sentences. Bland concedes the judgment entries of conviction and sentence in both cases incorporate the findings required under R.C. 2929.14(C)(4) to impose consecutive sentence, but asserts the trial court failed to make the complete findings required by the statute at the sentencing hearing. Specifically, Bland argues that at the sentencing hearing the trial court failed to make the proportionality finding required under R.C. 2929.14(C)(4) and failed to find that one of the factors set forth in R.C. 2929.14(C)(4)(a) through (c) applied in both Cases 19CR-505 and 19CR-5137. The state acknowledges the trial court did not expressly refer to proportionality at the sentencing hearing but argues the trial court‘s findings were sufficient to satisfy the statutory requirements for imposition of consecutive sentences.

1. Standard of Review for Consecutive Sentences

{¶ 15} “Under Ohio law, absent an order requiring sentences to be served consecutively, terms of incarceration are to be served concurrently.” State v. Sergent, 148 Ohio St.3d 94, 2016-Ohio-2696, ¶ 16, citing R.C. 2929.41(A). A trial court may, in its discretion, impose consecutive sentences for multiple prison terms pursuant to R.C. 2929.14(C)(4). Id. To impose consecutive sentences, the trial court must find that: (1) the consecutive sentence is necessary to protect the public from future crime or to punish the offender, (2) consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public, and (3) at least one 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 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.

R.C. 2929.14(C)(4).

{¶ 16} In an appeal of a judgment imposing consecutive sentences, we are required to review the record, including the underlying findings given by the sentencing court, and may “increase, reduce, or otherwise modify a sentence * * * or may vacate the sentence and remand the matter to the sentencing court for resentencing” if we clearly and convincingly find the record does not support the sentencing court‘s findings under R.C. 2929.14(C)(4) or the sentence is otherwise contrary to law. R.C. 2953.08(G)(2). The “clearly and convincingly” standard under R.C. 2953.08(G)(2) is an extremely deferential standard of review. State v. Higginbotham, 10th Dist. No. 17AP-147, 2017-Ohio-7618, ¶ 11.

{¶ 17} “[I]n determining compliance with R.C. 2929.14(C)(4), we examine whether: (1) the trial court engaged in the correct analysis, and (2) the record contains evidence to support the findings of the trial court.” State v. Knowles, 10th Dist. No. 16AP-345, 2016-Ohio-8540, ¶ 41. “[T]he record must contain a basis upon which a reviewing court can determine that the trial court made the findings required by R.C. 2929.14(C)(4) before it imposed consecutive sentences.” State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 28. The trial court must state the required findings as part of the sentencing hearing and incorporate those findings into the sentencing entry. Id. at ¶ 29. However, a trial court “has no obligation to state reasons to support its findings. Nor is it required to give a talismanic incantation of the words of the statute, provided that the necessary findings can be found in the record and are incorporated into the sentencing entry.” Id. at ¶ 37.

{¶ 18} Bland did not object to the imposition of consecutive sentences at the sentencing hearing; therefore, he has waived all but plain error. State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 152 (“[B]y failing to object to the imposition of his consecutive sentences, Hunter forfeited this issue, absent plain error.“). See also State v. Richards, 10th Dist. No. 19AP-259, 2019-Ohio-5325, ¶ 8 (“Because appellant failed to object to the imposition of consecutive sentences at the sentencing hearing, our review is limited to consideration of whether the trial court committed plain error.“). Plain error occurs when an error is plain or obvious and affects a substantial right. State v. Noriega, 10th Dist. No. 18AP-979, 2020-Ohio-4201, ¶ 25. The error must constitute an obvious defect in the legal proceedings, and there must be a reasonable probability the error affected the outcome. Id. When a trial court fails to make the findings required under R.C. 2929.14(C)(4) before imposing consecutive sentences on multiple offenses, the sentence is contrary to law and constitutes plain error. Richards at ¶ 8.

2. Trial Court‘s Findings at Sentencing Hearing

{¶ 19} In imposing consecutive sentences in Case 19CR-505, the trial court made the following findings at the sentencing hearing:

Because Counts One and Three constitute an ongoing course of conduct, because the Court believes that no single sentence can satisfy that course of conduct, the danger that conduct poses to the community, in order to ensure the safety of the community, those sentences will run consecutive with each other.

(Nov. 8, 2019 Tr. at 32.) Similarly, in imposing a consecutive sentence in Case 19CR-5137, the trial court made the following findings:

[B]ecause the offenses in case numbers 505 and 5137 constitute an ongoing course of conduct, because the Court believes that no single sentence can satisfy that course of conduct, the danger that conduct poses to community, in order to ensure the safety of the community and not demean the seriousness of these offenses, those sentences will run consecutive with each other.

(Nov. 8, 2019 Tr. at 33.)

3. Proportionality Finding

{¶ 20} When imposing consecutive sentences, a trial court must find that “consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public.” R.C. 2929.14(C)(4). This court has acknowledged there is a “high degree of overlap” between a proportionality finding under the statute and a finding under R.C. 2929.14(C)(4)(b) regarding the seriousness and severity of harm caused by an offender‘s conduct. State v. Fields, 10th Dist. No. 16AP-417, 2017-Ohio-661, ¶ 20. In Richards, we surveyed our recent proportionality decisions and held:

[A] trial court‘s statement at the sentencing hearing that “the two offenses constitute separate and distinguishable harms and that no single prison sentence for any term would adequately punish the offender or protect the public from future harm” is akin to a finding under R.C. 2929.14(C)(4)(b), and, as such, constitutes a factual finding on which this court can conclude that the sentencing court found that consecutive service is not disproportionate to the seriousness of [a defendant‘s] conduct.

Id. at ¶ 26. The trial court‘s findings in the present case regarding Bland‘s conduct are consistent with the findings that were held to be sufficient under the statute in Richards and the cases discussed therein. While we acknowledge the Supreme Court‘s holding that no “talismanic incantation” of the words of R.C. 2929.14(C) is required at a sentencing hearing to impose consecutive sentences, we reiterate our admonition in Richards that “it would have been better practice for the trial court to recite the statute‘s verbiage, as it did in its judgment entry, to avoid any ambiguity on appeal.” Id. at ¶ 28.

{¶ 21} Consistent with our recent precedents, based on the record before us, we cannot conclude the trial court plainly erred by failing to make the required finding regarding the proportionality of imposing consecutive sentences at the sentencing hearing.

4. Statutory Factors Under R.C. 2929.14(C)(4)(a) through (c)

{¶ 22} A trial court imposing consecutive sentences must also find at the sentencing hearing that one or more of the factors set forth in R.C. 2929.14(C)(4)(a) through (c) is present. The trial court‘s statements at the sentencing hearing in this case indicate it found the R.C. 2929.14(C)(4)(b) factor to be present—i.e., that “[a]t 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.” R.C. 2929.14(C)(4)(b). As explained above, in determining whether the trial court complied with R.C. 2929.14(C)(4), we consider both whether the trial court engaged in the correct analysis and whether the record contains evidence to support the trial court‘s findings. Knowles at ¶ 41. The trial court found the grand theft of a motor vehicle and theft offenses in Case 19CR-505 were part of an ongoing course of conduct. The court also found those offenses were part of an ongoing course of conduct with the perjury offense in Case 19CR-5137.

{¶ 23} In the context of criteria authorizing imposition of the death penalty, the Supreme Court of Ohio has held that the statutory phrase “course of conduct * * * requires that the state establish some factual link between” the offenses that alleged to comprise a course of conduct. State v. Sapp, 105 Ohio St.3d 104, 2004-Ohio-7008, syllabus. Under that statute, “[i]n order to find that two offenses constitute a single course of conduct * * *, the trier of fact ‘must * * * discern some connection, common scheme or pattern or psychological threat that ties [the offenses] together.’ ” Id., quoting State v. Cummings, 332 N.C. 487, 510 (1992). Other Ohio appellate courts have applied this reasoning in the context of analyzing a sentencing court‘s “course of conduct” finding under R.C. 2929.14(C)(4)(b). See State v. Russell, 11th Dist. No. 2019-L-138, 2020-Ohio-3243, ¶ 124; State v. Squires, 8th Dist. No. 108071, 2019-Ohio-4676, ¶ 32; State v. Lambert, 2d Dist. No. 2018-CA-28, 2019-Ohio-2837, ¶ 33. We find this reasoning to be persuasive.

{¶ 24} The offenses of grand theft of a motor vehicle and theft in Case 19CR-505 were clearly part of a single course of conduct. The grand theft offense was based on a January 2019 incident in which Bland stole an individual‘s car and the theft offense arose from Bland‘s possession of the car owner‘s debit card and driver‘s license, which were taken from the car, when he was apprehended by police after abandoning the stolen car. Because there was a factual and temporal connection between the two offenses, the record supports the trial court‘s finding that they formed a single course of conduct and the court‘s imposition of consecutive sentences for those offenses in Case 19CR-505.

{¶ 25} By contrast, the record fails to establish that the offenses in Case 19CR-505 and the offense in Case 19CR-5137 were part of an ongoing course of conduct. The perjury offense in Case 19CR-5137 occurred several months prior to the vehicle theft, when Bland made a false confession at his son‘s criminal trial in September 2018. The offenses in the two cases differed in nature and in the facts surrounding their commission. The prosecutor‘s statement of facts at the plea hearing failed to establish any link between the offenses in Case 19CR-505 and the perjury offense in 19CR-5137. Nor can we discern from our review of the record any connection, common scheme, or pattern linking the perjury offense with the offenses in Case 19CR-505. Therefore, under these circumstances, we find the record clearly and convincingly fails to support the trial court‘s finding that the offenses in Case 19CR-505 and the offense in Case 19CR-5137 were part of one course of conduct, such that it was appropriate to impose the sentence in Case 19CR-5137 consecutively to the sentences in Case 19CR-505. Accordingly, the trial court plainly erred by imposing a consecutive sentence in Case 19CR-5137 based on a finding that the perjury offense was part of a single course of conduct with the offenses in Case 19CR-505.

{¶ 26} The judgment entry of sentence and conviction in Case 19CR-5137 indicated the trial court found other factors supported the imposition of a consecutive sentence; therefore, we remand for resentencing for the trial court to determine whether those remaining factors justify a consecutive sentence in Case 19CR-5137.

{¶ 27} Because we conclude the trial court did not err by imposing consecutive sentences in Case 19CR-505 but erred by imposing the sentence in Case 19CR-5137 consecutively to the sentences in Case 19CR-505 based on a finding under R.C. 2929.14(C)(4)(b) that the offense in Case 19CR-5137 was part of a single course of conduct with the offenses in Case 19CR-505, we overrule in part and sustain in part Bland‘s second assignment of error.

IV. Conclusion

{¶ 28} For the following reasons, we sustain Bland‘s first assignment of error and overrule in part and sustain in part his second assignment of error. We affirm in part and reverse in part the judgments of the Franklin County Court of Common Pleas. These cases are remanded to that court for resentencing in Case 19CR-505 with instructions to issue a single sentence on the merged convictions for grand theft of a motor vehicle and receiving stolen property and for resentencing in Case 19CR-5137 in accordance with law and this decision.

Judgments affirmed in part and reversed in part; causes remanded with instructions.

BROWN & KLATT, JJ., concur.