THE STATE OF OHIO, APPELLEE, v. BONNELL, APPELLANT.
No. 2013-0167
Supreme Court of Ohio
July 24, 2014
[Citе as State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177.]
O‘DONNELL, J.
Submitted January 7, 2014
{21} Indeed,
{22} Given thе consistent, plain language of the statute, I cannot support the idea that “a court ‘may’ choose to conduct a hearing at both times.” 2012-Ohio-4973, 115. A juvenile court has discretion over the timing of its
Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and Andrew T. French and Matthew T. Crawford, Assistant Prosecuting Attorneys, for appellee.
Timothy Young, State Public Defender, and Amanda J. Powell, Assistant Public Defender, for appellant.
{11} This court has now come full circle on the question of whether a trial court must engage in judicial fact-finding prior to imposing consecutive sentences on an offender.
{12} In 1996, the General Assembly limited trial court discretion to impose consecutive sentences by directing courts to make statutorily enumerated findings and to give supporting reasons for doing so at the time of sentencing. Am.Sub.S.B. No. 2, 146 Ohio Laws, Part IV, 7136. However, in accordance with decisions from the United States Supreme Court, this court held in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, that requiring judicial fact-finding prior to imposing consecutive sentences violated the Sixth Amendment guarantee of trial by jury. We thеrefore severed the requirement of judicial fact-finding from the statute, struck the presumption in favor of concurrent sentences, and held that judges had discretion to impose consecutive sentences.
{13} Subsequent to our decision in Foster, however, the United States Supreme Court issued Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009), holding that a statutory requirement for judges in a jury trial to find certain facts before imposing consecutive sentences is constitutional. Accordingly, in State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768, we held that Ice did not automatically revive the consecutive-sentencing provisions held unconstitutional and severed from the statute in Foster, and as a rеsult, we stated that judicial fact-finding would not be required prior to imposing consecutive
{14} Subsequent to Hodge, the General Assembly enacted Am.Sub.H.B. No. 86, effective September 30, 2011, reviving some of the statutory language we severed in Foster. That legislation created a statutory presumption in favor of concurrent sentences and further directed courts to make statutorily enumerated findings prior to imposing consecutive sentences, but it did not require courts to give reasons in support of its findings.
{15} In this case, Randall L. Bonnell Jr. appeals from a judgment of the Fifth District Court of Appeals affirming the imposition of consecutive sentences aggregating 8 years and 5 months for convictions arising out of four instances in which he took $117 in change from vending machines. The trial court, however, made some, but not all, of the statutorily required findings before it imposed the consecutive sentences. We reverse the judgment of the appellate court, vacate the sentence, and remand the matter to the trial court for resentencing.
Facts and Procedural History
{16} On August 26, 2010, Bonnell and Raymond Bush attempted to break into a vending machine at the Red Roof Inn in Grove City. However, in the process, they ruptured a water line, causing the room to flood, and they fled without stealing any money.
{17} Thereafter, on November 22, 2010, March 23, 2011, and October 3, 2011, they broke into vending machines at a Best Western Hotel in Delaware County, stealing approximately $117 in change and damaging machines owned by the Scioto Vending Company. Police arrested them as they drove away from the hotel on October 3, 2011.
{18} A Delaware County grand jury indicted Bonnell for engaging in a pattern of corrupt activity, possessing criminal tools, obstructing official business, three counts of burglary, and four counts each of theft and tampering with coin machines. He subsequently pleaded guilty to three third-degree-felony counts of burglary and one fifth-degree-felony count of tampering with coin machines, and the remaining counts were dismissed.
{19} At the sentencing hearing, the trial court heard arguments from the parties, but no one addressed whether the sentences should be served concurrently or consecutively; notably, the state asserted only that Bonnell was not amenable to community control. The following colloquy occurred:
The court: Going through all of the sentencing factors, I can not overlook the fact your record is atrocious. The courts have given you opportunities.
The defendant: Yes.
The court: On the PSI pages 4 through 16, it‘s pretty clear that at this point in time you‘ve shown very little respect for society and the rules of society. The court feels that a sentence is appropriate.
The court then sentenced Bonnell to 30 months in prison for each burglary and 11 months in prison for tampering with coin machines, imposing consecutive sentences to aggregate a term of eight years and five months in prison.
{110} In its journal entry imposing this sentence, the court wrote:
Having considered the factual background of this case, the negotiations conducted in this case, the Pre-Sentence Investigation report prepared by Adult Court Services, the Defendant‘s counsel‘s statement, the Assistant Prosecuting Attorney‘s statement, the Defendant‘s statement, and, having considered the two overriding purposes of felony sentencing set forth in
Section 2929.11 of the Ohio Revised Code , and having considered the seriousness and recidivism factors set forth inSection 2929.12 of the Ohio Revised Code , which the Court considers to be advisory only, the Court makes the following FINDINGS:
- The Defendant‘s lengthy prison record.
- A prison sentence is appropriate.
{111} Bonnell appealed to the Fifth District Court of Appeals, asserting that the imposition of consecutive sentences was contrary to law because the trial court failed to make the findings required by
The entire record adequately reflects consecutive sentences were necessary to protect the public and to punish Bonnell, and that they were not disproportionate to the seriousness of his conduct and the danger he posed to the public. In addition, Bonnell‘s history of criminal conduct demonstrated that consecutive sentences were necessary to protect the public from future crime.
{112} We accepted Bonnell‘s discretionary apрeal on the following proposition of law: “A trial court must expressly make the findings required in
{113} According to Bonnell,
{14} The state contends that “a trial court is not required to recite any ‘magic’ or ‘talismanic’ words when imposing consecutive sentences” and it urges against establishing “a formulaic rubric” for use at the sentencing hearing and in the judgment entry in order to satisfy the requirements of
{15} Accordingly, the issue presented is whether the trial court must make the required findings enumerated in
Law and Analysis
{16} In Am.Sub.S.B. No. 2, 146 Ohio Laws, Part IV, 7136, effective July 1, 1996 (“S.B. 2“), the General Assembly limited judicial discretion in imposing
Case Analysis
{117} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, however, we recognized that requiring trial judges in a jury trial to engage in judicial fact-finding prior to imposing consecutive sentеnces violated the Sixth Amendment right to trial by jury as construed by the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Thus, we severed
{18} Our earlier understanding of Apprendi, Ring, and Blakely regarding judicial fact-finding in imposing consecutive sentences, as announced in Foster, was dispelled in Oregon v. Ice. There, the United States Supreme Court, noting the historical practice in which “the jury played no role in the decision to impose sеntences consecutively or concurrently,” declined to extend the rule of Apprendi and Blakely to state statutes requiring judicial fact-finding prior to imposition of consecutive sentences. 555 U.S. at 168, 171-172, 129 S.Ct. 711, 172 L.Ed.2d 517. Ice effectively overruled Foster in part by upholding “state legislative innovations like Oregon‘s [that] seek to rein in the discretion judges possessed at common law to impose consecutive sentences at will,” explaining that limiting judicial discretion serves the salutary objective of promoting sentencing proportionality and consistency. Id. at 171.
{119} We recognized this in State v. Hodge, stating, “[T]he decision in Ice undermines some of the reasoning in the Foster decision that judicial fact-finding in the imposition of consecutive sentences violates the Sixth Amendment.” 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768, 119. And we acknowledged that “[h]ad we the benefit of the United States Supreme Court‘s decision in Ice regarding Oregon‘s consecutive-sentencing statutes prior to our decision in Foster, we likely would have ruled differently as to the constitutionality, and continued vitality, of our own state‘s consecutive-sentencing provisions.” Id. at
H.B. 86
{120} The General Assembly subsequently enacted Am.Sub.H.B. No. 86 (“H.B. 86“), effective September 30, 2011, with a legislative purpose to reduce the state‘s prison population and to save the associаted costs of incarceration by diverting certain offenders from prison and by shortening the terms of other offenders sentenced to prison. See Ohio Legislative Service Commission, Fiscal Note & Local Impact Statement to Am.Sub.H.B. 86, at 3 (Sept. 30, 2011), available at www.legislature.state.oh.us/fiscalnotes.cfm?ID=129_HB_86&ACT=As% 20 Enrolled (accessed July 18, 2014).
{21} In this enactment, the legislature expressed its intent as a direct response to our decisions in Foster and Hodge, stating in the uncodified portion of that bill:
In amending division (E)(4) of section 2929.14 and division (A) of section 2929.41 of the Revised Code in this act, it is the intent of thе General Assembly to simultaneously repeal and revive the amended language in those divisions that was invalidated and severed by the Ohio Supreme Court‘s decision in State v. Foster (2006), 109 Ohio St.3d 1 [845 N.E.2d 470]. The amended language in those divisions is subject to reenactment under the United States Supreme Court‘s decision in Oregon v. Ice (2009), 555 U.S. 160 [129 S.Ct. 711, 172 L.Ed.2d 517], and the Ohio Supreme Court‘s decision in State v. Hodge (2010), [128] Ohio St.3d [1], Slip Opinion No. 2010-Ohio-6320 [941 N.E.2d 768] and, although constitutional under Hodge, supra, that language is not enforceable until deliberately revived by the General Assembly.
H.B. 86, Section 11.
{22} The General Assembly revived
If multiple prison terms are imposed on an offender for convictions of multiple оffenses, 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 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 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.
{123} With exceptions not relevant here, if the trial court does not make the factual findings required by
Crim.R. 32
{24}
{125}
Criminal Rule 32(A) was amended to conform with the Supremе Court of Ohio‘s decision in State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165 [793 N.E.2d 473]. The Comer decision mandates that a trial court must make specific statutory findings and the reasons supporting those findings when a trial court, in serious offenses, imposes consecutive sentences or nonminimum sentences on a first offender pursuant to
R.C. 2929.14(B) ,2929.14(E)(4) and2929.19(B)(2) .Crim. R. 32(A) was modified to ensure there was no discrepancy in the criminal rules and the Court‘s holding in Comer.
(Emphasis added.) Thus, this court promulgated
{126}
{27} Notably, however, rather than also reviving the language of former
{128} On appeals involving the imposition of consecutive sentences,
{129} When imposing consecutive sentences, a trial court must state the required findings as part of thе sentencing hearing, and by doing so it affords notice to the offender and to defense counsel. See
{30} A trial court‘s inadvertent failure to incorporate the statutory findings in the sentencing entry after properly making those findings at the sentencing hearing does not render the sentence contrary to law; rather, such a clerical mistake may be corrected by the court through a nunc pro tunc entry to reflect what actually occurred in open court. See State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, 1115 (where notification of postrelease control was accurately given at the sentencing hearing, an inadvertent failure to incorporate that notice into the sentence may be corrected by a nunc pro tunc entry without a new sentencing hearing). But a nunc pro tunc entry cannot cure the failure to make the required findings at the time of imposing sentence. See State v. Miller, 127 Ohio St.3d 407, 2010-Ohio-5705, 940 N.E.2d 924, 116 (“a nunc pro tunc order cannot cure the failure of a judge to impose restitution in the first instance at sentencing“).
{131} And a sentencing entry that is corrected by a nunc pro tunc entry incorporating findings stated on the record at the sentencing hearing does not extend the time for filing an appeal from the original judgment of conviction and does not create a new final, appealable order. See State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, 120 (“a nunc pro tunc judgment entry issued for the sole purpose of complying with
{1132} In this case, the trial court had obviously reviewed the presentence-investigation report and knew of Bonnell‘s criminal record, because it described his record as atrocious and stated that he had shown very little respect for society. But the court did not completely adhere to
{34} Thus, the court‘s desсription of Bonnell‘s criminal record as atrocious and its notation of his lack of respect for society do not permit us to conclude that the trial court had made the mandated statutory findings in accordance with
Conclusion
{135} Because the General Assembly has expressed its intent to revive some of the language severed by this court in Foster, our decision in Hodge is no longer controlling and judges are required to adhere to
{1136} In this case, the recоrd does not support a conclusion that the trial court made all of the findings required by
{137} In order to impose consecutive terms of imprisonment, a trial court is required to make the findings mandated by
Judgment reversed,
sentence vacated,
and cause remanded.
KENNEDY and FRENCH, JJ., concur in part and dissent in part.
FRENCH, J., concurring in part and dissenting in part.
{38} I join the majority‘s opinion, except in its conclusion that a sentencing court must always recite its findings at the sentencing hearing and then again in the sentencing entry. In my view, a sentencing court can satisfy
KENNEDY, J., concurs in the foregoing opinion.
Carol Hamilton O‘Brien, Delaware County Prosecuting Attorney, and Eric C. Penkal, Assistant Prosecuting Attorney, for appellee.
Timothy Young, Ohio Public Defender, and Francisco E. Lüttecke, Assistant Public Defender, for appellant.