STATE OF OHIO, Plaintiff-Appellee, v. DEREK S. CHILDERS, Defendant-Appellant.
Case No. 15CA6
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY
RELEASED: 11/20/2015
2015-Ohio-4881
Hoover, P.J.
DECISION AND JUDGMENT ENTRY
Charles A. Koenig and Todd A. Long, Koenig & Long, LLC, Columbus, Ohio, for appellant.
Brigham M. Anderson, Lawrence County Prosecuting Attorney, and Robert C. Anderson, Lawrence County Assistant Prosecuting Attorney, Ironton, Ohio, for appellee.
Hoover, P.J.
{¶1} Defendant-appellant, Derek S. Childers, appeals the judgment of conviction and sentence of the Lawrence County Common Pleas Court. After pleading guilty to two counts of burglary and four counts of breaking and entering, Childers was sentenced to an aggregate 16-year prison term. Childers was also ordered to pay restitution to four victims.
{¶2} On appeal, Childers first claims that the trial court erred when it imposed maximum and consecutive prison sentences on the burglary offenses. At the sentencing hearing, the trial court recited the mandatory
{¶3} Childers next argues that his trial counsel rendered ineffective assistance by failing to argue mitigating sentencing factors. However, in concluding that the record does not support Childers’ consecutive sentences, and ordering a new sentencing hearing, Childers’ ineffective assistance argument is rendered moot.
{¶4} Having found merit in Childers’ sentencing argument, we reverse the judgment of the trial court and remand for resentencing.
I. Facts and Procedural Posture
{¶5} Childers was indicted by the Lawrence County Grand Jury on two counts of burglary, felonies of the second degree in violation of
{¶6} Childers pleaded guilty to all six counts of the indictment. Neither the plea hearing transcript nor the judgment entry reflecting the guilty pleas mention any sentencing agreement or sentencing bargain involving the parties or the trial court. Approximately three weeks after the plea hearing, the trial court sentenced Childers to eight years in prison on each of the two burglary counts, to be served consecutively, and to 12 months in prison on each of the four breaking and entering counts to be served concurrently with each other and concurrent to the burglary sentences. Thus, Childers
{¶7} Prior to sentencing Childers at the sentencing hearing, the trial court judge made the following comments on the record:
COURT: Alright sir thank you. The court has considered the statements of counsel and the defendant. The court has weighed the purposes and principals (sic) of sentencing in
ORC 2929.11 the seriousness and recidivism factors inORC 2929.12 and following the guidance ofORC 2929.13 would make the following sentences. Anytime that the court is asked to consider consecutive sentences there has to be a finding both on the record and in the written Judgment Entry. Consecutive sentences are necessary in these um, at least counts one and two to protect the public from um, future crime. They are not disproportionate to the seriousness of the offenders (sic) conduct or to the danger that would pose to the public and that, um, the harm caused by two or more of the multiple offenses is so great or unusual that no single prison term adequately reflects the seriousness of the offenders (sic) conduct. This is Revised Code Section2929.14 (C) on sentencing.
Likewise, the required findings for imposing consecutive sentences under
{¶8} It is from the sentence of the trial court that Childers brings his appeal.
{¶9} Childers assigns the following errors for our review:
- The trial court erred when it sentenced Appellant to maximum consecutive terms of imprisonment without making the required findings set forth in Ohio Revised Code section
2929.14(C)(4) . - Appellant was deprived of his constitutional rights to counsel, when he was sentenced to maximum consecutive terms of imprisonment as a consequence of ineffective assistance of counsel.
III. Law and Analysis
A. R.C. 2953.08(D)(1) and Appellate Review
{¶10} As an initial matter, we must address the State‘s contention that we are barred from reviewing Childers‘s sentence. The State contends that the 16-year prison sentence was imposed pursuant to a negotiated plea agreement that also included an agreed sentence, and thus is not subject to appellate review. See
{¶11} With the record before us, we cannot conclude that an agreed sentence “recommended jointly by the defendant and the prosecution” existed in this case. At the plea hearing, neither party made any sentencing recommendations, or announced any agreement or negotiations regarding sentencing. At the sentencing hearing, the State made the following sentencing recommendation:
[W]e are going to make the following recommendation. Count one, the State is going to recommend the [c]ourt to sentence the Defendant to eight years in the appropriate penal institution. Count two the State would recommend the court impose eight years in the appropriate penal institution and run that consecutive to count one. Count three the State would recommend twelve months in the appropriate penal institution, concurrent with counts one and two. Count four, twelve months in the appropriate penal institution concurrent with counts one two and three. Count five, twelve months in the appropriate penal institution current (sic) with counts one, two, three and four. Count six twelve months in the appropriate penal institution concurrent with counts one, two, three, four, five, for a total of sixteen years in the appropriate penal institution. In addition your Honor there is restitution due to um, five separate victims, the total amount of the restitution is three thousand one hundred and seventy dollars. In the Judgment Entry we will break that down to each victim so the Clerk would know who to pay it to.
{¶12} Because we cannot conclude that an agreed sentence existed between the parties in this case, we will address the merits of Childers‘s appeal. See State v. Robinson, 4th Dist. Lawrence No. 13CA18, 2015-Ohio-2635, ¶ 33 (concluding that we would address the merits of appellant‘s assignment of error where it was unclear whether an agreed sentence existed).
B. Consecutive Sentences
{¶13} In his first assignment of error, Childers contends that the trial court erred in imposing consecutive sentences on the burglary offenses. To be clear, Childers does not dispute that the trial court recited the
{¶14} The State disputes Childers‘s claim that the record is devoid of any evidence or argument upon which the trial court could base its
1. Standard of Review
{¶15} We review felony sentences under the standard set forth in
{¶16}
{¶17} Under
{¶18} “There are two ways that a defendant can challenge consecutive sentences on appeal.” State v. Adams, 2nd Dist. Clark No. 2014-CA-13, 2015-Ohio-1160, ¶ 17. “First, the defendant can argue that consecutive sentences are contrary to law because the court failed to make the necessary findings required by
{¶19} Here, it is clear from the sentencing transcript that the trial court recited the statutory language of
{¶20} The State relies on the discovery materials filed with the Clerk to support its contention that resources were available for the trial court to appropriately analyze the
{¶21} As aptly stated by the Second District Court of Appeals, “[w]e are concerned that our sentencing jurisprudence has become a rubber stamp for rhetorical formalism.” Adams, supra, at ¶ 30. ” ‘Formalism’ has been described as scrupulous or excessive adherence to outward form at the expense of inner reality or content.” Id. Here,
{¶22} While we agree that Childers‘s conduct is reprehensible, there is simply no evidence in the record to support the trial court‘s consecutive sentence findings. We cannot glean from the record that the trial court was aware of the facts underlying the indictment. Nor does it appear from the record that the trial court possessed information regarding Childers‘s past criminal record, his social history, the impact of the offenses on the victims, the seriousness of the offenses, and so on. Therefore, although the trial court recited the findings necessary to impose consecutive sentences, we clearly and convincingly find that the record does not support the trial court‘s findings. Childers‘s first assignment of error is sustained.
C. Ineffective Assistance of Counsel
{¶23} In his second assignment of error, Childers contends that his trial counsel rendered ineffective assistance by failing to argue mitigating factors at his sentencing hearing. However, due to our decision regarding Childers‘s first assignment or error, and the need for resentencing, we find this assignment of error to be rendered moot. We, therefore, overrule Childers‘s second assignment of error. See
IV. Conclusion
{¶24} In conclusion, we sustain Childers‘s first assignment of error. We find Childers‘s second assignment of error to be moot. Childers‘s sentence is reversed; and
JUDGMENT REVERSED AND CAUSE REMANDED.
It is ordered that the JUDGMENT IS REVERSED and the CAUSE REMANDED for further proceedings consistent with this opinion. Appellee shall pay the costs.
The Court finds that reasonable grounds existed for this appeal.
It is ordered that a special mandate issue out of this Court directing the Lawrence 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 proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier 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 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.
Abele, J.: Concurs in Judgment and Opinion.
McFarland, A.J.: Dissents.
For the Court
BY: ________________________
Marie Hoover
Presiding 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.