State v. ComerState v. Comer
Lead Opinion
{¶ 1} In July 1999, a jury convicted appellant, Jerry Comer Jr., for murder and aggravated robbery, both committed in November 1997. The trial court imposed consecutive sentences of 15 years to life for the murder and 7 years for the aggravated robbery. Rather than state its findings or reasons for the sentences at the sentencing hearing, the court later explained in a journal entry:
{¶ 2} “The Court finds pursuant to
{¶ 3} “* * *
{¶ 4} “Being necessary to fulfill the purposes of
{¶ 5} Initially, appellant filed an appeal from his convictions, raising a single issue concerning jury instructions. The appellate court rejected his argument and affirmed his convictions. This court denied jurisdiction. State v. Comer (2001),
{¶ 7} The court of appeals considered the oral statements made by the trial court at the sentencing hearing and the written journal entry. Taking these statements together, the appellate court concluded that the trial court had made the appropriate findings to justify the imposition of consecutive sentences and a nonminimum prison term. Therefore, the appellate court found that appellate counsel was not deficient in the performance of her duties. However, the court certified its decision as being in conflict with State v. Williams (2000),
{¶ 8} This cause is now before the court upon our determination that a conflict exists and pursuant to the allowance of a discretionary appeal.
{¶ 9} This appeal presents two separate issues concerning appellant’s sentences. Appellant challenges (1) the imposition of consecutive sentences and (2) the imposition of a nonminimum sentence for the aggravated robbery count. Appellant further asserts that his appellate counsel was ineffective because of her failure to raise these issues in his first appeal. We decline to hold that appellate counsel was deficient in the performance of her duties. The law in Ohio was unsettled on these issues, and the sentences pronounced by the trial court were in line with case law in the appellate district at the time this appeal was argued. Counsel cannot be faulted for failing to predict that the law would change. However, we find appellant’s arguments concerning his sentences meritorious. Therefore, we reverse the judgment of the court of appeals and remand the matter to the trial court for resentencing.
{¶ 10}
{¶ 11} When imposing a felony sentence, the trial court must consider the overriding purposes of felony sentencing, which are to protect the public from future crime and to punish the offender.
{¶ 12} Additionally, the law requires that a sentence imposed for a felony shall be reasonably calculated to achieve the purposes of felony sentencing, “commensurate with and not demeaning to the seriousness of the offender’s conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes committed by similar offenders.”
{¶ 13} The trial court must consider the factors found in
{¶ 15} “* * *
{¶ 16} “(c) If it imposes consecutive sentences under [R.C.] 2929.14 * * * .” (Emphasis added.)
{¶ 17} Appellant contends that according to
{¶ 18} There is a split of authority in the lower courts on this issue. See State v. Perkins, Cuyahoga App. No. 81547,
{¶ 19} Lower courts have correctly and consistently found that the requirement that a court give its reasons for selecting consecutive sentences is separate and distinct from the duty to make the findings. State v. Grider (2001),
{¶ 20} Turning now to the statutes at issue, we hold that
{¶ 21} Moreover, requiring the court to make these findings and give its reasons at the sentencing hearing comports with case law and with the purposes and intent of S.B. 2. Consecutive sentences are reserved for the worst offenses and offenders. State v. Boland (2002),
{¶ 22} Finally, our holding has a practical application as well. All interested parties are present at the hearing. Thus, an in-court explanation gives counsel the opportunity to correct obvious errors. Moreover, an in-court explanation encourages judges to decide how the statutory factors apply to the facts of the case. If these important findings and reasons were not given until the journal entry there is the danger that they might be viewed as after-the-fact justifications. See, e.g., State v. Riggs (Oct. 11, 2000), Summit App. No. 19846,
{¶ 23} Our review of the record reveals that the trial court neither made its mandatory findings nor gave its reasons for imposing the consecutive sentences on the record at the sentencing hearing. Therefore, we reverse the court of appeals’ decision, vacate the consecutive sentences, and remand this cause to the trial court for resentencing.
{¶ 24} Appellant also contends that the sentence imposed by the trial court for the aggravated robbery count did not accord with
{¶ 25} The offense of aggravated robbery, a felony of the first degree (
{¶ 26} Here, appellant, a first-time offender, was given a seven-year sentence; clearly, this is not the minimum sentence for aggravated robbery. While this term fit within the range of sentences permissible under the law,
' {¶ 27} Here, the trial court did not make its statutory findings on the record at the sentencing hearing. We reverse the judgment of the appellate court, vacate the sentence for aggravated robbery, and remand the cause to the trial court for resentencing.
Judgment reversed and cause remanded.
Notes
. {¶ a} The criteria to be considered by a sentencing court before imposing consecutive prison terms are listed in
{¶ b} “(a) The offender committed the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to ** * * [R.C.] 2929.16, 2929.17, or 2929.18 * * *, or was under post-release control for a prior offense.
{¶ c} “(b) The harm caused by the multiple offenses was so great or unusual that no single prison term for any of the offenses committed as part of a single course of conduct adequately reflects the seriousness of the offender’s conduct.
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Dissenting Opinion
dissenting.
{¶ 28} I respectfully dissent from the majority’s decision. Neither
{¶ 29}
{¶ 30} Section 5(B), Article IV of the Ohio Constitution confers on the Supreme Court the power to prescribe rules of practice and procedure, and further provides that “[a]U laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.” This court has generally required a direct conflict before holding a statute void pursuant to Section 5(B), Article IV. That narrow application may have encouraged the General Assembly to enact procedural requirements governing matters for which the rules of practice and procedure do not expressly provide. Some would argue for a broader interpretation of the conflict analysis. Even if one is not adopted, the separation-of-powers principle underlying Section 5(B) should incline the courts against finding an intent on the General Assembly’s part to enact a procedural requirement unless that intent is plainly expressed. A more relaxed standard can readily thwart the careful distribution of powers between the branches of government set out in the Constitution by the people of Ohio, who, after all, are sovereign.
{¶ 31}
{¶ 32}
{¶ 33}
{¶ 34} The majority finds support for the requirement it imposes in the terms • of
{¶ 35} A positive inference cannot be drawn from legislative silence. The canon expressio unius est exclusio alterius (expression of one thing suggests the exclusion of others) supports a negative implication that the General Assembly instead intended not to require a sentencing court to orally pronounce the findings and/or reasons which
{¶ 36} The only potential basis for requiring a court to orally pronounce its findings and/or reasons from the bench at the sentencing hearing is the title given to
{¶ 37} The General Assembly’s intent is evident from the portion of
{¶ 38} The majority finds that requiring oral pronouncements at the sentencing hearing also has certain practical benefits. With all due respect, I believe that those benefits are outweighed by the resulting impracticalities. If the sentencing court then repeats its findings or reasons in the journalized entry, any conflict between the two must be resolved in favor of the journal, and the spoken opinion disregarded. Andrews v. Bd. of Liquor Control,
{¶ 39}