State of Ohio, Plaintiff-Appellee, v. Albert D. Dennison, Defendant-Appellant.
No. 14AP-486 (C.P.C. No. 09CR-7310)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
March 26, 2015
[Cite as State v. Dennison, 2015-Ohio-1135.]
DORRIAN, J.
(REGULAR CALENDAR)
Rendered on March 26, 2015
Ron O‘Brien, Prosecuting Attorney, and Valerie Swanson, for appellee.
Carpenter Lipps & Leland LLP, Kort Gatterdam and Erik P. Henry, for appellant.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Defendant-appellant, Albert D. Dennison (“appellant“), appeals the June 4, 2014 judgment of the Franklin County Court of Common Pleas resentencing appellant. For the reasons that follow, we reverse the judgment of the trial court.
I. Facts and Procedural History
{¶ 2} On December 8, 2009, a Franklin County Grand Jury indicted appellant, charging him with 11 criminal counts. On July 26, 2012, the trial court filed a judgment entry reflecting the findings of the jury following trial and imposing sentence upon appellant. The jury found appellant guilty of one count of burglary, four counts of aggravated robbery, and four counts of kidnapping, corresponding to thе four victims present in the home. The jury also found appellant guilty of firearm specifications that
{¶ 3} The trial court sentenced appellant to nine years on each of the four aggravated robberies for a total of 36 years, and 8 years on each of the 4 counts of kidnapping for a total of 32 years, but merged the aggravated burglary count with the counts of aggravated robbery. The court sentenced appellant to three years for the WUD charge and three years for only one of the firearm specifications. The court ordered the sentences to be served сonsecutively, resulting in a total sentence of 74 years.
{¶ 4} Appellant timely appealed from his conviction, and the state cross-appealed. On December 17, 2013, we reversed, overruling all of appellant‘s assignments of error and sustaining the state‘s two cross-assignments of error. State v. Dennison, 10th Dist. No. 12AP-718, 2013-Ohio-5535, ¶ 92. We found that: (1) the trial court improperly merged appellant‘s aggravated burglary cоnviction with his aggravated robbery convictions; and (2) the trial court was required, pursuant to
{¶ 5} On June 2, 2014, the trial court held a resentencing hearing at which it stated that it was conducting a “sentencing de novo.” (Tr. 6.) The trial court sentenced appellant to nine years both on the sole count of aggravated burglary and each of the nine counts of aggravated robbery, in addition to eight years on each of the four counts of kidnapping and three years for the sole count of WUD. Appellant was also sentenced to three years each on two of the gun specifications, to be served consecutively, with the remaining specifications to be served concurrently. The trial court ordered the count of aggravated burglary and the count оf WUD to be served concurrently to the other counts, with the remaining counts to be served consecutively for a total sentence of 74 years. On June 4, 2014, the trial court filed a resentencing entry.
II. Assignments of Error
{¶ 6} Appellant appeals assigning the following three errors for our review:
I. THE TRIAL COURT ERRED AND IMPOSED A SENTENCE CLEARLY AND CONVINCING CONTRARY TO LAW BECAUSE THE SENTENCE WAS DISPROPORTIONATE TO THAT OF APPELLANT‘S CO-DEFENDANTS AND WAS IMPOSED BECAUSE APPELLANT EXERCISED HIS RIGHT TO TRIAL, CONTRARY TO
R.C. 2929.11(B) , ARTICLE I, SECTION 9 OF THE OHIO CONSTITUTION, THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION, AND THE DUE PROCESS CLAUSES OF THE UNITED STATES AND OHIO CONSTITUTIONS.II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT SENTENCED APPELLANT TO CONSECUTIVE TERMS OF IMPRISONMENT FOR ALLIED OFFENSES OF SIMILAR IMPORT CONTRARY TO THE DOUBLE JEOPARDY PROVISIONS OF THE UNITED STATES AND OHIO CONSTITUTIONS.
III. THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES WITHOUT MAKING THE REQUIRED FINDINGS PURSUANT TO
R.C. 2929.14(C)(4) DEPRIVING APPELLANT OF DUE PROCESSS CONTRARY TO THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND CORRESPONDING RIGHTS UNDER THE OHIO CONSTITUTION.
For ease of discussion, we address appellant‘s assignments of error out of order.
III. Second Assignment of Error—Allied Offenses
{¶ 7} In his second assignment of еrror, appellant asserts that the trial court erred by sentencing appellant to consecutive terms of imprisonment for allied offenses of similar import. The state responds that res judicata bars appellant‘s claim.
{¶ 8} “A remand for a new sentencing hearing generally anticipates a de novo sentencing hearing.
{¶ 10} In our prior decision, we remandеd for the trial court to “resentence appellant in light of our finding that the aggravated burglary conviction does not merge with appellant‘s aggravated robbery conviction” and to “correctly apply
{¶ 11} Here, the trial court‘s statement that it was conducting a “sentencing de novo” exceeded the scope of our remand order as only the sentences affected by the appealed error were subject to de novo review upon resentencing. Wilson at ¶ 15. However, with regard to the issue he raises now, the trial court considered merger of offenses in the оriginal sentence, as reflected by our prior decision reversing the trial court‘s merger of appellant‘s aggravated burglary and aggravated robbery convictions. See Dennison at ¶ 81-85. Therefore, the trial court‘s de novo approach to resentencing does not alter the fact that appellant could have presented his claims regarding allied offenses in his original appeal to this court. Myers at ¶ 6. Because he did not raise the alleged allied offenses error on direct appeal of the original sentence, res judicata bars appellant from raising this issue now. Wilson at ¶ 30; State v. Padgett, 8th Dist. No. 95065, 2011-Ohio-1927, ¶ 8 (finding “the proper avenue for appellant‘s merger challenge would have been a direct appeal,” not following resentencing); State v. Dillard, 7th Dist. No. 08 JE 35, 2010-Ohio-1407, ¶ 23.
{¶ 12} Accordingly, we overrule appellant‘s second assignment of error.
{¶ 13} In his third assignment of error, appellant asserts that the trial court erred by failing to state findings required for the imposition of consecutive sentences under
{¶ 14}
If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutivеly 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 сommitted 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 cаused 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.
{¶ 15} Thus, pursuant to
{¶ 16} We first note that, because appellant failed to object to the imposition of consecutive sentences at the resentencing hearing, our review is limited to consideration of whether the trial court committed plain еrror. Ayers at ¶ 7. Under Crim.R. 52(B), ” ‘[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.’ * * * ‘To constitute plain error, the error must be obvious on the record, palpable, and fundamental such that it should have been apparent to the trial court without objection.’ ” State v. Jones, 10th Dist. No. 14AP-80, 2014-Ohio-3740, ¶ 11, quoting State v. Gullick, 10th Dist. No. 13AP-26, 2013-Ohio-3342, ¶ 3, citing State v. Tichon, 102 Ohio App.3d 758, 767 (9th Dist.1995). “We have previously found that when the record demonstratеs that the trial court failed to make the findings required by
{¶ 17} The state argues that the trial court did not have to articulate findings when imposing consecutive sentences because such findings were not required under the law in effect at the time appellant committed the offenses. H.B. No. 86, which became effective on September 30, 2011, “revived the language in
{¶ 18} Having found, pursuant to Wilson, that the trial court was required to apply
THE COURT: In dealing with the ones I have to sentence, 2929.14(B) – (C)(4), I‘m sorry, requires that I must look at the following: If multiple prison terms are imposed on an offender convicted of multiple offenses, 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 will not be 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 the following:
[a] That the offender committed one or more offenses, multiple offenses, while the offender was awaiting trial; [b] at least two of the multiple offenses were committed as part of one or more courses of conduct and that 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 committеd as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct.
And, finally, (c) the offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
Clearly the course of conduct, this has always been the worst home invasion I‘ve ever had. They tortured the people inside. It justifies the consecutive sentences that I‘m going to give on this case. It is not disproportionate. I know Mr. Moore makes the argument, but the other gentlemen had come forward and admitted it. If they were placed in the same circumstance, they would have received a similar sentence from me on this case. Okay?
* * *
We had multiple victims. Okay. The course of conduct would be the entry of the place, the aggravated burglary. It continued on with the kidnappings and basically making everybody strip down, confiscated – the 2-year-old, the child, was present during the whole time and was forced to watch through this. They were separated. While naked they were required to gather the items for them, pack them so thаt they could leave the place. That sounds like a course of conduct to me that would adequately represent, how should I say, the sadistic nature of the activity that went on with these three individuals that night.
* * *
Anything else for the record on that?
[PROSECUTOR]: Just note, in addition to what you‘ve pointed out, they were physically assaulted as well.
THE COURT: That also was part of the testimony in the trial, yes. Like I said, it was probably one of the most sadistic events I‘ve ever seen. I think I made adequate findings on that. Unless there‘s any other objections, I‘ll just go forward with the sentencing at this point in time.
[PROSECUTOR]: He did have a prior record as well.
THE COURT: Okay. Anything you want to put on the record about it?
[PROSECUTOR]: No. That is just another one of those prongs. That‘s it.
THE COURT: Okay. Well, I think I made a sufficient finding to justify it.
(Tr. 7-9.)
{¶ 19} We first consider whether the trial court made a finding that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public. Price at ¶ 36-38. Here, the trial court stated that “[i]t is not disproportionate,” but then followed this finding by stating that “I know [appellant‘s counsel] makes the argument, but the other gentlemen had come forward and admitted it. If they were placed in the same circumstance, they would have received a similar sentence from me on this case.” (Tr. 8.)
{¶ 20} The trial court‘s statements reflect that, in conducting the required proportionality analysis, it considered the consistency between appellant‘s sentence and the sentences imposed upon appellant‘s co-defendants who entered guilty pleas. However,
{¶ 22} Accordingly, we sustain appellant‘s third assignment of error and remand this matter to the trial court for it ” ‘to consider whether consecutive sentences are appropriate, pursuant to
V. First Assignment of Error—Consistency of Sentence
{¶ 23} In his first assignmеnt of error, appellant asserts that he was punished for exercising his right to trial because his sentence was inconsistent with or disproportionate to the severity of the crime when compared with similarly situated offenders, namely his co-defendants, in contravention of
{¶ 24} Having rendered appellant‘s first assignment of еrror moot, overruled appellant‘s second assignment of error, and sustained appellant‘s third assignment of error, we reverse the judgment of the Franklin County Court of Common Pleas and remand this case to that court for further proceedings in compliance with
Judgment reversed and cause remanded.
SADLER and T. BRYANT, JJ., concur.
T. BRYANT, J., retired, of the Third Appellate District, assigned to active duty under the authority of the Ohio Constitution, Article IV, Section 6(C).
___________________