2005 Ohio 96 | Ohio Ct. App. | 2005
Lead Opinion
{¶ 2} "I. The trial court erred by ordering Appellant to serve a consecutive sentence without making the appropriate findings required by R.C.
{¶ 3} "II. The trial court erred when it sentenced Appellant to the maximum sentence without making the appropriate findings."
{¶ 4} Having reviewed the record and pertinent law, we affirm the decision of the trial court. The apposite facts follow.
{¶ 5} The record reveals on October 2, 2003, the Cleveland Police Department arrested Duffield for theft of a car stereo worth over $500 and for criminal damaging. On October 22, 2003, the Cleveland Police Department again arrested Duffield for the theft of a car stereo worth over $500 and possession of criminal tools. On November 18, 2003 and December 3, 2003, the Cuyahoga County Grand Jury indicted Duffield on two counts of theft, and one count each of criminal damaging and possession of criminal tools. On January 7, 2004, Duffield pled guilty to both counts of theft, entered an Alford Plea to criminal damaging, and the remaining charge was dismissed. The trial court ordered a pre-sentence investigative report and scheduled sentencing for February 9, 2004.
{¶ 6} At the sentencing hearing, Brook Anderson, a representative for several businesses in the Tremont area of Cleveland, read a letter into the record. The letter detailed the severe amount of property damage suffered by businesses, the customers and staff, because of Duffield breaking into the cars on an ongoing basis. The businesses to lose a lot of customers.1
{¶ 7} After reviewing Duffield's presentence investigative report, the trial court sentenced Duffield to a term of twelve months on each theft offense, to be served consecutively. Duffield now appeals.
{¶ 8} In the first assigned error, Duffield argues the trial court failed to make the appropriate findings to justify a consecutive sentence. We disagree.
{¶ 9} In general, a reviewing court will not reverse a sentence unless the court finds, by clear and convincing evidence, that the sentence is unsupported by the record or is contrary to law.2 In this case, Duffield pled guilty to two counts of theft, which are fifth degree felonies pursuant to R.C.
{¶ 10} The overriding purpose of felony sentencing is to protect the public from future crime and to punish the offender. Toward that end, R.C.
{¶ 11} "To achieve those purposes, the sentencing court shallconsider the need for incapacitating the offender, deterring theoffender and others from future crime, rehabilitating theoffender, and making restitution to the victim of the offense,the public, or both."
{¶ 12} R.C.
{¶ 13} Imposing consecutive prison terms for multiple convictions, therefore, is appropriate upon making certain findings as enumerated in this statute. When the trial court does so, however, it must state these findings, and its reasons for those findings, on the record.4 While consecutive sentences are permissible under the law, a trial court must clearly align each rationale with the specific finding to support its decision to impose consecutive sentences.5 Failure of a trial court to do so, constitutes reversible error.6
{¶ 14} Addressing appellant at the sentencing hearing, the trial court stated:
{¶ 15} "I've considered the seriousness and recidivismfactors. I find that you have shown no remorse, I find you have aprior criminal record for theft offenses that dates back to 1998— I'm sorry, 1989, when you were a juvenile. A decade and a halfof criminal history here. {¶ 16} "Mr. Duffield, I find you to be a terrorist, I findthat a minimum sentence would demean the seriousness of theoffense. I find, based upon your prior record and your failure toshow any remorse here, that you pose a great likelihood ofrecidivism, great likelihood of committing future crimes andthat's going to justify a term of twelve months in case 445532. {¶ 17} "Also I'm going to order that you serve 12 months incase 445201. The sentences will run consecutive to each other.You'll serve a total of 24 months. And I find that a 24-monthconsecutive sentence is necessary to not only protect the publicfrom future crime but to punish you. {¶ 18} "You've, again shown no remorse and your criminalhistory demonstrates that consecutive terms are needed to protectthe public."7
{¶ 19} The trial court found Duffield's criminal history relevant to its finding that he poses a danger to the public. The presentence investigation report in this case detailed Duffield's criminal history, which included, inter alia, convictions for receiving stolen property, theft, and domestic violence. The report also detailed Duffield's frequent probation violations. The trial court concluded that Duffield's pattern of criminal conduct indicates he poses a risk of serious physical harm to the public. We agree. His criminal history reflects a pattern of criminal activity where he does not adjust his behavior after having been arrested and/or pled to various offenses. His propensity to continue criminal activity is apparent to this court based on his prior conduct.
{¶ 20} Consequently, we find the trial court made the findings required under R.C.
{¶ 21} In the second assigned error, Duffield argues the trial court failed to make the appropriate findings to justify a maximum sentence. We disagree.
{¶ 22} The imposition of the maximum sentence on an offender who has been found guilty of an offense, which is a felony of the fifth degree, for which a prison sentence is not mandatory, requires a two-step analysis by the court. First, because there is no presumption for or against imprisonment, the sentencing court must determine whether the offender should be imprisoned or sentenced to community control sanctions. Guidance is found in R.C.
{¶ 23} R.C.
{¶ 24} "* * * The court imposing a sentence upon an offenderfor a felony may impose the longest prison term authorized forthe offense pursuant to division (A) of this section only uponoffenders who committed the worst form of the offense, uponoffenders who pose the greatest likelihood of committing futurecrimes, upon certain major drug offenders under division (D)(3)of this section, and upon certain repeat violent offenders inaccordance with division (D)(2) of this section."
{¶ 25} Thus, in order to lawfully impose the maximum term, the trial court must find that the offender satisfies one of the criteria set forth in R.C.
{¶ 26} In determining whether an offender poses the greatest likelihood of committing future crimes, a trial court must consider the five factors enumerated in R.C.
{¶ 27} Here, in accordance with R.C.
{¶ 28} The court further noted Duffield, as an adult, was convicted of domestic violence in 1999, for which he was sentenced to six months in jail; the sentence was suspended, and he was placed on two years probation. Duffield violated the probation that same year; and the court continued him on probation. He violated probation again in May 2000 and the court sentenced him to forty-five days in jail.
{¶ 29} Additionally, the court noted Duffield was convicted again in 2002 and was placed on one year probation. However, he violated probation and was sentenced to sixty days in jail. Finally, the court noted Duffield had other minor misdemeanor offenses for drug abuse.
{¶ 30} On this record, we find the court's determination that Duffield posed the greatest likelihood of committing future crimes was supported by clear and convincing evidence. Duffield's extensive history of criminal convictions and probation violations demonstrated the greatest likelihood of recidivism. Accordingly, in conformance with the guidance provided inEdmonson, supra, we find that the record clearly demonstrates that the trial court lawfully imposed the maximum sentence upon Duffield, fulfilled the statutory requirements of R.C.
Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Calabrese, J., Concur; Karpinski, J., Dissents. (See attacheddissenting opinion.)
Dissenting Opinion
{¶ 31} I respectfully dissent from the majority in its decision on Assignment of Error One: consecutive sentences.
{¶ 32} This court has previously held that the not disproportionate to the seriousness of the offender's conduct finding is limited to the offender's conduct to the case at hand.State v. Cobbins, Cuyahoga App. No. 82510, 2004-Ohio-3736. In the case at bar, the trial judge concluded that defendant was a "terrorist." That conclusion is not justified by the conduct inthis case. More significantly, the trial court failed to explain why the theft of two car radios, along with criminal damaging, was even serious, much less serious enough to justify consecutive sentences.
{¶ 33} The trial court recited the defendant's prior record as a juvenile and an adult and found that a minimum sentence would demean the seriousness of the crime, but the court never addressed proportionality, at least not in words I recognized as such, under the issue of consecutive sentences. Nor does the majority discuss how the court satisfied this statutory requirement.
{¶ 34} The Supreme Court of Ohio has indicated the reasons must be aligned with the court's findings. State v. Comer,
{¶ 35} There is a letter in the record from local businesses alleging the cars of several customers and staff were broken into and claiming several thousands of dollars in damages. This vague assertion of crime in that neighborhood, however, cannot be attributed entirely, if at all, to defendant. Nor can the trial court accept the letter's description of the cost of that crime, especially since the amount is claimed in a letter by businessmenwho were not the victims of Mr. Duffield's crimes and who hadnot established any first-hand knowledge of the cost. Tr. 17. The trial judge specifically stated he would not consider "any facts outside contained in that letter." Tr. 25. The majority, however, reported that letter and specifically attributed the amount of damage detailed in the letter to "Duffield breaking into the cars on an ongoing basis." Ante 3. Such a reliance on unlitigated facts outside the case is precisely what the recent U.S. Supreme Court case of Blakely v. Washington (2004),
{¶ 36} The majority has ignored that defense counsel gave notice of additional authority, Blakely being one of the cases. Although defense counsel did not expressly argue Blakely, the U.S. Supreme Court has established precedent that when a decision of its court results in a new rule, that rule applies to all criminal cases, both state and federal, still pending on direct review. Schriro v. Summerlin, 2004 U.S. LEXIS 4574. I believe, therefore, that this court is obliged to consider Blakely.
{¶ 37} Currently, the sentencing statutes provide a presumption against prison for first-time offenders and against consecutive sentences. R.C.
{¶ 38} To expand what the concurring opinion said in Statev. Taylor, 2004-Ohio-4468, ¶ 45, Ohio law does not allow the trial court to impose maximum or consecutive sentences (and certain other aspects of sentencing such as prison for first-time offenders) solely in its discretion. Under Blakely, such sentences require findings by a jury. Because the trial judge in the case at bar — albeit to satisfy the sentencing statute — relied upon facts beyond what the jury found, for example, in finding that defendant was a "terrorist," I believe there are constitutional violations that provide a second basis for vacating the sentence and remanding this case for the application of Blakely.12
