STATE OF OHIO, PLAINTIFF-APPELLEE vs. TERRY DAVE EVANS, DEFENDANT-APPELLANT
No. 100382
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
July 24, 2014
2014-Ohio-3229
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-12-569495
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
BEFORE: E.A. Gallagher, P.J., McCormack, J., and Stewart, J.
RELEASED AND JOURNALIZED: July 24, 2014
Stephen L. Miles
20800 Center Ridge Road
Suite 405
Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Scott Zarzycki
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant Terry Dave Evans appeals his sentence from the Cuyahoga County Court of Common Pleas. On appeal, Evans challenges the trial court‘s consecutive sentences and the court‘s failure to make a finding concerning appellant‘s competency prior to trial. For the following reasons, we affirm in part, reverse in part, and remand.
{¶2} Evans was convicted of two counts of felonious assault, attempted murder, kidnapping, tampering with evidence, disrupting public services and possessing criminal tools. For the purpose of sentencing, the trial court merged the two counts of felonious assault with the attempted murder charge. The state elected to proceed under the attempted murder charge and the trial court imposed a prison term of 11 years. The court imposed prison terms of six years on the kidnapping count, two years for tampering with evidence, one year for disrupting public service and one year on possessing criminal tools. The trial court ordered all terms to be served consecutively for a cumulative prison term of 21 years.
{¶3} Evans’ first assignment of error states:
The trial court erred by sentencing the appellant to consecutive sentences.
{¶4} Evans’ argues that the trial court erred by imposing consecutive sentences without making the necessary factual findings as required by
- (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.
Id.
{¶5} A review of the record reveals that the trial court did not make 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. The proper remedy for correcting an error during imposition of consecutive sentences is a limited remand for the purpose of determining whether consecutive sentences should be imposed. See State v. Dodson, 8th Dist. Cuyahoga No. 98521, 2013-Ohio-1344; State v. Ross, 8th Dist. Cuyahoga No. 98763, 2013-Ohio-3130; State v. Walker, 8th Dist. Cuyahoga No. 97648, 2012-Ohio-4274. Accordingly, the trial court‘s judgment sentencing Evans to consecutive terms of imprisonment is reversed.
{¶6} Evans’ first assignment of error is sustained.
{¶7} Evans’ second assignment of error states:
{¶8} Under Ohio law,
a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial. The conviction of an accused while he is not legally competent to stand trial violates due process of law.
(Citations omitted.) State v. Rubenstein, 40 Ohio App.3d 57, 60, 531 N.E.2d 732 (8th Dist.1987).
{¶9}
{¶10} This court, however, has held that, “[t]he competency issue is one that can be waived by the parties. A hearing is not required in all situations, only those where the competency issue is raised and maintained.” State v. Smith, 8th Dist. Cuyahoga No. 95505, 2011-Ohio-2400, ¶ 5. In Smith, we held that where a defendant stipulates to competency, a trial court need not hold a hearing pursuant to
{¶12} Evans’ second assignment of error is overruled.
{¶13} The judgment of the trial court is affirmed in part and reversed in part. Case remanded for the limited purpose of determining whether consecutive sentences are proper, and if so, to make the required findings on the record.
It is ordered that appellee and appellant share 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.
EILEEN A. GALLAGHER, PRESIDING JUDGE
TIM McCORMACK, J., and MELODY J. STEWART, J., CONCUR