State v. FisherState v. Fisher
Rendered on September 9, 2014
Ron O‘Brien, Prosecuting Attorney, Michael P. Walton and Valerie Swanson, for appellant.
Meek & Thomas Co., LPA, and David H. Thomas, for appellee.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Plaintiff-appellant, State of Ohio (“the state“), appeals the November 1, 2013 judgment of the Franklin County Court of Common Pleas resentencing defendant-appellee, Daniel J. Fisher (“appellee“). For the reasons that follow, we reverse and remand the judgment of the trial court.
I. Facts and Procedural History
{¶ 2} In July 2012, a Franklin County Grand Jury indicted appellee on one count of felonious assault, a felony of the second degree. After appellee entered a plea of guilty to the charge, the trial court accepted appellee‘s guilty plea, found him guilty, placed him on community control for three years, and ordered him to pay restitution and a fine. The trial court also sentenced appellee to 90 days in the county jail to run concurrently with a jail sentence in a separate case.
{¶ 3} On September 19, 2013, we reversed appellee‘s sentence, finding the trial court failed to make findings required pursuant to
{¶ 4} On October 30, 2013, the trial court held a resentencing hearing. Following arguments from the state and appellee, the trial court sentenced appellee to three years of community control with conditions in addition to restitution, costs, and a fine. On November 1, 2013, the trial court filed a judgment entry reflecting the October 30, 2013 sentence.
II. Assignments of Error
{¶ 5} Appellant appeals assigning the following three errors for our review:
- The trial court erred in imposing community control when it failed to make the full required findings for overcoming the presumption of prison.
- The trial court engaged in the incorrect analysis to overcome the presumption in favor of prison, and the findings the trial court did make are not supported by the record.
- The trial court‘s imposition of community control is contrary to law, as defendant cannot overcome the presumption in favor of a prison term.
Because the state‘s first and second assignments of error are interrelated, we will address them jointly.
III. First and Second Assignments of Error—Whether Trial Court‘s Findings in Error
{¶ 6} The state asserts that the trial court erred by sentencing appellee to community control without making findings required under
A. Standard of Review
{¶ 7} The state brings this appeal pursuant to
(1) If the sentencing court was required to make the findings required by division (B) or (D) of section
2929.13 * * * of the Revised Code, relative to the imposition or modification of the sentence, and if the sentencing court failed to state the required findings on the record, the court hearing an appeal under division (A), (B), or (C) of this section shall remand the case to the sentencing court and instruct the sentencing court to state, on the record, the required findings.(2) The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court.
The aрpellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court‘s standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
(a) That the record does not supрort the sentencing court‘s findings under division (B) or (D) of section
2929.13 * * *;(b) That the sentence is otherwise contrary to law.
Thus, an appeal under
{¶ 8} “Clear and convincing evidence is that evidence ‘which will provide in the mind of the trier of facts a firm belief or conviction as to the facts sought to be
B. Applicable Law
{¶ 9} Pursuant to
(a) A community control sanction or a combination of community control sanctions would adequately punish the offender and protect the public from future crime, because the apрlicable factors under section
2929.12 of the Revised Code indicating a lesser likelihood of recidivism outweigh the applicable factors under that section indicating a greater likelihood of recidivism.(b) A community control sanction or a combination of community control sanctions would not demean the seriousness of the offense, because one or more factors under section
2929.12 of the Revised Code that indicate that the offender‘s conduct was less serious than conduct normally constituting the offense are applicable, and they outweigh the applicable factors under that section that indicate that the offender‘s conduct was more serious than conduct normally constituting the offense.
{¶ 11} When considering a downward deviation in sentencing pursuant to
The sentencing court shall consider all of the following that apply regarding the offender, the offense, or the victim, and any other relevant factors, as indicating that the offender‘s conduсt is more serious than conduct normally constituting the offense:
(1) The physical or mental injury suffered by the victim of the offense due to the conduct of the offender was exacerbated because of the physical or mental condition or age of the victim.
(2) The victim of the offense suffered serious physical, psychological, or economic harm as a result of the offense.
(3) The offender held a public office or position of trust in the community, and the offense related to that office or position.
(4) The offender‘s occupation, elected office, or profession obliged the offender to prevent the offense or bring others committing it to justice.
(5) The offender‘s professional reputation or occupation, elected office, or profession was used to facilitate the offense or is likely to influence the future conduct of others.
(6) The offender‘s relationship with the victim facilitated the offense.
(7) The offender committed the offensе for hire or as a part of an organized criminal activity.
(8) In committing the offense, the offender was motivated by prejudice based on race, ethnic background, gender, sexual orientation, or religion.
(9) If the offense is a violation of section
2919.25 or a violation of section2903.11 ,2903.12 , or2903.13 of the Revised Code involving a person who was a family or household member at the time of the violation, the offender committed the offense in the vicinity of one or more children who are not victims of the offense, and the offender or the victim of the offense is a parent, guardian, custodian, or person in loco parentis of one or more of those children.
The sentencing court shall consider all of the following that apply regarding the offender, the offense, or the victim, and any other relevant factors, as indicating that the offender‘s conduct is less serious than conduct normally constituting the offense:
(1) The victim induced or facilitated the offense.
(2) In committing the offense, the offender acted under strong provocation.
(3) In committing the offense, the offender did not cause or expect to cause рhysical harm to any person or property.
(4) There are substantial grounds to mitigate the offender‘s conduct, although the grounds are not enough to constitute a defense.
{¶ 12} Regarding the likelihood of recidivism,
The sentencing court shall consider all of the following that apply regarding the offender, and any other relevant factors, as factors indicating that the offender is likely to commit future crimes:
(1) At the time of committing the offense, the offender was under release from confinement before trial or sentencing, under a sanction imposed pursuant to section
2929.16 ,2929.17 , or2929.18 of the Revised Code, or under post-release control pursuant to section2967.28 or any other provision of the Revised Code for an earlier offense or had been unfavorably terminated from post-release control for a
prior offense pursuant to division (B) of section
2967.16 or section2929.141 of the Revised Code.(2) The offender previously was adjudicated a delinquent child pursuant to Chapter
2151. of the Revised Code prior to January 1, 2002, or pursuant tо Chapter2152. of the Revised Code, or the offender has a history of criminal convictions.(3) The offender has not been rehabilitated to a satisfactory degree after previously being adjudicated a delinquent child pursuant to Chapter
2151. of the Revised Code prior to January 1, 2002, or pursuant to Chapter2152. of the Revised Code, or the offender has not responded favorably to sanctions previously imposed for criminal convictions.(4) The offender has demonstrated a pattern of drug or аlcohol abuse that is related to the offense, and the offender refuses to acknowledge that the offender has demonstrated that pattern, or the offender refuses treatment for the drug or alcohol abuse.
(5) The offender shows no genuine remorse for the offense.
The sentencing court shall consider all of the following that apply regarding the offender, and any other relevant factors, as factors indicating that the offender is not likely to commit future crimes:
(1) Prior to committing the offense, the offender had not been adjudicated a delinquent child.
(2) Prior to committing the offense, the offender had not been convicted of or pleaded guilty to a criminal offense.
(3) Prior to committing the offense, the offender had led a law-abiding life for a significant number of years.
(4) The offense was committed under circumstances not likely to recur.
(5) The offender shows genuine remorse for the offense.
C. Analysis
{¶ 13} We first consider pursuant to
In accordance with [R.C.] 2929.13, the Court has reviewed those seriousness and recidivism factors that the Court is required to consider in [R.C.] 2929.12, including the physical and mental injuries suffered by the victim in this case, which there‘s no doubt about that—the victim suffered serious physical harm and mental harm.
This gentleman held no public office. His occupation really had nothing to do with what was going on. He had—other than being a student, there‘s no professional reputation to be reviewed. He had no relationship with the victim in this case. It was not committed for hire. It wasn‘t—it doesn‘t appear to be any racial, ethnic or other factor that would enter into—their religion or anything else from that perspective.
So those factors—in reviewing those factors, the Court finds that a sentence of community control would not be prohibited.
The Court is also to consider the following factors in—that may apply regarding the offendеr, the offense, and the victim in this case.
Certainly, the victim in this case did nothing to warrant what occurred here. It should not occur to anyone what occurred to her in this case.
It‘s obvious—the offender acted under strong provocation? There‘s no indication in the Court‘s opinion that he was provoked in any manner to do what occurred here. It was—in reviewing the record—drug-induced. It was not something that the victim had done in this case.
There are substantial grounds to mitigate the offender‘s conduct, although they are not enough to constitute a defense. There‘s no doubt that based upon what I‘ve read about the defendant and what I‘ve read from the medical folk and from the psychologist and from the victim, the defendant‘s statement and his conduct when in jail—while he was in jail, that this was not something that was planned or intended. It occurred. It did occur, and it‘s something that should not have occurred. It was not planned.
It was not planned. It was not intended.
With respect to any mitigating grounds, the only mitigating grounds here that the Court really took into strong
consideration were the facts that, number one, the defendant was a successful student at Ohio State at the time. While there was information contained in the record that he had previously experimented with some drugs, there was no history of drug use or misconduct on his part, and I think the Court weighed that and considered that in determining what would be the appropriate sanction in this case.
He was not under the—the Court has to look at all of those factors and any other relevant factors indicating whether this offender is likely to commit this offense in the future.
Given what I reviewed in February and given what I‘ve reviewed in addition today, and prior to today, I don‘t believe there is a strong likelihood that he will reoffend or commit this offense in the future, and I know that doesn‘t help the victim in this case, but I‘m to consider all of that.
Based upon his conduct since this offense occurred, while counsel for the State, Mr. Litle, you stated that he did not apologize or—I thought that occurred at the previous sentencing, maybe I missed it, but I thought it occurred, and I think it occurred here today. While I think different folk apologize differently, I think the Court has to gauge and make a determination of the sincerity of that, and he has never said he did not commit the offense.
From day—from—in reading the information, I guess it was ten days after he was arrested and was at Twin Valley that he fully confessed to doing it and also stated to the probation department that the victim in this case had no—did nothing to him, zero. Nothing. And that it was something that he did.
And I think that all of that goes to show, number one, acceptаnce of responsibility for it, and part of that is remorse for what has been done.
Given all of the factors that the Court is required to consider—and even given the magnitude of the offense—when I apply those standards I‘m to apply in this case—in this case, I find that the sanctions imposed by the Court do not demean the seriousness of the offense, and I‘m taking nothing away from the seriousness of the offense, but I feel that the penalties that the Court has imposed do not in this particular case demean the seriousness.
(Emphasis added.) (Jan. 2, 2014 Tr. 15-19.)
{¶ 14} The trial court then imposed sentence upon appellee and verbally noted that “the Court has considered the factors required in [R.C.] 2929.13.” (Tr. 20.) Upon being asked by appellee‘s attorney whether “[j]ust for the record, does the Court also find that pursuant to [R.C.] 2929.13(D)(2)(a) that the community control sanction is adequate to punish Mr. Fisher,” the trial court responded “I do so find.” (Emphasis added.) (Tr. 20.)
{¶ 15} The state contends that the trial court failed to make the findings required by
{¶ 16} In Milhoan II, we found that, “while
{¶ 17} The italicized portions of the excerpted transcript above establish that the trial court made the necessary affirmative findings required by
{¶ 18} We next examine, pursuant to
{¶ 19} In Milhoan II, we found that, in determining whether the offender‘s conduct was “less serious than the conduct normally constituting the offense,” the trial court was not limited to consideration of the specific factors listed under
{¶ 20} The state finally asserts that the record does not support the trial court‘s determination that community control sanctions would adequately punish the offender and protect the public from future crime because the factors indicating a “lesser likelihood of recidivism” under
{¶ 21}
{¶ 22} As noted earlier, the trial court need not specifically detail its reasoning underlying its determination; nevertheless, the record clearly and convincingly does not support the trial court‘s express finding that appellee did not have a “history of drug use or miscоnduct.” Thus, we sustain the state‘s second assignment of error. Upon remand, the trial court must consider, pursuant to
IV. Third Assignment of Error—Whether Sentencing Contrary to Law
{¶ 23} In its third assignment of error, the state asserts that the trial court‘s imposition of community control is contrary to law because appellee cannot overcome the statutory presumption in favor of imprisonment. The state requests that we remand the cause to the trial court with an instruction to impose a prison sentence on appellee. As we noted in our prior decision, “[w]e have consistently rejected similar arguments by the state,” and we find no cause to deviate from our prior ruling. Fisher at ¶ 10. See also Milhoan II at ¶ 35; Milhoan I at ¶ 9.
{¶ 24} Accordingly, we overrule the state‘s third assignment of error.
IV. Disposition
{¶ 25} Having sustained the state‘s second assignment of error and overruled its first and third assignments of error, we reverse the judgment of the Franklin County Court of Common Pleas and remand this case to that court for resentencing in compliance with this decision and the applicable statutory sentencing guidelines.
Judgment reversed and cause remanded for resentencing.
CONNOR and LUPER SCHUSTER, JJ., concur.