State v. GableState v. Gable
W. Stephen Haynes, Clermont County Public Defender, and Robert F. Benintendi, Assistant Public Defender.
M. POWELL, J.
{¶ 1} Appellant, Christopher Gable, appeals the sentence he received in the Clermont County Court of Common Pleas following the revocation of his community control.
{¶ 3} In November 2022, Gable pled guilty to one count of aggravated possession of drugs, a fifth-degree felony, in Case No. 2022 CR 0413 (“Case No. 0413“); he was sentenced to a three-year term of community control.
{¶ 4} In June 2023, Gable was charged with and admitted to community control violations in both cases. On July 5, 2023, the trial court held a joint sentencing hearing for both cases. The trial court revoked Gable‘s community control and sentenced him to a 12-month prison term on Count 1 and to a concurrent 12-month prison term on Count 2 in Case No. 0764, and to a 12-month prison term in Case No. 0413, and ordered that the sentences be served consecutively for an aggregate prison term of 24 months.
{¶ 5} Gable now appeals, raising one assignment of error:
{¶ 6} THE TRIAL COURT ERRED IN ORDERING APPELLANT‘S TERMS OF IMPRISONMENT TO RUN CONSECUTIVELY.
{¶ 7} Gable argues that the trial court erred in ordering his 12-month prison sentence in Case No. 0413 be served consecutively to his prison sentence in Case No. 0764 because the trial court failed to make the requisite findings at the sentencing hearing.
{¶ 8} A felony sentence is reviewed under the standard in
(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.
{¶ 10}
{¶ 11} In State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, the Ohio Supreme
{¶ 12} In contrast to the requirement that the consecutive sentence findings be made during the sentencing hearing, inclusion of the findings in the sentencing entry is neither mandated by
{¶ 13} It is undisputed that the trial court included all the necessary findings under
{¶ 14} At sentencing, the trial court stated the following regarding its decision to impose consecutive sentences: “The Court‘s going to order and make a finding, based upon the totality under [R.C.] 2929.14(C)(4), that —small c—his history of criminal conduct demonstrates that a consecutive sentence is necessary to protect the public from future crime by the offender.” Based upon this language, it is clear the trial court did not address the first two factors in the three-step analysis—that is, the required necessity and proportionality findings—and only expressly found that Gable‘s history of criminal conduct justified a consecutive sentence under
{¶ 15} As we recently stated,
The proportionality and criminal history findings differ in important respects and are addressed to different aspects of an offender‘s circumstances. The criminal history finding concerns the likelihood of recidivism based upon the offender‘s criminal history. The proportionality finding is not concerned with recidivism but with the offender‘s conduct in the commission of the offenses for which he is being sentenced and the menace he presents to society, separate and apart from his propensity to recidivate. Pursuant to the proportionality finding, the sentencing court must assess the nature and gravity of the offender‘s conduct and evaluate what consecutive sentence appropriately reflects the severity of the conduct involved in the commission of the offenses and the threat the offender poses to public safety. This finding is intended to guide the sentencing court‘s discretion in crafting a sentence that is neither excessive nor overly lenient.
To summarize, the main difference between these two findings
lies in their focus. The proportionality finding aims to ensure that the consecutive prison term aligns with the seriousness of the offense and potential danger the offender presents to society. The criminal history finding recognizes the potential risk associated with an offender‘s criminal history and determines whether a consecutive sentence is necessary to safeguard the public from future crimes. The proportionality and criminal history findings are distinct, and we may not assume that finding one satisfies the other. As this court has previously noted, even if it is likely the trial court did consider the proportionality analysis of R.C. 2929.14(C)(4) , “the statute does not permit us to infer its consideration in this case.” State v. Volz, 12th Dist. Clermont No. CA2022-06-028, 2022-Ohio-4134, ¶ 13 (consecutive sentences contrary to law where the trial court did not make the proportionality finding mandated byR.C. 2929.14[C][4] ).
State v. Halbert, 12th Dist. Warren No. CA2023-03-027, 2023-Ohio-4471, ¶ 36-37.
{¶ 16} We therefore vacate that portion of the trial court‘s judgment imposing consecutive sentences and remand this matter to the trial court for resentencing. On remand, the trial court shall consider whether consecutive sentences are appropriate under
{¶ 17} Judgment reversed and the matter is remanded for the limited purpose of resentencing.
S. POWELL, P.J., concurs.
PIPER, J. dissents.
PIPER, J., dissenting.
{¶ 18} With respect for allegiance to precedent, occasionally prior decisions need to be re-examined. Often our governing precedent cannot be re-evaluated unless an opportunity presents itself. For similar reasons expressed in my dissent in State v. Halbert,
{¶ 19} Again, I voice complaint regarding the manner in which trial courts have been instructed to implement consecutive sentences.
{¶ 20} I agree with the various opinions stating that Bonnell “interpreted” that
{¶ 21} The supreme court “promulgated
{¶ 22} Our majority decision‘s reliance on
{¶ 23} As in Halbert, Gable does not argue or even remotely suggest he was prejudiced. He suggests no legal harm and does not claim to be aggrieved by the sentence. Neither does he suggest the claimed error if corrected would have the reasonable probability of a different result. Gable does not allege that he was unfairly treated or that he didn‘t have notice as to why his sentence was consecutive. Gable has never suggested, before us or before the trial court, that his ongoing criminal history (as reflected upon by the trial court) does not merit a consecutive sentence. Gable does not argue that the sentencing court‘s entry is incorrect. It would be improper for a reviewing court to sua sponte ignore the trial court‘s entry.
{¶ 25} The trial court had familiarity with Gable‘s track record of contempt for authority and the inability to conduct himself within legal boundaries. Despite the trial court‘s multiple efforts to help Gable, the record demonstrates Gable‘s failures to appear before the court and to the probation department. Capiases had to be issued and violations of community control resulted. Significant mental health and drug abuse issues persisted and continued to interfere with any rehabilitation. While Gable chose street drugs instead of financially trying to support his children, it cannot be said he wasn‘t given opportunities to redeem himself. It is not as though the sentencing court had no concern for Gable or his rehabilitation—quite the opposite. The record reflects the trial court and Gable were on good terms. However, on the outside Gable is a danger to himself and to the public, yet with the sentence as pronounced, the court determined rehabilitation was only possible with sufficient incarceration. We do not presume a court rendered a sentence greater than necessary. The record demonstrates Gable understood his sentence and neither he, nor
{¶ 26} Gable presents his claimed error for the first time on appeal. Defendants cannot hold their cards only to later play a hand of no consequence on appeal. Such equates to invited error or at the very least results in a plain error standard of review. A plain error review does not require an automatic default determination that a sentence was contrary to law.
{¶ 27} We can only vacate a sentence if we clearly and convincingly find the defendant‘s sentence is not supported by the trial court‘s findings or it was contrary to law.