2004 Ohio 7189 | Ohio Ct. App. | 2004
Lead Opinion
{¶ 3} Appellant was sentenced to a term of four years incarceration as a result of his kidnapping conviction and six years incarceration as a result of his felonious assault conviction. Upon Appellant's motion, the trial court merged the abduction conviction into the kidnapping conviction. As a result of the merger, the trial court declined to sentence Appellant on the abduction conviction. The trial court ordered that the sentences for kidnapping and felonious assault be served consecutively.
{¶ 4} Appellant has timely appealed the trial court's sentencing decision, asserting one assignment of error.
{¶ 5} In his sole assignment of error, Appellant has argued that the trial court erred when it sentenced him for his convictions of kidnapping and felonious assault. Specifically, Appellant has argued that the trial court erred when it sentenced him to more than the minimum and imposed consecutive sentences. He has also argued that the trial court erred when it failed to advise him of the potential consequences of misconduct while in prison and that he was subject to post-release control upon his release from prison.
{¶ 6} Sentencing decisions made by a trial court are reviewed under the clear and convincing standard of review. State v. Johnson, 9th Dist. No. 21665, 2004-Ohio-1231, ¶ 10. Thus, an appellate court may not modify or remand a sentencing decision imposed by the trial court unless it finds by clear and convincing evidence that the trial court acted contrary to the law. R.C.
{¶ 7} "When imposing a felony sentence, the trial court must consider the overriding purposes of felony sentencing, which are to protect the public from future crime and to punish the offender." State v. Comer,
More than the Minimum
{¶ 8} We first turn to Appellant's argument that the trial court erred with it failed to make the statutorily required findings pursuant to R.C.
{¶ 9} R.C.
"(B) [I]f the court imposing a sentence upon an offender for a felony elects or is required to impose a prison term on the offender, the court shall impose the shortest prison term authorized for the offense pursuant to [R.C.
"(1) The offender was serving a prison term at the time of the offense, or the offender previously had served a prison term.
"(2) The court finds on the record that the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public from future crime by the offender or others."
{¶ 10} Furthermore, "unless a court imposes the shortest term authorized on a felony offender who has never served a prison term, the record of the sentencing hearing must reflect that the court found that either or both of the two statutorily sanctioned reasons for exceeding the minimum term warranted the longer sentence." State v. Edmonson
(1999),
{¶ 11} In the instant matter, Appellant has argued that the trial court only "indirect[ly] reference[d]" the statutorily required findings that the minimum sentence for kidnapping would demean the nature and seriousness of the offense. He has further argued that the trial court failed to make any of the required findings in support of its imposition of more than the minimum sentence for his conviction of felonious assault.
{¶ 12} This Court has previously held that "an error must be brought to the attention of the trial court at a time when it may be corrected and may not be raised for the first time on appeal." State v. Riley, 9th Dist. No. 21852,
{¶ 13} In the instant matter, Appellant has presented the same argument as did the Defendant-Appellant in Riley, namely that the trial court erred when it failed to make the statutorily required findings when imposing more the minimum term of incarceration. Furthermore, just as inRiley, Appellant and his attorney were present at the sentencing hearing and failed to timely object to the trial court's alleged failure to make the requisite findings when imposing more than the minimum term of incarceration. As a result, we find that Appellant has waived the argument that the trial court erred in this regard.
Consecutive Sentences
{¶ 14} Appellant next has argued that the trial court erred when it failed to state its reasons for imposing consecutive sentences as required by R.C.
{¶ 15} R.C.
{¶ 16} Turning again to the transcript of the sentencing hearing, the trial court addressed Appellant directly and stated the following just prior to imposing sentence:
"* * * The death sentence you may have inflicted on [the victim] is certainly possible. You know now your status and you knew it many years before this happened; and I don't know how many other people you had unprotected sex with, but apparently you disregard the fact that there's no treatment for HIV."
{¶ 17} The foregoing statement clearly sets forth the trial court's reasons for imposing consecutive sentences. The trial court was obviously moved by the fact that the victim might contract HIV/AIDS as a result of the sexual conduct that occurred between the victim and Appellant. The trial court was also clearly moved by Appellant's exhibited attitude of indifference about infecting unsuspecting sex partners with HIV. Based on the foregoing, this Court concludes that the trial court stated its reasons for imposing consecutive sentences upon Appellant in compliance with R.C.
Prison and Post Release Control
{¶ 18} Appellant next has argued that the trial court erred when it failed to inform him of the consequences of misbehavior while in prison; the requirement of post-release control; and the consequences of criminal conduct under postrelease control. In response, the State has countered that Appellant's argument regarding misconduct in prison fails because Appellant has essentially attacked Ohio's "bad time" statute which was held unconstitutional in State ex rel. Bray v. Russell (2000),
{¶ 19} Appellant first has argued that the trial court erred when it failed to notify him, pursuant to R.C.
{¶ 20} Three appellate districts across the State of Ohio have addressed the issue of whether or not the post-release control notice requirements of R.C.
{¶ 21} Appellant next has argued that the trial court erred when it failed to inform him that he was subject to post-release control and the consequences of criminal conduct while on post-release control. He has further argued that these omissions violated R.C.
{¶ 22} R.C.
{¶ 23} Our review of the record reveals that Appellant was convicted of kidnapping, a first degree felony, and felonious assault, a second degree felony. Upon review of the transcript from the sentencing hearing, we must concur with both Appellant and the State. This Court finds that the trial court failed to inform Appellant, pursuant to R.C.
{¶ 24} In sum, Appellant's argument in his sole assignment of error regarding the imposition of more than the minimum term of incarceration is waived. Appellant's argument regarding post-release control notification issues pursuant to R.C.
Judgment reversed, and cause remanded.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
Exceptions.
Boyle, J. concurs.
Dissenting Opinion
{¶ 26} I dissent as to this Court's holding that appellant has waived his assignment of error relating to the trial court's failure to make the requisite findings sentencing him based on my dissent in State v. Riley,
9th Dist. No. 21852,
