State of Ohio v. Steve A. Gessel
Court of Appeals No. WM-19-004
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WILLIAMS COUNTY
February 7, 2020
2020-Ohio-403
Trial Court No. 19CR000027
DECISION AND JUDGMENT
Katherine J. Zartman, Williams County Prosecuting Attorney, and Stacey S. Stiriz, Assistant Prosecuting Attorney, for appellee.
Karin L. Coble, for appellant.
* * * * *
MAYLE, J.
{¶ 1} Appellant, Steve A. Gessel, appeals the April 11, 2019 judgment of the Williams County Court of Common Pleas, sentencing him to an aggregate prison term of 96 months and ordering him to pay costs and appointed counsel fees following his
I. Background
{¶ 2} On January 15, 2019, Steve A. Gessel was indicted on one count of abduction in violation of
{¶ 3} On March 11, 2019, Gessel appeared for a change of plea hearing. Prior to entering his new plea, the state amended Count 2 of the indictment from rape to unlawful sexual conduct with a minor, a third-degree felony. Gessel then entered a guilty plea to the amended Count 2 and to Count 3. On April 10, 2019, the trial court sentenced him to 48 months in prison with five years of mandatory postrelease control on each count. The trial court ordered the sentences imposed to be served consecutively for an aggregate prison sentence of 96 months. The trial court also ordered Gessel to pay all costs of prosecution, costs for court-appointed counsel, and all permitted supervision fees. The trial court dismissed the remaining counts at the state‘s request and its judgment entry was journalized the following day.
- The imposition of consecutive sentences is not supported by the record.
- The trial court‘s order to pay attorney fees and costs must be reversed for failure to find Gessel had the ability to pay.
II. Law and Analysis
{¶ 5} We review felony sentences under
a. Assignment of Error No. 1
{¶ 6} In his first assignment of error, Gessel argues that the trial court‘s order to serve his sentences consecutively is contrary to law because the trial court failed to make the necessary findings under
{¶ 7}
If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public, and if the court also finds any of the following:
(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.
{¶ 8} This statute requires the trial court to make three statutory findings before imposing consecutive sentences. State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 252; State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 26. It must find (1) that consecutive sentences are necessary to protect the public or to punish the offender; (2) that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger that the offender poses to the public; and (3) that
i. The trial court engaged in the appropriate analysis to determine consecutive sentences were not disproportionate to the danger appellant poses to the public.
{¶ 9} Gessel first argues his sentence was contrary to law because the trial court failed to find that the imposition of consecutive sentences are not disproportionate to the danger he poses to the public. In order to impose consecutive sentences, the trial court must determine that consecutive sentences are “not disproportionate to the seriousness of
{¶ 10} At the sentencing hearing, the trial court did not recite the precise language from
{¶ 11} When imposing the sentence, the trial court stated that it had to “consider the general public” in determining Gessel‘s sentence and to “protect the public from future crime by [Gessel].” From these statements it is clear that the trial court considered the danger Gessel posed to the public when determining his sentence. Therefore, the record shows that the trial court engaged in the correct analysis when imposing
{¶ 12} Notably, Gessel‘s argument has already been rejected by other Ohio courts. In holding the trial court did not need to explicitly state its disproportionality findings, the Second District Court of Appeals stated:
[i]f we require the trial court to say more than was said in this case, we are effectively requiring courts to follow precisely the language of the statute or, worse yet, simply to read the statutory language into the record to merely satisfy the statutory consecutive-sentences requirement. The focus should be on whether the trial court performed the required analysis and made appropriate conclusions, not on whether it can read the statute into the record.
State v. Polhamus, 2d Dist. Miami No. 2013-CA-3, 2014-Ohio-145, ¶ 30. See also State v. Hargrove, 10th Dist. Franklin No. 15AP-102, 2015-Ohio-3125; State v. Chaney, 2d Dist. Clark No. 2015-CA-116, 2016-Ohio-5437.
{¶ 13} We therefore find that the trial court completed the appropriate analysis and its omission of specific statutory language does not warrant reversal.
ii. The trial court failed to find appellant‘s offenses were committed as part of one or more courses of conduct.
{¶ 14} Next, Gessel argues that the trial court failed to find that his two offenses were committed as part of one or more courses of conduct. In imposing consecutive
{¶ 15} When imposing consecutive sentences at the hearing, the trial court stated:
I do find that consecutive prison sentences are necessary to protect the public and to punish you for your conduct. Further, I am going to find that your harm was so great and unusual to this victim that concurrent sentences [d]o not adequately reflect the seriousness of your conduct and therefore, consecutive sentences are necessary.
Absent from this statement is any finding that Gessel‘s offenses were committed as part of one or more courses of conduct. We are unable to identify any part of the record that suggests the court properly reached this conclusion and merely omitted its finding when imposing a sentence. Therefore, we find the trial court‘s imposition of consecutive sentences was contrary to law for failing to reach this necessary finding.
iii. The record supports the trial court‘s finding of great or unusual harm.
{¶ 16} The trial court found the harm arising from Gessel‘s conduct was so great that no single prison sentence adequately reflected the seriousness of his conduct. This finding was made at both the sentencing hearing and in the trial court‘s judgment entry. Gessel argues that no evidence of “great or unusual harm” was presented at the sentencing hearing and, therefore, the trial court‘s finding was not supported by the record. We disagree.
{¶ 18} Here, at the time of his guilty plea, the state informed the trial court that “through conversations with the victim, the victim would prefer to remain anonymous and has asked the court (sic), the state to try and resolve such so that she does not have to testify or re-live these offenses[.]” At sentencing, Gessel was asked whether he considered the impact of his conduct on his victim. He stated, “I worry about her. I mean I don‘t know what kind of impact it caused. I‘m hoping it didn‘t disturb her in any horrible way but I mean I‘m not sure to be honest.”
{¶ 19} The state‘s representation that the victim did not wish to relive Gessel‘s offenses shows that she suffered great harm from his conduct. Gessel is unable to refute this concern, either at the sentencing or in this appeal, by pointing to clear and convincing evidence demonstrating that the trial court erred in making that conclusion. Goings at ¶ 20,
iv. The trial court‘s failure to make all necessary findings at the sentencing hearing requires remand.
{¶ 20} The trial court properly found that the imposition of consecutive sentences was not disproportionate to the danger Gessel poses to the public. Further, the record supports the trial court‘s finding that Gessel‘s victim suffered great or unusual harm resulting from his conduct. But, the trial court failed to make a finding that Gessel‘s offenses were part of one or more courses of conduct before imposing consecutive sentences as required by
{¶ 21} Accordingly, we find Gessel‘s first assignment of error well-taken.
{¶ 22} In his second assignment of error, Gessel argues that the trial court erred in ordering him to pay court-appointed attorney‘s fees and costs without first determining whether he has, or reasonably may be expected to have, the means to pay those costs. We agree.
{¶ 23} At the sentencing hearing, the trial court notified Gessel that it was imposing “attorney‘s fees and costs” against him. The trial court did not specify which costs it was imposing at the hearing but in its sentencing entry stated “[d]efendant is ordered to pay all costs of prosecution, any court-appointed counsel costs, and any supervision fees permitted, pursuant to
{¶ 24} We must first determine which costs are mandatory and which are “discretionary.” We previously held that prosecution costs and fees permitted pursuant to
{¶ 25} The costs of supervision and assigned counsel, however, are not mandatory and “must be conditioned on appellant‘s ability to pay.” State v. Wymer, 6th Dist. Lucas No. L-18-1108, 2019-Ohio-1563, ¶ 14. To impose these costs, the trial court must affirmatively find that the defendant has, or reasonably may be expected to have, the
{¶ 26} Here, the trial court failed to make any finding regarding Gessel‘s ability to pay the discretionary costs at either his sentencing hearing or in its judgment entry. The trial court failed to address any evidence of Gessel‘s ability to pay these costs during the underlying proceedings. Thus, Gessel‘s second assignment of error is found well-taken. We, therefore, vacate the award of costs of supervision and assigned counsel.
III. Conclusion
{¶ 27} We find both of Gessel‘s assignments of error well-taken. The trial court failed to properly consider whether Gessel‘s offenses were part of one or more courses of conduct under
{¶ 29} The costs of this appeal are assessed to the state pursuant to
Judgment reversed and remanded.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J.
Arlene Singer, J.
Christine E. Mayle, J.
CONCUR.
JUDGE
JUDGE
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.