STATE OF OHIO v. HEIDI GREEN
No. 102421
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
October 1, 2015
2015-Ohio-4078
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-14-585230-B
JUDGMENT: SENTENCE VACATED; REMANDED
BEFORE: E.A. Gallagher, P.J., S. Gallagher, J., and Blackmon, J.
RELEASED AND JOURNALIZED: October 1, 2015
Mathew Bangerter
Bangerter Law, L.L.C.
P.O. Box 148
Mentor, Ohio 44061
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Brian R. Radigan
Frank Romeo Zeleznikar
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant Heidi Green appeals from her sentences imposed in the Cuyahoga County Common Pleas Court. Green argues that the trial court erred in imposing maximum consecutive sentences for her offenses. For the following reasons, we affirm, in part, and reverse, in part.
{¶2} Green pled guilty to two counts of endangering children in violation of
{¶3} In her sole assignment of error, Green argues that the trial court failed to make the required findings pursuant to
{¶4} When reviewing a felony sentence, we follow the standard of review set forth in
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 appellate 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 support the sentencing court‘s findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant; (b) That the sentence is otherwise contrary to law.
Id.
{¶5} We first consider Green‘s consecutive sentences argument.
(a) the offender committed one or more of the multiple offenses while awaiting trial or sentencing, while under a sanction, or while under postrelease 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 offenses 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; [or]
(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.
{¶7} In this instance the trial court found that consecutive sentences were necessary to protect the public from future crime and punish Green. The court further found that consecutive sentences were not disproportionate to the seriousness of Green‘s conduct or the danger the Green posed to the public. Finally, the trial court found that Green‘s history of criminal conduct demonstrated that consecutive sentences were necessary to protect the public from future crime.
{¶8} Green challenges only the trial court‘s finding regarding her history of criminal conduct. A presentence investigation report was prepared in this case and indicates that Green had no prior criminal record or juvenile delinquency adjudications. The trial court further acknowledged at sentencing that “there is [an] absence of a criminal history.” The state maintains that Green‘s conduct in the present case can satisfy the “history of criminal conduct” finding of
{¶9} The state correctly notes that
If, as Bromagen argues, the General Assembly had intended to limit a sentencing court‘s review of prior actions to criminal convictions, it could have done so. But the legislature, in both former
R.C. 2929.14(E)(4)(c) and newly enactedR.C. 2929.14(C)(4)(c) , at issue here, has stated that “an offender‘s history of criminal conduct” can support the imposition of consecutive sentences. We must give effect to the words the General Assembly actually used. In determining legislative intent, we are not free to delete words or insert words not used.
(Citations and internal quotation marks omitted.) Id. at ¶ 8.
{¶10} Although Bromagen held “criminal conduct” to include juvenile delinquency adjudications, it did not extend the phrase beyond convictions and delinquency adjudications as the state argues is appropriate in this case.
{¶11} The fact that an individual has been has been arrested and later released or acquitted of crimes with which (s)he has been charged cannot, and should not, be the basis for imposition of consecutive sentences.
{¶12} Contrary to the state‘s interpretation of the First District‘s opinion in Bromagen, a mere accusation, without more, is insufficient to establish conduct of an individual. As we are aware, some criminal complaints are made in retribution or in a fit of anger and later found to be unsubstantiated. Some actions that have been charged as a crime are later resolved through an affirmative defense of self-defense and, occasionally, as the law evolves that which was originally deemed to be a crime upon a jury conviction is later reversed on appeal. State v. Kozlosky, 195 Ohio App.3d 343, 2011-Ohio-4814, 959 N.E.2d 1097 (8th Dist.).
{¶13} Criminal conduct must be limited to conduct wherein an adjudication has been made that an individual has, in fact, committed a crime.
Here, the trial court made the first two findings but failed to make the third finding to support the imposition of consecutive sentences. In attempting to make the finding, the trial judge erroneously focused on the defendant‘s history of criminal conduct related to the underlying charges — not his criminal conduct in general. However, given that this case involves two victims, the possibility exists for the trial court to make another finding to support the imposition of consecutive sentences, and therefore we must remand for the trial court to consider the remaining factors of
R.C. 2929.14(C)(4) .
{¶15} We find the limitation noted in Ferrell to be consistent with the definition of the word “history.” The word “history” is used in a various contexts; however, “history” followed by the term “of” is defined by the Oxford English Dictionary as:
[a] record of past activity or behavior of a particular type; a previous tendency to engage in a specified action repeatedly or habitually.
* * *
[Ex.] He has a history of violence.
Oxford English Dictionary, OED Online, “history, n.”, http://www.oed.com/view/Entry/87324?rskey=LWpXmX&result=1 (accessed Sept. 10, 2015).
{¶16} Merriam-Webster‘s Online Dictionary similarly defines “history” as “an established record” such as “a prisoner with a history of violence.” State v. Turner, 7th Dist. Mahoning No. 08-MA-4, 2009-Ohio-2640, ¶ 45.
{¶18} We next consider Green‘s argument that the trial court failed to consider
{¶19} A sentence is not clearly and convincingly contrary to law where the trial court considers the purposes and principles of sentencing under
{¶20} This court has previously explained that, “[t]he decision as [to] how long a sentence should be — assuming it falls within a defined statutory range — is a pure exercise of discretion.” State v. Akins, 8th Dist. Cuyahoga No. 99478, 2013-Ohio-5023, ¶ 16. Trial courts have full discretion to impose a prison sentence within the statutory range. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, paragraph seven of the syllabus. Apart from any claim that the sentencing judge failed to fulfill a
{¶21} In this instance, the record reflects that the trial court considered all required factors of law including the principles and purposes of sentencing under
{¶22} Green‘s assignment of error is sustained, in part, and overruled in part.
{¶23} We vacate Green‘s consecutive sentences and remand this case for further proceedings consistent with this opinion.
It is ordered that appellant recover from appellee 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.
EILEEN A. GALLAGHER, PRESIDING JUDGE
PATRICIA A. BLACKMON, J., CONCURS;
SEAN C. GALLAGHER, J., DISSENTS (WITH SEPARATE OPINION)
SEAN C. GALLAGHER, J., DISSENTING:
{¶24} I respectfully dissent. The legislature specifically referenced “history of criminal conduct” in drafting
{¶25} The majority‘s conclusion that “criminal conduct must be limited to conduct wherein an adjudication has been made that an individual has, in fact, committed a crime” is judicial legislation, reading modifiers into statutes where none exist. In other provisions of the Revised Code, the legislature specifically indicated its understanding of the difference between a conviction and criminal conduct. For example, when
{¶26} Finally, I disagree with the conclusion that the “history of criminal conduct” precludes the state from using the conduct underlying the charges. At the risk of being overly pedantic, all events are in the past when an offender appears for sentencing. The definition of “history,” as being past events, provides no meaningful guidance. History of criminal conduct includes all criminal conduct and has no limitation. If the legislature intended, it could have drafted
{¶27} Nevertheless, there are factual differences that compel a different outcome in this case. As the state made clear, the charges against Green were based on allowing the known abuser of her children to move into Green‘s home with Green‘s children. At