2006 Ohio 89 | Ohio Ct. App. | 2006
II. THE TRIAL COURT ERRED BY ORDERING APPELLANT TO SERVE A CONSECUTIVE SENTENCE WITHOUT MAKING THE APPROPRIATE FINDINGS REQUIRED BY R.C.
{¶ 2} Defendant states that the trial court failed to make the necessary findings to support the imposition of consecutive sentences. The state concedes that defendant's claim is correct and that the case should be remanded to the trial court for resentencing.
{¶ 3} R.C.
{¶ 4} Here, the court failed to find that consecutive sentences were not disproportionate to defendant's conduct. It also did not make a separate finding that consecutive sentences were necessary either to protect the public from future harm or to punish the offender. Accordingly, this assignment of error has merit.
{¶ 5} For his first assignment of error, defendant states:
I. THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO MORE THAN THE MINIMUM PRISON SENTENCE WHEN HE HAD NOT PREVIOUSLY SERVED A PRISON TERM.
{¶ 6} Defendant argues that the trial court erred in sentencing him to more than the minimum prison term even though he had not previously served a prison term. More specifically, defendant argues that the United States Supreme Court's ruling inBlakely v. Washington (2004), 542 U.S. ___,
{¶ 7} The state argues, on the other hand, that defendant waived his right to raise the issue of the non-minimum sentence, because he did not raise it in his first appeal.3 The state is correct in pointing out that a party may not raise a new issue on a second appeal of the same matter because the issue becomes res judicata after the first appeal. Grava v. ParkmanTwp. (1995),
{¶ 8} In the case at bar, however, this court vacated the original sentence and the trial court subsequently held an entirely new sentencing hearing. As this court has noted: "The court of appeals does not have the power to vacate just a portion of a sentence. * * * Therefore, when a case is remanded for resentencing, the trial court must conduct a complete sentencing hearing and must approach resentencing as an independent proceeding complete with all applicable procedures." State v.Gray, Cuyahoga App. No. 81474, 2003-Ohio-436 ¶ 12, citations omitted. In the case at bar, defendant could not have waived an appeal of this new independent proceeding in his first appeal.
{¶ 9} Moreover, the United States Supreme Court did not issue its decision in Blakely until 2004, therefore, defendant could raise the constitutional question as long as this case is still alive. Standard Industries, Inc. v. Tigrett Industries, Inc.
(1970),
{¶ 10} We do not need to address the Constitutional question, however, because the case is being remanded on other grounds. See Assignment of Error One. As the Supreme Court of Ohio has clarified: "Constitutional questions will not be decided until the necessity for their decision arises." State ex rel. Lieux v.Westlake (1951),
{¶ 11} Accordingly, the sentence is vacated and the case remanded for resentencing.
This cause is vacated and remanded.
It is, therefore, ordered that appellant recover of appellee his costs herein taxed.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
O. Calabrese, Jr., J., Concurs. Dyke, P.J., Concurs in judgment only.
"Hall was sentenced to prison terms of eight years each for the counts of attempted murder, aggravated burglary, aggravated robbery, and kidnapping, concurrent with six-year prison terms for the counts of felonious assault and having a weapon under a disability." The trial court "merged the firearm specifications and imposed a single three-year prison term for the firearm specifications, consecutive to the combined eight-year prison term for the predicate offenses." Id. p 13.