STATE OF OHIO, Plaintiff-Appellee, vs. CARMICHAEL HAMILTON, Defendant-Appellant.
APPEAL NO. C-140290
TRIAL NO. B-1401419
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
January 30, 2015
[Cite as State v. Hamilton, 2015-Ohio-334.]
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, Sentences Vacated, and Cause Remanded
Date of Judgment Entry on Appeal: January 30, 2015
Joseph T. Deters, Hamilton County Prosecuting Attornеy, and Melynda J. Machol, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
J. Rhett Baker, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
{¶1} Defendant-appellant Carmichael Hamilton appeals from the judgment of the Hamilton County Court of Common Pleas convicting him, after his pleas of guilty, of 13 theft offenses, all fourth- or fifth-degree felonies. The triаl court sentenced Hamilton to prison for each of the offenses, with some of the terms to run consecutively and others concurrently, for an aggregate prison term of two years.
{¶2} In three assignments of error, Hamilton contends that the trial court erred by imposing prison terms for the nonviolent fourth- and fifth-degree felonies and by imposing consecutive terms, and that he was denied thе effective assistance of counsel at his sentencing hearing, because trial counsel failed to object to his improper sentences. Because Hamilton‘s assignment of errоr challenging the imposition of the prison terms is meritorious, where the record demonstrates that his sentences were clearly and convincingly contrary to the provisions of
Background Facts
{¶3} Between December 31, 2013, and March 17, 2014, Hamilton stole air-conditioning units from thе residences of 13 separate individuals, eight of whom were elderly. He was subsequently indicted for 13 counts of theft of property worth $1000 or more but less than $7500, in violation of
{¶4} Hamilton entеred guilty pleas to the 13 counts. The trial court accepted his pleas, ordered a presentence investigation (“PSI“), and continued the
{¶5} The sentencing hearing was held about a month lаter. Consistent with the PSI, defense counsel informed the court that Hamilton had not previously been convicted of a felony. The court sentenced Hamilton to one year in prison for each of the five theft counts, to be served concurrently with each other, and further sentenced him to one year in prison for each of the eight enhanced theft counts, to be served сoncurrently with each other. Without making any findings, the trial court then ordered that the theft sentences be served consecutive to the enhanced theft sentences, for an aggregate sentence of two years. Defense counsel did not object to the trial court‘s imposition of prison terms, or to the court‘s order that some of those terms be served consecutively.
Standard of Review
{¶6} Hаmilton‘s first assignment of error challenges his sentences. We review Hamilton‘s sentences under the standard of review set forth in
Analysis
{¶7} Hamilton contends that his sentences were сontrary to law because the trial court did not make “findings” in accordance with
{¶8} We reject Hamilton‘s first argument, because
{¶9} As this court recently noted, the legislature in 2011 enacted legislation that “sharply limit[s] the circumstances” under which a court can sentence first-time-felony offenders to prison when the offender has committed nonviolent crimes and the offender‘s most serious offense was a fourth- or fifth-degree felony. State v. Jones, 1st Dist. Hamilton No. C-130625, 2014-Ohio-3345, ¶ 8, citing Am.Sub.H.B. No. 86 (“H.B. 86“).
{¶10} As amended by H.B. 86 and subsequent legislation,
{¶11}
{¶12} In this case, the requirements of
{¶13} Upon our review of the record, we concur with Hamilton that none of the criteria set forth in
{¶14} The state asserts that it discovered information demonstrating that Hamilton committed the offenses while released from custody on a bond issued in at least one other case, circumstances that would satisfy the criterion set forth in
{¶15} It is well settled thаt “a reviewing court cannot add matter to the record before it, which was not a part of the trial court‘s proceedings, and then decide the appeal on the basis of the nеw matter.” State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (2001), cited in RNG Props., Ltd. v. Summit Cty. Bd. of Revision, 140 Ohio St.3d 455, 2014-Ohio-4036, 19 N.E.2d 906, ¶ 23. Because this information was not presented below, it cannot serve as a basis for upholding the trial court‘s decision.
{¶17} Hamilton further argues, citing to Jones, that in addition to vacating the prisоn terms, this court must remand the case “with instructions to the trial court to impose community control” for all of the offenses. We disagree.
{¶18} In Jones, this court vacated the prison sentences imposed on several counts involving nonviolent fifth-degree-felony offenses. See Jones, 1st Dist Hamilton No. C-130625, 2014-Ohio-3343, at ¶ 21. We held that based on the record before the trial court “a community control term of at least one year was mandatory” for those offenses. Id. at ¶ 11. We remanded the case “so that the court may impose community control for those counts.” Id. at ¶ 21. By using this language, including the word “may,” wе intended only to announce that those sentences were contrary to law, and that the defendant had to be resentenced in accordance with
{¶19} Hamilton also presents assignments of error challenging the trial court‘s imposition of consecutive terms, and claiming that he was denied the effective assistance of counsel at his sentencing hearing. Our resolution of the first assignment of error renders moot these remaining assignments of error. Thus, we
Conclusion
{¶20} We affirm the findings of guilt related to each of the 13 counts. But because the trial court imposed prison terms in contravention of
Judgment accordingly.
HENDON and DEWINE, JJ., concur.
Please note: The court has recorded its own entry on the date of the release of this opinion.