State of Ohio, Plaintiff-Appellee, v. John W. Hargrove, Defendant-Appellant.
No. 15AP-102
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
August 4, 2015
[Cite as State v. Hargrove, 2015-Ohio-3125.]
SADLER, J.
(C.P.C. No. 12CR-2820)
(REGULAR CALENDAR)
Rendered on August 4, 2015
Ron O‘Brien, Prosecuting Attorney, and Sheryl L. Prichard, for appellee.
Todd W. Barstow, for appellant.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Defendant-appellant, John W. Hargrove, appeals from a judgment of the Franklin County Court of Common Pleas in favor of plaintiff-appellee, State of Ohio. For the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On May 17, 2013, a Franklin County jury found appellant guilty of one count of theft, a violation of
{¶ 3} On June 14, 2013, the trial court sentenced appellant to a 12-month term on the theft offense and an 18-month term for solicitation fraud. Both sentences represented the maximum term for the offense. The trial court further ordered that appellant serve the prison terms consecutive to one another, for a total term of two and one-half years. Appellant timely appealed to this court.
{¶ 4} In State v. Hargrove, 10th Dist. No. 13AP-615, 2014-Ohio-1919, we considered appellant‘s appeal from the judgment of conviction and sentence. In our deсision, we set forth the factual basis underlying appellant‘s convictions and sentence as follows:
Both counts against appellant arise from his fund-raising activities on behalf of a purported veteran‘s organization. Testimony at trial established that appellant registered the trade name Ohio Veteran‘s Source with the Ohio Secretary of State, but never registered the name as a charitable organization. Appellant established three checking accounts with Huntington Bank in the name of Ohio Veteran‘s Source. He then engaged in telephone solicitations, mostly from individuals, and mostly procuring small donations. Appellant told potential contributors that his plan for the organization was to produce an informational newsletter to assist veterans in need of assistance to find housing, employment, or mediсal treatment. He then used the contributions for his own purposes and never produced the planned newsletter, although appellant stated at trial that he was only prevented from producing the newsletter by his intervening arrest. The state presented evidence of multiple solicitations, including the in-court testimony of contributing victims.
{¶ 5} In his second assignment of error in Hargrove, appellant argued that “the trial court erred when it did not make the required findings under
The state concedes that, pursuant to our recent decisions in State v. Wilson, 10th Dist. No. 12AP-551, 2013-Ohio-1520, and State v. Bender, 10th Dist. No. 12AP-934, 2013-Ohio-2777, the trial court‘s failure to make the statutorily-required
findings constitutes plain error. We note that the state has fully argued and preserved for further appeal the question of whether Bender and Wilson correctly state the law of Ohio on this question. We further note that appellant in the present case did not object to the trial court‘s failure to make the statutorily-required findings. In accordance with our recent decisions, however, the record requires a reversal of the trial court‘s imposition of consecutive sentences and a remand to the trial court for re-sentencing. Wilson at ¶ 22.1
{¶ 6} Having sustained appellant‘s second assignment of error, we remanded the case to the trial court “for re-sentencing in compliance with the mandates of
{¶ 7} On January 9, 2015, the trial court held a second sentencing hearing, at which time the trial court re-imposed a consecutive prison term of two and one-half years. Appellant timely appealed to this court from the judgment of the trial court.
II. ASSIGNMENT OF ERROR
{¶ 8} Appellant‘s sole assignment of error is as follows:
THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY IMPROPERLY SENTENCING HIM TO CONSECUTIVE TERMS OF INCARCERATION IN CONTRAVENTION OF OHIO‘S SENTENCING STATUTES.
III. STANDARD OF REVIEW
{¶ 9}
If multiple prison terms are imposed on an offender for convictions of multiple offensеs, 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:
* * *
(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.
{¶ 10} The state urges us to apply the “plain error” standard in reviewing appellant‘s sentence inasmuch as appellant failed to object to the imposition of consecutive sentences in the trial court. In light of our prior reversal in this case in Hargrove and our remand to the trial court for resentencing, we will review this appeal under the standard set forth by the Supreme Court of Ohio in State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177.
{¶ 11} In Bonnell, the Supreme Court held that a sentencing court is not required “to give a talismanic incantation of the words of the statute, provided that the necessary findings can be found in the record and are incorporated into the sentencing entry.” Id. at ¶ 37. The court further stated that “a wоrd-for-word recitation of the language of the statute is not required, and as long as the reviewing court can discern that the trial court engaged in the correct analysis and can determine that the record contains evidence to support the findings, consecutive sentences should be upheld.” Id. at ¶ 29.
IV. LEGAL ANALYSIS
{¶ 12} In his sole assignment of error, appellant contends that the trial court did not make all the factual findings required by
{¶ 13} The findings made by the trial court at the January 9, 2015 sentencing hearing include the following:
THE COURT: All right. Well, I‘m going to reimpose the original sentence of two-and-a-half years in prison, because I think a consecutive sentence in this case, because I think it‘s
the most serious type of offense like this, it‘s the worst of the offenses like this, for the following reasons: First of all, in this case, the Defendant, you know, intentionally, blatantly, solicited from 56 different people, most of them elderly. All of them testified you solicited funds for veterans under a fictitious veterans organization that didn‘t even exist. I think it was called Ohio Vets or something like that.
[PROSECUTOR]: That‘s correct.
THE COURT: These people were not rich people, and they gave because they were concerned about the veterans, and the Defendant in this case stuck the money in his pocket and went on his merry way. Now, not a penny went to veterans of any shape or form.
The Defendant, as indicated, has done this previously. He did it previously in 2007. He was sent to prison for 15 months.
Well, that didn‘t help, so maybe he should go to prison more this time, and that‘s why I gave him – one of the reasons why I gave him the two-and-a-half years.
I think this is the worst form of the offense, soliciting money for wounded veterans under a false organization and under false pretenses.
I might add that the Defendant himself is not a veteran, and he was preying upon those elderly sympathetic people who wanted to help veterans.
I find that very offensive. I find that the worst form of the offense that we could have in solicitation for funds. That is the reason that I gave the maximum consecutive sentence, which I will impose again.
The sentence is 18 months on the felony of the 4th degree, consecutive to one year on the felony of the 5th degree, for a total of two-and-a-half years.
In view of the fact that the victims in this case number at least 56, and probably many, many more, this is not a case where there‘s one victim; in view of the fact that he has a prior record for this, for which he did 15 months in prison; and in view of
the fact that he is soliciting money under false pretenses for vetеrans for an organization that does not exist, I think it is the worst form of the offense of telephone solicitation for funds. * * *
[PROSECUTOR]: Judge, I would submit to you that this is – the sentence you have given Mr. Hargrove, once again, is not disproportionate to the seriousness of the offense, and this is coming under consecutive sentencing statute
2929.41 .As well as, are you finding this a part of one or more course of conduct, and that the multiple offenses were so great and unusual that –
THE COURT: It‘s obviously a course of conduct when he does it to 56 people, and he‘s done it before in 2007, for which he was in prison, and he continued to do the same thing. So, yes.
(Jan. 9, 2015 Tr. 6-8, 10.)
{¶ 14} In his brief, appellant acknowledges that the trial court “ostensibly” made the finding required by
{¶ 15} Turning to appellant‘s primary argument, appellant focuses on the finding required by
{¶ 16} At the sentencing hearing, the trial court made a finding that appellant‘s criminal conduct represents “the worst form of the offense that we could have in solicitation fоr funds.” (Jan. 9, 2015 Tr. 7.) The trial court also stated that appellant‘s conduct in this case was the “most serious type of offense like this” and “the worst of the offenses like this.” (Jan. 9, 2015 Tr. 6.)
{¶ 17} The trial court‘s finding that appellant‘s criminal conduct was the worst and most serious type punishable under
{¶ 18} With respect to the danger appellant poses to the public, the trial court found that appеllant had been convicted of a similar crime in 2007 and that a 15-month sentence “didn‘t help, so maybe he should go to prison more this time, and that‘s why I gave him – one of the reasons why I gave him the two-and-a-half years.” (Jan. 9, 2015 Tr. 7.) The trial court further noted that “he‘s done it before in 2007, for which he was in prison, and he continued to do the same thing.” (Jan. 9, 2015 Tr. 10.) These statements of fact by the sentencing judge permit us to conclude that the trial court fоund not only that consecutive service is necessary to punish appellant but also that consecutive service is not disproportionate to the danger appellant poses to the public.
{¶ 19} The relevant case law shows that appellate courts have been fairly deferential to the trial court when reviewing the transcript of a sentencing hearing to determine whether the trial court has made the findings required by
{¶ 20} In Bonnell, the trial court sentenced the offender to 30 months in prison for each of the 3 burglary convictions and 11 months in prison for tampering with coin machines, imposing a consecutive prison sentence totaling 8 years and 5 months. The Supreme Court stated that the trial court‘s description of the offender‘s criminal record as “atrocious” and the notation of his “laсk of respect for society” did not permit it to conclude that the trial court found “consecutive sentences were not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public.” Id. at ¶ 34, 36.
{¶ 21} Unlike the trial court in Bonnell, the sentencing court in this case set forth the factual basis for its decision to impose a consecutive term of imprisonment. The trial court found that аppellant‘s criminal conduct was the “worst form” and “most serious type” of telephone solicitation fraud, that the 15-month sentence for a prior conviction “didn‘t help,” and that appellant “should go to prison more this time.” (Jan. 9, 2015 Tr. 6, 7.) The sentencing court also noted that the victims in this case numbered 56 and “probably many, many more.” (Jan. 9, 2015 Tr. 8.) The trial court found that appellant “prey[ed] upon * * * elderly sympathetic” victims who “were not rich people.” (Jan. 9, 2015 Tr. 6, 7.) The trial court‘s finding that the prison sentence received by appellant for a prior similar conviction did not discourage appellant from engaging in the same conduct on his release, and the trial court‘s reference to the number and relative vulnerability of appellant‘s recent victims amounts to a finding that consecutive service was not dispropоrtionate to the danger appellant poses to the public. Under the settled law, as set forth above, the trial court‘s failure to employ the phrase “not disproportionate to the * * * danger [appellant] poses to the public” does not mean that the trial court failed to engage in the appropriate analysis and failed to make the required finding.4
{¶ 22} Under
{¶ 23} Appellant does not directly challengе the trial court‘s summary of the testimony produced at trial, and he has stipulated that he has a prior conviction for a similar offense in 2007. The record supports the trial court‘s findings regarding the number of victims, the relative vulnerability of appellant‘s victims, and the offensive nature of the fraud. The trial court stated that the two and one-half year sentence was “appropriate,” given the facts of the case. (Jan. 9, 2015 Tr. 9.) We find that the evidence produced at the trial of this matter supports the findings made by the trial court and that the findings support a consecutive prison term totaling two and one-half years.
{¶ 24} In the final analysis, we find that the trial court engaged in the appropriate statutory analysis and made all the findings required by
{¶ 25} Although we have overruled appellant‘s assignment of error, the Bonnell case holds that Ohio‘s consecutive sentencing laws require the trial court to (1) make the findings mandated by
V. CONCLUSION
{¶ 26} Having overruled appellant‘s assignment of error, but having found that the trial court‘s judgment entry contains а clerical error, we affirm the judgment of the Franklin County Court of Common Pleas and remand the matter for the issuance of a nunc pro tunc judgment entry consistent with this decision and the rule of law in Bonnell.
Judgment affirmed; remanded for issuance of nunc pro tunc judgment entry.
DORRIAN and BRUNNER, JJ., concur.