State v. HartState v. Hart
- Reporters:
- ,
- Before:
- Marie Hoover, Harsha, McFarland
{¶ 1} Defendant-appellant, Floyd Hart, appeals his sentence from the Athens County Court of Common Pleas. Hart was sentenced to a total of 5 years and 6 months after violating his community control sanctions in two separate cases. The trial court ordered the sentences in each case to be served consecutively. On appeal Hart presents three assignments of error. First, Hart argues that the trial court abused its discretion when it arbitrarily found the seriousness of his original offense to be more serious in 2013 than when it occurred in 2007. Second, Hart contends the trial court incorrectly determined that it was bound to impose consecutive prison terms. Lastly, Hart argues that the prison term for the violation of community control sanctions cannot run consecutively to any other sentence.
{¶ 2} In January 2007 in case number 06CR0284, Hart pleaded guilty to Failure to Comply, in violation of
{¶ 3} In July 2008, the trial court found probable cause that Hart violated the terms of his community control. At the dispositional hearing in September 2008, the court sentenced Hart to сomplete the remainder of the 4 years of community control sanctions and to enter the MonDay Program. The trial court found that “the factors against recidivism outweigh the factors for recidivism and that the less serious factors outweigh the more serious factors.” The trial court notified Hart that if he violated any of the terms of the community control sanctions, a longer term of community control under the same sanction, a more restrictive sanction, or a prison commitment of 4 years shall result.
{¶ 4} Approximately one year later in June 2009, Hart again violated the terms of his community control sanctions. As a result of this violation, the trial court found: “***the factors for recidivism outweigh the factors against recidivism. Also, the more serious factors outweigh the less serious factors.” The trial court sentenced Hart to 4 years in the State Penal System. The trial court then recited the required notifications if Hart violates any conditions of post-release control.
{¶ 5} In January 2010, after Hart filed a Motion for Judicial Release, the trial court granted the motion. The trial court suspended the bаlance of Hart‘s original sentence of 4 years and placed Hart on judicial release subject to community control conditions. The trial court informed Hart that the suspended portion of the prison term could be reimposed.
{¶ 7} Consequently, the State charged Hart with Domestic Violence, in violation of
{¶ 8} At the July 19, 2012 sentencing hearing, in case number 12CR0168, the trial court instructed Hart:
BY THE JUDGE: Okay. Alrighty. Then I need to advise you, Mr. Hart, that if you violate any terms and conditions of your community control the Court could increase the time period you‘re on community control. The Court can impose additional terms and conditions for you to follow on community control. And the Court can sentenсe you a specific prison term of eighteen months to be served consecutively to any prison sentence imposed upon you in 06CR0284.
Violation of any of this sentence shall lead to a longer term under the same sanction, a more restrictive sanction, or a prison commitment of eighteen (18) months to be served consecutively to any prison sentence imposed upon him in 06CR0284.
{¶ 9} On January 14, 2013, the State filed another Notice of Violation of Judicial Release/Community Control alleging two violations: 1) Hart was booked into the Southeastern Ohio Regional Jail on charges of Domestic Violence and Aggravated Burglary and 2) nonpayment of court costs. The trial court found probable cause for both violations. In its February 21, 2013 judgment entry, the trial court terminated Hart‘s judicial release and community control in case number 06CR0284 and sentenced him to the previously suspended 4-year prison sentence. The court also sentenced Hart to a prison term of 18 months in case number 12CR0168. The court ordered Hart to serve the terms consecutively because:
***consecutive sentences are mandatory in this case pursuant to
Ohio Revised Code Section 2929.14(C)(3) . Further, even if consecutive sentences were not mandatory the Court would so order them, pursuant toR.C. 2929.14(C)(4) , as consecutive sentences are necessary to protect the public from future crime and to punish the offender; Consecutive sentеnces are not disproportionate to the seriousness of the Defendant‘s conduct and the danger the offender poses to the public and, further, Defendant committed a new offense while under a community control sanction.
Appellant‘s First Assignment of Error:
A TRIAL COURT ABUSES ITS DISCRETION WHEN IT IMPOSES A PRISON TERM, IN PART, BECAUSE THE SERIOUSNESS FACTORS ON 2929.12 INDICATED THAT THE OFFENSE IS MORE SERIOUS WHEN THAT COURT HAD PREVIOUSLY HELD THAT THE FACTORS INDICATED THAT THE OFFENSE WAS LESS SERIOUS.
{¶ 11} In his first assignment of error, appellant Hart argues that the trial court abused its discretion when it held his original offense in case number 06CR0168, Failure to Comply, was more serious in 2013 than it was in 2007. Hart contends that originally, when community control sanctions were found to be appropriate, the less serious factors outweighed the more serious factors, but in the February 21, 2013 judgment entry the trial court changed its position and stated: “***the more serious factors outweigh the less serious factors.”
{¶ 12} After Hart‘s first violation of community control sanctions in 2008, the trial court continued his then current sanctions, finding “***that the less serious factors outweigh the more serious factors.” After Hart‘s second community control violation, the trial court stated in its June 19, 2008 Judgment Entry: “the Court finds the factors for recidivism outweigh the factors against recidivism. Also, the more sеrious factors outweigh the less serious factors.” At the February 5, 2013 sentencing hearing the trial court stated: “***that because of the numerous violations in both of those cases as well as the pending charge*** that the seriousness factors again are more likely than not, more serious than not, because of the domestic violence as well as to Jessica Sager as the victim.” The corresponding judgment entry dated February 21, 2013
{¶ 13} The trial court has significant discretion in sentencing a defendant for a community control violation, so long as it is consistent with the purposes and principles of sentencing and with notification provided by the trial court when imposing the community control sanctions. See
{¶ 14} When reviewing the transcript of the February 5, 2013 hearing, it demonstrates that the trial court was referring to the seriousness of the violation of the community control sanctions, not the underlying failure to comply conviction.
TRIAL COURT: * * * The Court in 06CR0284, that‘s a judicial release situation at this time, and the Court in both cases considered the recidivism factors and finds that because of the numerous violations in both of those cases as well as the pending charge thаt the recidivism likely outweighs that of less likely and that the seriousness factors again are more likely than not, more serious than not, because of the domestic violence as well as the pending domestic violence charge against Jessica, or as to Jessica Sager as the victim. * * *
It is clear from the record that prior to sentencing Hart for his latest violations of community control sanctions, the trial court considered the gravity of the community control violations.
Defendant was previously convicted of Failure to Comply with the Signal or Order of a Police Officer, in violation of
Ohio Revised Code Section 2921.331(B) , a felony of the third degree in Athens County Common Pleas case number 06DR0284 and in case number 12CR0168 of Domestic Violence, in violation ofOhio Revised Code Section 2919.25(A) , a felony of the fourth degree.
The prosecutor addressed the trial court prior to the sentencing on the community control violation and stated that Hart was originally convicted in 06CR0284 of a third degree felony failure to comply with signal or order of a police officer. The trial court also addressed the underlying offense of the failure to comply during the sentencing noting that it was a judicial release situation.
{¶ 16} Therefore, Hart‘s argument that the trial court abused its discretion when it held that the failing to comply was more serious in 2013 than it was in 2007, has no merit. Hart‘s argument is misplaced in that the trial court was referring to the seriousness factors of the community control violation not the underlying offense. The trial court did not abuse its discretion by finding the more serious factors outweighed the less serious factors.
Appellant‘s Second Assignment of Error:
A PRISON TERM FOR VIOLATING COMMUNITY CONTROL MAY BE SERVED CONCURRENTLY WITH A PRISON TERM FOR ANOTHER OFFENSE
{¶ 17} In his second assignment of error, Hart argues that the trial court incorrectly ruled that pursuant to
{¶ 18} In sentencing Hart for the violation of community control sanctions, the trial court stated in its February 21, 2013 Judgment Entry:
The Court also notes that consecutive sentences are mandatory in this case pursuant to
Ohio Revised Code Section 2929.14(C)(3) . Further, even if consecutive sentences were not mandatory the Court would order them, pursuant toR.C. 2929.14(C)(4) , as consecutive sentences are necessary to protect from future crime and to punish the offender; Consecutive sentences are not disproportionate to the seriousness of the Defendant‘s conduct and the danger the offender poses to the public and, further, Defendant committed a new offense whilе under a community control sentence.(Emphasis Added).
Hart argues that
{¶ 19} The issue before us then is whether
{¶ 20}
{¶ 21} Here, the trial court did not impose a prison term when Hart pleaded guilty to Failure to Comply, in violation of
{¶ 22}
{¶ 23} This Court has previously held that “***when the defendant violates community control, the court imposes an appropriate sanction for that misconduct, but not for the original or underlying crime.” State v. Beverly, 4th Dist. Ross No. 01CA2603, 2002-Ohio-118, *3. Therefore,
{¶ 24} Although the trial court was incorrect with regards to the mandatory imposition of sentences, the above quoted February 21, 2013 Judgment Entry shows it also held that consecutive sentence were appropriate under
Appellant‘s Third Assignment of Error:
A TRIAL COURT MAY NOT RUN A PRISON TERM FOR A FELONY CONSECUTIVELY TO A PRISON TERM FOR A VIOLATION OF COMMUNITY CONTROL
{¶ 25} Appellant Hart in his third assignment of error, argues that the trial court cannot order a prison sentence for a violation of community control to run consecutively to any other
{¶ 26} Following his original sentence, in case number 06CR0284, of 4 years community control sanctions, Hart violated the sanctions twice. The first time, the trial court continued his current sanctions; the next violation, the trial court sentenced him to 4 years in prison. Hart was then granted judicial release. Upon being granted judicial release, the trial court instructed Hart: “I do need to tell him that this does represent a suspension of the sentence, which means that if you do not satisfy all of the terms and the conditions of the community control sentence you could be sent back to servе the balance of the sentence.”
{¶ 27} For the sentence pertaining to case number 06CR0284,
R.C. 2929 .20(K) governs the revocation of judicial release when an eligible offender violates a condition of judicial release, providing in pertinent part:If the court grants a motion for judicial release under this section, the court shall order the release of the eligible offender, shall place the eligible offender under an appropriate community control sanction, under appropriate conditions, and under the supervision of the department of probation serving thе court and shall reserve the right to reimpose the sentence that it reduced if the offender violates the
sanction. If the court reimposes the reduced sentence, it may do so either concurrently with, or consecutive to, any new sentence imposed upon the eligible offender as a result of the violation that is a new offense. The period of community control shall be no longer than five years.
{¶ 28} “***[A] review of
{¶ 29} Here the trial court notified Hart that if he failed to comply with conditions of his judicial release, he could be resentenced to the suspended sentence of 4 years in prison. The notification was given at the hearing of Hart‘s Motion for Judicial Release and the suspended sentence was recorded in the trial court‘s January 26, 2010 decision on the motion. Therefore, the trial court did not err in sentencing Hart to four years in prison for his community control violations in case number 06CR284.
{¶ 30} On May 18, 2012, in case number 12CR0168, Hart pleaded guilty to Domestiс Violence. This offense also led to a violation of Hart‘s judicial release/community control in case number 06CR284. As a result, the trial court entered a sentence continuing Hart‘s judicial release
{¶ 31} Under Ohio law, the trial court has three options for punishing offenders who violate community control sanctions. The court may (1) lengthen the term of the community control sanction, (2) impose a more restrictive community control sanction, or (3) impose a prison term on the offender. State v. McClintock, 4th Dist. Meigs No. 13CA4, 2013-Ohio-5598, ¶ 5. “If the court elects to impose a prison sentence upon a violator of community control sanctions, it ‘shall be within the range of prison terms available for the оffense for which the sanction that was violated was imposed and shall not exceed the prison term specified in the notice provided to the offender at the sentencing hearing pursuant to division (B)(2) of section 2929.19 of the Revised Code.’ ” Id. quoting
{¶ 32} In addition to the 4-year sentence received in case number 06CR284, the trial court sentenced Hart to 18 months for a violation of his community control in 12CR0168. The sentence pertaining to case number 12CR0168 followed proper notification requirements and conformed with
{¶ 33} Now that we have established that both sentences in case numbers 06CR284 and 12CR0168 followed the proper notification requirements, we now focus on the trial court‘s order for Hart to serve them consecutively pursuant to
{¶ 34} In State v. Barnhouse, 102 Ohio St.3d 221, 2004-Ohio-9492, 808 N.E.2d 874, the Ohiо Supreme Court addressed an issue concerning a trial court‘s imposition of consecutive six month jail terms for violations of community control sanctions. In Barnhouse, the trial court failed to properly notify the defendant of the specific prison term that would be imposed upon him if he violated the conditions of his community control. Id. at ¶ 14. The trial court instead attempted to sentence the defendant to consecutive prison terms under
{¶ 35} The Supreme Court further stated: “Nevertheless, we reiterate that our decision today does not limit the authority of the trial court to impose consecutive prison sentences under
{¶ 36}
{¶ 37} Under
(a) The offender committed one or more of the multiрle 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 adequаtely 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.
{¶ 38} The Supreme Court of Ohio recently settled the issue of when and where the trial court must state the required findings in order to sentence an offender to consecutive sentences:
When imposing consecutive sentences, a trial court must state the required findings as part of the sentencing hearing, and by doing so it аffords notice to the offender and to defense counsel. See
Crim.R. 32(A)(4) . And because a court speaks through it journal, State v. Brooks, 113 Ohio St.3d 199, 2007-Ohio-1533, 863 N.E.2d 1024, ¶ 47, the court should also incorporate its statutory findings in the sentencing entry.
State v. Bonnell, Slip Opinion, No. 2014-Ohio-3177, ¶ 29.
While the sentencing court is required to make these findings, it is not required to give reasons explaining the findings. Id. at ¶ 27; Howze at ¶ 18; State v. Stamper, 12th Dist. Butler No. CA201208166, 2013-Ohio-5669, ¶ 23. Furthermore, the sentencing court is not required to recite “a word-for-word recitation of the language of the statute.” Bonnell at 29. “[A]s 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. A failure to make the findings required by
{¶ 39} Here, a review of the February 5, 2013 sentencing hearing transcript reveals that the trial court failed to make any of the required findings. As a result, we find the imposition of consecutive sentences without making the necessary findings to be contrary to law. Bonnell, supra, at ¶ 34. We hereby vacate the portion of the trial court‘s judgment imposing consecutive sentences and remand this matter to thе trial court for resentencing. Id.; see also State v. Corker, 10th Dist. Franklin Nos. 3AP-264, 13AP-265, & 13AP-266, 2013-Ohio-5446, ¶ 38 (“[W]hen the trial court fails to articulate the appropriate findings required by
JUDGMENT AFFIRMED IN PART & REVERSED IN PART.
It is ordered that the JUDGMENT IS AFFIRMED IN PART AND REVERSED IN PART. Appellant and Appellee shall equally divide the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mаndate issue out of this Court directing the Athens County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of the proceedings in that court. If a stay is continued by this entry, it will terminate at the earliest of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to the expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Harsha, J. & McFarland, J.: Concur in Judgment & Opinion.
For the Court
By:
Marie Hoover, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.