STATE OF OHIO v. ANTHONY EDWARD JONES
CASE NO. CA2014-09-017
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BROWN COUNTY
6/15/2015
[Cite as State v. Jones, 2015-Ohio-2314.]
CRIMINAL APPEAL FROM BROWN COUNTY COURT OF COMMON PLEAS Case No. 2013-2208
Timothy J. Kelly, 108 South High Street, P.O. Box 467, Mt. Orab, Ohio 45154, for defendant-appellant
O P I N I O N
HENDRICKSON, J.
{¶ 1} Defendant-appellant, Anthony Edward Jones, appeals from his sentence in the Brown County Court of Common Pleas for two counts of rape. For the reasons set forth below, we affirm in part, reverse in part, and remand the matter to the trial court for resentencing.
{¶ 2} In August 2013, appellant was indicted on ten counts of rape in violation of
{¶ 3} Following plea negotiations, appellant entered a guilty plea in November 2013 to two counts of rape. By entering this plea, appellant admitted to engaging in sexual conduct with both M.C. and C.C. With respect to M.C., appellant admitted to having vaginal intercourse with M.C. when she was less than ten years old (count one). With respect to C.C., appellant admitted that he engaged in fellatio with C.C. when C.C. was less than 13 years old (count twelve). The remaining charges were dismissed.
{¶ 4} On December 31, 2013, appellant was sentenced to life without parole on count one and ten years to life on count twelve. The sentences were run consecutively to one another. The trial court did not instruct appellant about any term of postrelease control; nor did it include postrelease control in its January 2, 2014 sentencing entry.
{¶ 5} Appellant appealed, raising two assignments of error.
{¶ 6} Assignment of Error No. 1:
{¶ 7} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT APPELLANT BY IMPOSING A SENTENCE OF LIFE WITHOUT PAROLE.
{¶ 8} In his first assignment of error, appellant contends that the trial court erred when it imposed a sentence of life without parole on count one instead of a sentence of fifteen years to life. Appellant argues that the more lenient sentence, which allows the possibility of parole, was warranted as he “[does] not have a history of being at [sic] threat to
{¶ 9} We review the imposed sentence under the standard of review set forth in
{¶ 10} With respect to count one, appellant was convicted of rape in violation of
[e]xcept as otherwise provided in this division, notwithstanding
[ R.C. 2929.11 toR.C. 2929.14 ], an offender under division (A)(1)(b) of this section shall be sentenced to a prison term or a term of life imprisonment pursuant to [R.C. 2971.03 ]. * * * If an offender under division (A)(1)(b) of this section previously has been convicted of or pleaded guilty to violating division (A)(1)(b) of this section or to violating an existing or former law of this state, another state, or the United States that is substantially similar to division (A)(1)(b) of this section, if the offender during or immediately after the commission of the offense caused serious physical harm to the victim, or if the victim under division (A)(1)(b) of this section is less than ten years of age, in lieu of sentencing the offender to a prison term or term of life imprisonment pursuant to [R.C. 2971.03 ], the court may impose upon the offender a term of life without parole.
(Emphasis added.) If the trial court does not impose a term of life without parole, the court must sentence the offender in accordance with
(B)(1) [I]f a person is convicted of or pleads guilty to a violation of [
R.C. 2907.02(A)(1)(b) ] * * * and if the court does not impose a sentence of life without parole when authorized pursuant to [R.C. 2907.02(B) ], the court shall impose upon the person an indefinite prison term consisting of one of the following:* * *
(b) If the victim was less than ten years of age, a minimum term of fifteen years and a maximum of life imprisonment.
{¶ 11} Accordingly, the statutory range within which appellant could have been sentenced was either fifteen years to life with the possibility of parole, pursuant to
{¶ 12} Further, in sentencing appellant to life without parole, the record reflects that the court considered the principles and purposes of sentencing as set forth in
{¶ 13} Here, the trial court‘s sentencing entry specifically states that “[t]he Court has considered the record and oral statements, as well as the principles and purposes of sentencing under
{¶ 14} Although appellant was sentenced within the permissible statutory range and the record reflects that the court properly considered the purposes and principles of
{¶ 15}
(B) Each sentence to a prison term for a felony of the first degree, for a felony of the second degree, for a felony sex offense, or for a felony of the third degree that is an offense of violence and is not a felony sex offense shall include a requirement that the offender be subject to a period of postrelease control imposed by the parole board after the offender‘s release from imprisonment. * * * Unless reduced by the parole board pursuant to division (D) of this section when authorized under that division, a period of postrelease control required by this division for an offender shall be one of the following periods:
(1) For a felony of the first degree or for a felony sex offense, five years.
{¶ 16} At the sentencing hearing, the trial court erroneously indicated that there was no need for it to apply postrelease control given appellant‘s life without parole sentence. However, the Ohio Supreme Court, interpreting
[A]pplying the rules of grammar and common usage to
R.C. 2967.28(B)(1) , we find that the statute‘s plain, unambiguous language expressly requires the inclusion of a mandatory postrelease-control term of five years for each prison sentencefor felonies of the first degree and felony sex offenses. [The defendant] was convicted of rape in violation of R.C. 2907.02 , which is both a felony of the first degree and a felony sex offense.R.C. 2907.02(B) andR.C. 2967.28(A)(3) . Therefore,R.C. 2967.28(B) require[s] that a five-year term of postrelease control be included in his sentence.
{¶ 17} The Supreme Court also noted that “[b]ecause
{¶ 18} Therefore, although appellant will never be released from prison, we cannot ignore the broad language of
{¶ 19} Consequently, appellant‘s first assignment of error is overruled in part and sustained in part. The matter is remanded for the trial court to impose postrelease control in accordance with the procedures outlined in
{¶ 20} Assignment of Error No. 2:
{¶ 21} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT
{¶ 22} In his second assignment of error, appellant argues that the trial court failed to comply with the requirements set forth in
{¶ 23} Pursuant to
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 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 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.
{¶ 24} “A trial court satisfies the statutory requirement of making the required findings when the record reflects that the court engaged in the required analysis and selected the appropriate statutory criteria.” Setty, 2014-Ohio-2340 at ¶ 113. In imposing consecutive sentences, the trial court is not required to provide a word-for-word recitation of the language of the statute or articulate reasons supporting its findings. Bonnell, 2014-Ohio-3177 at ¶ 27-29; Setty at ¶ 113. Nevertheless, the record must reflect that the trial court engaged in the required sentencing analysis and made the requisite findings at the sentencing hearing. Id. The court‘s findings must thereafter be incorporated into its sentencing entry. Bonnell at ¶ 37.
{¶ 25} At the sentencing hearing, the trial court stated the following before imposing consecutive sentences:
The Court, at this point in time, has, also, reviewed 2907.02(B) as well as 2971.03. As it relates to Count 1, Rape, in violation of 2907.02(A)(1)(b), victim under 10-years of age, it will be the sentence, of this Court, that the Defendant serve life imprisonment, without eligibility for parole.
As to Count 12, 2907.02(A)(1)(b), with the victim being under 13-years-of-age, it will be the sentence of this Court, that he serve a period of 10 years imprisonment, to life imprisonment. The Court does not feel, and I agree with the prosecutor, that no one term of imprisonment is - - is enough to sentence you properly and to serve the “Purposes and the Principles of Sentencing.” Count 1 [sic] will run consecutive to Count 12 [sic].
The record, therefore, reflects that the trial court did not make all of the necessary findings at the sentencing hearing before ordering that appellant‘s sentence for count twelve be served consecutively to his sentence for count one. While the trial court‘s statements at the hearing indicated the court‘s belief that consecutive sentences were not disproportionate to appellant‘s conduct or the danger that he poses to the public, the trial court was required to
{¶ 26} As the trial court failed to make the required findings pursuant to
{¶ 27} We therefore vacate that portion of the trial court‘s judgment imposing consecutive sentences and remand this matter to the trial court for resentencing. On remand, the trial court shall consider whether consecutive sentences are appropriate under
{¶ 28} Judgment is affirmed in part, reversed in part, and the cause remanded for resentencing and the imposition of postrelease control.
PIPER, P.J., and RINGLAND, J., concur.