2004 Ohio 3768 | Ohio Ct. App. | 2004
Lead Opinion
{¶ 2} On October 30, 2002, appellant pled guilty to one count each of insurance fraud, tampering with evidence and falsification. The remaining counts were tried before a jury. The jury found appellant guilty of the remaining charges except for the second counts of falsification and insurance fraud. By judgment entries filed November 7, 2002, the trial court sentenced appellant to an aggregate term of one year on the three counts he pled guilty to, and an aggregate term of one year on the three counts the jury found him guilty of, to be served consecutively.
{¶ 3} Appellant filed an appeal and this matter is now before this court for consideration. Assignment of error is as follows:
{¶ 6} R.C.
{¶ 7} "The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court's standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
{¶ 8} "(a) That the record does not support the sentencing court's findings under division (B) or (D) of section
{¶ 9} "(b) That the sentence is otherwise contrary to law."
{¶ 10} Clear and convincing evidence is that evidence "which will provide in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established." Cross v.Ledford (1954),
{¶ 11} Appellant pled guilty to one count in the third degree and two counts in the fourth degree. Pursuant to R.C.
{¶ 12} Appellant argues the trial court erred in ordering the aggregate sentences to be served consecutively.
{¶ 13} R.C.
{¶ 14} "(4) If multiple prison terms are imposed on an offender for convictions of multiple offenses, 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:
{¶ 15} "(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
{¶ 16} "(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.
{¶ 17} "(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender."
{¶ 18} R.C.
{¶ 19} "(2) The court shall impose a sentence and shall make a finding that gives its reasons for selecting the sentence imposed in any of the following circumstances:
{¶ 20} "(c) If it imposes consecutive sentences under section
{¶ 21} In sentencing appellant to consecutive sentences, the trial court noted appellant's approximate ten year law enforcement career:
{¶ 22} "You held a position of trust. The position of trust you held related to the fact that you were to prevent this from happening, rather than either encouraging, assisting, aiding or abetting the commission of these crimes. You also had an obligation to prevent the crimes from occurring. You had an obligation to bring those people who were involved with you in this matter, to bring them to justice. You had a professional reputation. You held a professional position in the community. And instead of using any and all of that, you used it to facilitate the commission of the offenses. And I cannot say based upon what I have before me now that I am convinced that you would not be likely to influence future conduct later.
{¶ 23} "* * *
{¶ 24} "Having sentenced the defendant to consecutive sentences, that is one, two and three are concurrent but consecutive with four, five, and eight concurrent sentence. The Court finds that the harm was so great and unusual based upon the defendant's position of trust, that no single prison term could adequately reflect the seriousness of the defendant's conduct. And as specifically stated before, these are two separate incidents and as the prosecutor stated, separated by several months at a time." November 1, 2002 T. at 19 and 23.
{¶ 25} Appellant argues the trial court's findings do not conform to the dictates of State v. Comer,
{¶ 26} The sole assignment of error is denied.
{¶ 27} The judgment of the Court of Common Pleas of Licking County, Ohio is hereby affirmed.
Farmer, J. and Wise, J., concur.
Hoffman, P.J. concurs separately.
Concurrence Opinion
{¶ 28} I concur in the result reached by the majority, but do so for a different reason.
{¶ 29} Unlike the majority, I do not find the trial court's findings were sufficient to support imposition of consecutive sentences. I do agree the reasons it stated were sufficient to support the requisite findings had they been made.
{¶ 30} Appellee proffers an interesting response. Is the trial court's error in failing to make the requisite findings waived if no objection is entered by the defendant at the sentencing hearing?1 I conclude it is waived where, as here, the trial court states its reasons for consecutive sentences on the record. Accordingly, appellant must demonstrate plain error to succeed on his appeal.2 Because it is not clear the sentence would have been different had appellant timely objected to the sentence, I find no plain error exists in the case sub judice.
For the reasons stated in the Memorandum-Opinion on file, the judgment of the Court of Common Pleas of Licking County, Ohio is affirmed.
