STATE OF OHIO v. MICHAEL LARICHE
No. 106106
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
September 6, 2018
2018-Ohio-3581
BEFORE: E.A. Gallagher, A.J., Jones, J., and Keough, J.
JOURNAL ENTRY AND OPINION
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-575887, CR-595648 and CR-611898
RELEASED AND JOURNALIZED: September 6, 2018
Matthew M. Nee
Leigh S. Prugh
Nee Law Firm, L.L.C.
Regency Centre
26032 Detroit Rd., Suite 5
Westlake, Ohio 44145
ATTORNEYS FOR APPELLEE
Michael C. O‘Malley
Cuyahoga County Prosecutor
BY: Brandon A. Piteo
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant Michael Lariche appeals his sentences in three cases, Case Nos. CR-575887, CR-595648 and CR-611898 after he violated community control sanctions in the two lower case numbers and pled guilty to escape for removing a court-ordered GPS monitoring device in CR-611898. Lariche contends that his sentences in all three cases should be vacated because the record does not support the imposition of maximum sentences and the trial court failed to make the requisite findings for imposing consecutive sentences under
Factual and Procedural Background
{¶2} In November 2013, Lariche pled guilty to two counts of drug possession in violation of
{¶3} On July 1, 2014, the trial court held a community control violation hearing based on Lariche‘s failure to report to his probation officer. Lariche admitted the allegation against him and the trial court found that Lariche had violated the terms of his community control. After hearing frоm defense counsel, Lariche‘s probation officer and Lariche, the trial court extended his community control until January 16, 2017 with the prior conditions and an additional 100 hours of community service. The trial court advised Lariche that if he violated his community control sanctions again he would receive an aggregate prison sentence of 24 months on the two felony сounts.
{¶4} While he was on community control in CR-575887, Lariche committed additional drug offenses. In November 2015, LaRiche pled guilty to one count of drug possession in violation of
{¶5} The trial court also found that Lariche had violated the terms of his community control sanctions in CR-575887. The trial court stayed the community control sanctions until Lariche‘s incarceration for the Lake County case was complete and extended supervision to December 15, 2018 with the prior conditions and an additional 200 hours of community service.3 The trial court infоrmed Lariche that the “[n]ext violation” would result in “24 months in prison, 12 months on each of the two felonies of the fifth degree, consecutive.”
{¶6} On May 26, 2016, after he completed his sentence in the Lake County case, Lariche was transported to the CBCF. In August 2016, Lariche filed a motion to modify the conditions of his community control sanctions. Based on the fact that he had “done well” аt the CBCF and, due to his father‘s failing health, Lariche requested that he be released early from the CBCF and permitted to complete drug treatment through day
{¶7} Once again, Lariche violated the terms of his community control sanctions. On September 30, 2016, Lariche removed the ankle bracelet he had been ordered to wear as a condition of his modified community control sanctions in CR-595648. In March 2017, he pled guilty to one count of escape in violation of
{¶8} On April 19, 2017, the trial court held an initial sentencing hearing in CR-611898 and a violation of community control hearing in CR-575887 and CR-595648. The trial judge indicated that, “[p]rior to coming out on the bench“, he had reviewed the “entire case file“, the presentence investigation report, the principles and purposes of sentencing in
The Court finds it is necessary to protect the public and punish the offender and the offender‘s criminal history which as set forth in the presentence investigation report dates back to 1985 to driving under thе influence as a juvenile. He has a string of passing bad checks charges, unauthorized use of a motor vehicle. ‘95, first felony, receiving stolen property in ‘95. Forgery in ‘95. Receiving stolen property in ‘95. Trafficking in cocaine in ‘98. Theft offenses in ‘98. 2013, you began these two cases, and you were sentenced to prison in Lake County in the case that we talked about a little bit eаrlier. * * *
{¶9} Lariche appealed, raising the following two assignments of error for review:
Assignment of Error 1: The trial court erred by imposing consecutive sentences where it did not make the appropriate findings to impose consecutive sentences.
Assignment of Error 2: The trial court erred in imposing maximum sentences for all three cases without giving due consideration to sentencing factors in
R.C. 2929.11 and2929.12 .
Law and Analysis
{¶10} For ease of discussion, we consider Lariche‘s second assignment of error first.
Maximum Sentences
{¶12} “Following a community control violation, the trial court conducts a second sentencing hearing. At this second hearing, the court sentences the offender anew and must comply with the relevant sentencing statutes.” State v. Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995, ¶ 17; State v. Jackson, 150 Ohio St.3d 362, 2016-Ohio-8127, 81 N.E.3d 1237, ¶ 11.
Standard of Review for Felony Sentences
{¶14} A sentence is contrary to law if the sentence falls outside the statutory range or if the trial court fails to consider the purposes and principles of felony sentencing set forth in
{¶15} Pursuant to
{¶16} A court imposing a sentence for a felony “has discretion to determine the most effective way to comply with the purpоses and principles of sentencing set forth in section
{¶17} Although the trial court must consider both the principles and purposes of felony sentencing set forth in
{¶18} In support of his contention that the trial court did not “proper[ly]” consider
{¶19} Lariche‘s argument is without merit. He has made no showing that the trial court did not comply with its obligation to consider all of the relevant sentencing principles, purposes and factors under
{¶20} In this case, the trial judge expressly stated on the record that he reviewed the entire case file, the presentence investigation report, the principles and purposes of
{¶21} The same trial judge presided over the original sentencing hearings in CR-575887 and CR-595648 and each of the violation of community control hearings in those cases. Both Lariche and his counsel addressеd the trial court at the April 2017 hearing. The trial court heard Lariche‘s claims of responsibility for his actions, his remorse regarding how his actions had adversely impacted his family, his voluntary completion of two drug treatment programs and his acknowledgment that he had a serious drug problem. However, the trial court had already given Lariche multiple opportunities to comply with community control sanctions and turn his life around. The trial court had previously warned Lariche that if he did not comply with the community control sanctions, he would receive the maximum sentences on the offenses of which he had been convicted. Lariche nevertheless continued to violate his community control sanctions. On the record before us, we cannot say that Lariche‘s individual felony sentences are clearly and convincingly contrary to law or that the record clearly and convincingly does not support his individual sentences. Accordingly, Lariche‘s second assignment of error is overruled.
Consecutive Sentences
{¶23} Pursuant to
- 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 , or2929.18 of the Revised Code, or was under post-release control for a prior offense. - At least twо 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.
- The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶24} The court must make the required statutory findings at the sentencing hearing and incorporate those findings into its sentencing journal entry. See State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. Although the
{¶25} In this case, at the sentencing hearing, the trial court found that consecutive sentences were necessary to protect the public and to punish Lariche. The trial court also discussed Lariche‘s criminal history. However, based on our review of the transcript, the trial court did not make the required finding that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public. Nor was any such finding set forth in the trial court‘s sentencing journal entries. In its April 20, 2017 journal entries in CR-575887 and CR-595648, the trial court stated: “Court finds that it is necessary to protect the public and punish the offender and thе offender‘s criminal history shows that consecutive terms are needed to protect the public.” No consecutive sentencing findings were included in the sentencing journal entry in CR-611898. Because the trial court did not make the proportionality finding required by
{¶26} The state concedes the error in all three cases.
{¶27} Lariche‘s first assignment of error, as conceded by the state, is sustained. The imposition of consecutive sentences is vacated and the matter is remanded for the trial court to consider whether consecutive sentences are appropriate under
{¶28} Judgment affirmed in part; reversed in part; remanded for resentencing.
It is ordered that appellant recover from appellee the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
EILEEN A. GALLAGHER, ADMINISTRATIVE JUDGE
LARRY A. JONES, SR., J., and KATHLEEN ANN KEOUGH, J., CONCUR