2004 Ohio 1675 | Ohio Ct. App. | 2004
Lead Opinion
{¶ 2} The following facts give rise to this appeal. The matter before this court is an appeal from four underlying cases that were heard together in the trial court. Leach was indicted on various counts in each of the cases. The indictments included charges of aggravated robbery, robbery, and attempted felonious assault. The charges involved numerous business and individual victims.
{¶ 3} In case number CR 432168, Leach pled guilty to three counts of robbery in violation of R.C.
{¶ 4} In case number CR 432169, Leach pled guilty to one count of robbery in violation of R.C.
{¶ 5} In case number CR 432170, Leach pled guilty to one count of robbery in violation of R.C.
{¶ 6} In case number CR 432171, Leach pled guilty to six counts. Counts one and two, as amended, charged robbery in violation of R.C.
{¶ 7} Leach has appealed the trial court's sentencing order raising one assignment of error for our review, which provides:
{¶ 8} "Timothy Leach has been deprived of his liberty without due process of law by the consecutive sentences imposed on him as said sentences do not comport with Ohio's new sentencing structure and because he was not present when all of the sentences in all of the cases were imposed."
{¶ 9} Leach argues the consecutive sentences imposed upon him were improper because they were not adequately supported by the necessary findings and reasons required by the court on the record. Leach also argues he was deprived of his right to be present for all of the sentences imposed. We shall address each of these issues respectively.
{¶ 10} R.C.
{¶ 11} In addition, R.C.
{¶ 12} Thus, a trial court is required to make at least three findings under R.C.
{¶ 13} In this case the trial court set forth the required findings on the record. The court stated:
"THE COURT: * * * I think I should say specifically, Ibelieve, that the consecutive sentence, as I have imposed them inthis case, are necessary to protect the public from future crimesand that to give appropriate punishment under the circumstances. "I will also note that for a crime wave like this consecutivesentences are certainly not disproportionate to the seriousnessof your conduct, Mr. Leach, and to the danger that that conducthas posed to the community. "Finally, that at least two of these offenses, actually all ofthese offenses were committed as part of a course of conduct andthat under those circumstances, no one sentence, no singlesentence would adequately reflect the seriousness of conduct. "I believe that the statutory requirements have been met."
{¶ 14} A review of the above-quoted transcript reflects the trial court made the three required findings under R.C.
"THE COURT: * * * Whether there was actual harm to thevictims, whether there was a threat of harm to the victims, was aweapon used, your prior record or lack of any serious recordbeforehand And I think in balance, Mr. Leach, that you caused awhole neighborhood, a whole part of town to be terrorized, thathas a big impact on people in the area and on my decision too.* * *.
"* * *
"THE COURT: * * * those of us who have been victims of crime,and I have been the victim of a robbery at gunpoint, know thatfrom a victim's point of view, there is no amount of time that'sgood enough. My job is to take it outside of that. And I amspeaking for society itself."
{¶ 15} After articulating the above reasons and considering the record for each of the offenses, which involved the victimization of numerous businesses and individuals in the course of Leach's robbery spree, the court proceeded to impose sentences that ran concurrently within each case, but consecutively between the cases. In total, the consecutive terms imposed amounted to a twelve-year prison term.
{¶ 16} Leach argues the trial court simply recited the statutory language and did not indicate what facts of the case applied to the findings or adequately set forth its reasons for imposing consecutive sentences. We find nothing in the statutory scheme that requires the court to note specific factors for each individual finding.
{¶ 17} In State v. Comer,
{¶ 18} While the dissent views Comer, supra, as requiring the trial court to provide reasons that are encompassed within the immediate context of a related finding, we do not viewComer as having such a stringent interpretation of the statutory requirements. Comer was a case in which the findings and reasons required by statute were not stated on the record at the sentencing hearing, but were provided in the journal entry. Id. The Ohio Supreme Court held that "R.C.
{¶ 19} Thus, the Comer court was emphasizing the statutory requirement that findings and reasons be stated on the record, as opposed to in a journal entry. The rationale for this requirement was that "[t]hese findings and reasons must be articulated by the trial court so an appellate court can conduct a meaningful review of the sentencing decision." Id. at 468, citing Griffin Katz, Ohio Felony Sentencing Law (2002), 458-459, Section
{¶ 20} In requiring the alignment of each reason to the specific finding supporting its decision to impose consecutive sentences, the court did not interpret R.C.
{¶ 21} As this court recently stated in State v. Cottrell, Cuyahoga App. No. 81356, 2003-Ohio-5806: "[W]e do not interpret [Comer] to mean the trial court must directly correlate each finding to each reason or state a separate reason for each finding. Instead, we interpret this to mean the reasons must be stated sufficiently on the record so that it may be determined whether the findings are supported by the trial court's reasoning." Moreover, in State v. Webb, Cuyahoga App. No. 80206, 2003-Ohio-1718, we stated: "Although the court did not specifically state the findings first and then relate its reasons to the findings, there is no obligation to do so in the sentencing statutes. The sentencing statutes do not put an obligation upon the lower court to provide the statutory findings and its reasons in such close proximity on the record in order for the reasons to be of effect."
{¶ 22} We also note that the statute does not specify what constitutes an acceptable reason. Nevertheless, the process of micro-analyzing every statement for content in relation to specific findings will only lead to disparate sentences for similar offenders where different courts read different meanings into different terms.
{¶ 23} Requiring anything more than is expressly stated in the statute would turn the imposition of a legally sufficient consecutive sentence by a trial court into an episode of TheTwilight Zone. The statute should not be read or interpreted to require trial courts to do anything more than what is stated.
{¶ 24} In the instant case, the transcript reveals that the trial court did sufficiently articulate the required findings and its reasons for imposing consecutive sentences on the record. The court found consecutive sentences were necessary to protect the public and provide adequate punishment. The trial court referred to Leach's robbery spree that included the victimization of numerous businesses and individuals, the threat of harm posed, and the terrorization of a whole neighborhood. The court also considered the nature of the crime wave and found consecutive sentences were not disproportionate to the seriousness of the conduct or the danger posed. Because all of the offenses were a part of the same course of conduct, the court found no single term would adequately reflect the seriousness of the conduct. Upon this record, this court has been able to conduct a meaningful review.
{¶ 25} We find that the trial court complied with the sentencing statutes and did not err in imposing the sentences to run consecutively between the cases. Accordingly, we affirm the trial court's decision to impose consecutive sentences between the cases.
{¶ 26} Next, we consider the trial court's imposition of a two-year sentence on each of counts five and six in case number CR 432171. The transcript of the sentencing hearing reflects that the trial court failed to impose a sentence on these two counts in Leach's presence. Instead, the court imposed the sentence in its journal entry. The state concedes the action of the court was in error.
{¶ 27} Crim.R. 43(A) provides:
{¶ 28} "The defendant shall be present at the arraignment and every stage of the trial, including the impaneling of the jury, the return of the verdict, and the imposition of sentence * * *."
{¶ 29} Crim.R. 43(A) requires the physical presence of a defendant during sentencing. State v. Bell (1990),
{¶ 30} Based on the above authority, we find the trial court erred in issuing its journal entry in case number CR 432171, which imposed a sentence on Leach for counts five and six, after the court failed to issue the sentence in Leach's presence at the sentencing hearing. Crim.R. 43(A).
{¶ 31} We hereby vacate the journal entry in its entirety and remand the matter for a new hearing to resentence Leach in case number CR 432171. Leach's first assignment of error is sustained in part.
{¶ 32} Sentence affirmed in part, vacated in part, and remanded for resentencing.
Celebrezze, JR., P.J., concurs. DIANE KARPINSKI, J., CONCURS IN PART AND DISSENTS IN PART.(SEE ATTACHED CONCURRING AND DISSENTING OPINION.)
Dissenting Opinion
{¶ 33} I concur with the majority opinion except for its discussion of State v. Comer, ante, and the standard under which we review consecutive sentences. Specifically, I disagree with the majority's interpretation of the statement from Comer that a trial court "must clearly align each rationale with the specific finding to support its decision to impose consecutive sentences." At the onset, I must observe that the majority opinion ignores the very emphatic nature of the words "clearly align." Nor does the majority appear to appreciate the precision of the language that follows: "each rationale with the specific finding." By employing the singular form of "rationale" and "finding" and by further emphasizing the singular with the addition of the word "each," there can be no doubt the Comer opinion intended that the trial court "directly correlate each finding to each reason."1 Indeed, I cannot think of a better restatement of Comer.
{¶ 34} Ignoring the emphatic and clear language of theComer directive, the majority here focus, instead, on the statutory language to conclude that it is sufficient that "reasons supporting the imposition of consecutive sentences be provided." While the majority acknowledges a distinction between findings and reasons, apparently it would not require even a cursory analysis of the relationship between facts and a finding. The Eleventh District has suggested: "a finding * * * implies a factual finding which would encompass the operative facts upon which that finding is based." State v. Edmonson (1998), Portage App. No. 97-P-0067, Ohio App. Lexis 4541 at *8, emphasis added. It is unclear how a reviewing court can determine whether the operative facts support a finding if those facts are not even encompassed within the immediate context of the related finding, much less analyzed under the finding.
{¶ 35} The majority here predicts that requiring a reason to be aligned with its related finding would turn the trial court into an episode of The Twilight Zone. On the contrary, to require anything less turns the appellate court into a Kafkaesque episode in which the burden falls on appellate judges to divine the nexus between a finding and all the facts in a record. In other words, if the trial court is not required to provide the nexus, this burden would fall on the reviewing court. The reviewing court, therefore, would not be reviewing a specific reasoning process; it would be walking around with a divining rod.
{¶ 36} As I previously said in my dissent in Cottrell, ante, ¶ 99: "This analytic process [intended by the statutory language] is a reasoning process that moves from operative facts to the various criteria justifying a sentence. It is not enough to recite facts and criteria. What is essential is the reasoning process that connects the two. This process requires a positive explanation of the criteria the court used. The current sentencing statutes place this burden — and I appreciate it is a significant one — on the sentencing judge. In order for the appellate court to do its job in reviewing a sentence, the trial court must provide that nexus between the operative facts and the criteria selected to determine a consecutive sentence. The new statutory scheme for sentencing has made it quite clear that imposing consecutive sentences is an extraordinary punishment. The analytical procedure for explaining such an extraordinary sentence, therefore, should be carefully observed."
{¶ 37} The majority here further observes that the Comer statement is not the basis for the Supreme Court's decision. Although the disputed statement from Comer may function only as dicta, nevertheless, the statement has all the force of logic behind it. A court's failure to clearly align facts and criterion may not operate to automatically invalidate a sentence; however, a trial court should understand that it proceeds at risk if it does not provide that intellectual analysis. Perhaps, Comer may be setting forth an ideal procedure. The majority fails to acknowledge even that, however.
This cause is affirmed in part, vacated in part, and remanded to the lower court for further proceedings consistent with this opinion.
It is ordered that appellant and appellee share 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 Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
