STATE OF OHIO, Plaintiff-Appellee, v. ROBERT A. LEE, Defendant-Appellant.
CASE NO. CA2014-03-076
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
5/11/2015
[Cite as State v. Lee, 2015-Ohio-1760.]
M. POWELL, J.
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2013-04-0627
Fred Miller, Baden & Jones Building, 246 High Street, Hamilton, Ohio 45011, for defendant-appellant
O P I N I O N
M. POWELL, J.
{¶ 1} Defendant-appellant, Robert A. Lee, appeals from an entry of the Butler County Court of Common Pleas revoking his community control and imposing a jail term consecutive to a prison term previously imposed in a separate case. For the reasons outlined below, we reverse as to the sentence only, and remand to the trial court for the purpose of resentencing consistent with this opinion.
{¶ 3} In March 2014, the trial judge in Lee‘s felony case found that Lee had violated the terms of his community control, revoked his community control, and sentenced him to serve a prison term of 11 months with credit for 226 days served. Later the same month, the trial judge in Lee‘s misdemeanor case found Lee had violated the terms of his community control in that case, revoked his community control, and imposed the suspended jail terms of 90 and 180 days. The 90-day jail sentence and 180-day jail sentence for the community control violation for Lee‘s misdemeanor convictions were ordered to be served concurrent with one another, but consecutive to the 11-month prison sentence for Lee‘s violation of community control in the felony case. Lee was given credit for 128 days served in the misdemeanor case.
{¶ 4} Lee now appeals, and asserts a single assignment of error for review:
{¶ 5} THE TRIAL COURT ERRED TO THE PREJUDICE OF [LEE] WHEN IT ORDERED HIS MISDEMEANOR SENTENCE TO BE RUN CONSECUTIVELY TO THE FELONY SENTENCE.
{¶ 6} On appeal, Lee argues that it was improper for the trial court to impose a jail term for violation of his community control arising from his misdemeanor convictions consecutive to his community control violation sentence arising from his felony conviction.
{¶ 7} We have never addressed whether
{¶ 9} In this instance, the trial court imposed a 180-day jail term for Lee‘s violation of his community control for attempted possession of heroin, a first-degree misdemeanor, and imposed a 90-day jail term for Lee‘s violation of his community control for possessing drug abuse instruments, a second-degree misdemeanor, to run concurrently with each other. Neither of these jail terms exceed the maximum term provided for the respective offenses.
{¶ 10} When appellate courts have approved imposition of consecutive misdemeanor and felony sentences, the trial court was required to engage in analysis under
{¶ 11}
(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 , 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 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.
{¶ 12} When a trial court imposes consecutive sentences, it must state the required findings on the record at the sentencing hearing and incorporate such findings into the sentencing entry. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 29. It must be clear from the record that the trial court engaged in the required sentencing analysis and made the findings required by the statute. State v. Smith, 12th Dist. Clermont No. CA2014-07-054, 2015-Ohio-1093, ¶ 8. However, “a word-for-word recitation of the language of the statute is not required, and as 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.” Bonnell at ¶ 29. In other words, “a talismanic incantation of the words in the statute” is not required to affirm consecutive sentences as long as the necessary findings can be found in the record and are incorporated into the sentencing entry. Id. at ¶ 37.
{¶ 13} In this instance, the trial court failed to engage in the analysis required by
{¶ 14} There is absolutely nothing in the record to support a finding that a consecutive
{¶ 15} Consequently, we vacate Lee‘s consecutive sentences and remand this matter to the trial court for resentencing. See Bonnell at ¶ 30, 37. On remand, the trial court shall consider whether consecutive sentences are appropriate under
{¶ 16} Judgment reversed and cause remanded to the trial court for the sole purpose of resentencing consistent with this opinion.
PIPER, P.J., and HENDRICKSON, J., concur.