STATE OF OHIO, Plaintiff-Appellee, v. JAMES C. MARSHALL, Defendant-Appellant.
CASE NO. CA2013-05-042
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO WARREN COUNTY
11/18/2013
[Cite as State v. Marshall, 2013-Ohio-5092.]
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 12 CR 28535
Timothy J. McKenna, 125 East Court Street, Cincinnati, Ohio 45202, for defendant-appellant
PIPER, J.
{1} Defendant-appellant, James Marshall, appeals his consecutive sentences in the Warren County Court of Common Pleas.
{2} Marshall was convicted of felony drug-related offenses in 2008 and sentenced to prison. Marshall was later released and placed on postrelease control. While on postrelease control, Marshall and his girlfriend had a domestic dispute and police were dispatched to his home. Police learned that Marshall had in his possession a rifle which was
{3} The trial court ordered a presentence investigation report and held a sentencing hearing. After Marshall addressed the court with several mitigating factors, the trial court sentenced Marshall to 12 months on the violation of postrelease control, and nine months on the having weapons under disability charge. The trial court ordered that Marshall serve the sentences consecutively. Marshall now appeals his sentence, raising the following assignment of error.
{4} THE COURT ABUSED IT [sic] DISCRETION BY IMPOSING CONSECUTIVE PRISON TERMS AND FAILING TO PROPERLY CONSIDER THE SENTENCING FACTORS SET FORTH IN
{5} Marshall argues in his assignment of error that his sentence is contrary to law.
{6} Despite Marshall‘s assignment of error regarding the Kalish sentencing standard, this court has recently established that “the standard of review set forth in
{7} Instead, an appellate court may take any action authorized by
{8} A sentence is not clearly and convincingly contrary to law where the trial court considers the purposes and principles of
{9} According to
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:
(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.
(Emphasis added.) Therefore, according to the statute, before a trial court can order consecutive sentences, it must find that (1) the consecutive sentence is necessary to protect the public from future crime or to punish the offender, and (2) that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public. In addition to these two findings, the court must find one of the three factors, as enumerated in subsections (a) through (c).
{10} As used in the statute, the verb “finds” means that the court “must note that it engaged in the analysis” required by the statute. State v. Edmonson, 86 Ohio St.3d 324, 326 (1999). “The statutory language itself does not have magical powers. Instead, it is merely a vehicle to ensure that the trial court engaged in the required analysis. Even so, there must be some reference in the record that the trial court considered the statutory requirements and made the requisite findings.” Warren, 2013-Ohio-3483 at ¶ 16.
{11} A trial court‘s general statements as to why the trial court believed a prison term was necessary do not constitute specific findings as required by the statute. State v. Fort, 8th Dist. Cuyahoga No. 80604, 2002-Ohio-5068, ¶ 87. Nor does an indication in the record that a trial court may have intended to make a finding fulfill the statutory requirement where
{12} Compliance with
{13} As stated by the Eighth District Court of Appeals, sentencing courts
are clearly bound by the stricter standard for the imposition of consecutive sentences created by the General Assembly in H.B. 86. The revived consecutive sentencing statute requires that the trial court make separate and distinct findings before imposing consecutive sentences. The legislation envisions and prescribes a clear delineation, a preface to the act of imposing the greater term of imprisonment that is effectuated by consecutive sentences. The law mandates an introduction, by way of findings, to the act of imposing the consecutive sentences so that the trial court‘s intent and purpose are clear. “If the word ‘findings’ is to have any meaning at all, it means nothing less than the court must ‘engage[ ] in the required analysis and select [ ] the appropriate statutory criteria’ before ordering sentences to be served consecutively.”
State v. Crider, 8th Dist. Cuyahoga No. 99396, 2013-Ohio-4594, ¶ 23, quoting Edmonson, 86 Ohio St.3d at 326. This court has stated similar reasoning for requiring the trial court to expressly make the consecutive sentence findings on the record.
Appellate review of a trial court‘s statements at the sentencing hearing becomes increasingly difficult when the trial court does not at least track the language of the statute to some extent. If the precise words of the statute are not used, it must be clear from the record that the trial court engaged in the appropriate analysis. In other words, the trial court must make an “equivalent finding to the factor that it finds exists,” or one that uses “conceptually equivalent phraseology.” The failure to track the wording of the statute forces appellate courts to conduct an analysis of the linguistic equivalency of the trial court‘s statements as compared to the language of the statute. This analysis is difficult and the result is not always predictable.
State v. Kuykendall, 12th Dist. Clermont No. CA2004-12-111, 2005-Ohio-6872, ¶ 24-25.
{14} After reviewing the record, the trial court failed to make the necessary findings as required by
{15} For example, according to
{16}
{17} There is some overlap in the factors within
{18} The trial court sentenced Marshall after reviewing a presentence investigation report and giving Marshall the opportunity to address the court. The court then stated,
All right. With respect to that then, Mr. Marshall, you know, taking into account the seriousness factors and the purposes and principals [sic] of sentencing, specifically with you regarding the recidivism factors I think are important, I‘ve read the pre-sentence investigation. You know, at the time of this offense, you were on post-release control. You do have a history of engaging, you have a history of criminal activity, and I‘m not sure given the close proximity to this offense - that you have responded all that favorably to the previous sanctions. I just don‘t see how a prison sentence is not appropriate in this case. I think for me not to send you to prison in this case would seriously demean the seriousness of the offense and I don‘t think it does justice to your record. So, I‘m going to find that you are not amenable to community control and I‘m going to sentence you to prison in this case. I am also going to revoke your post-release control because Mr. Marshall when you‘re put on post release control --.
At that point, Marshall asked the court if he could address the court once more, and then
Well, Mr. Marshall, I don‘t dispute that everything you just said, except for the not getting in trouble part, because we have this new felony conviction, which is significant. I don‘t dispute that what you‘re saying is not true. And, I do take into account the fact that you are doing better now. But, what you have to understand is, that your history with the Court and with the system is such that when you come before me - - you don‘t get the benefit of the doubt anymore. You had the benefit of the doubt way back when when [sic] you were a first time offender. You got the benefit of the doubt. You know you got sent to prison, they release you on post-release control, they give you rules to follow and you don‘t follow the rules, Mr. Marshall. So, I can‘t sit up here and say that there‘s going to be no consequence for the fact that there was a decision to put you on post-release control, you violated the terms of this post-release control and for me to say that there is no sanction for that, I‘m not willing to do that. I laud your efforts to turn your life around and I am very hopeful that you will continue in these efforts when you‘re released from prison, but you are going to prison in this case. I‘m going to revoke your post-release control and I am going to impose 12 months on that. I‘m going to impose six months on the new charge and those will be consecutive to each other.
{19} The prosecutor then reminded the trial court that the minimum sentence for a third-degree felony is nine months, and the trial court changed the sentence to 12 months on the postrelease control and nine months on the having weapons under disability charge. The sentences remained consecutive to each other.
{20} Despite the trial court‘s express reference to the purposes and principles of sentencing and recidivism factors, the trial court did not make reference to the consecutive sentence findings. Even if we were to attempt to parcel out findings from the trial court‘s colloquy, which we are not permitted to do, the colloquy lacks the necessary reference to some
{21} Stated once more, the trial court was required to make three specific findings:
{22} The record is clear that Marshall was on postrelease control at the time of his crime, thus fulfilling the third finding requirement. However, regarding the first two enumerated findings, the trial court never found that the consecutive sentence was necessary to protect the public from future crime or to punish the offender; or that the consecutive sentences were not disproportionate to the seriousness of Marshall‘s conduct and to the danger he poses to the public.
{23} While it is true that the trial court stated, “I just don‘t see how a prison sentence is not appropriate in this case,” and determined that there had to be “consequences” for Marshall‘s actions, these general statements do not fulfill the statutory requirement to make a specific finding that consecutive sentences were necessary and not otherwise disproportionate.
{24} Without doubt, the trial court‘s statements indicate its belief as to why a prison sentence was necessary and why community control was not appropriate. However,
{25} Having found that the trial court failed to make the necessary findings before
{26} Reversed and remanded for resentencing consistent with this Opinion.
M. POWELL, J., concurs.
RINGLAND, P.J., concurs separately.
RINGLAND, P.J., concurring separately.
{27} I agree with the decision of the majority that we are not permitted to parcel out findings from the trial court‘s colloquy and must require specific findings under