State v. MellottState v. Mellott
CALLAHAN, Judge.
{1} Appellant, Rocco Mellott, appeals his sentences from the Wayne County Common Pleas Court. This Court affirms in part, but reverses the imposition of the consecutive sentence and remands the matter for the trial court to engage in the necessary sentencing analysis under
I.
{2} Mr. Mellott pled guilty to domestic violence, a third degree felony, in case 2016 CRC-I 000055. He also pled guilty to theft, a fifth degree felony, in case 2016 CRC-I 000114. After a presentence investigation, Mr. Mellott was sentenced to thirty-six months in prison for the domestic violence and six months in prison for the theft. The sentences were ordered to be served consecutively. Mr. Mellott now appeals, raising two assignments of error.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. MELLOTT BY ORDERING THE MAXIMUM SENTENCE ON THE COUNT OF DOMESTIC VIOLENCE AND THE SENTENCE WAS CONTRARY TO LAW.
{3} Mr. Mellott argues that he should not have received the maximum sentence for the domestic violence charge because “[h]is criminal record [] is not particularly egregious” and he has led a “relatively law abiding life[.]” Mr. Mellott further argues “[t]here is no evidence in the record that [he] was not amendable [sic] to treatment, rehabilitation, or whether a lesser prison sentence would have been sufficient to protect the public from future crime by [him] while still accomplishing the goal of punishment.”
{4} In reviewing a felony sentence, “[t]he appellate court‘s standard for review is not whether the sentencing court abused its discretion.”
{5} During the sentencing hearing the trial judge noted the seriousness of the victim‘s injuries, Mr. Mellott‘s two prior domestic violence convictions, and the fact that each of the domestic violence offenses was committed against a different victim. The trial judge found that Mr. Mellott had not “really expressed that much remorse.” In making these findings, the trial judge stated he had reviewed the presentence investigation report.
{7} Mr. Mellott also argues that the trial court erred when it simply made a conclusory statement that the maximum sentence would not be burdensome on government resources, without providing any analysis. However, Mr. Mellott has cited no legal authority in support of his assertion that a trial court must provide such an analysis. “An appellant bears the burden of formulating an argument on appeal and supporting that argument with citations to the record and to legal authority.” State v. Watson, 9th Dist. Summit No. 24232, 2009-Ohio-330, ¶ 5, citing App.R. 16(A)(7). “This Court will not create an argument on the behalf of an appellant.” Id., citing Cardone v. Cardone, 9th Dist. Summit No. 18349, 1998 WL 224934, *8 (May 6, 1998).
{8} Mr. Mellott‘s first assignment of error is overruled.
THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. MELLOTT BY ORDERING THE SENTENCE ON THE COUNT OF THEFT TO BE SERVED CONSECUTIVELY TO THE SENTENCE FOR DOMESTIC VIOLENCE AND THE SENTENCE WAS CONTRARY TO LAW.
{9} Mr. Mellott argues that the trial court failed to comply with
{10}
(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.
{11} In State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, the Ohio Supreme Court held that to impose consecutive sentences, “a trial court is required to make the findings
{12} Thus, Bonnell places upon the trial court an affirmative duty to state the applicable
{13} This Court is unable to review whether any of the
{14} Here, when sentencing Mr. Mellott for the theft offense, the trial judge said, “[s]o[,] I think it‘s appropriate[,] since this is an entirely different circumstance[,] I think it‘s appropriate to have consecutive sentences.” The trial court made no further statements regarding the imposition of a consecutive sentence. There was no analysis under
{15} The sentencing entry for the theft charge states: “Consecutive sentence is necessary to protect the public from future crime. The sentence is not disproportionate to the seriousness of the offender‘s conduct.” The sentencing entry does not contain a mandatory finding under
{16} As a result of the lack of any analysis under
{17} Mr. Mellott‘s second assignment of error is sustained.
III.
{18} Mr. Mellott‘s first assignment of error is overruled and his second assignment of error is sustained. The judgment of the Wayne County Common Pleas Court is affirmed in part, reversed in part, and this matter is remanded for the trial court to engage in the necessary sentencing analysis under
There were reasonable grounds for this appeal.
Judgment affirmed in part, reversed in part, and cause remanded.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
LYNNE S. CALLAHAN
FOR THE COURT
SCHAFER, P. J.
TEODOSIO, J.
CONCUR.
APPEARANCES:
JARED C. ROBERTS, Attorney at Law, for Appellant.
DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting Attorney, for Appellee.