STATE OF OHIO, Plаintiff-Appellee, vs. SEAN MITCHELL, Defendant-Appellant.
Case No. 13CA13
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT MEIGS COUNTY
Released: 03/19/15
[Cite as State v. Mitchell, 2015-Ohio-1132.]
McFarland, A.J.
APPEARANCES:
Timothy Young, Ohio Public Defender, and Katherine R. Ross-Kinzie, Assistant State Public Defender, Columbus, Ohio, for Appellant.
Colleen S. Williams, Meigs County Prosecutor, and Jeremy L. Fisher, Assistant County Prosecutor, Pomeroy, Ohio, for Appellee.
McFarland, A.J.
{¶1} Sean Mitchell (Appellant) appeals the November 8, 2013 judgment entry of sentence in which he received a five-year consecutive term of imprisonment in the Meigs County Court of Common Pleas. Appellant contends his sentence is contrary to law beсause: (1) the trial court failed to consider his military service as a factor during sentencing as required by
FACTS
{¶2} Appellant was indicted on or about December 10, 2009 on four counts: aggravated robbery, a felony of the first degree, in violation of
{¶4} Appellant was eventually brought back to Meigs County to face the Ohio charges. On August 29, 2013, he voluntarily entered guilty pleas to all four counts of the indictment, pursuant to a plea arrangement with the State of Ohio. As part of the plea agreement, the State of Ohio recommended a four year sentence in prisоn, to run consecutively to the Mississippi sentence. The State of Ohio also agreed to a merger of counts. The trial court deferred sentencing in order to obtain a pre-sentence investigation report.
{¶5} On September 30, 2013, Appellant was sentenced. Prior to imposing sentence, the trial court heard several victim impact statements. Appellant provided 13 letters from his supporters. He also gave testimony. Appellant testified he was 45 years old, divorced, with two teenage sons. He testifiеd he earned a degree from Ohio University. Appellant testified he
{¶6} Appellant further testified he enlisted in the Ohio National Guard in 2008 or 2009. Had his crimes not occurred, he was scheduled to go on regular duty in January 2010. Appellant testified he had been diagnosed with bipolar disorder prior to his enlistment in the National Guard, however, he took himself off his treatment in order to re-enter the military. Appellant also testified, as a precursor to his crimes, he had been recently divorced after 15 years of marriage.
{¶7} In sum, Appellant testified he lied about his bipolar condition and lied to his family about his military status. He testified he had no place to stay. Desperate for money, he planned the robbery in just a few short minutes. After the robbery took place, he bought a van and left Ohio the next day. He led his family to believe he was in training in Fort Benning, Georgia. When he robbed the bank in Mississippi, it was less than a thousand feet from a police department. Appellаnt testified he was hoping law enforcement officers would kill him. However, he surrendered and admitted his crimes in Mississippi and Ohio.
{¶8} Appellant testified his mental health is now stabilized. He testified he lives a quiet life in the Mississippi prison system, takes his
{¶9} The trial court noted, pursuant to State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, the counts would all merge under count one, aggravated robbery, for purposes of sentencing.1 The trial court imposed a sentence of five years in the Ohio Penitentiary, to be served consecutively to his sеntence in Mississippi. As part of the sentence, Appellant was order to have no contact with the Farmers Bank employees or the bank premises. He was further ordered to make restitution to the bank, pay court costs, and continue with mental health counseling and treatment.
{¶10} This timely appeal followed.
ASSIGNMENTS OF ERROR
“I. FAILURE TO CONSIDER MILITARY SERVICE AS A FACTOR DURING SENTENCING AS REQUIRED BY
“II. THE TRIAL COURT ERRED WHEN IT IMPOSED MR. MITCHELL‘S PRISON SENTENCE CONSECUTIVELY TO HIS MISSISSIPPI SENTENCE WITHOUT JOURNALIZING
A. STANDARD OF REVIEW FOR FELONY SENTENCES
{¶11} Pursuant to
B. LEGAL ANALYSIS
1. Assignment of Error One
{¶12} Appellant argues that the trial court‘s failure to make any reference to the
{¶13}
“A) Unless otherwise required by section
2929.13 or2929.14 of the Revised Code, a court that imposes sentence under this chapter upon an offender for a felony has the discretion to determine the most effective way to comply with the purposes and principles of sentencing set forth in2929.11 of the Revised Code. In exercising that discretion, the court shall consider the factors set forth in division (B) and (C) of this section relating to the seriousness of the conduct, the factors provided in divisions (D) and (E) of this section relating to the likelihood of the offender‘s recidivism, and the factors set forth in division (F) of this section pertaining to the offender‘s service in the armed forces of the United States and, in addition, may consider any other factors that are relevant to achieving those purposes and principles of sentencing.* * *
(F) The sentencing court shall consider the offender‘s military service record and whether the offender has an emotional mental, or physical condition that is traceable tо the offender‘s service in the armed forces of the United States and that was a contributing factor in the offender‘s commission of the offense or offenses.”
{¶14}
“Newly enacted
R.C. 2929.12(F) does not require any particular outcome. It simply directs the trial court to consider a defendant‘s military service. The record clearly indicates the trial court did take into account Appellant‘s military service at sentencing.” Id., at ¶ 2.
{¶15} The appellate court in Eltringham also noted the trial court received a number of documents into evidence at sentencing, including a doctor‘s letter stating he had diagnosed Eltringham with PTSD, panic disorder, and anxiety state disorder. Both the prosecutor and Appellant‘s counsel spoke about the military service record of Appellant. Id., at ¶ 9. “The trial court did take into account Appellant‘s military service and was
{¶16} We begin by examining the transcript of Appellant‘s sentencing hearing in pertinent part:
“Thank you Mr. Mitchell. The Court has considered the principles and purposes of sentencing. I‘ve already referred to all the documents that have been submitted to me in which I reference in making my decision as well as the statements from the victims and counsel and Mr. Mitchell which have been made today and at the time of the change of plea hearing.
* * *
The Court has balanced the recidivism and seriousness factors as required by Revised Code 2929.12. The Court finds that the more serious factors outweigh those of less seriousness. The mental injury, certainly suffered by the victims of the offense due to Mr. Mitchell‘s conduct and so eloquently described in the court today by Ms. Durst and previously by Ms. Dailey and in their victim impact statements. Mr. Reed also described the injury that has been suffered to his employees of the bank by way of psychological and emotional harm.
Mr. Mitchell threatened to blow up the bank. He had a sack which he said had a bomb. There were multiple victims. The potential harm to victims and real estate if he had the bomb, he stole over six thousand dollars ($6,000.00) There are not less serious factors; therefоre, the more serious factors outweigh the less serious.
* * *
The Court recognizes the statements of Mr. Mitchell today and he‘s indicated that he is remorseful.
* * *
Now the Court has certainly considered the length of the sentence and the wishes of the victims in this particular case. I‘ve also considered the statements here from the defense and his supporters. ”
{¶17} While the trial court is required to consider the
{¶18} In State v. Cave, 2nd Dist. Clark No. 09-Ca-6, 2010-Ohio 1237, ¶ 10, the appellate court held that Cave‘s sentence was not clearly and convincingly contrary to law merely because the trial court failed to
{¶19} The judgment entry of sentencing, in Appellant‘s case, states:
“The Court has considered the record, any oral statements, any victim impact statement, any plea agreement, any victim approval, and any pre-sentence report prepared, as well as the principles and purposes of sentencing under Ohio Revised Code Section 2929.11, and balanced the seriousness and recidivism factors Oho Revised Code Section 2929.12.
For reasons stated on the record, and after consideration of the factors under Ohio Revised Code Section 2929.12, the Court also finds that prison is consistent with the purposes of the Ohio Revised Code Section 2929.11 and the Defendant is not amenable to an available community control sanction.”
{¶20} Here, Appellant has not met his burden in demonstrating the trial court‘s alleged failure to consider
{¶22} Here, the trial court was well aware of Appellant‘s past military service. The trial court was also aware of Appellant‘s bipolar condition. Simply because the trial court did not enumerate
{¶23} The trial court could have sentenced Appellant to a maximum sentence of ten years but instead, ordered a sentence of five years. This
2. Assignment of Error Two
{¶24} Appellant argues that the trial court erred by ordering his prison sentence to run consecutively to the sentence imposed upon him in Mississippi, without journalizing statutorily required findings pursuant to
{¶25} Under
- The offender committed one or more of the multiple offenses while the offender was awaiting trial or sеntencing, 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 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.
- The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender. State v. Bever, 4th Dist. Washington No. 13CA21, 2014-Ohio-600, ¶16.
{¶26} “In 2003, the Ohio Supreme Court held in State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165, a court may not impose consecutive
{¶27} We begin by referencing the transcript of the sentencing hearing which contains the trial judge‘s language when he imposed sentence, as follows:
“With regard to consecutive sentences,
2929.14(C)(4) if multiple prison terms are imposed on the offender forconvictions, if multiple offenses, the Court may require the defendant to serve the sentences consecutively if the Court finds that the consecutive service is necessary to protect the public from future crimes or to punish the offender and that consecutive sentences were not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender possesses to the public and the Court finds any one of the following and there‘s three different fаctors in C, is the defendant‘s history of criminal conduct demonstrates a consecutive sentence is to protect the public from future crimes by the offender. The Court has found the seriousness factors outweigh the less serious factors and the recidivism factors outweigh the less likely factors and stated the reasons for doing so and incorporates the reasons herein.
Defendant committed aggravated robbery in Meigs County at the Farms Bank in Tuppers Plains in September. He threatened multiple people and the real estate. He stole over six thousand dollars ($6,000.00). He committed a second bank robbery in Mississippi sixty days later. And the Court finds that the consecutive sentences is necessary to protect the public from future crimes and to punish the offender and that the consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public. And the Court also finds that because of the two bank robberies within sixty days of one another, that consecutive sentences to protect the public from future crimes committed by the offender that consecutive sentences are necessary.”
Furthermore, the judgment entry of sentence, here, states:
“IT IS THEREFORE ORDERED that the Defendant be sentenced to the Ohio Department of Rehabilitation and Correction for five (5) years on each count, one through four. Counts One through Three, Aggravated Robbery, Robbery, and Theft respectively, will merge into Count Four, Kidnapping, for
purposes of sentencing for a total aggregate sentence of five (5) years. This sеntence shall run consecutive to the sentence Defendant is currently serving in Mississippi. The Court gave the reason for the imposition of consecutive sentences.”
{¶28} Here, the trial court sentenced Appellant to five years in the Ohio Penitentiary to be served consecutively to that of Mississippi. When sentencing an offender, each case stands on its own unique facts. Lister, supra, at ¶ 13 citing State v. Stamper, 12th Dist. Butler No. CA2012-08-166, 2013-Ohio-5669, ¶ 15, quoting State v. Mannarino, 8th Dist. Cuyahoga No. 98727, 2013-Ohio-1795, ¶ 58. While the sentencing court is required to make [certain] findings, it is not required to give reasons explaining the findings. Bever, supra, at ¶ 17. H.B. 86 does not require the trial court tо give its reasons for selecting the sentence imposed. State v. Williams, 5th Dist. Licking No. 11-CA-115, 2012-Ohio-3211, ¶ 47, (Hoffman, P.J., concurring).
{¶29} Furthermore, the sentencing court is not required to recite any “magic” or “talismanic” words when imposing consecutive sentences. Id.; State v. Clay, 4th Dist. Lawrence No. 11CA23, 2013-Ohio-4649, ¶ 64. However, it must be clear from the record that the sentencing court actually made the required findings. Bever, at ¶17; Clay, at ¶ 64. A failure to make
{¶30} Here, a review of the record reveals the trial court engaged in the required three-steр analysis under
{¶31} It is problematic, however, that the trial court incorporated its findings in the journal entry of sentencing as follows: “[t]his sentence shall run consecutive to the sentence Defendant is currently serving in Mississippi. The Court gave the reason for the imposition of consecutive sentences.” This language is not sufficient and does not comport with the law as set forth by the Supreme Court of Ohio in State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at the syllabus. See also State v. Collins, 4th Dist. Pickaway No. 13CA27, 2014-Ohio-4224, ¶ 32. In Bonnell, the Court held:
“[i]n order to impose consecutive terms of imprisonment, a trial court is required to make findings mandated by
R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing entry, but it has no obligation to state reasons to support its findings.” See also Id. at ¶ 29. “A trial court‘s inadvertent failure to incorporate the statutory findings in the sentencing entry does not render the sentence contrary to law; rather, such a clerical mistake may be сorrected through a nunc pro tunc entry to reflect what actually occurred in open court.” Id. at ¶ 30.
{¶32} Based on the authority set forth in Bonnell, we find the trial court‘s failure to specifically incorporate its findings supporting imposition of Appellant‘s sentence consecutive to the Mississippi
JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
It is ordered that the JUDGMENT BE AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. Appellant and Appellee shall split costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Meigs County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate аs of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Harsha, J. & Abele, J.: Concur in Judgment and Opinion.
For the Court,
BY:
Matthew W. McFarland,
Administrative Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.