2003 Ohio 7000 | Ohio Ct. App. | 2003
{¶ 3} Initially, appellant was facing life imprisonment (R.C.
{¶ 4} A sentencing hearing was held on September 18, 2002. After the mother of the victims made a statement, testimony was presented by Dr. Douglas Darnall regarding the psychological report he prepared on appellant. At the conclusion of the hearing, the trial court sentenced appellant to ten years on each count, to be served concurrently. Appellant timely appeals from that sentence, raising one assignment of error.
{¶ 6} Appellant argues that his sentence is not in compliance with the statutory guidelines for felony sentencing. Specifically, appellant argues that the court failed to comply with R.C.
{¶ 7} Under R.C.
{¶ 8} While it is widely acknowledged that the court must recognize the purposes set forth in R.C.
{¶ 9} Furthermore, an examination of the sentence in light of the circumstances of the offense and those purposes listed in R.C.
{¶ 10} Although a trial court must consider the overriding purpose of felony sentencing when sentencing an offender for a felony, the trial court must consider additional criteria and make specific findings if it chooses to sentence an offender to the maximum sentence. Under R.C.
{¶ 11} Here, the only two applicable criteria are the greatest likelihood of recidivism or the offender committed the worst form of the offense. The trial court's judgment entry states that appellant "poses the greatest likelihood of committing future crimes." However, making this finding in the judgment entry alone is not sufficient to comply with the requirement in R.C.
{¶ 12} "All interested parties are present at the hearing. Thus, an in-court explanation gives counsel the opportunity to correct obvious errors. Moreover, an in-court explanation encourages judges to decide how the statutory factors apply to the facts of the case. If these important findings and reasons were not given until the journal entry there is danger that they might be viewed as after-the-fact justifications." Id. (internal cites omitted).
{¶ 13} Therefore, the trial court was required to make the findings and reasons supporting that finding at the sentencing hearing.
{¶ 14} At the sentencing hearing the trial court made the following statement, "* * * recognizing that everything points to a high factor — factor perhaps, not percentage, but recidivism at a later date, * * *." (Tr. 42). This statement does not constitute a finding that appellant has the greatest likelihood of committing future crimes. While magic or talismanic words are not required, the trial court must make an equivalent finding to the factor that it finds exists. State v.McCarthy, 7th Dist. No. 01BA33, 2002-Ohio-5185, at ¶ 12. A high factor of recidivism is not an equivalent finding to the greatest likelihood of committing future crimes. Id. An equivalent finding would be "highest," not "high." Id. Moreover, the record is devoid of any indication that the trial court found that appellant committed the worst form of the offense. As such, the trial court failed to make the requisite findings under R.C.
{¶ 15} Upon remand the trial court must comply with the mandates ofComer that the requisite finding under R.C.
{¶ 16} Additionally under this assignment of error, appellant argues that the trial court failed to consider the factors listed in R.C.
{¶ 17} Here, while the trial court did not specifically go through every factor listed in R.C.
{¶ 18} For the foregoing reasons, the decision of the trial court is reversed, appellant's sentence is vacated, and this case is remanded for a new sentencing hearing.
Waite, P.J., and DeGenaro, J., concur.