Lead Opinion
{¶ 2} In November 2002, Phillips was charged with four counts of burglary and one count of possessing criminal tools. He pled guilty to one count of burglary, a felony of the second degree, and two counts of burglary, felonies of the third degree. Each count involved a separate offense occurring on a separate day and involving a different victim. The third degree felonies carried a pоtential penalty of one to five years' incarceration, and the second degree felony carried a potential penalty of two to eight years' incarceration. The State nolled the remaining counts.
{¶ 3} The trial court conducted a sentencing hearing in March 2003. Both Phillips and his lawyer addressed the court. The victim of the second degree felony also gave a statement about the impaсt which the burglary has had on her life. She was home at the time Phillips entered her apartment, and it terrified her and caused her to suffer psychological harm. Although she was not physically harmed, she has trouble sleeping and is afraid to leave her apartment by herself.
{¶ 4} Although the trial court interrupted Phillips before he had an opportunity to complete his statement, the court found he expressed genuine remorsе for having caused the victim any harm.
{¶ 5} Prior to this incident, Phillips, who was 33 years old, had led a law-abiding life, with absolutely no prior criminal record. He had owned his own home, owned his own business, and had excellent credit. However, he claimed that in 1998 he was injured in an automobile accident and became addicted to the pain medication which had been prescribed for him. He further claimed that his addiction eventually led tо a heroin addiction which caused him to lose his business, his home, and his credit. He committed the burglaries to obtain cash to sustain his habit.
{¶ 6} He voluntarily attempted drug treatment on two prior occasions but had no heаlth insurance and, thus, could not afford the cost of any long-term inpatient program.
{¶ 7} When Phillips was caught committing the last burglary, he cooperated with police and gave a complete admission to thrеe other burglaries. Notwithstanding his genuine show of remorse and his lack of any criminal record, the trial court found he may be a recidivist. The court also found the harm he caused to the victim was serious enough to justify the imposition of consecutive sentences. Accordingly, the trial court sentenced Phillips to a total of ten years' incarceration on the three charges. Phillips appeals, raising one assignment of error.
{¶ 8} In his sole assignment of error, Phillips argues that the trial court erred by imposing consecutive sentences without setting forth the mandatory findings with supporting reasons as required by R.C.
{¶ 9} R.C.
{¶ 10} R.C.
{¶ 11} An offender convicted of a third degree felony may be sentenced to a prison term of one, two, three, four, or fivе years. R.C.
{¶ 12} In the instant case, the trial court sentenced Phillips, а first-time offender, to a prison term of four years for the second degree felony and a term of three years for each of the third degree felonies, to be served consecutively, for a total of ten years. Yet, the court never explained why it was imposing more than the minimum sentence for each of these offenses or made the findings required by R.C.
{¶ 13} In State v. Edmonson (1999),
"Unless a court imposes the shortest term authorized on a fеlonyoffender who has never served a prison term, the record of the sentencinghearing must reflect that the court found that either or both of the twostatutorily sanctioned reasons for exceeding the minimum tеrm warrantedthe longer sentence."
{¶ 14} Here, not only had Phillips never served a prison term, the trial court noted on the record that Phillips had no prior history of criminal convictions and that this was the first time he had ever been charged with any crimes. The court never explained why the minimum sentence for these offenses would "demean the seriousness" of Phillips' conduct or would "not adequately protect the public from future crime by" Phillips. Indeed, thе court stated that recidivism was "unlikely" because Phillips had "no criminal convictions." Therefore, because the record of the sentencing hearing does not reflect that the court found either or both of the two statutorily sanctioned reasons for exceeding the minimum term, we reverse and remand for resentencing.
{¶ 15} We also find that consecutive sentences were improper. R.C.
"(a) The offender committed the multiple offenses while the offenderwas awaiting trial or sentencing, was under a sanction imposed pursuantto section
{¶ 16} Thus, R.C.
{¶ 17} Once the trial court has made a category finding, the trial court must give its reason for imposing consecutive terms. R.C.
{¶ 18} "Reasons" mean the trial court's basis for its "findings." Id. The failure to prоvide such information is reversible error requiring resentencing. See R.C.
{¶ 19} Here, although the trial court stated that Phillips might be a recidivist because of his addiction, it also noted that Phillips had absolutely no prior criminal rеcord. Because he had no criminal record, he did not commit these burglaries while on bail, awaiting sentencing, or while under any form of community control sanction.
{¶ 20} The court also noted that Phillips demonstratеd genuine remorse for having harmed the victims. Therefore, the recidivism factors were not present and the court failed to explain how consecutive sentences were necessary to protect the public, especially in light of the absence of any prior criminal record.
{¶ 21} There is also insufficient evidence to support the court's finding that consecutive sentences are not disproportionate to the seriousness of Phillips' conduct. Phillips entered the apartments looking for cash. There was no evidence that he was armed or that he intended to cause physical harm to persons or property (other than steal cash). No one was physically harmed, and the total amount of money stolen in all of these burglaries was $248. When he was caught, Phillips fully cooperated with the poliсe and confessed that he had also committed the other burglaries.
{¶ 22} Although one of the victims was psychologically harmed, all victims are "harmed" when a burglar enters their home while they are present. The сourt failed to explain how this victim's psychological harm was more serious than harm caused by burglars in other cases. Moreover, R.C.
{¶ 23} Therefore, we find the trial court's imposition of consеcutive sentences fails to comply with the requirements of R.C.
{¶ 24} Accordingly, the sole assignment of error is sustained. Phillips' sentence is vacated and the case remanded for resentencing in accordance with this opinion.
The sentence is vacated, and this cause is remanded for resentencing.
James J. Sweeney, J. Concurs; Michael J. Corrigan, P.J. Dissents.
Dissenting Opinion
{¶ 25} I respectfully dissent from the majority and would affirm the trial court's decision to impose consecutive sentences because the record is replete with the trial court's findings and reasons for imposing consecutive sentences in compliance with R.C.