2005 Ohio 3833 | Ohio Ct. App. | 2005
Lead Opinion
"I. The trial court erred by sentencing the appellant toconsecutive sentences."
{¶ 2} Having reviewed the record and pertinent law, we vacate Rivera's sentence and remand the matter for resentencing. The apposite facts follow.
{¶ 3} On December 16, 2003, the Cuyahoga County Grand Jury indicted Rivera on sixty-four counts. The counts consisted of thirty counts for rape in violation of R.C.
{¶ 4} Rivera pled guilty to two counts of rape, six counts of gross sexual imposition, and six counts of kidnapping. The remaining counts were dismissed.
{¶ 5} Rivera was sentenced to six consecutive years on each of the rape counts and one year on each of the remaining counts to be served concurrently to the rape sentences for a total sentence of twelve years. Rivera now appeals.
{¶ 6} In his sole assigned error, Rivera argues that the trial court failed to state the required findings and reasons for imposing consecutive sentences pursuant to R.C.
{¶ 7} In imposing consecutive prison terms for convictions of multiple offenses, the trial court must make certain findings enumerated in R.C.
{¶ 8} When the trial court makes the above findings, it must state on the record its reasons for the findings.2
{¶ 9} In the instant case, in imposing consecutive sentences, the trial court stated:
"I don't think that anything like the minimum time is appropriate for several reasons. One, because there are two victims and incidents that occurred over a period of time. This isn't like one thing that happened in one drunken night. This was something that you did over a long time and you took advantage of these two girls and of the trust that was put in you.
"The other reason is that you have a previous conviction for a sexually oriented offense and went to prison and went back to the same thing. And that's — that also makes it tougher to deal with. So your sentence is going to be counts 1 and 56, those are the two rapes that you pled to, six years on each of those. Those sentences, however, are to be served consecutively with one another for a total sentence of 12 years.
"The remaining counts, 2, 3, 4, 32, 33, 34, 57, 58, 59, 62, 63 and 65, those sentences will be one year. All sentences to be served concurrent with one another and concurrently with the 12 years you're doing on counts 1 and 56.
"I think it's appropriate that you do a lengthy period in prison. I think it's appropriate that you see light at the end of the tunnel, so that at some time before you're an old man you will be able to get back and we hope lead a decent life.
"I do have to state for the record that I believe that anything less than six years consecutively on these counts 1 and 56 would both demean the seriousness of the offenses and would not adequately protect the public based upon what I see in this case and also based on your prior record, particularly on the other sexual battery case."3
{¶ 10} The trial court failed to make the requisite findings pursuant to R.C.
{¶ 11} Rivera's counsel had requested the minimum sentence. The trial court, in responding to counsel's request, stated that a minimum sentence was not appropriate. It then went on to state that based on the facts of the case and Rivera's prior history, anything less than the consecutive sentence "would both demean the seriousness of the offenses and would not adequately protect the public." This is the exact language set forth in R.C.
{¶ 12} Although the court's finding the sentence was necessary "to protect the public" because of Rivera's prior criminal history, could satisfy the first and last prongs of the R.C.
Sentence vacated and cause remanded for resentencing.
Sentence is vacated and the cause is remanded for resentencing.
It is, therefore, ordered that said appellant recover of said appellee his costs herein.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Dyke, J., Concur; Kilbane, J., Concurring and Dissenting with attached opinion.
Dissenting Opinion
{¶ 13} I respectfully dissent from the majority's opinion and would instead order a limited remand to allow the court to place the omissions in a supporting journal entry.
{¶ 14} In both State v. Gray, Cuyahoga App. No. 81474, 2003-Ohio-436, and State v. Bolton (2001),
{¶ 15} R.C.
"If the sentencing court was required to make the findings required by division (B) or (D) of section
{¶ 16} If sentences such as Rivera's are vacated in their entirety, any interest in judicial economy is lost and instead the defendant may now file "multiple appeals of the same sentence on different grounds either because new issues arise as a result of the remand or because the defendant chooses to argue issues after the remand which could have been raised before." State v.Embry (June 10, 2004), Cuyahoga App. No. 82998, 2004-Ohio-2986. See, e.g., State v. Morton, Cuyahoga App. No. 82095, 2003-Ohio-4063; State v. Rotarius, Cuyahoga App. No. 81555, 2003-Ohio-1526. These situations would not arise if the matter was remanded for supplementation in a journal entry. Therefore, one appeal would conclude all issues to which R.C.