*1
[Cite as
State v. Roberts
,
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 104474
STATE OF OHIO
PLAINTIFF-APPELLEE vs.
DOUGLAS ROBERTS
DEFENDANT-APPELLANT JUDGMENT:
AFFIRMED; REMANDED Criminal Appeal from the
Cuyahoga County Court of Common Pleas Case Nos. CR-12-561797-A, CR-13-578409-A, CR-14-584010-A,
CR-14-584791-A, and CR-14-586073-A
BEFORE: S. Gallagher, J., McCormack, P.J., and Boyle, J.
RELEASED AND JOURNALIZED: December 14, 2017 *2 ATTORNEY FOR APPELLANT
Erin R. Flanagan
Erin R. Flanagan, Esq., Ltd.
75 Public Square, Suite 920
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Anthony Thomas Miranda
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113 *3 SEAN C. GALLAGHER, J.: Douglas Roberts, also known as Franklin Jenkins, appeals the imposition of
consecutive sentences following a limited remand in
State v. Jenkins
, 8th Dist. Cuyahoga
No. 101899,
{¶2}
In
Jenkins
, the imposition of consecutive sentences, culminating in the
aggregate prison term of 18 years and 11 months, was reversed under the authority of
State v. Bonnell
,
from Jenkins :
The sentence resulted after [Roberts’s] guilty pleas in five separate cases, and included consecutive terms.
In the first case, Cuyahoga C.P. No. CR-[12]-561797-A, [Roberts] pled to robbery. He was originally sentenced to community control sanctions and ordered to participate in a community-based treatment *4 program. The trial court informed him that he would be sentenced to a four-year prison term if he violated his community control sanctions. [Roberts’s] second case was Cuyahoga C.P. No. CR-[13]-578409-A, in which he pled to breaking and entering. The trial court sentenced him to an 11-month prison term, but suspended the sentence so that he could continue to participate in the treatment program. The court continued his community control sanctions for 18 months, to run consecutive to the first case.
Several months later, [Roberts] entered guilty pleas in three other separate cases. In Cuyahoga C.P. No. CR-14-584010-A, he pled to escape; in Cuyahoga C.P. No. CR-14-586073-A, he pled to two counts of burglary; and in Cuyahoga C.P. No. CR-14-584791-A, he pled to burglary with a notice of prior conviction specification.
In August 2014, the trial court held a sentencing hearing. The court terminated [Roberts’s] community control sanctions in Case Nos. CR-[12]-561797-A and CR-[13]-578409-A, and sentenced him to four years and 11 months, respectively, on those cases. In Case No. CR-14-584010-A, [Roberts] was sentenced to six months; in Case No. CR-14-586073-A, he was sentenced to seven years on each of the two burglary counts, to be served concurrent to each other; and in Case No. CR-14-584791-A, he was sentenced to seven years. With the exception of the six-month sentence in Case No. CR-14-584010-A and the concurrent terms on the two burglary charges in Case No. CR-14-586073-A, the trial court ordered all the other terms to be served consecutively, for an aggregate sentence of 18 years and 11 months.
Jenkins at ¶ 2-6. Thus, the 18-year, 11-month aggregate prison sentence was not the maximum aggregate term at the trial court’s disposal. In his second, third, and fourth assignments of error, Roberts challenges the
validity of the underlying sentences, claiming (1) the prior conviction specification was
contrary to law because the trial court did not rule on or reference the qualifying
conviction at the resentencing hearing; (2) the trial court erred in imposing costs in the
resentencing entry although the costs were properly imposed in the original sentencing;
*5
and (3) the trial court erred in ordering restitution in the resentencing hearing without first
establishing the amounts due through evidence introduced at the resentencing hearing.
We cannot address those three assigned errors, all of which challenge aspects
of the underlying sentence that were not part of the limited remand.
Jenkins,
8th Dist.
Cuyahoga No. 101899,
error in the final sentencing entry in Cuyahoga C.P. No. CR-14-586073-A. The trial
court imposed restitution in the amount of $10,280.60 payable to one of the victims.
The state and Roberts believe that amount should have been $1,028.60 as established at
*6
the original sentencing hearing. A trial court retains continuing jurisdiction to correct
clerical errors in a judgment by nunc pro tunc entry to reflect that which actually was
decided.
State ex rel. Womack v. Marsh
, 128 Ohio St.3d 303,
sentencing findings are not supported by the record. R.C. 2929.14(C)(4) authorizes the
trial court to order consecutive sentences if, as is pertinent to this case, consecutive
service (1) is necessary to protect the public from future crime or to punish the offender;
(2) is not disproportionate to the seriousness of the offender’s conduct and to the danger
the offender poses to the public; and additionally, (3) if the offender committed the
offense while awaiting trial or sentencing, under community control monitoring, or under
postrelease control for a prior offense.
State v. Jones
, 8th Dist. Cuyahoga No. 104152,
that aspect of his sentences. Instead, Roberts claims that the record does not support the second finding, that consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public because the trial court referred to his criminal history collectively as eight “aggravated burglaries.” Further, Roberts claims that the trial court was required to find that the harm caused by the offenses was so great or unusual that no single prison term adequately reflected the seriousness of the offender’s conduct under R.C. 2929.14(C)(4)(b).
{¶9} In this case, Roberts contends that the consecutive sentences were disproportionate to his conduct and the danger he poses to the public because the trial court could not conclude that the multiple offenses he committed while serving community control sanctions, were “so great and unusual that no single prison term for any of the offenses committed as part of any of the course of conduct adequately reflects the seriousness of the offender’s conduct” under R.C. 2929.14(C)(4)(b). This conclusion, however, inappropriately combines the proportionality finding with another, independent finding, one that the trial court was not required to make in this particular case because it is undisputed that Roberts committed the new crimes while serving community control sanctions, under R.C. 2929.14(C)(4)(a). Only one of the subdivision (a)-(c) findings is necessary to support consecutive service of prison terms. Further, the off-the-cuff generalization of Roberts’s history of criminal
conduct is a minor distinction that does not undermine the trial court’s ultimate
*8
conclusion when the totality of the sentencing hearing is considered. If the court made
the required findings in order to impose consecutive sentences, we must affirm those
sentences unless we “clearly and convincingly” find that the record does not support the
court’s findings. R.C. 2953.08(G)(2);
State v. Venes
,
disproportionate to Roberts’s conduct or the danger he poses to the public. Roberts committed numerous burglaries, aggravated burglaries, robberies, receiving stolen property, and breaking and entering crimes against numerous victims over the span of his criminal career dating back to the mid-1980s. Most of that time was spent in prison. *9 Tr. 10:21-24. To put this in perspective, at the end of 2004, Roberts pleaded guilty to burglary and was sentenced to two years in prison. In 2006, Roberts reoffended and almost a year later was sentenced to five years in prison for two burglaries. In 2012, Roberts pleaded guilty to robbery and was sentenced to community control. In 2013, Roberts pleaded guilty to breaking and entering and was sentenced to an additional term of community control. That led to the 2014 cases, which were the result of three more burglaries. That the trial court, in an aside, generalized Roberts’s past convictions as
aggravated burglaries does not undermine the proportionality finding because the trial court was expressly looking at the past offenses as being in the “same genre of conduct” as the current offenses. The trial court was not focused on the aggravated nature of the crimes. The record supports the trial court’s finding. More than ten of Roberts’s convictions involved some form of burglary or theft offense. As the trial court explained to Roberts,
You break into people’s homes. You deprive them of their safety, deprive them of their goods, and you continue to engage in the same conduct despite the fact you’ve been down to prison before, despite the fact that I gave you the opportunity to address that behavior through community sanctions. I don’t believe it’s disproportionate given the fact that you now have — I think it’s eight aggravated burglaries. You’ve got an escape. You know, there’s no changing your behavior.
In context, the trial court’s generalization does not amount to the proportionality finding
not being supported by the record. There must be more.
See, e.g., State v. Spencer
, 8th
Dist. Cuyahoga No. 101131,
{¶13} In this case, we cannot conclude — much less by clear and convincing evidence find — that the record does not support the second finding that consecutive sentences are not disproportionate to Roberts’s conduct and the danger he poses to the public. Roberts’s history of criminal conduct demonstrates the need to prevent Roberts from harming the public through a lengthy incarceration. When Roberts is not incarcerated, he is burglarizing people’s homes. The purpose of R.C. 2929.14(C)(4) is to prevent this type of career criminal from perpetuating a cycle of criminality upon the public. Moreover, R.C. 2929.12 provides that the sentencing court “has discretion to determine the most effective way to comply with the purposes and principles of sentencing set forth in section 2929.11 of the Revised Code[,]” including the minimum sanction necessary to accomplish protecting the public from Roberts and others. In exercising that discretion, the trial court expressly considered the need to incapacitate Roberts as a serial burglar and the need to protect the public from being victimized by Roberts. In a similar case, a panel from this court affirmed a longer aggregate
sentence for an offender who committed a similar number of burglaries while serving
*11
community control sanctions.
State v. Aniton
, 8th Dist. Cuyahoga No. 102440,
{¶16}
The dissent maintains that we should modify the consecutively imposed
sentences to concurrent ones because the crimes committed were not inherently egregious
or violent.
[1]
We must caution against this mind-set. Consecutive sentences are not
imposed upon a consideration limited to the offender’s conduct as it relates to the
convictions. In fact, even within the individual sentencing structure, the trial court may
look beyond the offender’s conduct as it relates to the charged crimes.
State v. Steele
,
8th Dist. Cuyahoga No. 105085,
pronounced. “Conduct” under R.C. 2929.14(C)(4) is “understood ‘to encompass more
than just the facts supporting conviction on a particular offense.’”
Dennison
, 10th Dist.
Franklin No. 15AP-592,
{¶18}
Roberts was not sentenced to more than 18 years in prison for stealing a
bottle of Pepsi or for any other trivialized characterization of his individual crimes.
Roberts’s sentences on each of the individual offenses were less than the maximum ones
authorized by law for each offense. Some of those individual terms were imposed to be
served consecutively, meaning the aggregate term was imposed based on the number of
offenses committed and Roberts’s history of criminal behavior. The fact that the newest
crimes may have been less severe than the ones he committed in the past is not dispositive
— it merely is a factor for consideration.
See, e.g., Spencer
, 8th Dist. Cuyahoga No.
101131,
reverses every sentence it disagrees with; it means the appellate panel considers the
*14
arguments advanced as applied through the lens of the law. On that point, we defer to
the trial court’s discretion unless this court can clearly and convincingly find that the
record does not support the consecutive sentencing findings. R.C. 2953.08(G)(2);
Rahab
,
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal. *15 It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for correction and execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
TIM McCORMACK, P.J., CONCURS;
MARY J. BOYLE, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE OPINION
MARY J. BOYLE, J., CONCURRING IN PART AND DISSENTING IN PART: I respectfully concur in part and dissent in part. I dissent on the first assignment of error, but concur with the remaining opinion. It is my view that Roberts’s sentence of almost 19 years in prison is not supported by the record and completely fails to consider the legislative intent of Ohio’s comprehensive sentencing statutes.
A. Standard of Review Although the Ohio Supreme Court made clear in State v. Marcum , 146 Ohio
St.3d 516,
{¶23} While the majority acknowledges that “there may have been an intent under Am.Sub.S.B. No. 2 to create a more expansive appellate review process,” it states that any intent by S.B. 2 has essentially been obliterated by case law that has developed “over the years.” The majority claims that if the legislature “took issue with the courts’ interpretation of R.C. 2953.08,” it could have done something about it. It is my view that the legislature has done something about it, and yet, courts continue to eradicate meaningful appellate review of felony sentences. A review of the Ohio’s comprehensive sentencing scheme is necessary. Before Am.Sub.S.B. No. 2 (“S.B. 2”) was enacted in 1996, courts had wide
discretion to sentence an offender within the statutory sentencing provisions.
State v.
Johnson
, 40 Ohio St.3d 130, 133-134, 532 N.E.2d 1295 (1988). Because of that,
“sentencing decisions were generally subjected to an abuse of discretion standard, and
appellate courts rarely disturbed a sentence imposed within statutory limits.”
State v.
Shryock
, 1st Dist. Hamilton No. C-961111, 1997 Ohio App. LEXIS 3494, 5-6 (Aug. 1,
*17
1997). A trial court’s sentencing discretion, however, was “limited and circumscribed
by the parameters imposed by the legislature.”
State v. Bowman
, 3d Dist. Hancock No.
5-90-11,
abuse of discretion and reverse a sentence if the trial court considered improper factors
when sentencing a defendant.
See State v. Smith
, 8th Dist. Cuyahoga No. 50145, 1986
Ohio App. LEXIS 5680 (Feb. 20, 1986) (defendant’s sentence reversed because the trial
court considered a conviction that had been previously vacated by the court of appeals).
Appellate courts would also find that a trial court abused its discretion if the trial court
failed to follow a mandatory duty prescribed by the legislature.
See State v. Ragland
, 17
Ohio App.3d 221, 478 N.E.2d 1014 (2d Dist.1984) (sentence reversed because the trial
court failed to follow a statutory sentencing mandate to give the defendant a choice if he
wanted to be sentenced to the law in effect at the time of sentencing or at the time he
committed the offense). Finally, appellate courts would reverse consecutive sentences if
the trial court failed to impose them according to the relevant statute at that time.
See Hamilton v. Adkins
,
{¶26}
S.B. 2 was the first major crime reform bill in Ohio since 1974. Griffin &
Katz,
Ohio Felony Sentencing Law
1 (2002) (“Griffin & Katz”). This comprehensive
bill changed the definitions of crimes and the sentencing scheme and provided “precise
guidance for criminal sentencing within clearly defined constraints.”
State v. Comer
, 99
Ohio St.3d 463,
{¶27} S.B. 2 was enacted in part as a result of the growing concerns about prison overcrowding. Painter at 537. But also, “there was a notion that offenders received disparate sentences for the same crime in different sections of the state.” Id ., citing Griffin and Katz, Ohio Felony Sentencing Law 1 (1998). Because of this, the Ohio Criminal Sentencing Commission was created to develop a sentencing policy “designed to enhance public safety by achieving certainty in sentencing, deterrence, and a reasonable use of correctional facilities, programs, services,” and to “achieve fairness in sentencing.” Id . A “hallmark” of S.B. 2 was appellate review of sentences. Under S.B. 2,
“the law accords meaningful review of * * * sentencing decisions by the appellate courts.” Comer at ¶ 10. Appellate review was “intended to ensure that offenders [were] sentenced consistently.” Painter at 538. The legislature enacted R.C. 2953.08 to accomplish consistent sentencing through “meaningful appellate review.” Comer at ¶ 10 (“‘Meaningful review’ means that an appellate court hearing an appeal of a felony *19 sentence may modify or vacate the sentence and remand the matter to the trial court for resentencing if the court clearly and convincingly finds that the record does not support the sentence or that the sentence is otherwise contrary to law.”). Indeed, the most significant aspect of the new sentencing law was that trial courts no longer had unfettered discretion when sentencing offenders. Painter at 537-38.
{¶29} When the General Assembly first enacted R.C. 2953.08, however, it did not specify, as it does now, that “[t]he appellate court’s standard for review is not whether the sentencing court abused its discretion.” See former R.C. 2953.08. The legislature initially provided little guidance, and because of this, appellate courts initially struggled with the degree of review that they needed to give to sentences. Painter at 540. The debate centered around whether appellate courts should apply a “deferential abuse-of-discretion standard” or “whether the courts should apply a more stringent standard.” Id . at 540-541. “[A]t one time or another, appeals courts from every district suggested that there was an abuse-of-discretion standard.” Id . at 541. The legislature finally “settled” the matter, effective October 10, 2000, when
it amended R.C. 2953.08(G)(2) to add: “[t]he appellate court’s standard for review is not whether the sentencing court abused its discretion.” In his article, Appellate Review Under the New Felony Sentencing Guidelines , Painter, then a judge at the First Appellate District, explained that this amendment was “a key step to ending the inconsistent treatment that defendants were receiving in appellate districts throughout the state.” Id . But Painter went on to “predict that appellate courts will continue to take differing *20 approaches to sentencing review.” I wonder if Painter now knows how clairvoyant he actually was back in 1999. Although S.B. 2 “limited judicial discretion in imposing consecutive
sentences [and other provisions not relevant here] and established a presumption in favor
of concurrent sentences in former R.C. 2929.41(A),” the Ohio Supreme Court, in 2006,
severed the consecutive sentence statute, struck the presumption in favor of concurrent
sentences provided in R.C. 2929.41(A), and held that judges no longer had to make
findings or give reasons for imposing consecutive sentences.
State v. Foster
, 109 Ohio
St.3d 1,
statutes under S.B. 2 were not unconstitutional in light of a new United States Supreme
Court case.
State v. Hodge
, 128 Ohio St.3d 1,
standard of review to apply when reviewing sentences and whether courts should apply an
abuse of discretion standard. But as I stated at the outset, the Ohio Supreme Court
settled that matter in
Marcum
, 146 Ohio St.3d 516,
standard of review — next to no review at all.”
In re D.T.
, 212 Ill.2d 347, 356
(Ill.2004). The General Assembly and the Ohio Supreme Court have made it abundantly
clear that we do not review felony sentences for abuse of discretion. Rather, when
reviewing a felony sentence, an appellate court must conduct a “meaningful review” of
the trial court’s sentencing decision.
Comer
, 99 Ohio St.3d 463,
{¶35}
“Meaningful review” means that we must review the entire record, including
“[a]ny presentence, psychiatric, or other investigative report that was submitted to the
court in writing before the sentence was imposed,” the trial record, and any oral or written
statements made to or by the court at the sentencing hearing. R.C. 2953.08(F)(1)-(3).
And after reviewing the entire record, if we clearly and convincingly determine that “the
record does not support the trial court’s findings under relevant statutes or that the
sentence is otherwise contrary to law,” then we have the power to “increase, reduce, or
otherwise modify a sentence that is appealed under this section or may vacate the
sentence and remand the matter to the sentencing court for resentencing.” R.C.
2953.08(G)(2);
Comer
at ¶ 10;
Marcum
at ¶ 1.
In
Venes
,
It is important to understand that the “clear and convincing” standard applied in R.C. 2953.08(G)(2) is not discretionary. In fact, R.C. 2953.08(G)(2) makes it clear that “[t]he appellate court’s standard for review is not whether the sentencing court abused its discretion.” As a practical consideration, this means that appellate courts are prohibited from substituting their judgment for that of the trial judge. Considering the legislative history and purpose behind S.B. 2 and the
enactment of R.C. 2953.08(G)(2), as well as H.B. 86 reviving R.C. 2929.14(C)(4) and
2953.08(G)(2), this court could not have been more wrong in
Venes
. It is the abuse of
discretion standard that prohibits appellate courts from substituting their judgment for that
*23
of the trial judge — a standard explicitly rejected by the legislature and the Ohio Supreme
Court when reviewing felony sentences.
See Pons v. Ohio State Med. Bd.
, 66 Ohio
St.3d 619, 621,
It is also important to understand that the clear and convincing standard used by R.C. 2953.08(G)(2) is written in the negative. It does not say that the trial judge must have clear and convincing evidence to support its findings. Instead, it is the court of appeals that must clearly and convincingly find that the record does not support the court’s findings. In other words, the restriction is on the appellate court, not the trial judge. This is an extremely deferential standard of review. This paragraph further interpreting R.C. 2953.08 is just as baffling and
troubling as paragraph 20, if not more so. There is no “restriction” on appellate courts.
Saying that, however, does not mean that there is a “restriction” on the trial court. Of
course the “restriction” is not on the trial court — it is the standard of review for appellate
courts. “Restrictions” on trial courts are set forth in R.C. 2929.11, 2929.12,
2929.14(C)(4) and all of the other sentencing provisions. But the statute is not written in
the “negative” — and even if it is (simply because it contains the word “not”), it certainly
does not mean what
Venes
(and unfortunately, the many cases following
Venes
on this
point
[2]
) says it means. If an appellate court clearly and convincingly finds that the record
*24
does not support the trial court’s findings, we may increase, reduce, modify, or otherwise
reverse a sentence. That is the same as saying that the record must clearly and
convincingly support the trial court’s findings. But most importantly, this is
not
an “extremely deferential review.”
In
Marcum
,
in March 2016, the Ohio Supreme Court, well aware of Venes and the many cases following Venes on this point, did not place these “restrictions” or limitations on appellate courts as Venes claims. Nor did the Supreme Court say anything about R.C. 2953.08 being “extremely deferential.” Marcum explicitly construed R.C. 2953.08 without those limitations and, thus, it is my view that Marcum effectively overruled paragraphs 20 and 21 of Venes . In construing R.C. 2953.08, the Supreme Court stated in Marcum :
In the final analysis, we hold that R.C. 2953.08(G)(2)(a) compels appellate courts to modify or vacate sentences if they find by clear and convincing evidence that the record does not support any relevant findings under “division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code.” See State v. Belew ,140 Ohio St.3d 221 ,2014-Ohio-2964 ,17 N.E.3d 515 , ¶ 12 (Lanzinger, J., dissenting from the decision to dismiss the appeal as having been improvidently accepted) (“R.C. 2953.08(G)(2) repudiates the abuse-of-discretion standard in favor of appellate review that upholds a sentence unless the court of appeals clearly and convincingly finds that the record does not support the trial court's findings”).
Clear and convincing evidence is that measure or degree of proof which is
more than a mere “preponderance of the evidence,” but not to the extent of
such certainty as is required “beyond a reasonable doubt” in criminal cases,
Washington No. 16CA32,
and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.
Cross v. Ledford ,161 Ohio St. 469 ,120 N.E.2d 118 (1954), paragraph three of the syllabus.
We note that some sentences do not require the findings that R.C. 2953.08(G) specifically addresses. Nevertheless, it is fully consistent for appellate courts to review those sentences that are imposed solely after consideration of the factors in R.C. 2929.11 and 2929.12 under a standard that is equally deferential to the sentencing court. That is, an appellate court may vacate or modify any sentence that is not clearly and convincingly contrary to law only if the appellate court finds by clear and convincing evidence that the record does not support the sentence.
Marcum at ¶ 22-23.
{¶41} There is nothing in the Supreme Court’s interpretation of R.C. 2953.08(G)(2) to indicate that this is “an extremely deferential review.” Clear and convincing does not rise to the level of “beyond a reasonable doubt.” Maybe if appellate courts had to find that the record does not support the trial court’s findings “beyond a reasonable doubt,” I could agree that we could call it “extremely deferential.” But we do not. Under R.C. 2953.08, appellate courts may not modify or reverse a sentence at their whim or fancy. And there is no question that trial courts have wide discretion to fashion a sentence within the statutory framework. That does not mean, however, that appellate courts should not fulfill their duty to actively review a record to determine if it supports the trial court’s sentence — to provide meaningful appellate review of a felony sentence. Painter concluded his article, Appellate Review Under the New Felony Sentencing Guidelines , by asking “what’s next?” He stated:
With the recent amendment to the sentencing guidelines that an “appellate court’s standard for review is not whether the sentencing court abused its discretion,” the debate is over regarding whether abuse of discretion remains the standard of review. The legislature has clearly indicated that appeals courts must actively review sentences, not merely defer to the determinations of trial judges. Because a primary purpose of Senate Bill 2 is to eliminate disparate sentencing for similar offenses, it seems only logical that appellate courts must take a more active role in reviewing sentences than that allowed under the deferential abuse-of-discretion standard. A more active review process is the only effective way to ensure that trial judges are properly and consistently applying the guidelines. Otherwise, Senate Bill 2, which was intended to overhaul felony sentencing with appellate courts playing an active role in ensuring consistency, would be meaningless.
But the debate is not necessarily over. Although it is clear that abuse-of-discretion is no longer the standard of review, an issue still remains regarding how intense the standard of review should be — will it be on the deferential end of the continuum, or will it be on the other end, such as a de novo review?
Id . at 545-546. Since Painter wrote his article — nearly 20 years ago — the pendulum has
swung considerably on the “deferential end of the continuum,” so much so that it is effectively back to pre-S.B. 2 levels. As one court expressed in reversing a defendant’s 20-year aggregate sentence because the record did not clearly and convincingly support the trial court’s consecutive sentence findings and did not demonstrate that it was the minimum sanction to accomplish the purposes of sentencing without imposing an unnecessary burden on the state:
“Formalism” has been described as scrupulous or excessive adherence to outward form at the expense of inner reality or content. We are concerned that our sentencing jurisprudence has become a rubber stamp for rhetorical formalism. It appears that consecutive sentences will be upheld on appellate review as long as the aggregate sentence is within the arithmetic *27 long-addition established by the statutes and the trial judge and the entry state that this calculation is (1) necessary to protect the public from future crime or to punish the offender, (2) not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public, and (3) one or more of the offenses was committed while awaiting trial or sentencing.
State v. Adams
, 2d Dist. Clark No. 2014-CA-13,
“legislative guidance coupled with strong appellate review” to “achieve consistency in sentencing, control costs, and incorporate new knowledge about human behavior and sentencing alternatives in a manner that is less political and more open to an objective balancing of societal needs.” (Emphasis added.) Griffin and Katz, Sentencing Consistency: Basic Principles Instead of Numerical Grids: The Ohio Plan , 53 Case W.Res.L.Rev. 1, 2 (2002) (“Ohio Plan”). Indeed, “[t]he capstone of the Ohio Plan [was] appellate review.” Id . at 3. Again, when the General Assembly enacted H.B. 86, reviving R.C.
2929.14(C)(4) and 2953.08(G)(2), the purpose, in part, was “to reduce the state’s prison
population and to save the associated costs of incarceration by diverting certain offenders
from prison and by shortening the terms of other offenders sentenced to prison.”
Bonnell
,
{¶46} With this context in mind, R.C. 2929.11(A) now states: A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing. The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources . To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both.
(Emphasis added.) In H.B. 86, the General Assembly added the language, “using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources” to the original language of R.C. 2929.11(A). (Emphasis added.) Regarding former R.C. 2929.11(A), Griffin and Katz had explained that it “operate[d] to impose real control over judicial decision-making.” Ohio Plan at 6. Thus, R.C. 2929.11(A), as amended by H.B. 86, arguably imposes even more control over judicial decision-making than it did under S.B. 2. And under R.C. 2929.11(B), a felony sentence “shall be reasonably
calculated to achieve the two overriding purposes of felony sentencing” and be “commensurate with and not demeaning to the seriousness of the offender’s conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes *29 committed by similar offenders.” With respect to this provision under S.B. 2, Griffin and Katz explained:
The effect under the new law of establishing “public protection” and
“punishment” as overriding purposes of sentencing but not limiting them to
“considerations” is that every sentence must now be assessed by whether, as
set forth in R.C. 2929.11(B), it is “reasonably calculated to achieve” those
overriding purposes. Failure of a sentence to do so causes it to be
appealable on the ground that the sentence is “contrary to law.”
Ohio Plan at 6.
Under
Marcum
, 146 Ohio St.3d 516,
appellate courts are “compelled” to “modify or vacate sentences if they find by clear and convincing evidence that the record does not support any relevant findings under” R.C. 2929.14(C)(4) (and other findings not relevant to this appeal) or are otherwise contrary to law. Id . at ¶ 22; R.C. 2953.08(G)(2). A sentence is contrary to law if the trial court fails to impose a sentence that is proportionate and fair and does not overburden state prisons or state and local budgets. Thus, in reviewing a sentence, we must perform our duty to determine if the trial court has complied with the applicable statutes and imposed a sentence that is “reasonably calculated to achieve” the overriding purposes of felony sentencing” and is “commensurate with and not demeaning to the seriousness of the offender’s conduct and its impact on the victim.” R.C. 2929.11(B). We must also ensure that the sentence is “consistent with sentences imposed for similar crimes committed by similar offenders.” Id . And we must make certain that the trial court, in exercising its discretion, imposed a sentence that achieves the overriding purposes of felony sentencing — protecting the public and punishing the offender — “using the *30 minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources.” R.C. 2929.11(A).
B. Consecutive Sentences under R.C. 2929.14(C)(4)
The majority asserts that “[t]he purpose of R.C. 2929.14(C)(4) is to prevent
this type of career criminal [discussing Roberts] from perpetuating a cycle of criminality
upon the public.” While I agree the majority’s stated purpose for imposing consecutive
sentences is at least one reason to do so, I disagree that is the purpose behind R.C.
2929.14(C)(4). If that were the case, there would not be a presumption for concurrent
sentences in Ohio, nor would there be any reason to require the trial court to make
findings before imposing consecutive sentences. We could simply go back to pre-S.B. 2
days — when trial courts were free to sentence an offender to consecutive sentences by
simply stating so. A brief review of the history of consecutive sentences is instructive.
The presumption under R.C. 2929.41(A) — that prison sentences for
multiple offenses be served concurrently — was not always the case. Indeed, it was the
exact opposite.
See State v. Lett
, 161 Ohio App.3d 274,
{¶52} As we explained in Lett , the General Assembly “ended the long-standing presumption that sentences for multiple convictions be served consecutively” in 1974 when it adopted the “approach taken by the American Law Institute’s Model Penal Code” in enacting former R.C. 2929.41(A), which was in effect until S.B. 2. [3] This provision stated then, as it does now, that aside from an exception set forth in the subsection (B), “a sentence of imprisonment shall be served concurrently with any other sentence of imprisonment.” Lett at ¶ 35, citing former R.C. 2929.41(A). We referred to this “change in presumption from consecutive sentences to concurrent sentences” as a “sea change in the law.” Id . at ¶ 39. Despite this “sea change in the law,” however, R.C. 2929.41(A) only required that a trial court state that it was imposing consecutive sentences to make it so. In Lett , we surmised that the change in presumption in 1974 occurred for
several reasons: “a backlash against prosecutorial overindictment, disparity in the manner in which consecutive sentences were imposed, frustration with the virtually unreviewable *32 nature of consecutive sentencing, and economic considerations relating to the long-term housing of prisoners.” Id . Unfortunately, these reasons sound all too familiar. Because despite the changes made in 1974, as well as S.B. 2 over 20 years later and most recently H.B. 86, we, as a state, still grapple with these same issues today. Part of the reason that we still do is because trial courts continue to impose harsh sentences far too often for nonviolent crimes, and appellate courts continue to refuse to perform their duty to provide meaningful appellate review.
{¶54} After review of the sentence imposed in this case, I agree with Roberts that consecutive sentences are disproportionate to the seriousness of his conduct and the danger he poses to the public. This is especially so in light of the principles and purposes of felony sentencing set forth in R.C. 2929.11, which states that a sentencing court “shall be guided by the overriding purposes of felony sentencing” — to protect the public and punish the offender — using “the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources.” R.C. 2929.11(A). Additionally, a sentence must be “reasonably calculated to achieve the two overriding purposes of felony sentencing” and be “commensurate with and not demeaning to the seriousness of the offender’s conduct and its impact upon the victim[.]” R.C. 2929.11(B). I agree with Roberts that the sentence imposed by the trial court does not meet any of these requirements. The trial court sentenced Roberts to nearly 19 years in prison — for stealing
a bottle of Pepsi and pushing a store security guard, stealing $250 of fishing equipment *33 from someone’s garage, failing to report for supervision, and breaking and entering (or attempting to enter) the homes of three victims and stealing less than $2,000 worth of property. These were not violent crimes. No one was hurt. Yet, Roberts received 18 years and 11 months in prison. Without minimizing the emotional distress the burglary offenses undoubtedly caused the victims, Roberts’s offenses do not reflect such seriousness and danger to the public that almost 19 years in prison is necessary to protect the public from him.
{¶56}
Indeed, such a lengthy sentence may demean the seriousness of other crimes
and the harm to other victims. For example, an offender who murders someone could
get out of prison in less time; the sentence for murder is 15 years to life. R.C.
2929.02(B)(1). Rape has a maximum sentence of 11 years in prison. R.C. 2907.02(B).
Offenders who repeatedly beat their significant others or spouses do not get that much
time — even when the offender has multiple domestic violence convictions.
See State v.
Russell
, 12th Dist. Butler No. CA2012-03-066,
According to his presentence investigation report, he was found to be barely functioning
within a borderline intellectual level. He was also addicted to heroin and a lesser form
of heroin. Consecutive sentences are reserved for the worst offenses and offenders.
*34
State v. Ladson
, 8th Dist. Cuyahoga No. 83209,
8th Dist. Cuyahoga No. 102440,
Roberts to serve his sentences consecutively, I would clearly and convincingly find that the record does not support the trial court’s finding that consecutive sentences — totaling nearly 19 years in prison — are necessary to protect the public or punish Roberts and are not disproportionate to the seriousness of Roberts’s conduct and to the danger he poses to the public. While I certainly understand the trial court’s frustration with Roberts, the record does not demonstrate that an 18-year and 11-month prison sentence was “reasonably calculated to achieve” the purposes of felony sentencing using the minimum sanctions without imposing an unnecessary burden on the state.
C. Sentence Modification *35 In this case, the trial court sentenced Roberts to six months for escape in Cuyahoga C.P. No. CR-14-584010-A. The court sentenced Roberts to seven years on each of the two burglary counts in Cuyahoga C.P. No. CR-14-586073-A, to be served concurrent to each other. And in Cuyahoga C.P. No. CR-14-584791-A, the court sentenced Roberts to seven years for burglary. With the exception of the six-month sentence for escape and the concurrent terms on the two burglary charges in Cuyahoga C.P. No. CR-14-586073-A, the trial court ordered that all the other prison terms, including the sentences in Cuyahoga C.P. Nos. CR-12-561797-A and CR-13-578409-A, be served consecutively, which amounted to a total sentence of 18 years and 11 months in prison. I would sustain Roberts’s first assignment of error, vacate the consecutive portion of his sentence, and modify the sentence to concurrent terms, for an aggregate sentence of seven years in prison.
Notes
[1] The dissent ’ s approach to reviewing consecutive sentences exemplifies the need for a more
defined appellate review process. Nothing distinguishes Roberts ’ s sentence from that affirmed in
Aniton . The dissent ’ s review, however, somehow draws a distinction that Roberts is more deserving
of leniency than the defendant in Aniton despite the similarities between the offenders, their conduct,
and the trial court ’ s conclusions. This instills inconsistency within sentencing. Until the legislature
or the Supreme Court of Ohio steps in with a more definitive review process that ensures consistency,
we should continue to adhere to the unambiguous language of R.C. 2953.08(G). As the dissent
notes, although there may have been an intent under Am.Sub.S.B. No. 2 to create a more expansive
appellate review process, this recognition is decades late and in contravention of R.C. 2929.12 that
affords discretion to the sentencing court to consider R.C. 2929.11. As the Supreme Court of Ohio
has definitively established, appellate courts must defer to the sentencing court based on the
unambiguous language of R.C. 2953.08(G) and R.C. 2929.12. Rahab, 150 Ohio St.3d 152,
[2] See State v. Thompson , 9th Dist. Wayne No. 15AP0016,
[3] Former R.C. 2929.41 stated: (A) Except as provided in division (B) of this section, a sentence of imprisonment shall be served concurrently with any other sentence of imprisonment. In any case, a sentence of imprisonment for misdemeanor shall be served concurrently with a sentence of imprisonment for felony served in a state penal or reformatory institution. (B) A sentence of imprisonment shall be served consecutively to any other sentence of imprisonment, in the following cases: (1) When the trial court specifies that it is to be served consecutively.