2004 Ohio 4792 | Ohio Ct. App. | 2004
{¶ 2} The Highland County Grand Jury indicted Scheer on one count of theft by deception (a third degree felony), two counts of passing bad checks (fifth degree felonies), and one count of passing bad checks (a third degree felony). The charges arose from Scheer's purchase of real property from Lowell Chambers of Chambers Realty with three checks written on a non-existent bank account.
{¶ 3} Scheer pled guilty to two counts of passing bad checks (fifth degree felonies). In exchange, the State dismissed the remaining two counts of the indictment and agreed to recommend a sentence of community control sanctions if Scheer made full restitution to the victim in the amount of $89,698.81 prior to the sentencing hearing. If Scheer did not make restitution prior to sentencing, the State agreed to recommend a six month term of incarceration on each count and to ask the court to order full restitution.
{¶ 4} Scheer failed to appear at the original sentencing hearing, and was subsequently arrested on a warrant issued by the court. At the time of the sentencing hearing, Scheer had not made restitution. The court sentenced Scheer to twelve months incarceration on each count, the maximum sentence for a fifth degree felony, and ordered that the sentences run consecutively. The court also ordered Scheer to make full restitution to the victim.
{¶ 5} Scheer filed a timely appeal, assigning the following error: "Appellant/Defendant has been deprived of his liberty without due process of law by the maximum sentence and the consecutive sentences in the case at bar, because it did not comport with Ohio's sentencing scheme."
{¶ 6} A defendant who pleads guilty to two or more offenses arising out of a single incident may appeal the imposition of the maximum sentence as a matter of right if the court imposed the maximum sentence for the offense of the highest degree. R.C.
{¶ 7} We may not reverse a sentence unless we find, by clear and convincing evidence, that the sentence is not supported by the record or that it is contrary to law. R.C.
{¶ 8} First, Scheer contends that the court erred in concluding that he was not amenable to community control sanctions and imposing a prison sentence. Although there is no statutory presumption that a defendant convicted of a fifth degree felony be sentenced to community control rather than prison, R.C.
{¶ 9} Under R.C.
{¶ 10} At the sentencing hearing, the trial court stated: "The Court has considered the statements, also the pre-sentence investigation and I have been provided the victim impact statements as well as all other factors required under Section
{¶ 12} However, even though none of the R.C.
{¶ 13} Scheer contends that the court erred in considering the length of the possible prison sentences for the dismissed charges when imposing sentence. We have previously held that a court may consider a defendant's uncharged yet undisputed conduct when determining an appropriate sentence. State v. Steward,
Washington App. No. 02CA43, 2003-Ohio-4082. See, also, State v.Shahan, Washington App. No. 02CA63, 2003-Ohio-6945 (as in sentencing hearings, the Rules of Evidence do not apply to sexual predator determination hearings, so the trial court may consider reliable hearsay contained in a pre-sentence investigation report). Although there has been much speculation in the legal community about the effect the United States Supreme Court's recent holding in Blakely v. Washington (2004), 542 U.S. ___,
{¶ 14} In Blakely, the defendant pled guilty to kidnapping his estranged wife. Under the facts admitted during his plea, the defendant was subject to a maximum sentence of 53 months imprisonment. However, under the State of Washington sentencing scheme the trial court could upwardly depart from the standard sentencing range if it found the defendant acted with deliberate cruelty. The trial court made this finding based on the victim's impact statement and imposed a 90 month sentence of imprisonment on the defendant. The United States Supreme Court reversed and remanded the case, holding that because the facts supporting the defendant's exceptional sentence were neither admitted by him nor found by a jury, the sentence violated the defendant's Sixth Amendment right to a jury trial.
{¶ 15} Blakely holds that a trial court cannot enhance a sentence beyond the statutory maximum based on factors other than those found by the jury or admitted to by the defendant. Here, Scheer was sentenced to twelve months imprisonment, a term within the standard sentencing range for his crimes. In fact, the Ohio sentencing scheme does not mirror Washington's provisions for enhancements. Therefore, Blakely is inapplicable. Moreover, in reaching its decision in Blakely, the Supreme Court specifically distinguished its holding from that of Williams v.New York (1949),
{¶ 16} In Williams, the defendant objected to the trial court's reliance on his involvement in several uncharged burglaries when imposing a death sentence rather than the jury's recommended sentence of life imprisonment. Williams argued that the court's reliance on this information violated his due process rights because it allowed the court to consider information from witnesses he had not had an opportunity to cross-examine.
{¶ 17} Although the trial court stated that it was considering the length of the sentences Scheer originally faced, not the underlying facts of the dismissed charges, the difference between the two considerations is minimal. Since Scheer did not dispute that he wrote three checks to the victim on a non-existent bank account and the pre-sentence investigation report contained reliable information concerning these charges, the court was free to consider the dismissed charges when determining an appropriate sentence for Scheer.
{¶ 18} Scheer also argues that the court erred in concluding that he did not demonstrate genuine remorse for his crimes. Although the transcript reveals that Scheer apologized for his crimes, he also stated that "this whole house purchase started out with the best of intentions, it wasn't any type of scam or fraud, it snowballed into why we're here today." The court was free to reject Scheer's demonstration of remorse and conclude that Scheer was minimizing his actions and had intended to perpetrate a scam or a fraud. The fact that Scheer wrote three checks, which totaled $298,000.00, on a non-existent account belies his claim that he did not intend to perpetrate a fraud. Therefore, the court's finding that Scheer lacked genuine remorse is supported by the record.
{¶ 19} Finally, Scheer contends that the court placed undue reliance on his past criminal history in deciding to sentence him to a prison term. Although Scheer contends that the pre-sentence investigation ("PSI") reveals only three misdemeanor juvenile convictions, this contention is inaccurate. In fact, the PSI states that Scheer has no juvenile record but four arrests in New York with unknown dispositions, several pending charges of passing bad checks and a conviction for check fraud in Washington Courthouse. The court's finding that Scheer is not amenable to community control sanctions because of his criminal history is supported by the record.
{¶ 20} Although the court erred in concluding that any R.C.
{¶ 21} Next, Scheer challenges the trial court's imposition of the maximum and consecutive sentences for his convictions. R.C.
{¶ 22} Generally, trial courts in Ohio must impose concurrent prison sentences. R.C.
{¶ 23} The trial court made the following statements at the sentencing hearing pertaining to its imposition of maximum and consecutive sentences: "* * * the Court does find, and is ordering that you be sentenced, the Defendant be sentenced to a definite determinate term for a maximum sentence that I am allowed to give you of twelve months on each count to run consecutively to each other, for a total of 24 months to be served at the prison system of Ohio Correction Receptions Center at Orient. The Court finds the shortest prison term would demean the seriousness of the offense and not adequately protect the public. The Court finds further consecutive sentencing [sic] are necessary to protect the public and punish the offender in this case and that consecutive sentences are not disproportionate to the conduct and to the danger the Defendant poses and finds that the Defendant does pose greatest likelihood of committing future crimes. That the economic harm suffered by the victim here was so great and so unusual that a single term or concurrent sentencing would not adequately reflect the seriousness of the Defendant's conduct. As I stated earlier, sir, you're very lucky, young man, at this point that the other two charges were dismissed by way of plea bargain, then we would be talking about another six years on top of what you already got, and I can not give you any more than two years, but that is what you're getting. Also, the Defendant's criminal history shows consecutive terms are needed to protect the public from future crimes that would be committed by the Defendant. * * *" {¶ 24} The trial court made the requisite findings for imposing both maximum and consecutive sentences. As required by R.C.
{¶ 25} Although the court made the requisite findings, it did not state the rationale or reasons that support those findings for either the maximum or consecutive sentences. The court made certain factual findings when it determined that community control sanctions were inappropriate and imposed a prison sentence; however, the court never indicated that it was relying on some or all of these findings in imposing maximum or consecutive sentences. See Comer, supra, at ¶ 21 (stating, "While consecutive sentences are permissible under law, a trial court must clearly align each rationale with the specific finding to support its decision to impose consecutive sentences."). Cf.State v. Mosher, Athens App. No. 02CA49, 2003-Ohio-4439 (court's statement that it based its decision to impose consecutive sentences on its earlier factual findings sufficient to satisfy requirement that court state its reasons for sentence). Because the trial court did not state its reasons for imposing maximum or consecutive sentences, we must sustain Scheer's assigned error.
{¶ 26} While we recognize that it might seem we are elevating form over substance as the court's reasons for imposing the sentences might be gleaned from the transcript as a whole, the Supreme Court of Ohio has indicated that it will require strict compliance with the provisions of the sentencing statutes. SeeComer, supra, and State v. Edmonson,
Judgment Reversed and Cause Remanded.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Highland 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 Ohio Supreme Court 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 Ohio Supreme Court in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to expiration of sixty days, the stay will terminate as 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. Exceptions.
Kline, P.J. Abele, J.: Concur in Judgment and Opinion.
