The State of Ohio v. Sergent
2016-Ohio-2696
Supreme Court of Ohio
April 27, 2016
2016-Ohio-2696.]
(No. 2015-1093—Submitted February 10, 2016—Decided April 27, 2016.)
KENNEDY, J.
I. Introduction
{¶ 1} In this appeal, we address a certified conflict between a decision of the Eleventh Appellate District and decisions of the Second and Fourth Appellate Districts regarding the following certified question: “In the context of a jointly-recommended sentence, is the trial court required to make consecutive-sentence findings under R.C. 2929.14(C) in order for its sentence to be authorized by law and thus not appealable?” Relying on our holding in State v. Porterfield, 106 Ohio St.3d 5, 2005-Ohio-3095, 829 N.E.2d 690, we answer the certified question in the negative and find that such a sentence is “authorized by law” and not appealable. Consequently, we reverse the judgment of the court of appeals on this issue and reinstate the sentence of defendant-appellee, William D. Sergent.
II. Facts and Procedural History
{¶ 2} Appellant, the state of Ohio, charged Sergent with three counts of raping his minor biological daughter in violation of
{¶ 3} At the sentencing hearing, Sergent’s counsel stated: “We do have a joint sentencing recommendation, which I think is to be broken down 8 years for each
We believe that adopting the joint recommendation certainly would not demean the seriousness of the offense, and it would adequately protect the public, particularly in light of the fact that [Sergent] is 53 years of age at this point in time and a 24 year prison term is a significant—I mean he will be an elderly man upon completion of that sentence.
{¶ 4} The prosecutor then spoke, stressing to the court that Sergent was charged with three counts of rape that were “continuing courses of criminal conduct.” She further asserted that Sergent used his relationship with his daughter to force her to have sex, causing her both physical and psychological harm. Finally, the prosecutor stated: “So based on the victim’s age, fiscal [sic, physical] and psychological harm, the relationship used to facilitate—the fact this is a parent—with his daughter who lives in the home with him, we did join in on a joint recommendation of 24 years.”
{¶ 5} The trial judge then stated:
The Court has considered * * * the overriding purposes of felony sentencing pursuant to Revised Code 2929.11 which are to protect the public from future crime by this offender and others similarly minded, and to punish this offender using the minimum sanctions that the court determines accomplish the purposes, without imposing an unnecessary burden on state or local government resources. I have considered the need for incapacitation, deterrence, rehabilitation, and restitution. I’ve considered the joint recommendation of the parties. I have reasonably calculated this sentence to achieve the two overriding purposes of felony sentencing, and to be commensurate with and not demeaning to the seriousness of this offender’s conduct and its impact not only on the victim, but on society, and to be consistent with sentences imposed for similar crimes committed by similar offenders.
{¶ 6} The judge also stated that he considered the seriousness and recidivism factors set forth in
{¶ 7} The sentencing entry cited
{¶ 8} Sergent filed a pro se motion for leave to file a delayed appeal, which the court of appeals granted. The court of appeals appointed counsel to represent Sergent. After Sergent’s counsel filed an Anders brief,1 the court of appeals reviewed the record and found that an arguable issue existed to support Sergent’s appeal under State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659. The arguable issue concerned Sergent’s sentencing, specifically, whether the trial court, in imposing consecutive sentences, complied with Bonnell by making the findings required by
{¶ 9} Sergent’s new counsel filed a brief asserting two assignments of error: (1) Sergent’s guilty plea was not knowingly and voluntarily entered and (2) the trial court erred in failing to make the required findings under
{¶ 10} The court of appeals overruled Sergent’s first assignment of error and held that Sergent’s guilty plea was entered knowingly and voluntarily. 2015-Ohio-2603, 38 N.E.3d 461, ¶ 48-55.
{¶ 11} In addressing Sergent’s second assignment of error, the court of appeals recognized that a jointly recommended sentence that is “authorized by law” is not subject to review under
{¶ 13} The state urges us to adopt the following proposition of law: “In the context of a jointly-recommended sentence, the trial court is not required to make consecutive-sentence findings under R.C. 2929.14(C) in order for its sentence to be authorized by law and thus not appealable.” The state argues that State v. Porterfield, 106 Ohio St.3d 5, 2005-Ohio-3095, 829 N.E.2d 690, is controlling and that under Porterfield, the absence of consecutive-sentence findings does not affect whether a jointly recommended sentence is “authorized by law” under
{¶ 14} Sergent asserts that Porterfield does not apply because it is “outdated” under “Ohio’s current sentencing structure.” Instead, Sergent argues that even when the parties jointly recommend that consecutive sentences be imposed, Bonnell controls and requires a trial court to make the consecutive-sentence findings required by
III. Analysis
A. In the Context of a Jointly Recommended Sentence that Includes Nonmandatory Consecutive Sentences, Consecutive-Sentence Findings Are Not Required
a. Appealability
{¶ 15} Generally, a defendant’s right to appeal a sentence for a felony offense is found in
{¶ 16} Under Ohio law, absent an order requiring sentences to be served consecutively, terms of incarceration are to be served concurrently.
If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
(Emphasis added.)
c. Jointly Recommended Nonmandatory Consecutive Sentences
{¶ 17} We have held that if a trial judge exercises his or her discretion to impose consecutive sentences, he or she must make the consecutive-sentence findings set out in
{¶ 19} In Porterfield, the defendant pleaded guilty to two counts of aggravated murder, two counts of kidnapping, one count of attempted aggravated murder, one count of aggravated burglary, and one count of aggravated robbery. Pursuant to his plea bargain, “Porterfield agreed to the precise sentence that was imposed,” id. at ¶ 25, which was an aggregate sentence of 53 years to life, including consecutive prison terms. Id. at ¶ 1-2.
{¶ 20} The court of appeals affirmed the defendant’s conviction, but vacated his sentence because the trial court failed to make the consecutive-sentence findings required by former
{¶ 21} We reversed the judgment of the court of appeals and held that under
Porterfield’s sentence was authorized by law, was recommended jointly by him and the prosecution, and was imposed by a sentencing judge. Pursuant to
R.C. 2953.08(D) , Porterfield’s sentence is not subject to review. * * * The General Assembly intended a jointly agreed-upon sentence to be protected from review precisely because the parties agreed that the sentence is appropriate. Once a defendant stipulates that a particular sentence is justified, the sentencing judge no longer needs to independently justify the sentence.
(Emphasis added.) Porterfield, 106 Ohio St.3d 5, 2005-Ohio-3095, 829 N.E.2d 690, at ¶ 25.
{¶ 22} Accordingly, Porterfield stands for the proposition that a joint recommendation to impose consecutive sentences eliminates the need for a trial judge to make the consecutive-sentence findings set out in
{¶ 24} In Underwood, the defendant entered pleas of no contest to four counts of theft, and although the plea documents did not reflect any sentencing agreement, the defendant acknowledged that he had a “sentencing bargain” that would result in no more than two years of incarceration. Id. at ¶ 4. Before sentencing, the state filed a sentencing recommendation that the defendant be ordered to pay restitution and that he be sentenced to a minimum of two years in prison but that two of the counts were allied offenses of similar import, which required the court to sentence the defendant on only two counts. The trial court sentenced the defendant to be incarcerated on all four counts for an aggregate sentence of two years, with no recognition of the allied offenses. Id. at ¶ 6.
{¶ 25} The court of appeals held that the multiple sentences for allied offenses of similar import were not authorized by law and vacated the convictions for two of the counts.
{¶ 26} The meaning of the term “authorized by law” as used in
{¶ 27} We held that merging allied offenses of similar import was a mandatory sentencing requirement: “R.C. 2941.25(A) clearly provides that there may be only one conviction for allied offenses of similar import. Because a defendant may be convicted of only one offense for such conduct, the defendant may be sentenced for only one offense.” (Emphasis sic.) Id. at ¶ 26. Therefore, we concluded that “a trial court is prohibited from imposing individual sentences for counts that constitute allied offenses of similar import.” Id. Consequently, we affirmed that Underwood’s sentence was appealable, that two of the four offenses
{¶ 28} For purposes of analyzing Sergent’s case, it is important to note that we distinguished our holding in Underwood from our holding in Porterfield:
We have acknowledged that “[t]he General Assembly intended a jointly agreed-upon sentence to be protected from review precisely because the parties agreed that the sentence is appropriate. Once a defendant stipulates that a particular sentence is justified, the sentencing judge no longer needs to independently justify the sentence.” State v. Porterfield, 106 Ohio St.3d 5, 2005-Ohio-3095, 829 N.E.2d 690, ¶ 25. However, Porterfield did not involve a mandatory sentencing provision, but merely the discretionary decision to impose consecutive sentences. Both
R.C. 2941.25 and the Double Jeopardy Clause prohibit multiple convictions for the same conduct. For this reason, a trial court is required to merge allied offenses of similar import at sentencing. Thus, when the issue of allied offenses is before the court, the question is not whether a particular sentence is justified, but whether the defendant may be sentenced upon all the offenses.
(Emphasis added.) Underwood at ¶ 27.
{¶ 29} Underwood holds that to be “authorized by law” under
{¶ 30} Therefore, Porterfield controls in Sergent’s case. If a jointly recommended sentence includes nonmandatory consecutive sentences and the trial judge fails to make the consecutive-sentence findings set out in
{¶ 31} Most courts in Ohio have reached the same result. See State v. Weese, 2d Dist. Clark No. 2013-CA-61, 2014-Ohio-3267, 2014 WL 3732366, ¶ 5; State v. Morris, 3d Dist. Hardin No. 6-12-17, 2013-Ohio-1736, 2013 WL 1799947, ¶ 11; State v. Pulliam, 4th Dist. Scioto No. 14CA3609, 2015-Ohio-759, 2015 WL 914823, ¶ 8; State v. Rockwell, 5th Dist. Stark No. 2004CA00193, 2005-Ohio-5213, 2005 WL 2401861, ¶ 20; State v. Rhodes, 7th Dist. Columbiana No. 2000 CO 60, 2002-Ohio-3056, 2002 WL 1376242, ¶ 9; State v. Rue, 9th Dist. Summit No. 27622,
B. Consecutive-Sentence Findings Required Today Are Identical to Those Required When Porterfield Was Decided
{¶ 32} Sergent argues that Porterfield does not apply because it is outdated under “Ohio’s current sentencing structure.” We disagree.
{¶ 33} The requirement that a trial court must make findings before imposing nonmandatory consecutive sentences was first enacted in
{¶ 34} However, several years after Porterfield was decided, we held that
{¶ 35} Shortly after Foster was decided, the United States Supreme Court reversed course in Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009). There, the court held that the Sixth Amendment’s jury-trial guarantee does not prohibit judicial fact-finding before imposing consecutive sentences. Thereafter, we held that “the consecutive-sentencing statutes severed by Foster are not automatically revived” by Ice, but we noted that it was permissible for the General Assembly to require judicial fact-finding before consecutive sentences may be imposed. State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768, ¶ 36.
{¶ 36} Effective September 30, 2011, the General Assembly enacted Am.Sub. H.B. No. 86, which “simultaneously repeal[ed] and revive[d]” the severed language in
{¶ 37} Because judicial fact-finding for consecutive sentences is the same today as it was when Porterfield was decided in 2005, Porterfield is not outdated. The legislature’s revival of the same requirement reinforces that Porterfield is still controlling law.
C. State v. Bonnell Is Distinguishable
{¶ 38} However, our analysis is not yet complete. Sergent argues that Bonnell controls and that because the trial court did not make the consecutive-sentence findings required in Bonnell at his sentencing hearing, his sentence is not “authorized by law” and
{¶ 39} Subsequent to the revival of
{¶ 40} In Bonnell, the defendant pleaded guilty to three counts of burglary and one count of tampering with coin machines. The trial court imposed consecutive sentences for an aggregate prison term of eight years and five months. The trial court set forth the findings required by
{¶ 41} We held that the trial court was required to make the findings at the defendant’s sentencing hearing and incorporate its findings in the sentencing entry but was not required to state its reasons for imposing consecutive sentences. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at ¶ 37.
{¶ 42} In Bonnell, there was apparently a plea agreement, but there was no jointly recommended sentence. In Bonnell, the trial court exercised its discretion to impose consecutive sentences. In Porterfield, the state and the defendant proposed the imposition of consecutive sentences, not the judge. 106 Ohio St.3d 5, 2005-Ohio-3095, 829 N.E.2d 690, at ¶ 2. And it was that agreement upon a sentence by the parties that we found obviated the need for the trial court to independently determine whether the sentence was justified under former
IV. Conclusion
{¶ 43} For all of the aforementioned reasons, we answer the certified question in the negative and hold that in the context of a jointly recommended sentence that includes nonmandatory consecutive sentences, a trial court is not required to make the consecutive-sentence findings set out in
{¶ 44} In this case, the state and Sergent jointly recommended an aggregate 24-year sentence that included consecutive sentences, which the judge imposed. The trial judge made all of the consecutive-sentence findings in the sentencing entry, but only some of those findings at the sentencing hearing. However, compliance with
{¶ 45} Accordingly, we reverse the judgment of the court of appeals and reinstate Sergent’s sentence.
Judgment reversed.
O’CONNOR, C.J., and O’DONNELL, LANZINGER, and FRENCH, JJ., concur.
PFEIFER and O’NEILL, JJ., dissent and would answer the certified question in the affirmative and would affirm the judgment in accordance with the opinion of the Eleventh District Court of Appeals.
Charles E. Coulson, Lake County Prosecuting Attorney, and Teri R. Daniel, Assistant Prosecuting Attorney, for appellant.
Michael A. Partlow, for appellee.
Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, and Michael J. Hendershot, Chief Deputy Solicitor, urging reversal for amicus curiae, Ohio Attorney General Michael DeWine.