State v. SpencerState v. Spencer
Karyn Justice, Portsmouth, Ohio, for appellant.2
Shane A. Tieman, Scioto County Prosecuting Attorney, and Matthew F. Loesch, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for appellee.
{¶1} This is a consolidated appeal from two Scioto County Common Pleas Court judgments of conviction and sentence. In one case, the trial court found Oshnaya V. Spencer, defendant below and appellant herein, guilty of seven criminal offenses and sentenced her to serve a combined three years and three months in prison. In
{¶2} Appellant assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
“THE COURT ERRED WHEN IT IMPOSED FINANCIAL SANCTIONS AGAINST MS. SPENCER.”
SECOND ASSIGNMENT OF ERROR:
“THE COURT IMPROPERLY SENTENCED MS. SPENCER TO SERVE CONSECUTIVE TERMS.”
{¶3} On June 9, 2021, a Scioto County Grand Jury returned an indictment that charged appellant with seven criminal offenses: (1) trafficking in cocaine, in violation of
{¶4} On November 2, 2021, a Scioto County Grand Jury returned another indictment that charged appellant with: (1) aggravated trafficking in drugs, a second-degree felony, in violation of
{¶5} Appellant later agreed to plead guilty to all thirteen counts of the two indictments and the trial court found appellant guilty as charged.
{¶6} At the sentencing hearing, the trial court merged several offenses. In the first case, Case No. 21CR270(A), the court merged: (1) counts one (cocaine trafficking), two (cocaine possession), and seven (conspiracy), and (2) counts three (marijuana possession) and four (marijuana trafficking). The state elected to proceed to sentencing on counts one and four.
{¶7} In the second case, Case No. 21CR780(A), the trial court merged: (1) counts one (aggravated drug trafficking) and two
{¶8} The trial court asked the prosecutor if the state had a “position on the mandatory drug fine in case number 21CR780.” The prosecutor responded that the state “stipulate[d] to [appellant‘s] indigence for the purpose of” the mandatory fine in Case No. 21CR780(A). The court said it would “accept the stipulation of the parties and not impose a fine in that matter—in that charge.”
{¶9} Later, during the sentencing hearing, the trial court addressed appellant‘s co-defendant, her daughter, Elisha Spencer. The court stated that it would impose “a discretionary fine of $5,000.00” on count one of Elisha‘s indictment, then stated that it would “impose no fines on Ms. Elisha Spencer.” The court ordered both appellant and Elisha to pay the costs of prosecution.
{¶10} When imposing sentence, the trial court found that
consecutive sentences are necessary to protect the public from future crime or to punish the offender, and not disproportionate to the seriousness of the offenders [sic] conduct, and to the danger the offender poses to the public. The Courts [sic] going to find that one of these offenses was committed after [her] arrest on the earlier of the offenses, although before [she] was indicted. This Court is also going to find that two or more of the multiple offenses committed was 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 the course of conduct adequately reflects the seriousness of the offenders [sic] conduct.
On September 7, 2022, the trial court filed the judgment entries of
that consecutive sentences are necessary to protect the public from future crime or to punish the offender and are not disproportionate to the seriousness of the offenders [sic] conduct and to the danger the offender poses to the public, that one offense was committed after the Defendant was charged on an earlier offense, and further finds that 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 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 course of conduct adequately reflects the seriousness of the offender‘s conduct.
The court also ordered appellant to pay the costs of prosecution.
{¶11} In Case No. 21CR780(A), the trial court sentenced appellant as follows: (1) serve a mandatory minimum prison term of four years to an indefinite maximum term of six years on count one; (2) a nine-month prison term on count three; (3) a 30-day-jail sentence on count five; and (4) a $100 fine on count six. The court further ordered that the sentences for count one and count three be served consecutively to one another and consecutively to
{¶12} Appellant‘s two assignments of error challenge the sentence that the trial court imposed. In her first assignment of error, appellant asserts that the trial court erred by imposing financial sanctions. In her second assignment of error, appellant argues that the trial court erred by imposing consecutive sentences. Because the same standard of review governs both assignments of error, for ease of discussion, we first set forth that standard.
A
{¶13} When reviewing felony sentences, appellate courts apply the standard set forth in
- That the record does not support the sentencing
court‘s findings under division (B) or (D) of section 2929.13 , division (B)(2)(e) or (C)(4) of section2929.14 , or division (I) of section2929.20 of the Revised Code, whichever, if any, is relevant; - That the sentence is otherwise contrary to law.
{¶14} Practically speaking,
“[C]lear and convincing evidence” means “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, 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.”
Id. at ¶ 14, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
Therefore, an appellate court is directed that it must have a firm belief or conviction that the record does not support the trial court‘s findings before it may increase, reduce, or otherwise modify consecutive sentences. The statutory language does not require that the appellate court have a firm belief or conviction that the record supports the findings. This language is plain and unambiguous and expresses the General Assembly‘s intent that appellate courts employ a deferential standard to the trial court‘s consecutive-sentence findings.
R.C. 2953.08(G)(2) also ensures that an appellate court does not simply substitute its judgment for that of a trial court.
{¶15} Thus, in the case sub judice, we may not disturb the trial court‘s decision to impose a $5,000 fine, to require appellant to pay prosecution costs, and to sentence her to consecutive sentences unless the record clearly and convincingly shows that the sentence is contrary to law. E.g., State v. Lykins, 4th Dist. No. 17CA1040, 2017-Ohio-9390, 102 N.E.3d 503, ¶ 9.
B
{¶17} The state pointed out that appellant did not comply with the
{¶18} Appellant counters that, at the sentencing hearing,
R.C. 2929.18(B)(1)
{¶19}
For a first, second, or third degree felony violation of any provision of Chapter 2925., 3719., or 4729. of the Revised Code, the sentencing court shall impose upon the offender a mandatory fine of at least one-half of, but not more than, the maximum statutory fine amount authorized for the level of the offense pursuant to division (A)(3) of this section.
The statute further states, however, that a sentencing court
{¶20} Equally important, however, is a criminal defendant‘s right to be physically present at all critical stages of the proceeding, including when a trial court imposes a sentence.
{¶21} Courts thus have concluded that a trial court’s sentence is contrary to law when a sentence is imposed in a sentencing entry that the court did not impose in open court and in the defendant‘s presence. State v. Craig, 1st Dist. Hamilton No. C-230112, 2023-Ohio-3777, ¶ 43 (reversing trial court‘s imposition of mandatory fine when court did not impose mandatory fine during sentencing hearing and in defendant‘s presence); State v. Kirksey, 7th Dist. Jefferson No. 20 JE 0002, 2021-Ohio-2893, ¶ 13 (“because Appellant’s sentencing entry does not comport with the sentence pronounced by the trial court at the sentencing hearing, we reverse and remand for the trial court to include a waiver of the mandatory fine pursuant to
{¶22} Accordingly, “if there exists a variance between the sentence pronounced in open court and the sentence imposed by a court‘s judgment entry, a remand for resentencing is required.” State v. Quinones, 8th Dist. Cuyahoga No. 89221, 2007-Ohio-6077, ¶ 5; accord State v. Jordan, 2006-Ohio-5208 at ¶ 48 (“a trial court errs when it issues a judgment entry that imposes a sentence that differs from the sentence the trial court announced at a sentencing hearing in
{¶23} In the case sub judice, the sentencing hearing transcript reflects that the state stipulated to appellant‘s indigency for purposes of the mandatory fine and the trial court accepted this stipulation. Moreover, during the sentencing hearing the trial court did not inform appellant that, despite the stipulation, it would impose a $5,000 mandatory fine. Thus, because the trial court did not pronounce this fine in open court and in appellant‘s presence, the court erred when it imposed that fine in its sentencing entry. As a result, the trial court‘s imposition of the mandatory fine is contrary to law.
{¶24} Consequently, we reverse the trial court‘s decision to impose a $5,000 mandatory fine and remand this matter for resentencing.
R.C. 2947.23
{¶25} Appellant next asserts that the trial court erred by failing to waive the costs of prosecution under
{¶26} Initially, we point out that appellant did not object to the imposition of these costs during the trial court proceedings. Consequently, she forfeited the error. State v. Johnson, 3rd Dist. Allen No. 1-16-41, 2017-Ohio-6930, ¶ 24 (defendant‘s failure to object to costs during trial court proceedings forfeited the error); see State v. Thomas, 8th Dist. Cuyahoga No. 104567, 2017-Ohio-4436, ¶ 5 (failure to object at sentencing to restitution order forfeits all but plain error on appeal); State v. Perry, 4th Dist. Pike No. 16CA863, 2017-Ohio-69, ¶ 14 (failure to object during trial court proceedings forfeits sentencing issues absent plain error). We may, however, review the issue under a plain error analysis.
{¶27} Generally, appellate courts recognize plain error “‘with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.’” State v. Landrum, 53 Ohio St.3d 107, 111, 559 N.E.2d 710 (1990), quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. For plain error to apply, a trial court must have deviated from a legal rule, the error must have been an obvious defect in the proceeding, and the error must have affected a substantial right. E.g., State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22; State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). However, even when a defendant demonstrates that a plain error or defect affected the defendant‘s substantial rights, the Ohio Supreme Court has “‘admonish[ed] courts to notice plain error
{¶28} In the case at bar, we do not believe that the trial court‘s order for appellant to pay the costs of prosecution constitutes an obvious error.
In all criminal cases, including violations of ordinances, the judge or magistrate shall include in the sentence the costs of prosecution, including any costs under section 2947.231 of the Revised Code, and render a judgment against the defendant for such costs.
“Thus, the imposition of court costs on all convicted defendants is mandatory, whether ‘indigent or not.’” State v. Rister, 4th Dist. Lawrence No. 21CA17, 2023-Ohio-1284, ¶ 19, quoting State v. Taylor, 161 Ohio St. 3d 319, 2020-Ohio-3514, 163 N.E.3d 486, ¶ 16.
{¶29}
{¶30}
{¶31} Under
{¶32} Accordingly, based upon the foregoing reasons, we overrule, in part, and sustain, in part, appellant‘s first
C
{¶33} In her second assignment of error, appellant asserts the trial court erred by imposing consecutive sentences because the court improperly relied upon an impermissible factor when it determined that consecutive sentences are warranted. Appellant contends that the court stated that it imposed consecutive sentences because “one of the offenses was committed after [her] arrest on the earlier of the offenses, although before [she] was indicted.” Appellant argues that because
{¶34} We first observe that appellant did not object at the sentencing hearing to the imposition of consecutive sentences. Our review, therefore, is limited to determining whether the trial court plainly erred. See Barnes, supra.
{¶35} In the case at bar, after our review we do not believe that the trial court plainly erred by imposing consecutive sentences.
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:
- 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 , or2929.18 of the Revised Code, or was under post-release control for a prior offense.- 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.
- The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶36} In the case before us, even if the trial court may have improperly relied upon
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 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 course of conduct adequately reflects the seriousness of the offender‘s conduct.
{¶37} Therefore, we do not believe that the trial court
{¶38} Accordingly, based upon the foregoing reasons, we overrule appellant‘s second assignment of error.
D
{¶39} In conclusion, we: (1) overrule appellant‘s first assignment of error as it pertains to the court‘s order that she pay the costs of prosecution, (2) sustain her first assignment of error regarding the court‘s imposition of the $5,000 mandatory fine, (3) reverse the trial court‘s judgment that imposed the $5,000 mandatory fine, and (4) remand this matter for resentencing. We also overrule appellant‘s second assignment of error and otherwise affirm the trial court‘s judgment.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART AND THIS CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
It is ordered that the judgment be affirmed in part, reversed in part and this matter remanded for further proceedings consistent with this opinion. Appellee shall recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto 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, it is continued for a period of 60 days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the 60-day period.
The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the 45-day 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 the expiration of said 60 days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
BY: Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.