State v. StutesState v. Stutes
APPEARANCES:
Christopher Pagan, Repper-Pagan Law, Middletown, Ohio, for appellant.
William L. Archer, Jr., Gallia County Assistant Special Prosecutor, Circleville, Ohio, for appellee.
Wilkin, J.
{¶1} This is an appeal from a Gallia County Court of Common Pleas judgment of conviction involving two separate cases that were consolidated for appeal. In both cases, 21CR168 and 21CR221, appellant, Bretton Stutes, was charged with several counts of violating a protection order, fifth-degree felonies due to his previous conviction of violating a protection order. The hearings for both cases were held contemporaneously, including the change of plea hearing in which Stutes pleaded guilty to three counts of violating a protection ordеr with the state agreeing to dismiss the remaining two counts.
{¶2} The state and Stutes agreed to a jointly recommended sentence of a community-control sanction for 24 months for the three counts Stutes pleaded guilty to. The trial court rejected the recommended sentence. Instead, the trial
{¶3} In the first assignment of error, Stutes presents several arguments. First, he asserts the trial court erred in its recidivism analysis that resulted in the rejection of a community-control sanction in 21CR221. We overrule this argument since
{¶4} We do, however, in 21CR221 remand the matter for the trial court to issue a nunc pro tunc entry incorporating all consecutive-sentence findings announced at disposition. Also, in 21CR168, we remand the matter for
{¶5} In his second assignment of error, Stutes challenges for the first time the constitutionality of
FACTS AND PROCEDURAL BACKGROUND
{¶6} In 21CR168, Stutes was charged with four counts of violating a protection order,
{¶7} In 21CR221, Stutes was charged with committing one offense of violating a protection order, a fifth-degree felony, due to his previous conviction of violating a protection order. In both felony cases, Stutes initially pleaded not guilty, but on March 28, Stutes agreed to plead guilty to Counts One and Three in
No promises have been made except as part of this plea agreement stated entirely as follows: Global resolution resolving all cases and charges. Joint recommendation for 24 months of community control to commence upon release from prison. The state will ask for consecutive underlying prison terms for any violation. Defendant agrees to pay the costs in both actions.
{¶8} A joint change of plea hearing was conducted with the state placing the agreement on reсord:
Mr. Stutes will change his plea and enter a guilty plea to Count 1 uh, in 21 CR 221, that would be violation of a protection order with a prior conviction. Uh, in 21 CR 168 that will be a guilty plea to Counts 1 and 3 uh, both being violations of a protection with a prior conviction. Uh, he would be placed upon, well there would be a joint recommendation and ask him to be placed on 24 months of community control. Uh, that would commence upon his release from prison. Uh, we would expect and ask uh, for consecutive underlying prison sanctions for any violation. Uh, the remaining counts in 168 would be dismissed and he would pay the cost of the action.
{¶9} Stutes agreed with the state‘s recitation of the agreement. The trial court then informed Stutes of the maximum sentences he faces, including the option to impose a prison term fоr each offense and ordering them to be served consecutively. The trial court also explained the possibility of placing Stutes on community control and the consequences of violating community control. As part of the plea colloquy, the trial court explained the constitutional rights Stutes waives by pleading guilty.
{¶10} Stutes stipulated to the factual basis for each element of each offense and admitted that he made contact with the victim on May 19, 2021, June 16, 2021, and September 2, 2021. Stutes then pleaded guilty to each offense.
{¶11} At the disposition hearing, the state again outlined the jointly recommended sentence of 24 months of community-control sanction to commence upon the release of Stutes from prison and that Stutes was “serving a prison term at the time of these offense[s].” The trial court granted the state‘s request to dismiss Counts Two and Four in 21CR168 and sentenced Stutes to the following:
Um, I‘m going to accept in part and veer off in part. Um, so first you need to know Mr. Stutes that I am finding a prison sentence is consistent with the purposes and principles of sentencing. Um, find that you‘re not right now amenable to a community control sanction. I‘m going to ordеr that you serve a term of 11 months in prison under case number 21 CR 221 for violating a protection order, a felony of the fifth degree. And um, I‘m going to find that you are to serve that consecutively with the term that you are serving right now. I do find consecutive sentence is necessary to protect the public from future crime. They‘re not disproportionate to the seriousness of the conduct or to the danger the offender imposes to the public. I do find this was committed while you were in, already a serving a prison term and in prison. So basically your history of criminal conduct demonstrates consecutive sentences is necessary to protect the public from future crime. I have two days of jail to give you credit uh, because of uh, custody uh, I‘m sorry, because of time you spent in jail and in custody in this case рrior to sentencing.
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Now, however, on case number 21 CR 168 I am going to uh, that happened on different dates, different cases. I‘m going to find community control uh, appropriate in that case after you have served the prison term. Find it‘s consistent with the overriding purposes of
felony sentencing. Find that after your service of your prison term you are amenable to a community control sanction and further prison is not consistent with the purposes and principles of sentencing. Um, as part of your sentence on, your, you will be uh, under a community control sanction on each of these counts for 48 months. You‘ll serve that concurrently for one 48 month period.
{¶12} In 21CR168, the trial court‘s sentencing entry included the following:
However, the Court finds, as set forth in Ohio Revised Code Section 2929.12(D), that the Defendant was under a residеntial sanction, prison, at the time of the offense. Ohio Revised Code Section 2929.12(D)(1). Further, the Defendant has a history of criminal convictions, now serving a prison term. Ohio Revised Code Section 2929.12(D)(2). Further, Defendant exhibits a pattern of drug abuse related to the offense and as a refusal to engage in treatment. Ohio Revised Code section 2929.12(D)(4).
Defendant‘s prior prison term and that Defendant committed a new crime while incarcerated are considered for the purposes of Ohio Revised Code Section 2929.13(B).
After consideration of the factors in Ohio Revised Code Section 2929.11, 2929.12 and 2929.13, the Court finds that a community control sanction is consistent with the overriding purposes of felony sentencing. Further, the Court finds that the Defendant is amenable to a community control sanction and that a prison term is not consistent with the purposes and principles of sentencing.
It is therefore Ordered that the Defendant be sentenced to forty-eight (48) months of community control, ON EACH COUNT, subject to the general supervision and control of the Adult Probation Department under any terms and conditions that they deem appropriate.
These terms of community control shall be served concurrently with each other and with the sentence imposed in Case Number 21 CR 221.
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The Court finds that consecutive sentences are necessary to protect the public from future crime and to punish the offender. Consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct nor are they disproportionate to the danger the offender poses to the public. Further, Defendant committed this offense while incarcerated. And, the Defendant‘s history оf criminal conduct demonstrates the necessity of consecutive sentences to protect the public from future crime. Ohio Revised Code Section 2929.14(C). (Boldface sic.)
However, the Court finds, as set forth in Ohio Revised Code Section 2929.12(D), that the Defendant was incarcerated in prison at the time of the offense. Ohio Revised Code Section 2929.12(D)(1). Further, the Defendant has a history of criminal convictions, now serving a prison term. Ohio Revised Code Section 2929.12(D)(2). Further, Defendant exhibits a pattern of drug abuse related to the offense and as a refusal to engage in treatment. Ohio Revisеd Code section 2929.12(D)(4).
Defendant‘s prior prison term and that Defendant committed a new crime while incarcerated is considered for the purposes of Ohio Revised Code Section 2929.13(B).
Further, the Court finds that the Defendant is not presently amenable to an available community control sanction.
Accordingly, after consideration of all of the above, the Court finds that a prison term is consistent with the purposes and principles of sentencing set forth in the Ohio Revised Code Section 2929.11.
Therefore, it is the Order and Judgment of this Court that the Defendant shall be sentenced to the Ohio Department of Rehabilitation and Correction for a period of eleven (11) months for “Violation of a Protection Order,” a violation of Section 2919.27(B)(3)(a) of the Ohio Revised Code, a felony of the fifth degree.
This sentence shаll be served consecutively to the prison term Defendant is now serving.
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The Court finds that consecutive sentences are necessary to protect the public from future crime and to punish the offender. Consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct nor are they disproportionate to the danger the offender poses to the public. Further, these offenses were committed while Defendant was under a residential sanction – prison. Ohio Revised Code Section 2929.14(C). (Boldface sic.)
{¶14} It is from these judgments that Stutes appeal.
ASSIGNMENTS OF ERROR
THE TRIAL COURT‘S SENTENCES WERE CONTRARY TO LAW. - IT IS UNLAWFUL TO DENY APPELLATE COUNSEL A COPY OF STUTES’ PSI TO INVESTIGATE, RESEARCH, AND PRESENT ISSUES FOR APPEAL.
ASSIGNMENT OF ERROR I
{¶15} Stutes within the first assignment of error raises three separate arguments attacking the imposition of the 11-month prison term in 21CR221, and the trial court‘s order for Stutes’ sentences to be served consecutively. Stutes begins by challenging the trial court‘s recidivism analysis per
{¶16} Secondly, Stutes asserts the trial court erred in ordering the 11-month prison term to be served consecutively to the prison sentence he was serving at the time. Stutes does not challenge the trial court‘s findings that consecutive terms are necessary to protect the public and that consecutive prison terms are not disproportionate. Stutes solely challenges the trial court‘s factual application of
{¶17} Finally, Stutes claims the trial court erred by imposing a split sentence when it ordered the community-control sanction in 21CR168 to be served consecutively to the prison term Stutes was serving at the time and consecutive to the 11-month prison term in 21CR221. In support of his argument, Stutes relies on the Supreme Court decision in State v. Hitchcock, 157 Ohio St.3d 215, 2019-Ohio-3246, 134 N.E.3d 164, and requests that we modify his sentences to be served concurrently.
{¶18} The state agrees that a prison sentence is not a residential sanction, but, nonetheless, it is a recidivism factor that the trial court may consider pursuant to
{¶19} As to Stutes’ claim that the trial court imposed a split sentence, the state disagrees and argues that there is no split sentencing here in which the trial court ordered the 11-month prison sentence to be served consecutively to the prison sentence Stutes was serving at the time in another jurisdiction based on a different indictment. Moreover, Stutes’ community-control sanction imposed in 21CR168 was ordered to be served concurrently to the 11-month prison term sentеnce in 21CR221.
{¶20} In his reply, Stutes argues the trial court‘s error in analyzing the
Law and Analysis
1. R.C. 2929.12 – Recidivism
{¶21} We must review Stutes’ sentence pursuant to the dictates of
{¶22} The only provisions listed in
{¶23} In the case at bar, the record is clear that the trial court considered
2. Consecutive Sentencing
{¶24} Generally, a trial court is required to make certain findings pursuant to
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.
{¶26} ”
{¶27} “The plain language of
{¶28} The Court in Gwynne continued:
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 beforе 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.
Id. at ¶ 15.
{¶29} In the case at bar, Stutes’ 11-month prison term was ordered to be served consecutively to the prison term he was serving at the time in another case. The record is clear, and Stutes concedes, that the trial court found the necessity and proportionality findings in support оf consecutive sentencing. Stutes solely argues that the record does not support the application of
{¶30} First, the PSI report indicates that Stutes “committed the current offenses while on Probation Supervision in Jackson County Municipal Court.” Accordingly, we are not clearly and convincingly convinced that the record does not support the trial court‘s findings. See Gwynne, ___ Ohio St.3d ___, 2023-Ohio-3851, ___ N.E.3d ___, ¶ 19.
{¶31} Second, the trial court made the additional finding that “your history of criminal conduct demonstrates consecutive sentences is necessary to protect the public from future harm.”
{¶32} In conclusion, we affirm Stutes’ 11-month prison sentence in 21CR221 to be served consecutively with his prison term he was serving at the time. However, we remand the matter in 21CR221 to the trial court to issue a nunc pro tunc entry to incorporate all the factors announced in disposition in support of consecutive sentencing in the sentencing entry, including Stutes’ criminal history. A trial court is required to announce the consecutive sentencing factors at the disposition heаring and also incorporate them in the entry. See Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 23.
3. Split Sentencing
{¶33} In State v. Hitchcock, the Supreme Court of Ohio addressed the issue whether “a trial court may impose community-control sanctions on one felony count to be served consecutively to a prison term imposed on a separate felony count.” 157 Ohio St.3d 215, 2019-Ohio-3246, 134 N.E.3d 164, ¶ 1. The lead opinion emphasized that “judges have no inherent power to create sentences, and the only sentence a trial judge may impose is that provided by statute.” Id. at ¶ 18. “[T]rial courts are given express authorization to impose a
{¶34} The other limitation is that ” ‘[t]he duration of all community control sanctions imposed upon an offender under this division shall not exceed five years.’ ” State v. Page, 153 Ohio St.3d 214, 2018-Ohio-813, 103 N.E.3d 800, ¶ 10, quoting
{¶35} In the case at bar, the trial court imposed 48 months of community-control sanction as to Counts One and Three in 21CR168 to be served concurrently to each other. For the sole count of violating a protection order in 21CR221, the trial court imposеd 11 months imprisonment. Stutes maintains that the trial court ordered the community-control sanctions in 21CR168 to be served consecutively to the 11-month prison term in 21CR221. The state on the other hand, argues the trial court ordered the sentences to be served concurrently. Technically, both are correct. This is because the trial court‘s announcement at disposition was for the sentences to be served consecutively,
{¶36} At the hearing, the trial court stated the following:
Now, however, on case number 21 CR 168 I am going to uh, that happened on different dates, different cases. I‘m going to find community control uh, appropriate in that case after you have served the prison term. Find it‘s consistent with the overriding purposes of felony sentencing. Find that aftеr your service of your prison term you are amenable to a community control sanction and further prison is not consistent with the purposes and principles of sentencing. Um, as part of your sentence on, your, you will be uh, under a community control sanction on each of these counts for 48 months. You‘ll serve that concurrently for one 48 month period.
{¶37} But in the sentencing entry in 21CR168, the trial court ordered the community-control sanctions to be served concurrently to the 11-month prison term in 21CR221 but also included the factors in support of consecutive sentencing:
These terms of community control shall be served concurrently with each other and with the sentence imposed in Case Number 21 CR 221.
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The Court finds that consecutive sentences are necessary to protect the public from future crime and to punish the offender. Consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct nor are they disproportionate to the danger the offender poses to the public. Further, Defendant committed this offense while incarcerated. And, the Defendant‘s history of criminal conduct demonstrates the necessity of consecutive sentences to protect the public from future crime. Ohio Revised Code Section 2929.14(C). (Boldface sic.)
{¶38} Generally, a trial court speaks through its journal entries and not by oral pronouncement. See State v. Guilkey, 4th Dist. Scioto No. 04CA9432, 2005-Ohio-3501, ¶ 10. But there is an exception in criminal cases “because the defendant has a constitutional right to be present at every stage of the
{¶39} In conclusion, we overrule Stutes’ arguments as to the sentence imposed in 21CR221 of 11 months in prison but remand the matter to the trial court to issue a nunc pro tunc entry to incorporate all factors announced at disposition in support of consecutive sentencing in the sentencing entry. We sustain Stutes’ argument as to his challenge to the community-control sentences imposed in 21CR168 due to the discrepancy in the sentence announced at the disposition hearing and that which was incorporated in the sentencing entry. We thus, remand the matter in 21CR168 for a new sentencing hearing.1
ASSIGNMENT OF ERROR II
{¶41} Third, Stutes asserts that
{¶42} The state disagrees and claims that Stutes was not denied access to the PSI report, but rather, similar to the prosecution, Stutes’ appellate counsel was denied a copy of the PSI report. Further, the state contends that we do not need to reach the due process and equal protection arguments because PSI reports are confidential and are not public record pursuant to
{¶43} In his reply, Stutes maintains that his appellate counsel should be provided a copy of the PSI report since
Law and Analysis
1. Constitutionality of R.C. 2951.03
{¶44} We decline to address Stutes’ constitutional challenge to
[T]he question of the constitutionality of a statute must generally be raised at the first opportunity and, in a criminal prosecution, this means in the trial court. See State v. Woodards (1966), 6 Ohio St.2d 14, 215 N.E.2d 568 [35 O.O.2d 8]. This rule applies both to appellant‘s claim that the statute is unconstitutionally vague on its face and to his claim that the trial court interpreted the statute in such a way as to render the statute unconstitutionally vague. Both claims were apparent but yet not made at the trial court level.
State v. Awan, 22 Ohio St.3d 120, 122-123, 489 N.E.2d 277 (1986).
{¶45} As Stutes correctly acknowledges,
2. Appellate counsel is not entitled to a copy of the PSI report.
{¶46} We begin with
(B)(1) If a presentence investigation report is prepared pursuant to this section, section
2947.06 of the Revised Code, or Criminal Rule 32.2, the court, at a reasonable time before imposing sentence, shall permit the defendant or the defendant‘s counsel to read the report, except that the court shall not permit the defendant or the defendant‘s counsel to read any of the following:
- Any recommendation as to sentence;
- Any diagnostic opinions that, if disclosed, the court believes might seriously disrupt a program of rehabilitation for the defendant;
- Any sources of information obtained upon a promise of confidentiality;
- Any other information that, if disclosed, the court believes might result in physical harm or some other type of harm to the defendant or to any other person.
(2) Prior to sentencing, the court shall permit the defendant and the defendant‘s counsel to comment on the presentence investigation report and, in its discretion, may permit the defendant and the defendant‘s counsel to introduce testimony or other information that relates to any alleged factual inaccuracy contained in the report.
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(4) Any material that is disclosed to the defendant or the defendant‘s counsel pursuant to this section shall be disclosed to the prosecutor who is handling the prosecution of the case against the defendant.
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(D)(1) The contents of a presentence investigation report prepared pursuаnt to this section, section
2947.06 of the Revised Code, or Criminal Rule 32.2 and the contents of any written or oral summary of a presentence investigation report or of a part of a presentence investigation report described in division (B)(3) of this section are confidential information and are not a public record. The court, an appellate court, authorized probation officers,investigators, and court personnel, the defendant, the defendant‘s counsel, the prosecutor who is handling the prosecution of the case against the defendant, and authorized personnel of an institution to which the defendant is committed may inspect, receive copies of, retain copies of, and use a presentence investigation report or a written or oral summary of a presentence investigation only for the purрoses of or only as authorized by Criminal Rule 32.2 or this section, division (F)(1) of section 2953.08 , section2947.06 , or another section of the Revised Code.(2) Immediately following the imposition of sentence upon the defendant, the defendant or the defendant‘s counsel and the prosecutor shall return to the court all copies of a presentence investigation report and of any written summary of a presentence investigation report or part of a presentence investigation report that the court made available to the defendant or the defendant‘s counsel and to the prosecutor pursuant to this section. The defendant or the defendant‘s counsel and the prosecutor shall not make any copies of the presentence investigation report or of any written summary of a presentence investigation report or part of a presentence investigation report that the court made available to them pursuant to this section.
(3) Except when a presentence investigation report or a written or oral summary of a presentence investigation report is being used for the purposes of or as authorized by Criminal Rule 32.2 or this section, division (F)(1) of section
2953.08 , section2947.06 , or another section of the Revised Code, the court or other authorized holder of the report or summary shall retain the report or summary under seal. (Boldface added).
{¶47} The statutory language is clear and unambiguous in that prior to sentencing, the defendant or his counsel and prosecution may review some parts of the PSI report.
{¶48} In State v. Johnson, 138 Ohio St.3d 282, 2014-Ohio-770, 6 N.E.3d 38, ¶ 1, citing 135 Ohio St.3d 1411, 2013-Ohio-1622, 986 N.E.2d 28, the Supreme Court addressed the certified conflict question on whether “newly-appointed appellate counsel is entitled to obtain a copy of the defendant‘s presentence investigation report.” The Court answered the question in the affirmative holding
{¶49} Therefore, access to the PSI report is subject to the limitations in
does not affect the otherwise confidential character of the contents of that report as described in division (D)(1) of section
2951.03 of the Revised Code аnd does not cause that report to become a public record, as defined in section149.43 of the Revised Code, following the appellate court‘s use of the report.
{¶50} Pursuant to the Supreme Court‘s decision in Johnson and the clear statutory language in
{¶51} Accordingly, we overrule Stutes’ second assignment of error.
CONCLUSION
{¶52} In 21CR221, we affirm Stutes’ 11-month prison term but remand the matter to the trial court to issue a nunc pro tunc entry incorporating all the consecutive sentencing factors announced at the disposition hearing. In 21CR168, we remand the matter for resentencing.
JUDGMENT AFFIRMED IN PART REVERSED IN PART AND CAUSE REMANDED.
It is ordered that the JUDGMENT IS AFFIRMED IN PART AND REVERSED IN PART and the CAUSE IS REMANDED. Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Gallia 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 60 days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio 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 60-day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of 60 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.
Smith, P.J. and Hess, J.: Concur in Judgment and Opinion.
For the Court,
BY: ____________________________
Kristy S. Wilkin, 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 dаte of filing with the clerk.