State v. Ter DoestState v. Ter Doest
Decided: August 14, 2020
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Paul A. Dobson, Wood County Prosecuting Attorney, David T. Harold and James A. Hoppenjans, Assistant Prosecuting Attorneys, for appellee.
Thomas P. Kurt, for appellant.
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SINGER, J.
{¶ 1} This matter is before the court on remand from the Ohio Supreme Court. This case was originally before this court on appeal from the May 21, 2018 judgment of the Wood County Court of Common Pleas, which revoked appellant‘s, Amanda Ter Doest, nka Diehl‘s, community control sanction imposed January 16, 2013, and
{¶ 2} In her first assignment of error, appellant argued the trial court erred in imposing consecutive prison sentences without making the findings required
{¶ 3} We certified the case to the Ohio Supreme Court, which reversed our decision and remanded the case for application of State v. Howard, Slip Opinion No. 2020-Ohio-3195. In Howard, the Ohio Supreme Court held that at the initial sentencing hearing imposing a community control sanction, the court must only notify the defendant of the “specific prison term” that could be imposed for violation of community control, which is the number of months of imprisonment for each count, not whether the trial court could impose consecutive multiple prison terms. Id. at ¶ 13. The court further held that the trial court must make the consecutive sentences findings at the time of the revocation/sentencing hearing because the prison terms are not imposed until that time.
{¶ 4} We now consider whether the trial court sentencing appellant for a violation of her community control sanctions made the necessary findings before imposing consecutive prison terms.
{¶ 5} While the imposition of consecutive sentences is a discretionary decision, and not a mandatory sentencing provision, State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 27, the Ohio Supreme Court has held the imposition of consecutive sentences without making the findings required by
{¶ 6}
{¶ 7} The trial court considered appellant‘s actions which led to the violations of her community control sanctions and her newly-asserted gambling addiction. The trial court concluded that because appellant had stolen significant sums from two additional employers while on community control, the community control sanctions had not been successful in rehabilitating her and that the harm she caused was “so great and unusual” that consecutive sentences were necessary to protect the public.
{¶ 8} However, the trial court failed to find that the consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public,
{¶ 9} In her second assignment of error, appellant asserts that the trial court did not consider her gambling compulsion as factors of mitigating circumstances,
{¶ 10} Having found that the trial court did commit error prejudicial to appellant
Judgment vacated and remanded.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J.
Arlene Singer, J.
Thomas J. Osowik, J.
JUDGE
CONCUR.
JUDGE
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.