STATE OF OHIO, PLAINTIFF-APPELLEE, v. MARCUS W. WILKERSON, DEFENDANT-APPELLANT.
CASE NOS. 8-13-06, 8-13-07
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY
March 17, 2014
[Cite as State v. Wilkerson, 2014-Ohio-980.]
Appeals from Logan County Common Pleas Court, Trial Court Nos. CR-12-01-0006 and CR-12-06-0132. Judgments Reversed and Causes Remanded.
Marc S. Triplett for Appellant
Eric C. Stewart for Appellee
{¶1} Defendant-appellant Marcus W. Wilkerson appeals the judgments of the Common Pleas Court in Logan County, Ohio, journalizing his convictions by guilty pleas in two separate criminal cases CR 12-01-0006 and CR 12-06-0132, and sentencing him to prison terms in each of the cases, to be served consecutively to each other. Upon Wilkerson‘s motion, the separate appeals in these cases were consolidated and are hereby considered together. For the reasons that follow, we reverse the trial court‘s judgments.
{¶2} On March 27, 2012, in case number CR 12-01-0006, Wilkerson was indicted on two counts of trafficking in drugs, each a felony of the fourth degree, and one count of trafficking in drugs, a felony of the fifth degree, all in violation of
{¶3} While released, with his case pending, Wilkerson committed additional offenses on May 21, 2012, and June 7, 2012, resulting in charges in the second case at issue here. (R. 2 at 2.) Wherefore, on June 12, 2012, Wilkerson was indicted in case number CR 12-06-0132, with one count of trafficking in
{¶4} After initially pleading not guilty to all charges in both cases, Wilkerson entered a plea agreement resolving all charges in both cases on January 29, 2013. (R. 1 at 83; R. 2 at 85.) As a result of the agreement, Wilkerson pled guilty to two counts in case CR 12-01-0006: Count I, trafficking in drugs, a felony of the fourth degree, and Count III, trafficking in drugs, a felony of the fifth degree. In case CR 12-06-0132, he pled guilty to Count I, trafficking in drugs, a felony of the fifth degree, and Count II, possession of drugs, a felony of the fourth degree. The remaining charges were each dismissed. (Id.) The trial court accepted Wilkerson‘s pleas in both cases at the same proceeding. (See Tr. of Proceedings, Jan. 29, 2013; R. 1 at 85; R. 2 at 88.)
{¶5} The consolidated sentencing hearing was held on March 4, 2013. The prosecutor made a statement, in which he highlighted Wilkerson‘s history of repeated offenses and pointed out that some of them occurred while Wilkerson
The pattern of your conduct here is a concern to the Court. * * * The number of convictions and the continued pattern that Mr. Stewart has pointed out here in my mind requires the Court to send you to the -- to the department of corrections for a substantial period of time.
(Sentencing Tr. at 7.)
{¶6} The court then sentenced Wilkerson as follows. In case CR 12-01-0006, the trial court imposed a prison sentence of eighteen months for count one, and ten months for count three, to run concurrently, for a total of eighteen months. (Id.) In case CR 12-06-0132, the court imposed a sentence of ten months on count one, and eighteen months on count two, to run concurrently, for a total of eighteen months. (Id. at 7, 9.) The eighteen-month sentences from the two cases were ordered to be served consecutively to each other, for a total of thirty-six months in prison. (Id.) As the reasons for imposing consecutive sentences in the two cases, the trial court stated,
The reasons for doing this are stated by the -- stated by the prosecutor. That you‘re out on bond and you continue in this course of criminal conduct, and the Court finds that because of that it‘s necessary to protect the public and to adequately punish you in a
way that‘s not disproportionate with other sentences this Court gives to impose the consecutive sentences.
(Id. at 8.) At the conclusion of the hearing, the prosecutor asked, “Costs assessed or waived?” (Id. at 9.) The trial court responded, “Costs is [sic] assessed to the defendant.” (Id. at 10.)
{¶7} The trial court issued a written Judgment Entry/Sentencing in each of the cases on March 21, 2013, memorializing the sentences imposed and ordering Wilkerson “to pay the costs of prosecution and any fees permitted pursuant to
{¶8} Wilkerson filed a timely notice of appeal alleging two assignments of error for our review.
First Assignment of Error
The Trial Court Acted Contrary to Law When It Ordered That the Sentences Imposed in Appellant‘s Two Cases Be Served Consecutively.
Second Assignment of Error
The Trial Court Acted Contrary to Law When It Imposed Financial Sanctions.
{¶9} Wilkerson argues that the trial court erred by failing to make certain findings necessary for imposing consecutive sentences under
{¶10} Under Ohio law, the general rule is that sentences of imprisonment shall be served concurrently.
(4) 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 , or2929.18 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.
{¶11} Therefore, in order to impose consecutive sentences, the trial court must find on the record that (1) consecutive sentences are necessary to either protect the public or punish the offender; (2) the sentences would not be disproportionate to the offense committed and to the danger posed to the public by the offender; and (3) the timing of the offense, the harm caused, or the offender‘s criminal history justify the imposition of consecutive sentences. Id.; Peddicord, 2013-Ohio-3398, at ¶ 33. Wilkerson asserts that the trial court failed to find that consecutive sentences were not disproportionate to the seriousness of his conduct and to the danger he posed to the public, as required by the statute. He argues that the trial court‘s words “necessary * * * to adequately punish you in a way that‘s
{¶12} The issue for our review is whether the trial court made the necessary statutory findings to support Wilkerson‘s consecutive sentences. “When a statute directs a court to make findings before imposing a particular sentence, a failure to make those findings is ‘contrary to law’ ” and the sentence must be overturned. State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 12 (8th Dist.), quoting State v. Jones, 93 Ohio St.3d 391, 399, 754 N.E.2d 1252 (2001); accord State v. Hill, 3d Dist. Henry No. 7-12-11, 2013-Ohio-3873, ¶ 23; State v. Webb, 3d Dist. Marion No. 9-03-64, 2004-Ohio-3555, ¶ 5. Therefore, if the trial court imposes consecutive sentences without making the required
{¶13} An appellate court must conduct a meaningful review of the imposition of consecutive sentences by the trial court. State v. Billeg, 3d Dist. Wyandot No. 16-12-03, 2013-Ohio-219, ¶ 20; State v. Daughenbaugh, 3d Dist. Wyandot No. 16-07-07, 2007-Ohio-5774, ¶ 8. If the appellate court determines that the imposed sentence is clearly and convincingly contrary to law, it can
{¶14} “The trial court is not required to recite any ‘magic’ or ‘talismanic’ words when imposing consecutive sentences, as long as it is ‘clear from the record that the trial court engaged in the appropriate analysis.’ ” State v. Bentley, 3d Dist. No. 9-12-31, 2013-Ohio-852, ¶ 13, quoting State v. Murrin, 8th Dist. Cuyahoga No. 83714, 2004-Ohio-3962, ¶ 12. Nevertheless, the trial court is not relieved from the duty to make the specific findings; therefore implied findings will not suffice. See State v. Spencer, 8th Dist. Cuyahoga No. 99729, 2014-Ohio-204, ¶ 4; Venes, 2013-Ohio-1891, at ¶ 14. In order to satisfy the statutory requirement of making the specific findings, the record must reflect that the trial court engaged in the analysis called for by the statute and selected the appropriate statutory criteria. Spencer, 2014-Ohio-204, at ¶ 4; State v. Wills, 2d Dist. Montgomery No. 25357, 2013-Ohio-4507, ¶ 29; State v. Whitaker, 2013-Ohio-4434, 999 N.E.2d 278, ¶ 77 (12th Dist.); State v. Mitchell, 3d Dist. Crawford No. 3-01-20, 2002 WL 468586, *2 (2002); State v. Moore, 142 Ohio App.3d 593, 597, 756 N.E.2d 686 (4th Dist. 2001). It follows that we will not read the trial court‘s comments as implying the proper findings if the record lacks any indication that those specific findings were made. The record must reflect “separate and distinct” findings for imposing consecutive sentences. Spencer, 2014-Ohio-204, at ¶ 2.
{¶16} In State v. Temple, the Second District Court of Appeals analyzed the trial court‘s statements and held that although the trial court did not use the statutory language, the record showed that the proper analysis was applied. 2d Dist. Clark No.2012-CA-65, 2013-Ohio-3843, ¶ 22-26.
The record indicates that the trial court made the first finding required by
R.C. 2929.14(C)(4) when the court referred to the need to punish the offender and to protect the community from future crime. Additionally, the trial court noted that Temple showed no remorse for abusing J.B. “[A]n offender ‘is likely to commit future crimes’ if ‘[t]he offender shows no genuine remorse for the offense.’ ” State v. Newcomb, 10th Dist. Franklin No. 04AP-1223, 2005-Ohio-4570, ¶ 28, quotingR.C. 2929.12(D)(5) . Accordingly, Temple‘s lack of remorse indicates a need to protect the community from future crimes.The second required finding is referred to when the trial court discussed the seriousness of the offender‘s conduct, and noted that Temple‘s offenses were the most severe, given their nature and duration.
The third finding under section (b) of the statute is satisfied, because the trial court recognized that Temple‘s four convictions were based on a series of events that occurred over a two and one-half year period. This indicates that Temple‘s offenses were not based on one course of conduct, but that each offense was based on numerous courses of conduct that occurred over a long period of time. The trial court also recognized the negative effect the abuse had on J.B., the long duration of the abuse, and the disturbing way in which the abuse was inflicted. This indicates that the court considered the degree of harm that was caused by Temple‘s offenses, and that the court found it sufficient to warrant consecutive sentences.
Id. at ¶¶ 23-25.
{¶17} The Eleventh District Court of Appeals recently reviewed an issue of sufficiency of the trial court‘s
{¶18} In a case from the Twelfth District Court of Appeals, State v. Whitaker, the trial court explained that it imposed consecutive sentences “because of the seriousness of the offense” and that “[c]oncurrent sentences simply would demean the seriousness of the offense and would not amply protect the public from future crime by the Defendant.” 2013-Ohio-4434, at ¶ 78. The trial court further noted that
the offenses consisted of two separate incidents of kidnapping and assaulting the same victim, the two incidents were approximately a week apart and thus did not “just happe[n] at the spur of the moment,” the offenses were not isolated offenses but rather were “one of many offenses, at least four in the last twenty years,” and in fact, appellant had “spent quite a bit of time in prison” for a previous offense involving another female victim.
The trial court also stated this was “the worst” case it had ever seen in 30 years of being on the bench, appellant came close to killing the victim during the December 3, 2011 incident, and based on the two 2011 incidents and appellant‘s criminal history, appellant was a “very dangerous person.” The trial court noted that when appellant was released in 2006 or 2007 after serving prison time for a previous offense, he was released against the will of the prosecutors that had handled the case, and “it wasn‘t that long after his release that these offenses were committed.”
Id. at ¶¶ 79-80. The court of appeals determined that the above comments were sufficient to prove that the trial court engaged in the required analysis and selected the appropriate statutory criteria because “the language employed by the trial court complie[d] with the statutory requisites.” Id. at ¶¶ 78, 81. We note that in that case the trial court did not expressly engage in the proportionality analysis on the record, although it noted that the defendant was a “very dangerous person.” Id. at ¶ 79-80.
{¶19} In contrast to the above cases, which hold that the record sufficiently showed that the trial court engaged in the proper
These, the court finds, are ordered to be served consecutively as a result of these crimes being ones that are multiple in nature, and the harm committed was so great or unusual that no single prison term for the offenses as a whole should be imposed by the court consistent with the seriousness of the defendant‘s conduct bringing about the results of this criminal activity.
State v. Billenstein, 3d Dist. Mercer No. 10-13-10, 2014-Ohio-255, ¶ 69. We held that although the trial court‘s statements satisfied
was nevertheless required to make the specific findings required by the statute, and we are hesitant to impute our interpretation to the trial court‘s comments.” Id.
The court has reviewed for purposes of sentencing, and the need to protect the public, [sic] the court finds that sentencing you on any less than four counts of this indictment would seriously demean the crime involved here, which is cyber-porn of children and the court will impose the sentence that I imposed originally on this case.
I see no reason to deviate downward and I will not deviate upward even based on the diagnosis of pedophilia because I believe that the court‘s sentence is ample to cover that diagnosis.
Id. at ¶ 23. In reviewing the sentence, the court of appeals noted that some of the trial court‘s statements could possibly “be pieced together and found, however remotely, to encompass the findings necessary to impose consecutive sentences. But for us to engage in that kind of review defeats the purpose of
regardless of what the trial judge might say during sentencing regarding the purposes and goals of criminal sentencing, compliance with
R.C. 2929.14(C)(4) requires separate and distinct findings in
addition to any findings relating to purposes and goals of criminal sentencing. Too often, we have been called to examine words or phrases scattered throughout a sentencing transcript and piece them together to decide whether the court made the required findings. * * * If the word “findings” is to have any meaning at all, it means nothing less than the court must “engage[ ] in the required analysis and select[ ] the appropriate statutory criteria” before ordering sentences to be served consecutively. State v. Edmonson, 86 Ohio St.3d 324, 326, 715 N.E.2d 131 (1999). Only then will the imposition of consecutive sentences not be contrary to law.
We recognize that this strict approach will likely cause the reversal of some consecutive sentences. However, a long-view approach will ultimately result in far fewer appeals of consecutive sentences.
(Alterations in original.) Id. at ¶¶ 17-18.
{¶22} The same court in its recent decision, State v. Spencer, affirmed its previous holding rejecting an argument that “certain things said by the court were ‘conceptually equivalent’ to the findings required by the statute,” and held that “the court‘s statements in the record that might support a finding were not the same as making a finding.” 2014-Ohio-204, ¶ 4, citing State v. Cvijetinovic, 8th Dist. Cuyahoga No. 81534, 2003-Ohio-563. In Spencer, the trial court stated that the defendant‘s crime was “one of the worst examples of criminal nonsupport.” Id. at ¶ 3. The trial court further commented that it believed that the consecutive sentences were necessary “as a result of [the defendant‘s] continued disrespect for this law, disrespect for his kids, disrespect for obeying these proceedings.” Id.
{¶23} Moving on to the case at issue and comparing it to the above-cited decisions, we recognize that this is a close case. But in order to avoid “frustrat[ing] the purposes underlying the requirement for findings as a predicate for ordering consecutive sentences,” we must distinguish between findings that are weak but sufficient and no findings at all. See Venes, 2013-Ohio-1891, at ¶ 14. Here, the trial court satisfied the first required finding of
{¶24} We find the greatest problem with the second element of
{¶25} The trial court‘s failure to make all of the required specific findings for imposition of consecutive sentences resulted in Wilkerson‘s sentence being contrary to law. As such, Wilkerson‘s first assignment of error is sustained.
Second Assignment of Error
{¶26} In his second assignment of error, Wilkerson challenges the trial court‘s imposition of financial sanctions upon him. In particular, Wilkerson points to discrepancy between the statement “costs is [sic] assessed to the Defendant,” made at the sentencing hearing, and the statement in the judgment entry that orders him “to pay the costs of prosecution and any fees permitted pursuant to
Conclusion
{¶28} Having found error prejudicial to Appellant, we reverse the trial court‘s judgments and remand these matters to the trial court for resentencing consistent with this opinion. The judgments of the Common Pleas Court in Logan County, Ohio, are thereby reversed.
Judgments Reversed and Causes Remanded
ROGERS and SHAW, J.J., concur.
/jlr