State v. Brown , 2018 Ohio 4707 ( 2018 )


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  • [Cite as State v. Brown, 
    2018-Ohio-4707
    .]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 106771
    STATE OF OHIO
    PLAINTIFF-APPELLEE
    vs.
    RICHARD G. BROWN
    DEFENDANT-APPELLANT
    JUDGMENT:
    REVERSED AND REMANDED
    Criminal Appeal from the
    Cuyahoga County Court of Common Pleas
    Case No. CR-17-618582-B
    BEFORE:          Jones, J., E.A. Gallagher, A.J., and Laster Mays, J.
    RELEASED AND JOURNALIZED: November 21, 2018
    ATTORNEY FOR APPELLANT
    Thomas A. Rein
    820 West Superior Avenue, Suite 800
    Cleveland, Ohio 44113
    ATTORNEYS FOR APPELLEE
    Michael C. O’Malley
    Cuyahoga County Prosecutor
    BY: Kevin E. Bringman
    Assistant County Prosecutor
    The Justice Center, 9th Floor
    1200 Ontario Street
    Cleveland, Ohio 44113
    LARRY A. JONES, SR., J.:
    {¶1} Defendant-appellant Richard Brown (“Brown”) appeals the trial court’s judgment
    sentencing him to consecutive terms and imposing costs. For the reasons set forth below, we
    reverse the consecutive sentences and remand for the limited purpose of the trial court
    determining if consecutive sentences should be imposed and, if so, making the required findings.
    {¶2} Brown pleaded guilty in the two cases implicated in this appeal:     Cuyahoga C.P.
    No. CR-17-618582 (“the first case”) and Cuyahoga C.P. No. CR-17-618890 (“the second case”).
    In the first case, Brown pleaded guilty to one count of attempted felonious assault with a
    one-year firearm specification, one count of discharge of a firearm on or near a prohibited
    premises, and one count of tampering with evidence. In the second case, Brown pleaded guilty
    to one count of improperly handling a firearm in a motor vehicle.
    {¶3} The trial court sentenced Brown to 12 months on the attempted felonious assault
    charge consecutive to the one-year firearm specification in the first case; the sentences for the
    remaining two convictions in the first case were ordered to be served concurrently. In the
    second case, the trial court sentenced Brown to six months for the single conviction and ordered
    that it be served consecutive to the sentence in the first case. The trial court also ordered Brown
    to pay court costs. Brown now appeals and raises the following two assignments of error for
    our review:
    I. The trial court erred by ordering appellant to serve a consecutive sentence
    without making the appropriate findings required by R.C. 2929.14 and [H.B.] 86.
    II. The court costs imposed at the sentencing hearing infringes upon appellant’s
    rights under the Eighth and Fourteenth Amendments to the United States
    Constitution, R.C. 2929.18, R.C. 2919(b)(5), R.C. 2947.14, and related sections of
    the Ohio Constitution.
    {¶4} We first consider the imposition of consecutive sentences.    A trial court must make
    specified findings pursuant to R.C. 2929.14(C)(4) before it imposes consecutive sentences.
    State v. Magwood, 8th Dist. Cuyahoga No. 105885, 
    2018-Ohio-1634
    , ¶ 62. Specifically, the
    court must find: consecutive terms are required to protect the public from future crime or to
    punish the offender, (2) consecutive terms are not disproportionate to the seriousness of the
    conduct and danger posed to the public, and (3) either the offender committed at least one
    offense while awaiting trial or sentencing, that multiple offenses were part of a course of conduct
    and the harm caused was so great or unusual that a single term does not adequately reflect the
    seriousness of the offender’s conduct, or that the offender’s criminal history is such that
    consecutive terms are necessary to protect the public. R.C. 2929.14(C)(4); State v. Bonnell, 
    140 Ohio St.3d 209
    , 
    2014-Ohio-3177
    , 
    16 N.E.3d 659
    , ¶ 22, 26.              The trial court must also
    incorporate the findings into the sentencing judgment entry. Bonnell at ¶ 29.
    {¶5} The state concedes the error, and we agree. Brown was sentenced along with his
    codefendant, Dekari Heard, who also received consecutive sentences. Although the court made
    consecutive-sentence findings relative to Heard, it failed to do so for Brown.1
    {¶6} Citing State v. Brooks, 8th Dist. Cuyahoga No. 100455, 
    2015-Ohio-3906
    , and State
    v. Davis, 8th Dist. Cuyahoga No. 101338, 
    2015-Ohio-178
    , Brown contends that the appropriate
    remedy for this court is to modify his sentence to concurrent terms.
    {¶7} In both Brooks and Davis, the trial court failed to make all of the necessary findings
    for the imposition of consecutive sentences. This court reversed the sentence and remanded the
    case to the trial court for resentencing (Brooks at ¶ 15) and vacated the sentence and remanded
    for resentencing (Davis at ¶ 23). However, one judge on the panel concurred (Brooks) and
    concurred in part and dissented in part (Davis).
    {¶8} In Brooks, the concurring judge questioned
    whether the Supreme Court’s decision in Bonnell suggests or permits [an]
    unexplored (or relatively unexplored) avenue[ ] in which reviewing courts can
    proceed when considering the imposition of consecutive sentences. * * *
    [Specifically], if the reviewing court determines that the trial court did not make
    all or some of the required findings, instead of vacating the sentence and
    remanding for resentencing, as we do in this case and as the Supreme Court
    ordered in Bonnell, can the reviewing court instead
    “reduce, or otherwise modify [the] sentence * * * [as an] action
    authorized by [the statute] if [the reviewing court] clearly and
    convincingly finds * * * [t]hat the record does not support the
    sentencing court’s findings under division * * * (C)(4) of section
    2929.14 * * * [or] * * * [t]hat the sentence is otherwise contrary to
    law”
    1
    Heard has also appealed. State v. Heard, 8th Dist. Cuyahoga No. 106791. He challenges his sentence as being
    “contrary to law,” but not on the ground that the trial court failed to make the necessary findings for the imposition of
    consecutive sentences.
    pursuant to R.C. 2953.08(G)(2), and order that the sentences be served
    concurrently? R.C. 2953.08(G)(2). The opinion in Bonnell implies that the
    answer is “yes” * * *.
    Id. at ¶ 16 (Stewart, J., concurring).
    {¶9} In Davis, the judge, concurring in part and dissenting in part, wrote that “in keeping
    with my concurring opinion in State v. Brooks, 8th Dist. Cuyahoga No. 100455,
    
    2014-Ohio-3906
    , I would vacate Davis’s sentences and order that he serve them concurrently.
    Therefore [I] dissent from the majority’s mandate on remand.”            Id. at ¶ 24 (Stewart, J.,
    concurring).
    {¶10} The state, however, urges us that the “proper remedy in this situation is to remand
    to the trial court for the sole issue regarding the required findings pursuant to R.C. 2929.14(C)(4)
    to justify consecutive sentences,” and cites State v. Nia, 8th Dist. Cuyahoga No. 99387,
    
    2014-Ohio-2527
    , ¶ 20-22. We agree with the state and note this court’s general standing policy
    of remanding cases for the limited purpose of determining whether consecutive sentences should
    be imposed and, if so, making the required findings. See, e.g., State v. Lasalla, 8th Dist.
    Cuyahoga No. 101316, 
    2015-Ohio-106
    , ¶ 21; State v. Matthews, 8th Dist. Cuyahoga No. 102217,
    
    2015-Ohio-4072
    , ¶ 18; State v. Frost, 8th Dist. Cuyahoga No. 100498, 
    2014-Ohio-2645
    , ¶ 10.
    {¶11} We do not reach this result solely based on a “that is always the way it is done”
    notion, however, recognizing that “the way it is always done” could be wrong.              And we
    recognize that under R.C. 2953.08(G) we have the authority to modify a sentence, as this court
    has occasionally done, but we decline to broadly take the trial court’s sentencing authority away
    because it made a mistake.
    {¶12} The first assignment of error is sustained and the case is remanded for limited
    resentencing.
    {¶13} In his second assigned error, Brown contends that the trial court erred in imposing
    costs on him because he was indigent. He states that he is aware of this court and the Ohio
    Supreme Court’s precedence on this issue, but raised it to preserve his future rights and/or
    remedies.
    {¶14} R.C. 2947.23(A)(1) governs the imposition of court costs in criminal proceedings,
    and provides in relevant part that, “[i]n all criminal cases * * * the judge * * * shall include in
    the sentence the costs of prosecution * * * and render a judgment against the defendant for such
    costs.” In light of R.C. 2947.23(A)(1), this court has held that a sentencing court “must include
    in the sentence the costs of prosecution and render a judgment against the defendant for costs,
    even if the defendant is indigent.”        State v. Brock, 8th Dist. Cuyahoga No. 104334,
    
    2017-Ohio-97
    , ¶ 17, citing State v. Brown, 8th Dist. Cuyahoga No. 103247, 
    2016-Ohio-1546
    , ¶
    12.   It is within the trial court’s discretion to waive costs for an indigent defendant; the
    discretion also includes the discretion not to waive them.   Id. at ¶ 18.
    {¶15} Brown’s contention about waiving court costs appears to be based on this court’s
    finding that he was indigent for the purpose of appointing counsel.           But this court has
    recognized that a “finding of indigence for purposes of appointment of counsel is insufficient to
    warrant a waiver of costs and fines at sentencing.” State v. Master, 8th Dist. Cuyahoga No.
    105241, 
    2017-Ohio-7482
    , ¶ 14, citing State v. Wilson, 8th Dist. Cuyahoga No. 104333,
    
    2017-Ohio-2980
    , ¶ 90.
    {¶16} In light of the above, the second assignment of error is overruled.
    {¶17} In accordance with our disposition of the first assignment of error, the case is
    remanded to the trial court for the limited purpose of determining whether consecutive sentences
    should be imposed and, if so, making the required findings.
    It is ordered that appellant and appellant split 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 common pleas
    court to carry this judgment into execution.
    A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
    Rules of Appellate Procedure.
    LARRY A. JONES, SR., JUDGE
    EILEEN A. GALLAGHER, A.J., and
    ANITA LASTER MAYS, J., CONCUR