State v. White ( 2013 )

[Cite as State v. White, 2013-Ohio-3808.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99280
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JOSEPH WHITE
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-565175
BEFORE: E.A. Gallagher, J., Boyle, P.J., and Rocco, J.
RELEASED AND JOURNALIZED: September 5, 2013
ATTORNEY FOR APPELLANT
Thomas A. Rein
Leader Building, Suite 940
526 Superior Avenue
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Henry A. Marcus
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶1} Defendant-appellant Joseph White appeals his sentence rendered in the
Cuyahoga County Court of Common Pleas. White argues the trial court erred (1) in
imposing consecutive sentences without the required findings, (2) in failing to properly
advise him of postrelease control and (3) in failing to properly advise White of the
imposition of court costs. Finding merit to the instant appeal, we reverse the decision
of the trial court and remand for the limited purpose of correction of the errors outlined
below.
{¶2} The Cuyahoga County Grand Jury indicted White for felonious assault and
having weapons while under disability. The state and White entered into a plea
agreement whereby White pleaded guilty to an amended count of attempted felonious
assault and having weapons while under disability, both third-degree felonies. During
the sentencing hearing, in open court, the court sentenced White to 24 months of
imprisonment for attempted felonious assault, 12 months for having weapons while
under disability and ordered the sentences to be served consecutively. The court’s
journal entry, however, stated “a prison sentence at the Lorain Correctional Institution of
24 months.”
{¶3} In an effort to remove any jurisdictional impediment, this court remanded
the case to the trial court to issue a final, appealable order conforming to State v. Lester,
130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142 (requiring a sentence for each
count). On June 20, 2013, the trial court issued a nunc pro tunc journal entry
sentencing White to two years in prison on the charge of attempted felonious assault and
one year on the charge of having weapons while under disability to be served
consecutively. White appeals, raising the following three assignments of error:
Assignment of Error 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 HB
86.
Assignment of Error II
Appellant is entitled to a de novo sentencing hearing as the court did not
properly impose a period of postrelease control at the sentencing hearing.
Assignment of Error III
The trial court erred by ordering appellant to pay costs in the journal entry
because it was not addressed or ordered in open court.
{¶4} Both the state and White agree that under R.C. 2929.14(C)(4) and H.B. 86,
the trial court failed to make the requisite findings when it sentenced White to
consecutive terms of imprisonment. The parties disagree, however, about the remedy to
correct the error. White moves this court to vacate the imposition of a consecutive
sentence and impose concurrent terms of imprisonment; the state requests this court
remand the issue back to the trial court to decide whether White’s sentences should be
run concurrently or consecutively.
{¶5} When H.B. 86 became effective on September 30, 2011, it revived the
requirement that trial courts make certain findings before imposing consecutive
sentences for felony convictions. State v. Jones, 8th Dist. Cuyahoga No. 98371,
2013-Ohio-489. Under R.C. 2929.14(C)(4), the trial court must first find that the
imposition of consecutive sentences is “necessary to protect the public from future crime
or to punish the offender.” Id. Second, the trial court must find “consecutive
sentences are not disproportionate to the seriousness of the offender’s conduct and to the
danger the offender poses to the public.” Id. In addition, the court must find at least
one of the following factors:
(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, or 2929.18 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.
See State v. Wright, 8th Dist. Cuyahoga No. 98901, 2013-Ohio-3132; State v. Venes, 8th
Dist. Cuyahoga No. 98682, 2013-Ohio-1891.
{¶6} A review of the record reveals that the trial court did not make any of those
three findings. This court has consistently determined that the proper remedy for
correcting an error during imposition of consecutive sentences is a limited remand for
the purpose of determining whether consecutive sentences should be imposed. See
State v. Dodson, 8th Dist. Cuyahoga No. 98521, 2013-Ohio-1344; State v. Ross, 8th Dist.
Cuyahoga No. 98763, 2013-Ohio-3130; State v. Walker, 8th Dist. Cuyahoga No. 97648,
2012-Ohio-4274. Accordingly, the trial court’s judgment sentencing White to
consecutive terms of imprisonment is reversed. This case is remanded to the trial court
to consider whether consecutive sentences are appropriate under H.B. 86 and, if so, to
enter the proper findings on the record. See Dodson, Ross, Wright.
{¶7} White’s first assignment of error is sustained.
{¶8} The parties also agree that the trial court erred by not properly informing
White of postrelease control requirements for both counts. Again, the parties differ as
to the remedy. The state requests a limited remand for proper advisement of postrelease
control requirements while White moves this court for a de novo sentencing hearing.
{¶9} In State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332,
the Ohio Supreme Court held that when a judge fails to impose “statutorily mandated
postrelease control as part of the defendant’s sentence, that part of the sentence is void
and must be set aside.” Thus, the court was no longer required to conduct a de novo
resentencing hearing. Id. State v. Freeman, 8th Dist. Cuyahoga No. 99351,
2013-Ohio-3004; State v. Harris, 8th Dist. Cuyahoga No. 96887, 2011-Ohio-6762.
Instead, according to Fischer, the court can correct the error by conducting a hearing on
the postrelease control, or after conducting a hearing, by issuing a nunc pro tunc order
that includes notification of the applicable term of postrelease control. Freeman;
Harris.
{¶10} Thus, we sustain White’s assignment of error to the extent that White was
not properly notified of postrelease control for his having weapons while under disability
conviction and remand the case for a hearing that is limited to the imposition of
postrelease control for that conviction.
{¶11} Lastly, the parties agree that the trial court erred when it imposed court
costs upon White without first informing him in open court. In State v. Joseph, 125
Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, the Ohio Supreme Court held that “a
court errs in imposing court costs without so informing a defendant in open court but that
error does not void the defendant’s entire sentence.”
{¶12} Accordingly, White’s third assignment of error is sustained. Upon
remand, the court is to issue a new sentencing entry deleting the imposition of court
costs. See State v. Shaffer, 8th Dist. Cuyahoga Nos. 95273 and 95274, 2011-Ohio-844.
{¶13} The judgment of the trial court is reversed and the case is remanded for
the limited purpose of determining whether consecutive sentences are proper and if so, to
make the required findings, to advise White of postrelease control for the charge of
having weapons while under disability and to issue a new sentencing entry deleting the
imposition of court costs.
It is ordered that appellant recover of said appellee 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. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
MARY J. BOYLE, P.J., and
KENNETH A. ROCCO, J., CONCUR