State v. Kasson ( 2014 )

[Cite as State v. Kasson, 2014-Ohio-4926.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100997
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
STEPHEN KASSON
DEFENDANT-APPELLANT
JUDGMENT:
SENTENCE VACATED; REMANDED
FOR RESENTENCING
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-07-498770-A
BEFORE: Celebrezze, J., Boyle, A.J., and McCormack, J.
RELEASED AND JOURNALIZED: November 6, 2014
ATTORNEY FOR APPELLANT
John T. Castele
1310 Rockefeller Building
614 West Superior Avenue
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Katherine Mullin
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:
{¶1} Defendant-appellant Stephen Kasson appeals from his 14-year prison term. After a
careful review of the record and relevant case law, we vacate appellant’s sentence and remand for
resentencing consistent with this opinion.
I. Procedural History
{¶2} On August 14, 2007, appellant pled guilty in Cuyahoga C.P. No. CR-07-498770-A
to felonious assault, a felony of the second degree with a notice of prior conviction; attempted
felonious assault, a felony of the third degree; attempted gross sexual imposition, a felony of the
fifth degree; and criminal damaging, a misdemeanor of the second degree.
{¶3} On September 12, 2007, appellant was sentenced to eight years on the felonious
assault conviction, five years on the attempted felonious assault conviction, and one year on the
attempted gross sexual imposition conviction. The trial court ordered appellant’s felony
sentences to be served consecutively to each other. Finally, the court sentenced appellant to 90
days on his criminal damaging conviction, to be served concurrently to the felony sentences, for a
total prison term of 14 years.
{¶4} On August 11, 2011, appellant requested that the trial court vacate his sentence
because he had not been advised of his appellate rights. A hearing was held on appellant’s
motion on May 17, 2012. At the conclusion of the hearing, the trial court stayed its ruling
pending this court’s decision in State v. Future, 8th Dist. Cuyahoga No. 96997, 2012-Ohio-2300.
{¶5} On May 24, 2012, this court issued its decision in Future, holding that the party
requesting a resentencing hearing after his or her judgment of sentence becomes a final order
must first seek leave to file a delayed appeal with the appellate court and, if unsuccessful, to then
file a motion for postconviction relief with the trial court. Id. at ¶ 5, citing State v. Gover, 71
Ohio St.3d 577, 645 N.E.2d 1246 (1995).
{¶6} Pursuant to Future, appellant sought leave with this court to file a delayed appeal.
On September 12, 2012, this court denied leave. On September 26, 2012, appellant filed a
petition for postconviction relief asking the trial court to vacate his sentence and conduct a de
novo sentencing hearing. On January 16, 2014, the trial court granted appellant’s motion,
finding that he had not been properly advised of his appellate rights. The same day, the trial
court advised appellant of his appellate rights and adopted the original sentence.
{¶7} Appellant now brings this timely appeal, raising two assignments of error for
review.
II. Law and Analysis
{¶8} In his first assignment of error, appellant argues that the trial court’s imposition of
maximum and consecutive prison terms was contrary to law and an abuse of discretion.
{¶9} In State v. Boyd, 8th Dist. Cuyahoga Nos. 100350, 100351, 100352, and 100353,
2014-Ohio-2640, this court held that where a defendant is sentenced prior to the effective date of
H.B. 86, but is resentenced after its enactment following a successful motion for postconviction
relief based on the trial court’s failure to advise of appellate rights, the sentencing court must
follow the sentencing mandates of H.B. 86 when imposing consecutive sentences. Id. at ¶ 7-9.
{¶10} At the time of appellant’s original sentencing in 2007, the trial court had full
discretion to impose a prison sentence within the statutory range and was not required to make
findings or give reasons for imposing maximum, consecutive, or more than the minimum
sentences. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, paragraph seven
of the syllabus. On September 30, 2011, however, the General Assembly enacted H.B. 86,
which, in effect, revived the requirement that trial courts make findings before imposing
consecutive sentences under R.C. 2929.14(C). The General Assembly expressly provided in
Section 4 of H.B. 86: “The amendments * * * apply to a person who commits an offense
specified or penalized under those sections on or after the effective date of this section[.]”
(Emphasis added.)
{¶11} Although appellant was originally sentenced on September 12, 2007, the trial court
later granted his petition for postconviction relief and resentenced him on January 16, 2014.
Appellant is appealing from that sentencing judgment entry. Thus, having been resentenced in
January 2014, the trial court was required to sentence appellant according to the revisions
implemented in H.B. 86. See State v. Lebron, 2012-Ohio-4156, 976 N.E.2d 945, ¶ 7
(recognizing that if defendant is sentenced after September 30, 2011, the trial court is required to
sentence him according to the revisions implemented in H.B. 86). Accordingly, our analysis
requires us to determine if the trial court complied with the statutory requirements of R.C.
2929.14(C)(4) when imposing consecutive sentences in this matter.
A. Standard of Review
{¶12} R.C. 2953.08(G)(2) states that when reviewing felony sentences, “[t]he appellate
court’s standard for review is not whether the sentencing court abused its discretion.” Rather, the
statute states that if we “clearly and convincingly” find that (1) “the record does not support the
sentencing court’s findings under [R.C. 2929.14(C)(4)],” or that (2) “the sentence is otherwise
contrary to law,” then we “may increase, reduce, or otherwise modify a sentence * * * or [we]
may vacate the sentence and remand the matter to the sentencing court for re-sentencing.” R.C.
2953.08(G)(2).
B. Consecutive Sentences
{¶13} Under R.C. 2929.14(C)(4), a trial court may impose consecutive multiple prison
terms for convictions on multiple offenses where the court makes the necessary statutory
findings. This court has interpreted the statute to require that the trial court make separate and
distinct findings apart from any findings relating to the purposes and goals of criminal
sentencing. State v. Nia, 8th Dist. Cuyahoga No. 99387, 2014-Ohio-2527, ¶ 13. See also State
v. Venes, 2013-Ohio-1891, 992 N.E.2d 453.
{¶14} R.C. 2929.14(C)(4) states:
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, 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.
{¶15} In this case, we find that the trial court failed to satisfy the requirements of R.C.
2929.14(C)(4). At the January 16, 2014 hearing, the trial court simply adopted the sentence
imposed in 2007 and failed to make any statements concerning the imposition of consecutive
sentences. We therefore vacate appellant’s sentence and remand the case for the trial court to
consider whether consecutive sentences are appropriate under R.C. 2929.14(C)(4), and, if so, to
make the required findings on the record and incorporate those findings into the court’s
sentencing entry. See State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659.
{¶16} Appellant’s first assignment of error is sustained. In light of our holding,
appellant’s second assignment of error is rendered moot.
{¶17} Appellant’s sentence is vacated, and this cause is remanded to the lower court for
resentencing consistent with this opinion.
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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
MARY J. BOYLE, A.J., and
TIM McCORMACK, J., CONCUR