Beachwood v. Chatmon , 2015 Ohio 425 ( 2015 )

[Cite as Beachwood v. Chatmon, 2015-Ohio-425.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 101767 and 101768
CITY OF BEACHWOOD
PLAINTIFF-APPELLEE
vs.
GLEN CHATMON
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED, VACATED AND REMANDED
Criminal Appeal from the
Shaker Heights Municipal Court
Case Nos. 12-CRB-00414 and 13-CRB-00496
BEFORE: E.A. Gallagher, P.J., Kilbane, J., and Boyle, J.
RELEASED AND JOURNALIZED: February 5, 2015
ATTORNEY FOR APPELLANT
Myron P. Watson
420 Lakeside Place
323 W. Lakeside Avenue
Cleveland, Ohio 44113
ATTORNEY FOR APPELLEE
Thomas F. Greve
Matty, Henrikson & Greve L.L.C.
55 Public Square, Suite 1775
Cleveland, Ohio 44114
EILEEN A. GALLAGHER, P.J.:
{¶1} Defendant-appellant Glen Chatmon appeals the trial court’s imposition of
consecutive sentences after he entered no contest pleas to charges of theft in two cases in the
Shaker Heights Municipal Court. Chatmon contends that the trial court erred in sentencing him
without his counsel being present and by imposing consecutive sentences without making the
factual findings required pursuant to R.C. 2929.14(C)(4). Plaintiff-appellee the city of
Beachwood concedes that the trial court did not make the factual findings required pursuant to
R.C. 2929.14(C)(4). We, therefore, reverse the trial court’s judgment, vacate Chatmon’s
sentences and remand the matter for resentencing.
Procedural Background
{¶2} On May 2, 2012, Chatmon was charged in Shaker Hts. M.C. No. 12-CRB-00414
with theft in violation of R.C. 2913.02, and on June 11, 2013, was charged in Shaker Hts. M.C.
No. 13-CRB-00496 with theft in violation R.C. 2913.02(A)(1) in complaints filed in the Shaker
Heights Municipal Court.
{¶3} On January 7, 2014, Chatmon entered no contest pleas in both matters. On July
14, 2014, the trial court conducted a sentencing hearing. Chatmon was not represented by
counsel at the sentencing hearing. Although Chatmon claims he had counsel, there is no record
of any appearance by counsel on behalf of Chatmon in these cases. On each theft count, the trial
court imposed a $600 fine ($300 of which was suspended) and sentenced Chatmon to a
six-month jail term, to be served consecutively, for a total jail term of one year. The trial court
also sentenced Chatmon to five years inactive probation. The trial court made no findings on
the record during the sentencing hearing supporting its imposition of consecutive sentences.
With regard to its imposition of consecutive sentences, the trial court stated only: “I need —
just so you guys know, any time we have consecutive sentences, we have to justify my
(inaudible). I put in, I did put my reason.” In its July 15, 2014 judgment entries regarding the
sentencing, the trial court stated that consecutive sentences were imposed “due to continuing
criminal activity.”
{¶4} Chatmon timely appealed, challenging his sentence and raising the following
assignments of error for our review:
Assignment of Error No. I:
The trial court erred and abused its discretion by proceeding with a sentencing
hearing without appellant’s counsel and sentencing him to a jail term.
Assignment of Error No. II:
The trial court erred and abused its discretion when it imposed maximum and
consecutive sentences for two misdemeanor offenses without making the requisite
findings.
Chatmon’s second assignment of error is dispositive of this appeal.
Legal Analysis
{¶5} In his second assignment of error, Chatmon argues that the trial court erred when it
imposed consecutive sentences on the two theft offenses without making the factual findings
required pursuant to R.C. 2929.14(C)(4).
{¶6} R.C. 2929.14(C)(4) requires that a trial court engage in a three-step analysis prior to
imposing consecutive sentences. First, the trial court must find that “consecutive service is
necessary to protect the public from future crime or to punish the offender.” Id. Next, the trial
court must find that “consecutive sentences are not disproportionate to the seriousness of the
offender’s conduct and to the danger the offender poses to the public.” Id. Finally, the trial
court must find that at least one of the following applies: (1) the offender committed one or more
of the multiple offenses while awaiting trial or sentencing, while under a sanction, or while under
postrelease control for a prior offense; (2) 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 offenses 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; or (3) the
offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to
protect the public from future crime by the offender. Id.
{¶7} In order to impose consecutive terms of imprisonment, a trial court must both (1)
make the statutory findings mandated for consecutive sentences under R.C. 2929.14(C)(4) at the
sentencing hearing and (2) incorporate those findings into its sentencing entry. State v. Bonnell,
140 Ohio St. 3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus.
{¶8} In this case, no findings supporting the imposition of consecutive sentences were
made on the record during the sentencing hearing, and the sole finding referenced in the
sentencing entry — that consecutive sentences were imposed “due to continuing criminal
activity” — was insufficient to support the imposition of consecutive sentences under R.C.
2929.14(C)(4). As a result, Chatmon’s consecutive sentences are contrary to law. The city
concedes this error.
{¶9} Accordingly, we vacate Chatmon’s sentence and remand the case for resentencing
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. See State v. Fowler, 8th
Dist. Cuyahoga No. 101101, 2014-Ohio-5687, ¶ 20-21; State v. Fulford, 8th Dist. Cuyahoga Nos.
101505, 101511, and 101512, 2014-Ohio-5436, ¶ 11. In accordance with Bonnell, the required
statutory findings, if any, must both be pronounced in open court and also be placed in the
sentencing journal entry. Bonnell at syllabus. Chatmon’s second assignment of error is
sustained. Based on our disposition of Chatmon’s second assignment of error, his first
assignment of error is moot.
{¶10} Judgment reversed; sentences vacated; matter remanded for resentencing 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 to place the findings in the sentencing
journal entry.
It is ordered that appellant recover from appellee 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 muncipal 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.
________________________________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE
MARY EILEEN KILBANE, J., and
MARY J. BOYLE, J., CONCUR