State v. Williams , 2013 Ohio 3448 ( 2013 )

[Cite as State v. Williams, 2013-Ohio-3448.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 2013CA00189
AGATHA WILLIAMS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2012CR0164
JUDGMENT: Affirmed in part, Reversed in part, and
Remanded
DATE OF JUDGMENT ENTRY: August 5, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO, BENJAMIN A. TRACY
PROSECUTING ATTORNEY, TODD A. LONG
STARK COUNTY, OHIO JAMES D. OWEN
The Owen Firm, LLC
By: RONALD MARK CALDWELL 5354 North High Street
Assistant Prosecuting Attorney Columbus, Ohio 43214
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2013CA00189 2
Hoffman, J.
{¶1} Defendant-appellant Agatha Williams appeals the October 15, 2012
Judgment Entry entered by the Stark County Court of Common Pleas. Plaintiff-appellee
is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant Agatha Williams was admitted to the practice of law in Ohio in
1991. She practiced law for approximately twenty years.
{¶3} On February 10, 2012, Appellant entered a plea of guilty to four counts of
grand theft, one count of theft and one count of forgery. The trial court sentenced
Appellant to five years of community control, one year of which was to be intensive
supervision probation. Appellant was fined $27,500.00 and ordered to pay restitution to
each of her clients for the amounts stolen. Appellant was informed at sentencing a
violation of her community control sanction would result in a maximum consecutive
prison sentence being imposed on each offense for a total prison term of 102 months.
{¶4} On September 27, 2012, the Ohio Supreme Court Board of
Commissioners on Grievances and Discipline held proceedings to determine whether
Appellant should be permanently disbarred. Counsel for Relator called Appellant on
cross examination, inquiring as to when Appellant had last left the State of Ohio.
Appellant responded approximately a week prior to the hearing she had gone to
Pittsburgh, Pennsylvania to gamble. Appellant’s conduct in leaving the state to gamble
violated the terms and conditions of her probation.
{¶5} Based upon Appellant's testimony before the Board of Commissioners on
Grievances and Discipline, the state filed a motion to revoke Appellant's probation.
Stark County, Case No. 2013CA00189 3
Appellant's counsel filed a motion in limine to suppress the testimony given at the
disciplinary hearing. On September 26, 2012, the trial court held a hearing on the
motion. Via Judgment Entry of September 27, 2012, the trial court denied the motion.
{¶6} Via Judgment Entry of October 15, 2012, the trial court revoked
Appellant's probation and sentenced her to consecutive prison terms for a total of 102
months in prison.
{¶7} Appellant now appeals, assigning as error:
{¶8} “I. THE TRIAL COURT ERRED WHEN IT SENTENCED WILLIAMS TO
CONSECUTIVE TERMS OF IMPRISONMENT WITHOUT FIRST MAKING THE
REQUIRED FINDINGS SET FORTH IN OHIO REVISED CODE SECTION
2929.14(C)(4).
{¶9} “II. THE TRIAL COURT ERRED WHEN IT REFUSED TO EXCLUDE
FROM EVIDENCE TESTIMONY COERCIVELY OBTAINED FROM WILLIAMS IN
VIOLATION OF THE FIFTH AMENDMENT AND, BASED SOLELY ON THAT
TESTIMONY, FOUND THAT SHE HAD VIOLATED HER PROBATION.”
I.
{¶10} In the first assignment of error, Appellant maintains the trial court erred in
failing to make the necessary findings prior to imposing consecutive sentences under
R.C. 2929.14(C)(4). We agree.
{¶11} Initially, Appellant questions when her sentence was actually imposed
whether at the initial sentencing hearing when the court imposed community control and
reserved imposition of the particular prison term upon revocation or whether at the
subsequent hearing upon revocation.
Stark County, Case No. 2013CA00189 4
{¶12} In State v. Nistelback, 10th Dist. No. 11AP 874, 2012-Ohio-1764, citing
State v. Brooks 103 Ohio St.3d 134, 2004-Ohio-4746, the Tenth District examined the
issue and held the prison term is not imposed until the subsequent revocation hearing.
The court stated,
{¶13} "Both Brooks and R.C. 2929.19(B)(5) refer to 'the specific prison term that
may be imposed.' This choice of words implies that the prison term has not actually
been imposed yet, but will be imposed upon revocation of community control. If the
prison term has not been imposed yet, this is 'not already imposed' for purposes of R.C.
1.58(B).
{¶14} "Because the prison term had not already been imposed at the time of
Nistelbeck's revocation hearing, he is entitled to the benefit of the legislature's reduction
of his potential sentence for abduction."
{¶15} We agree with the Tenth District Court of Appeals. We find the sentence
herein was not imposed until the revocation of Appellant’s probation and the imposition
of consecutive sentences thereafter.
{¶16} O.R.C. 2929.14(C) reads,
{¶17} "(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:
Stark County, Case No. 2013CA00189 5
{¶18} "(a) The offender committed 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.
{¶19} "(b) The harm caused by the multiple offenses was so great or unusual
that no single prison terms for any of the offenses committed as part of a single course
of conduct adequately reflects the seriousness of the offender's conduct.
{¶20} "(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime by the
offender.
{¶21} In 2003, the Ohio Supreme Court held in State v. Comer, 99 Ohio St.3d
463, 2003–Ohio–4165, a court may not impose consecutive sentences unless it “finds”
three statutory factors enumerated in then 2929.14(E)(4). The statutory factors were the
same as those now enumerated in the revised version of R.C. 2929.14(C)(4) following
enactment of H.B. 86. The revised version of the statute again requires the trial court to
“find” the factors enumerated.
{¶22} The Court in Comer, supra, read R.C. 2929.14(E)(4), as it existed then, in
conjunction with then R.C. 2929.19(B), to reach its conclusion the trial court must also
state its reasons for the sentence imposed. Then R.C. 2929.19(B) stated the trial court
“shall impose a sentence and shall make a finding that gives its reasons for selecting
the sentence imposed in any of the following circumstances ... (c) if it imposes
consecutive sentences under R.C. 2929.14.”
Stark County, Case No. 2013CA00189 6
{¶23} 2011 Am.Sub.H.B. No. 86, which became effective on September 30,
2011, revived the language provided in former R.C. 2929.14(E) and moved it to R.C.
2929.14(C)(4). The revisions to the felony sentencing statutes under 2011 Am.Sub.H.B.
No. 86 now require a trial court to make specific findings when imposing consecutive
sentences.
{¶24} The trial court must therefore make the required findings in compliance
with State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165. We have consistently stated
the record must clearly demonstrate consecutive sentences are not only appropriate,
but are also clearly supported by the record. See, State v. Fauntleroy, 5th Dist. No.
CT2012–0001, 2012–Ohio–4955; State v. Bonnell, 5th Dist. No. 12CAA3022, 2012–
Ohio–515.
{¶25} In other words, in reviewing the record we must be convinced the trial
court imposed consecutive sentences because it had found consecutive sentences
were necessary to protect the public or to punish the offender, they are not
disproportionate to the seriousness of his conduct and the danger the offender poses to
the public. In addition, in reviewing the record we must be convinced that the trial court
found the offender's history of criminal conduct demonstrated consecutive sentences
were necessary to protect the public from future crime, or 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, or 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
Stark County, Case No. 2013CA00189 7
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.
R.C. 2929.14(C)(4).
{¶26} Here, the trial court stated on the record at the October 4, 2012
Sentencing Hearing:
{¶27} “Particularly does not happen when you’re an attorney. My job is to
fashion a sentence which will serve as a deterrent to this individual and to others, one
that will protect the other citizens of the State of Ohio and one that will not demean the
sentence of the offense which the person has pled guilty to or has been found guilty of.
{¶28} “Ms. Williams, I do find that revocation is the appropriate remedy in this
case. In regard to each one of the felonies of the Fourth Degree, and there are five of
them, the penalty is six to 18 months in whole months. I am sentencing you to an 18-
month prison term on each one of those. Those will be run consecutively with each
other which is a 90 month prison term.
{¶29} “In regards to the one F5 it would be punishable by a prison term of six to
twelve months, I find that the appropriate remedy is the 12 months and that will also be
run consecutively with the 90 months. And those together, that’s 102 months.
{¶30} “You will be given credit for jail time served. You are required to pay the
cost of these proceedings. All the precious findings are exactly the same. Restitution,
$166,354.94, a fine of $27,500. Also I must advise you at the time that you complete
your prison term the Adult Parole Authority will have the option to place you on a period
of post-release control for up to three years.”
{¶31} Tr. at 19-20
Stark County, Case No. 2013CA00189 8
{¶32} Based upon the above, we do not find the trial court made all of the
statutorily required findings necessary for the imposition of consecutive sentences.
{¶33} Appellant's first assignment of error is sustained and Appellant’s sentence
is reversed, and the matter remanded to the trial court for the limited purpose of
resentencing.
II.
{¶34} In the second assignment of error, the State maintains the trial court erred
in considering Appellant's statements to the Board of Commissioners on Grievances
and Discipline in the revocation of Appellant's probation herein.
{¶35} As set forth in the Statement of the Facts and Case, supra, Appellant
admitted in her disciplinary hearing to having left the State of Ohio to engage in
gambling in violation of the terms of her probation. The statement was offered at the
time in support of Appellant's argument she has a gambling addiction which should
mitigate against any disciplinary sanction imposed, including disbarment.
{¶36} The state of Ohio filed a motion to revoke Appellant's probation based
upon Appellant's statement. Appellant cites the United States Supreme Court decision
in Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967) arguing
statements obtained under threat of job loss are unconstitutionally coerced and
inadmissible in subsequent criminal proceedings. Under Garrity, the employee claiming
coercion must have believed his or her statement was compelled on threat of job loss,
and this belief must have been objectively reasonable. State v. Graham, Slip Opinion
2013-Ohio-2114.
Stark County, Case No. 2013CA00189 9
{¶37} Here, Appellant did not make the statement under compulsion of job loss,
but rather, as a defense in mitigation of the possibility of job loss. The statement was
not compelled. Appellant could have asserted her Fifth Amendment rights at the
disciplinary hearing and challenged the sanction, but failed to do so. Further, Appellant
had already been found guilty of criminal wrong doing, and the statements were made
as a defense why she had engaged in the wrongdoing. The statement itself did not
serve to incriminate Appellant because the conduct itself was not criminal but rather a
condition of probation. Accordingly, we find the trial court did not err in considering the
statements during the revocation proceedings herein.
{¶38} The second assignment of error is overruled.
{¶39} The October 15, 2012 Judgment Entry entered by the Stark County Court
of Common Pleas is affirmed in part, reversed in part, and the matter is remanded for
the limited purpose of resentencing.
By: Hoffman, J.
Gwin, P.J. and
Delaney, J. concur
___________________________________
HON. WILLIAM B. HOFFMAN
___________________________________
HON. W. SCOTT GWIN
___________________________________
HON. PATRICIA A. DELANEY
Stark County, Case No. 2013CA00189 10
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
AGATHA WILLIAMS :
:
Defendant-Appellant : Case No. 2013CA00189
For the reasons stated in our accompanying Opinion, the October 15, 2012
Judgment Entry entered by the Stark County Court of Common Pleas is affirmed in part,
reversed in part, and the matter is remanded for the limited purpose of resentencing in
accordance with our Opinion and the law. Costs split equally.
___________________________________
HON. WILLIAM B. HOFFMAN
___________________________________
HON. W. SCOTT GWIN
___________________________________
HON. PATRICIA A. DELANEY