State v. Hill , 2014 Ohio 1965 ( 2014 )

[Cite as State v. Hill, 2014-Ohio-1965.]
STATE OF OHIO, CARROLL COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
) CASE NO. 13 CA 892
PLAINTIFF-APPELLEE, )
)
VS. ) OPINION
)
ANTHONY MICHAEL HILL, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas
Court, Case No. 13CR5769.
JUDGMENT: Reversed and Remanded.
APPEARANCES:
For Plaintiff-Appellee: Attorney Donald Burns
Prosecuting Attorney
Attorney Steven Barnett
Assistant Prosecuting Attorney
7 East Main Street
Carrollton, Ohio 44615
For Defendant-Appellant: Attorney Anthony Kaplanis
808 Courtyard Center
116 Cleveland Avenue, NW
Canton, Ohio 44702
JUDGES:
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Dated: May 5, 2014
[Cite as State v. Hill, 2014-Ohio-1965.]
VUKOVICH, J.
{¶1} Defendant-appellant Anthony Michael Hill appeals from the decision of
the Carroll County Common Pleas Court sentencing him to an aggregate sentence of
six years for violations of R.C. 2907.322(A)(1) and (A)(5), pandering sexually oriented
matter involving a minor, second and fourth degree felonies respectively, and
ordering that sentence to be served consecutive to the sentence issued in Carroll
County Case No. 12CR5603 (three year sentence for attempted rape). Two issues
are raised in this case. The first is whether the trial court erred when it ordered more
than the minimum sentences on the pandering sexually oriented matter convictions.
The second issue is whether the trial court erred when it ordered the sentence in the
case at hand to run consecutive.
{¶2} For the reasons expressed below, the trial court did not err in ordering
more than the minimum sentence; the trial court appropriately considered and
weighed the purposes and principles of sentencing stated in R.C. 2929.11 and the
seriousness and recidivism factors set forth in R.C. 2929.12. However, as to the
consecutive sentencing order, it is not clear that the trial court considered the
appropriate consecutive sentencing factors are the sentencing hearing. Therefore,
the sentence is reversed and the matter is remanded for resentencing.
Statement of the Case
{¶3} On March 13, 2013, the grand jury issued a 30 count indictment against
Hill. Counts 1 through 15 were for pandering sexually oriented matter involving a
minor in violation of R.C. 2907.322(A)(5), fourth-degree felonies. Counts 16 through
30 were for pandering sexually oriented matter involving a minor in violation of R.C.
2907.322(A)(1), second-degree felonies. The evidence of these crimes was
discovered during the investigation of Carroll County Case No. 12CR5603 (Hill pled
to attempted rape and was sentenced to three years). The pandering offenses
predate the offense in 12CR5603. 07/30/13 Sentencing Tr. 49-50.
{¶4} Hill originally pled not guilty to the offenses. However, a plea
agreement was reached between the parties; the state entered a nolle prosequi for
counts 17 through 30 and Hill changed his plea to guilty for the remaining 16 counts.
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{¶5} After a Crim.R. 11 colloquy, the trial court accepted the guilty plea and
proceeded directly to sentencing. The state recommended a 12 month sentence on
each of counts 1 through 15 to be served concurrently with each other and an 8 year
sentence on count 16 to be served consecutively with counts 1 through 15. 07/30/13
Sentencing Tr. 8. Thus, the state was recommending an aggregate sentence of 9
years for the pandering convictions. The state further recommended that the 9 year
sentence be served concurrent with Hill’s current 3 year term of incarceration for
Carroll County Case No. 12CR5603. 07/30/13 Sentencing Tr. 8. Hill argued for a
lesser sentence than the one recommended by the state.
{¶6} The court did not follow the state’s recommendation. Instead, it
sentenced Hill to 12 months for each conviction on counts 1 through 15. Those
sentences were ordered to be served concurrent with each other. On count 16, the
trial court issued a 5 year sentence and ordered that sentence to be served
consecutive to the aggregate 12 month sentence on counts 1 through 15. Therefore,
the trial court issued an aggregate sentence of 6 years for the instant case. The trial
court then ordered the 6 year sentence to run consecutive to the 3 year sentence he
was already serving for attempted rape.
{¶7} Hill timely appeals from that decision.
Assignment of Error
{¶8} “The court misapplied sentencing laws in imposing more than minimum
sentence and running them consecutive to previous case.”
{¶9} We review felony sentences using both the clearly and convincingly
contrary to law and abuse of discretion standards of review. State v. Hill, 7th Dist.
No. 13MA1, 2014-Ohio-919, ¶ 20. We first determine whether the sentencing court
complied with all applicable rules and statutes in imposing the sentence to determine
whether the sentence is clearly and convincingly contrary to law. State v. Gratz, 7th
Dist. No. 08MA101, 2009–Ohio–695, ¶ 8, citing State v. Kalish, 120 Ohio St. 3d 23,
2008–Ohio–4912, 896 N.E.2d 124, ¶ 13–14. Then, if it is not clearly and convincingly
contrary to law, we must determine whether the sentencing court abused its
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discretion in applying the factors in R.C. 2929.11, R.C. 2929.12 and any other
applicable statute. Gratz at ¶ 8, citing Kalish at ¶ 17.
{¶10} Two arguments are presented under the sole assignment of error. The
first is that the trial court erred in not giving the minimum sentence allowable by law
for these offenses. Hill specifically contends that the trial court abused its discretion
in weighing the factors in R.C. 2929.11 and R.C. 2929.12. The second argument
concerns the trial court’s imposition of consecutive sentences. Each will be
addressed in turn.
1. Non Minimum Sentences
{¶11} Hill was sentenced to 5 years on the second-degree felony pandering
conviction. The sentencing range for a second-degree felony is two, three, four, five,
six, seven, or eight years. R.C. 2929.14(A)(2). Thus, Hill received neither the
maximum nor the minimum sentence for that conviction. Likewise, the sentence for
each of the 15 convictions for fourth-degree felony pandering was neither the
maximum or minimum sentence allowable by law. The sentencing range for those
offenses are: six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen,
sixteen, seventeen or eighteen months. Hill received a 12 month sentence for each
of those convictions.
{¶12} In reaching the appropriate sentence, the trial court considered R.C.
2929.11, the principles and purposes of sentencing; and R.C. 2929.12, the
seriousness and recidivism factors. 07/31/13 J.E.; 7/30/13 Sentencing Tr. 55-67. Hill
acknowledges that the trial court considered these statutes, but asserts that the court
improperly weighed the seriousness and recidivism factors and had they been
weighed properly, he should have received the minimum sentence.
{¶13} The seriousness factors are set forth in R.C. 2929.12(B) and (C).
Division (B) sets forth the factors that indicate that the offender’s conduct is more
serious than conduct normally constituting the offense. The trial court discussed all
nine factors and concluded that none applied. 07/30/13 Sentencing Tr. 59-62.
Section (C) sets forth the factors that indicate that the offender’s conduct is less
serious than conduct normally constituting the offense. The trial court considered all
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four factors and determined that all were inapplicable. 07/30/13 Sentencing Tr. 62-
63.
{¶14} The trial court then went on to discuss the recidivism factors found in
R.C. 2929.12(D) and (E). Section (D) sets forth the factors indicating that the
offender is likely to commit future crimes, while section (E) sets forth the factors
indicating that the offender is less likely to commit future crimes. A criminal history,
including adjudication as a delinquent and not responding favorably to previous
sanctions imposed, are factors that demonstrate that recidivism is likely. R.C.
2929.12(D)(2), (3). Conversely, having no criminal history, including no juvenile
record, and leading a law abiding life for a significant number of years, demonstrates
that recidivism is unlikely. R.C. 2929.12(E)(1)–(3). The presentence investigation
report showed that Hill had been adjudicated a delinquent child and has a criminal
history. 07/30/13 Sentencing Tr. 64-66. Therefore, R.C. 2929.12(D)(2) and (3) were
applicable, while R.C. 2929.12(E)(1)-(3) were not applicable. Thus, the trial court
found that under those factors, recidivism was likely.
{¶15} However, those were not the only factors that indicated that recidivism
was likely. The trial court also stated that the offense was committed under
circumstances that were likely to reoccur. 07/30/13 Sentencing Tr. 66. This
statement is an indication that division (E)(4), which states that the offense was
committed under circumstances not likely to reoccur, was not applicable.
{¶16} Remorsefulness is also a consideration in determining whether
recidivism is likely or unlikely. An offender who is remorseful is less likely to
recommit, while an offender who is not remorseful is more likely to recommit. R.C.
2929.12(D)(5) (no genuine remorse); R.C. 2929.12(E)(5) (genuine remorse). The
trial court neither found that Hill was remorseful or that he was unremorseful.
07/30/13 Sentencing Tr. 64-65, 66. Rather, the trial court stood neutral on the
position of remorse:
[(D)](5) The offender shows genuine remorse of the offense.
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I’ll give you credit at this hearing, whether it’s for show or
otherwise, you have demonstrated that you’re learning insights into
your condition with regard to this and your other sexual offense.
And, hopefully – and I believe that you’re showing insight. I don’t
know if you’re remorseful, but I would think that those two things would
go hand-in-hand. But I’m going to go neutral on number (5) because I
don’t know if what you’ve said is remorse or just insight. I’ll give you
some credit for it.
***
And says here [(E)(5)], the offender shows genuine remorse for
the offense. I believe you mean to show remorse, but that’s a judgment
call. And I believe that I’m neutral on that finding.
07/30/13 Sentencing Tr. 64-65, 66.
{¶17} The trial court’s analysis does show that it considered all relevant
factors. Considering that the recidivism factors show that committing future crimes is
likely, we hold that the trial court did not abuse its discretion when it ordered a
nonminimum sentence. Therefore, Hill’s argument regarding the nonminimum
sentence is meritless.
2. Consecutive Sentences
{¶18} Next, Hill argues that the trial court erred when it ordered the sentence
for the second-degree felony pandering conviction to run consecutive to the fourth-
degree felony pandering convictions, and when it ordered that sentence to run
consecutive to the sentence issued in Carroll County Case No. 12CR5603. He cites
to R.C. 2929.41(A) for support for his position.
{¶19} That is the statute governing multiple sentences. It provides, in
pertinent part:
(A) Except as provided in division (B) of this section, division (C)
of section 2929.14, or division (D) or (E) of section 2971.03 of the
Revised Code, a prison term, jail term, or sentence of imprisonment
shall be served concurrently with any other prison term, jail term, or
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sentence of imprisonment imposed by a court of this state, another
state, or the United States.
R.C. 2929.41(A).
{¶20} This statute has three provisions for when ordering consecutive
sentences is appropriate. R.C. 2929.41(B) deals with misdemeanor sentences,
which is not applicable in this case. R.C. 2971.03(D) and (E) deals with life
imprisonment sentences, which also is inapplicable in this case. R.C. 2929.14(C) is
the new felony sentencing provision requiring a trial court to make certain findings
before imposing consecutive sentences. Pre-Foster, appellate courts consistently
stated that consecutive sentencing findings are required when the sentences are
imposed in separate cases. State v. Givens, 8th Dist. No. 80319, 2002-Ohio-4904, at
¶ 8 (pre-Foster case discussing consecutive sentence findings under R.C.
2929.14(E)); State v. Wallace, 5th Dist. No. 03-CA-A-07-043, 2004-Ohio-1694, at ¶
25 (same); State v. Gillman, 10th Dist. No. 01AP-662, 2001-Ohio-3968 (same). The
wording of R.C. 2929.14(C) and R.C. 2929.41 indicates that that rule of law is still
applicable. Thus, in order for the trial court to order the second-degree felony
pandering and fourth-degree felony pandering sentences in the case at hand to be
served consecutive to each other and consecutive to the sentence imposed in Carroll
County Case No. 12CR5603, the trial court had to comply with R.C. 2929.14(C).
{¶21} That statute provides:
(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:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a
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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.
R.C. 2929.14(C)(4).
{¶22} This consecutive sentencing statutory provision was part of House Bill
86 and became effective September 20, 2011. The legislation was enacted in
response to the Supreme Court's statement that its Foster decision was incorrect in
striking down statutory consecutive sentence provisions and that the legislature
would need to enact a new statute to revive any requirement of findings for
consecutive sentences. State v. Hodge, 128 Ohio St. 3d 1, 2010–Ohio-6320, 941
N.E.2d 768, ¶ 3 of syllabus.
{¶23} At this point, it is pointed out that the crimes in this case occurred prior
to the effective date of the statute; the indictment indicates that the crimes occurred
in April and May 2011. Although not raised in this case, the state has argued to
another appellate court that this provision is inapplicable to offenses committed
before the effective date. Since application of the appropriate standard is imperative
to determine whether the trial court erred when it issued consecutive sentences, we
must determine if R.C. 2929.14(C), as amended by House Bill 86, is applicable to
Hill. If it is not applicable, then the law as announced in Foster would control, i.e. the
trial court would not be required to articulate any specific statutory findings before
issuing multiple prison terms to be served consecutively.
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{¶24} In other cases, the state has argued that R.C. 1.58 indicates that the
consecutive sentencing findings required by House Bill 86 does not apply to offenses
committed prior to the effective date of the bill. State v. Wilson, 10th Dist. No. 12AP-
551, 2013-Ohio-1520, ¶ 14-18. The Tenth Appellate District has disagreed with such
conclusion. Id. It explained that R.C. 1.58(A) provides that an amendment or
reenactment of a statute does not apply to pending cases unless R.C. 1.58(B)
applies. R.C. 1.58(B) provides that when a statutory penalty or punishment for an
offense is reduced by a statutory reenactment or amendment, the reduced penalty or
punishment shall apply if the penalty or punishment is not “already imposed.” Id. at ¶
16. It explained that the penalty or punishment for the offenses might arguably be
reduced if the trial court were required to make the findings required by R.C.
2929.14(C)(4) before imposing consecutive sentences. Id. at ¶ 17. Therefore, it was
concluded that the consecutive sentence findings required by House Bill 86 applied
to all offenders who had not been sentenced prior to its effective date. Id.
{¶25} Furthermore, recently we have likewise concluded that the consecutive
sentencing findings in R.C. 2929.14(C)(4) are applicable even though the crimes
were committed prior to the effective date of the statute. State v. Stout, 7th Dist. No.
13MA30, 2014-Ohio-1094, ¶ 17. Therefore, R.C. 2929.14(C) is applicable to Hill.
{¶26} This leads us to whether the trial court made the required findings. This
court and our sister courts have explained that under R.C. 2929.14(C)(4), the trial
court is once again required to make consecutive sentencing findings. State v.
Power, 7th Dist. No. 12CO14, 2013-Ohio-4254, ¶ 38. However, unlike the pre-Foster
consecutive sentencing requirements, R.C. 2929.14(C) does not require the court to
provide reasons on the record for those findings. Id., citing State v. Galindo–Barjas,
7th Dist. No. 12MA37, 2013–Ohio–431, ¶ 16–17, 19; State v. Wilson, 2d Dist. No.
24978, 2012–Ohio–4756, ¶ 18 (court need not specifically identify the factual bases
for its findings); State v. Frasca, 11th Dist. No.2011–T–0108, 2012–Ohio–3746, ¶ 57
(reasons were required by former R.C. 2929.19(B)(2), which was not reenacted).
{¶27} Furthermore, we have explained that the sentencing court should, but
need not, use the exact statutory language to make the findings required by statute.
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Id. at ¶ 40, citing State v. Verity, 7th Dist. No. 12MA139, 2013–Ohio–1158, ¶ 28–29;
State v. Thompson, 7th Dist. No. 05JE16, 2005–Ohio–6792, ¶ 58. That is, the trial
court is not required to recite any “magic” or talismanic” words when imposing
consecutive sentences, as long as it is “clear from the record that the trial court
engaged in the appropriate analysis.” State v. McKenzie, 3d Dist. No. 15–12–07,
2012–Ohio–6117, ¶ 10; State v. Nowlin, 5th Dist. No. CT2012–0015, 2012–Ohio–
4923, ¶ 70; State v. Davis, 8th Dist. Nos. 97689, 97691, 97692, 2012–Ohio–3951, ¶
8.
{¶28} We now turn to the determination of whether the trial court “engaged in
the appropriate analysis.” In the sentencing judgment entry, the trial court specifically
lays out R.C. 2929.14(C)(4) and makes all of the required findings. It found that “a
consecutive sentence is necessary to protect the public from future crime and to
punish the defendant and that consecutive sentences are not disproportionate to the
seriousness of the defendant’s conduct and to the danger the defendant poses to the
public.” 07/31/13 J.E. This is the requirement in R.C. 2929.14(C)(4). The trial court
also found that “defendant’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime by the
defendant.” 07/31/13 J.E. This met the requirement in R.C. 2929.14(C)(4)(c).
{¶29} Despite the trial court’s concise findings in the sentencing entry, the
sentencing transcript does not evince that the trial court engaged in the appropriate
analysis for issuing consecutive sentences.
{¶30} As discussed above, the trial court discusses, in depth, all of the
provisions of R.C. 2929.11 and 2929.12 in determining the appropriate sentence.
Following that discussion directly before imposition of the sentence, the trial court
made the following statement:
Now, having reviewed those two statutes on the record and
going through the factors, speaking to each of those factors, it is the
Court’s intention to follow, to the best of the Court’s ability the law in this
area and view this as objectively as possible rather than subjectively or
emotionally or personally with you.
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This Court finds it has to protect the public from future crime by
you in this area of sexual offense. And the Court believes it needs to
invoke a punishment for the offenses that you have committed. But the
Court does understand that it can use minimum sanctions to
accomplish those goals. But it cannot do that to the degree that it
demeans the seriousness of your conduct.
07/20/13 Sentencing Tr. 66-67.
{¶31} The above statement does not indicate that the trial court only
considered R.C. 2929.11 and R.C. 2929.12 when issuing the sentence. However, in
reviewing the entire transcript, it is devoid of any clear reference to R.C.
2929.14(C)(4) or its factors. While it is possible to envision a situation where we
could glean the factors from a sentencing hearing transcript even when there is no
reference to R.C. 2929.14(C)(4) made during the sentencing hearing, this is not one
of those situations. Given the trial courts in-depth discussion and reference to the
multiple factors in R.C. 2929.11 and 2929.12 in determining the appropriate length of
the sentences, and the fact that there is no discussion or mention of R.C.
2929.14(C)(4) or its factors, we must conclude that the trial court did not engage in
the appropriate analysis prior to issuing a consecutive sentence. Thus, the trial court
did not comply with the mandates of R.C. 2929.14(C) by making the consecutive
sentencing findings solely in the sentencing judgment entry.
{¶32} That conclusion is supported by a decision from our sister district that
found that the consecutive sentence findings are required to be made at the
sentencing hearing. State v. Brooks, 9th Dist. No. 26437, 2013-Ohio-2169, ¶ 12-13.
In reaching that decision, it considered both R.C. 2929.14(C) and Crim.R. 32(A)(4),
which states that at the time of imposing sentence, the court shall state its statutory
findings and, if appropriate, give reasons supporting those findings. The Brooks
court reasoned:
We agree with our colleagues' sentiments. In an environment of
prison overcrowding, funding limitations, and remedial alternatives to
prison, the reenactment of R.C. 2929.14(C)(4) evidences the General
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Assembly's intent that trial courts carefully consider certain factors and
make certain findings prior to making the decision to impose
consecutive sentences. See Ohio Legislative Service Commission,
Fiscal Note and Local Impact Statement,
http://www.lsc.state.oh.us/fiscal/fiscalnotes/ 129ga/hb0086en.pdf
(accessed Mar. 13, 2013) (noting that the changes made by the new
legislation, including the reenactment of some of the provisions struck
by Foster, “are generally designed to reduce the size of the state's
prison population and related institutional operating expenses[.]”). The
fact that trial courts do not have to explain their reasoning behind their
findings does not negate the fact that the trial courts still must make the
findings. See R.C. 2929.14(C)(4). In light of the foregoing, this Court
concludes that such findings must be made at the sentencing hearing
on the record. See also Crim.R. 32(A)(4) (“At the time of imposing
sentence, the court shall[ ] * * * [i]n serious offenses, state its statutory
findings and give reasons supporting those findings, if appropriate.”).
Ideally, those findings would also then be memorialized in the
sentencing entry.
State v. Brooks, 9th Dist. No. 26437, 2013-Ohio-2169, ¶ 12-13.
{¶33} Considering the language of Crim.R. 32(A)(4), we find that this
reasoning is sound and adopt it as our own to a limited extent. Previously, we have
considered both the sentencing entry and the transcript of the sentencing hearing to
determine whether the findings under R.C. 2929.14(C) were made. Verity, 7th Dist.
No. 12MA139, 2013-Ohio-1158, ¶ 34-35; Power, 7th Dist. No. 12CO14, 2013-Ohio-
4254, ¶ 42-43. We find that considering both is permissible. However, in situations
like the one before us where the sentencing transcript is devoid of any indication that
the consecutive sentencing factors articulated in R.C. 2929.14(C) were considered,
the case must be remanded for resentencing. The failure to consider the mandated
consecutive sentencing findings cannot be cured by a journal entry that uses
boilerplate language from the statute. Therefore, on that basis, we reversed and
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remanded the matter for resentencing, at which the trial court should consider R.C.
2929.14(C) and determine which, if any, of those factors are applicable.
Conclusion
{¶34} The imposition of nonminimum sentences was not an abuse of
discretion. However, given the record, it is unclear to this court whether the trial court
considered the consecutive sentencing factors when issuing the sentence. Thus, the
matter is reversed and remanded for resentencing.
Waite, J., concurs.
DeGenaro, P.J., concurs.