State v. Farnsworth , 2013 Ohio 1275 ( 2013 )


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  • [Cite as State v. Farnsworth, 
    2013-Ohio-1275
    .]
    STATE OF OHIO, COLUMBIANA COUNTY
    IN THE COURT OF APPEALS
    SEVENTH DISTRICT
    STATE OF OHIO                                    )   CASE NO. 
    12 CO 10
    )
    PLAINTIFF-APPELLEE                       )
    )
    VS.                                              )   OPINION
    )
    GEORGE W. FARNSWORTH, JR.                        )
    )
    DEFENDANT-APPELLANT                      )
    CHARACTER OF PROCEEDINGS:                            Criminal Appeal from the Court of
    Common Pleas of Columbiana County,
    Ohio
    Case No. 11 CR 25
    JUDGMENT:                                            Sentence Vacated.
    Reversed and Remanded.
    APPEARANCES:
    For Plaintiff-Appellee:                              Atty. Robert Herron
    Columbiana County Prosecutor
    Atty. Timothy J. McNicol
    Assistant Prosecuting Attorney
    105 South Market Street
    Lisbon, Ohio 44432
    For Defendant-Appellant:                             Atty. Bryan H. Felmet
    1100 Jackson Place
    Steubenville, Ohio 43952
    JUDGES:
    Hon. Cheryl L. Waite
    Hon. Gene Donofrio
    Hon. Joseph J. Vukovich
    Dated: March 20, 2013
    [Cite as State v. Farnsworth, 
    2013-Ohio-1275
    .]
    WAITE, J.
    {¶1}    Appellant George W. Farnsworth, Jr., appeals the consecutive
    sentences imposed after he pleaded guilty to two counts of rape and one count of
    gross sexual imposition. Appellant contends that the trial judge did not make all the
    findings required by R.C. 2929.14(C)(4) in order to impose consecutive sentences.
    Appellant is correct, and the case is remanded for resentencing.
    {¶2}    Appellant was indicted on February 24, 2011, on five counts: count
    one, rape with a force specification, R.C. 2907.02(A)(1)(b); count two, rape, R.C.
    2907.02(A)(2); count three, gross sexual imposition, R.C. 2907.03(A)(5); count four,
    gross sexual imposition, R.C. 2907.03(A)(4); and count five, felonious sexual
    penetration with a force specification, R.C. 2907.12 (A)(1)(b). The assaults giving
    rise to these offenses began in 1994 and continued until May of 2003. There were
    two victims of the offenses, and both are the biological daughters of Appellant. Both
    victims were minors when the crimes occurred. One of the sexual assaults resulted
    in one of the victims becoming pregnant and giving birth at age 14. Appellant admits
    to the paternity of this baby.
    {¶3}    On December 12, 2011, Appellant pleaded guilty to counts one, two
    and four of the indictment. Counts one and two were first degree felonies, and count
    four was a third degree felony. The other charges were dismissed. At sentencing,
    the state recommended a sentence of ten years in prison each for counts one and
    two, to be served consecutively, and two years for count four, to be served
    concurrently. The court imposed ten years in prison for count one, ten years for
    count two, and two years for count four, all to run consecutively. The court filed its
    -2-
    judgment entry of sentence on February 24, 2012, and this timely appeal followed.
    Appellant presents an appeal as a matter of right that the sentence is contrary to law
    pursuant to R.C. 2953.08(A)(4).
    ASSIGNMENT OF ERROR
    THE TRIAL COURT FAILED TO MAKE THE NECESSARY FINDINGS
    REQUIRED UNDER R.C. 2929.14(C) FOR THE IMPOSITION OF
    CONSECUTIVE SENTENCES.
    {¶4}   Appellant argues that a sentencing judge is required to make certain
    findings before imposing consecutive sentences. These findings are required by
    R.C. 2929.14(C)(4), which was passed as part of 2011 Am.Sub.H.B. No. 86 (“H.B.
    86”), effective September 30, 2011. Section 11 of H.B. No. 86 acknowledges that the
    Ohio Supreme Court had declared such findings to violate the Sixth Amendment right
    to trial by jury in State v. Foster, 
    109 Ohio St.3d 1
    , 
    2006-Ohio-856
    , 
    845 N.E.2d 470
    .
    Foster held that the statutory requirement for judicial fact-finding at sentencing
    violated the Sixth Amendment right to trial by jury, because the result of judicial fact-
    finding was that a penalty could be imposed that was more severe than the penalty
    allowed by the jury verdict standing by itself.     H.B. 86 also notes that the Ohio
    Supreme Court later concluded in State v. Hodge, 
    128 Ohio St.3d 1
    , 2010-Ohio-
    6320, 
    941 N.E.2d 768
    , that its decision in Foster was incorrect with respect to
    consecutive sentences in light of the United States Supreme Court decision in
    Oregon v. Ice, 
    555 U.S. 160
    , 
    129 S.Ct. 711
    , 
    172 L.Ed.2d 517
     (2009).
    -3-
    {¶5}   In Hodge, the Ohio Supreme Court held that “[t]he jury-trial guarantee
    of the Sixth Amendment to the United States Constitution does not preclude states
    from requiring trial court judges to engage in judicial fact-finding prior to imposing
    consecutive sentences.” Hodge at paragraph one of the syllabus. The Court further
    held that “[t]he United States Supreme Court's decision in Oregon v. Ice * * * d[id] not
    revive Ohio's former consecutive-sentencing statutory provisions, R.C. 2929.14(E)(4)
    and 2929.41(A), which were held unconstitutional in State v. Foster[.]”           
    Id.
     at
    paragraph two of the syllabus. Thus, the Hodge Court concluded that “[t]rial court
    judges are not obligated to engage in judicial fact-finding prior to imposing
    consecutive sentences unless the General Assembly enacts new legislation requiring
    that findings be made.” 
    Id.
     at paragraph three of the syllabus.
    {¶6}   In H.B. No. 86 the state legislature did just that, by first repealing the
    former consecutive sentencing statute, R.C. 2929.14(E)(4), and then reviving the
    requirement that the trial judge make certain findings prior to imposing consecutive
    sentences in R.C. 2929.14(C)(4). See Sections 2, 11, and 12 of H.B. No. 86.
    {¶7}   R.C. 2929.14(C)(4) now provides:
    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
    -4-
    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 the 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.
    {¶8}   Based on the statute, the trial court is required to make three findings
    before imposing consecutive sentences:          1) that consecutive sentences are
    necessary to protect the public from the future crime or to punish the offender; 2) 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 3) that one of the
    subsections (a), (b), or (c) apply. The court is not required to give reasons explaining
    -5-
    these findings. State v. Frasca, 11th Dist. No. 2011-T-0108, 
    2012-Ohio-3746
    , ¶57.
    Neither is the court required to recite any “magic” or “talismanic” words when
    imposing consecutive sentences. State v. Murrin, 8th Dist. No. 83714, 2004–Ohio–
    3962, ¶12. Nevertheless, the record must actually reflect that the court made the
    findings required by the statute. For example, in State v. Bradley, the Fifth District
    Court of Appeals held that the following statement by the trial court did not meet the
    statutory requirements for imposing consecutive sentences:
    As has been indicated, based on your record which is as indicated to
    give—to    not    give   consecutive   sentences   would   demean     the
    seriousness of the offenses and not adequately protect the public from
    further criminal behavior. Because of the nature of the offenses the
    Court finds that consecutive sentences are in fact warranted, and, and
    pursuant to the statute for consecutive sentences the conditions have
    been met. Accordingly, I'm sentencing you to 12 months with regard to
    each of the felony fours to be served consecutively one after the other
    for a total incarceration of 24 months giving you credit for all time
    served to date.
    State v. Bradley, 5th Dist. No. 2012CA00011, 
    2012-Ohio-4787
    , ¶43.
    {¶9}   In Bradley, the trial court found that the consecutive sentences were
    necessary to protect the public from future crime, which is the first of the three
    findings required by R.C. 2929.14(C)(4).     The court failed to specifically mention
    whether the sentence was disproportionate, or whether one of the findings described
    -6-
    in subsection (a), (b) or (c) had been met. The court did try to justify consecutive
    sentences by stating:     “to not give consecutive sentences would demean the
    seriousness of the offenses * * *.” This language is not found in R.C. 2929.14(C)(4).
    The phrase “demean the seriousness of the offense” is associated with the court's
    decision to impose community control sanctions instead of a prison term, or in
    administering judicial release. It is not a factor in the decision to impose consecutive
    sentences.     R.C. 2929.13(D)(2)(b), 2929.20(J)(1)(b).       The phrase was also
    associated with a prior required finding dealing with imposing more than the minimum
    sentence, but this finding was determined to be unconstitutional in Foster and is not
    part of the current sentencing laws. See former R.C. 2929.14(B)(2). In the Bradley
    case, the trial court's addition of “demean the seriousness of the offense” language
    was clearly not considered to be a       substitute for the findings required by R.C.
    2929.14(C)(4).
    {¶10} Similar to Bradley, the trial court in the instant case failed to make all
    the findings required by R.C. 2929.14(C)(4). The court made the first two findings
    required when it stated that consecutive sentences were necessary to punish
    Appellant, and that consecutive sentences were not disproportionate to the
    seriousness of the conduct and the danger that Appellant posed. (2/24/12 Tr., pp.
    15-16.) However, the finding required by R.C. 2929.14(C)(4)(a)-(c) is absent from
    this record. The court may have been attempting to allude to the third required
    finding when it stated:
    -7-
    Of significance to the Court is that the Defendant's daughters were the
    victims of these offenses.   In her statement, R.F. indicates that the
    sexual assaults occurred too many times for her to remember, starting
    when she was 9 or 10 years old. R.F. eventually became pregnant at
    age 14 with the Defendant's child.     The Court finds, therefore, that
    anything less than a significant prison sentence would demean the
    serious nature of these offenses.
    (2/24/12 J.E., p. 2.)
    {¶11} Even though the court noted it did not want to “demean the serious
    nature of the offenses,” R.C. 2929.14(C)(4)(b) requires more than a statement of the
    serious nature of the crime. State v. Wilson, 8th Dist. No. 97827, 
    2012-Ohio-4159
    ,
    ¶12. As discussed, the phrase “demean the serious nature of these offenses” is not
    associated with the consecutive sentencing statute and may not be used as a
    substitute for the findings required by the consecutive sentencing statute.      R.C.
    2929.14(C)(4)(b) requires the trial court to connect the seriousness of the offense
    with the decision to impose consecutive sentences. The court must find that “the
    harm caused by the two or more of the multiple offenses so committed was so great
    or unusual that no single prison term * * * adequately reflects the seriousness of the
    offender's conduct.” R.C. 2929.14(C)(4)(b). It appears that the trial court would be
    well within its province in making such a finding given the facts of this case, but a
    reviewing court may not imply a statutorily required finding that does not appear in
    the record simply because the facts of the case are particularly appalling. There are
    -8-
    many ways that the court could have expressed its finding that the seriousness of this
    offense requires consecutive sentences, and the trial judge does not have to recite
    the exact words of the statute, but the record does have to clearly reflect that the
    finding was actually made.     For this reason, Appellant's assignment of error is
    sustained.
    {¶12} In conclusion, the trial court erred when it did not make all the required
    findings stated in R.C. 2929.14(C)(4) that are prerequisites to imposing consecutive
    sentences. Appellant’s sentence is hereby vacated and the case is remanded for
    resentencing.
    Donofrio, J., concurs.
    Vukovich, J., concurs.