State v. Bonnell , 2012 Ohio 5150 ( 2012 )

[Cite as State v. Bonnell, 2012-Ohio-5150.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Sheila G. Farmer, J.
-vs-
Case No. 12CAA030022
RANDALL L. BONNELL, JR.
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of
Common Pleas, Case No. 11-CR-I-10-0542
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 5, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CAROL HAMILTON O'BRIEN WILLIAM T. CRAMER
Delaware County Prosecuting Attorney 470 Olde Worthington Road, Suite 200
Westerville, Ohio 43082
ERIC C. PENKAL
Assistant Prosecuting Attorney
Delaware County Prosecutor’s Office
140 North Sandusky Street
Delaware, Ohio 43015
Delaware County, Case No. 12CAA030022 2
Gwin, P. J.,
{¶1} Defendant-appellant Randall L. Bonnell, Jr. [“Bonnell”] appeals his
sentence entered by the Delaware County Court of Common Pleas. Plaintiff-appellee is
the state of Ohio.
Procedural History1
{¶2} On December 6, 2011, Bonnell entered into a negotiated plea agreement
wherein he agreed to enter a plea of guilty to a fifth degree felony count of tampering
with coin machines and to three counts of burglary, all third degree felonies. The
tampering with coin machines charge carried a maximum penalty of twelve months
imprisonment, and each count of burglary carried a sentence of up to thirty-six months
in prison.
{¶3} On January 6, 2012, the trial court conducted a sentencing hearing. The
court, via Judgment Entry of January 10, 2012, sentenced Bonnell to eleven months in
prison for the tampering with coin machines. The court further found the three counts of
burglary did not merge with the tampering count, and sentenced Bonnell to thirty
months in prison for each count. The trial court ordered all four sentences to run
consecutively to one another. The trial court further ordered Bonnell pay restitution in
the amount of $2,837.00.
Assignment of Error
{¶4} Bonnell now appeals, assigning as error:
1
A recitation of the facts is unnecessary for our disposition of this appeal.
Delaware County, Case No. 12CAA030022 3
{¶5} “I. APPELLANT’S SENTENCE WAS CONTRARY TO LAW BECAUSE
THE TRIAL COURT FAILED TO MAKE THE FINDINGS REQUIRED BY R.C.
2929.14(C)(4) TO IMPOSE CONSECUTIVE SENTENCES.”
{¶6} 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. R.C. 2929.14(C)(4) provides, in relevant part:
(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 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
Delaware County, Case No. 12CAA030022 4
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.
(Emphasis added). In Section 11, the legislature explained that in amending former R.C.
2929.14(E)(4), it intended “to simultaneously repeal and revive the amended language
in those divisions that was invalidated and severed by the Ohio Supreme Court's
decision in State v. Foster (2006), 109 Ohio St.3d 1.” The General Assembly further
explained that the amended language in those divisions “is subject to reenactment
under the United States Supreme Court's decision in Oregon v. Ice (2009), 555 U.S.
160, and the Ohio Supreme Court's decision in State v. Hodge (2010), ––– Ohio St.3d –
–––, Slip Opinion No. 2010–Ohio–6320.” Thus, it is the legislature's intent that courts
interpret the language in R.C. 2929.14(C)(4) in the same manner as the courts did prior
to State v. Foster, 109 Ohio St.3d 1, 2006–Ohio–856, 845 N.E.2d 470.
{¶7} The First District Court of Appeals has observed,
The consecutive-sentence findings required by R.C. 2929.14(C) are
not the same as those required by former R.C. 2929.19(B)(2), which
provided that the trial court “shall impose a sentence and shall make a
finding that gives its reasons for selecting the sentence * * * (c) If it
imposes consecutive sentences .” (Emphasis added.) See State v. Comer,
99 Ohio St.3d 463, 2003–Ohio–4165, 793 N.E.2d 473, ¶ 14–16. In 2003,
the Ohio Supreme Court held that the requirement that a trial court give its
Delaware County, Case No. 12CAA030022 5
reasons for selecting consecutive sentences was “separate and distinct
from the duty to make the findings,” and it imposed an obligation on trial
courts to articulate the reasons supporting their findings at the sentencing
hearing. Id. at ¶ 19–20, 793 N.E.2d 473. The trial court's obligation to “give
its reasons” is now gone from the sentencing statutes. Gone with it, we
hold, is the requirement that the trial court articulate and justify its findings
at the sentencing hearing. A trial court is free to do so, of course. But
where, as here, there is no statutory requirement that the trial court
articulate its reasons, it does not commit reversible error if it fails to do so,
as long as it has made the required findings. See Phillips, 1st Dist. No. C–
960898, 1997 Ohio App. LEXIS 2615, 1997 WL 330605.
State v. Alexander, 1st Dist. Nos. C-110828, C-110829, 2012-Ohio-3349, ¶ 18. Accord,
State v. Frasca, 11th Dist. 2011-T-0108, 2012-Ohio-3746, ¶ 57.
{¶8} The trial court is not required to recite any “magic” or “talismanic” words
when imposing consecutive sentences provided it is “clear from the record that the trial
court engaged in the appropriate analysis.” State v. Murrin, 8th Dist. No. 83714, 2004–
Ohio–3962, ¶ 12. Accord, State v. Jones, 1st Dist. No. C-110603, 2012-Ohio-2075, ¶
22. An appellate court may only sustain an assignment of error challenging the
imposition of consecutive sentences under R.C. 2929.14 if the appellant shows that the
judgment was clearly and convincingly contrary to law. R.C. 2953.08(G).
{¶9} In the case at bar the PSI reviewed by the trial court reveals numerous
theft related charges, many similar in nature to the conduct alleged in this case. The
prosecutor remarked,
Delaware County, Case No. 12CAA030022 6
As I review the PSI, it appears that since the defendant turned into
an adult he has received forty-four, either convictions or arrests in that
time since he was eighteen...
T. Jan. 6, 2012 at 9. Although some of the charges were dismissed or merged, the trial
court found that Bonnell has been to prison on five separate occasions dating back to
1994. (T., Jan. 6, 2012 at 9-10).The PSI has been made a part of the record on appeal.
The report further indicates that Bonnell has violated Post Release Controls and Judicial
Release in the past.
{¶10} The trial court remarked,
THE COURT: Going through all of the sentencing factors, I cannot
overlook the fact your record is atrocious, the courts have given you
opportunities.
***
THE COURT: On the PSI pages 4 through 16, it's pretty clear that
at this point in time you've shown very little respect for society and the
rules of society. The court feels that a sentence is appropriate.
***
The court is of the opinion that all three burglaries were separate
offenses, they do not merge.
T. Jan. 6, 2012 at 14-15.
{¶11} Such findings when coupled with the trial court’s acknowledgement that it
has read and considered the PSI are sufficient to satisfy the factual findings requirement
under R.C. 2929.19(C)(4). Cf. State v. Jones, supra, 2012–Ohio–2075 ¶ 23 (where the
Delaware County, Case No. 12CAA030022 7
trial court stated during the sentencing hearing that it was ordering the prison terms to
be served consecutively because the defendant had an extensive criminal history and
the victims had been seriously injured, these statements were sufficient to show that the
trial court's imposition of consecutive sentences was appropriate and complied with
R.C. 2929 .14(C)(4)); State v. Johnson, 8th Dist. No. 97579, 2012–Ohio–2508 ¶ 12
(when the court made findings related to the appellant's specific conduct in the case and
his repeated engagement in criminal activity, it properly found that the sentence was not
disproportionate to his conduct and threat he posed to society).
{¶12} Although the trial court in the present matter may not have used the exact
wording of the statute in reaching these findings, courts have found that, in making
findings regarding consecutive sentencing, “a verbatim recitation of the statutory
language is not required by the trial court.” State v. Green, 11th Dist. No. 2003–A–0089,
2005–Ohio–3268 ¶ 26, citing State v. Grissom, 11th Dist. No. 2001–L–107, 2002–Ohio–
5154 ¶ 21. State v. Frasca, supra, 2012-Ohio-3746, ¶ 60.
{¶13} The entire record adequately reflects consecutive sentences were
necessary to protect the public and to punish Bonnell, and that they were not
disproportionate to the seriousness of his conduct and the danger he posed to the
public. In addition, Bonnell’s history of criminal conduct demonstrated that consecutive
sentences were necessary to protect the public from future crime.
{¶14} We overrule Bonnell’s sole assignment of error.
Delaware County, Case No. 12CAA030022 8
{¶15} For the reasons set forth above, the judgment of the Delaware County
Court of Common Pleas is affirmed.
By: Gwin, P. J., and
Farmer, J. concur;
Hoffman J. dissents
___________________________________
HON. W.SCOTT GWIN
___________________________________
HON. WILLIAM B. HOFFMAN
___________________________________
HON. SHEILA G. FARMER
WSG:clw 1018
Delaware County, Case No. 12CAA030022 9
Hoffman, J., dissenting
{¶16} I respectfully dissent from the majority opinion. H.B. 86 revised the
statutory language of R.C. 2929.14 to require the trial court to make certain statutorily
enumerated factors prior to imposing consecutive sentences. H.B. 86 revives the
factors previously recognized as being required by the Ohio Supreme Court in State v.
Comer 99 Ohio St.3d 463, 2003-Ohio-4165. The revised statute however does not
require the trial court to give its reasons for selecting the sentence imposed.
{¶17} At the sentencing hearing in this case, the trial court stated on the record,
{¶18} “The Court: On the PSI pages 4 through 16, it’s pretty clear that at this
point in time you’ve shown very little respect for society and the rules of society. The
court feels that a sentence is appropriate.
{¶19} “As to count two, the tampering with coin machines, a felony of the fifth
degree, in violation of section 2911.32(A), it will be the sentence of this court that you
will serve eleven months in prison; to pay the costs of prosecution for which execution is
awarded.
{¶20} “The court is of the opinion that all three burglaries were separate
offenses, they do not merge. Therefore the court is going to give you a sentence on all
three of those. As to count four, burglary, in violation of 2911.12(A)(3), a felony of the
third degree, under house bill 86, I am limited as to what I can give you, it will be the
sentence of this court that you shall serve thirty months in CRC; pay the costs of
prosecution for which execution is awarded; said sentence will be served consecutive to
the sentence the court imposed on count two.”
{¶21} Tr. at 14-15.
Delaware County, Case No. 12CAA030022 10
{¶22} The trial court continued stating the sentences shall be served
consecutive to the other sentences imposed.
{¶23} The January 10, 2012 Judgment Entry of sentence states, in pertinent
part,
{¶24} "Having considered the factual background of this case, the negotiations
conducted in this case, the Pre-Sentence Investigation report prepared by Adult Court
Services, the Defendant's counsel's statement, the Assistant Prosecuting Attorney's
statement, the Defendant's statement, and, having considered the two overriding
purposes of felony sentencing set forth in Section 2929.11 of the Ohio Revised Code,
and having considered the seriousness and recidivism factors set forth in Section
2929.12 of the Ohio Revised Code, which the Court considers to be advisory only, the
Court makes the following FINDINGS:
{¶25} "1. The Defendant's lengthy prison record.
{¶26} "2. A prison sentence is appropriate."
{¶27} The Judgment Entry continues in memorializing the sentence imposed by
the trial court at the sentencing hearing, including the imposition of consecutive
sentences.
{¶28} Although the trial court stated its findings with regard to the sentencing
principles of R.C. 2929.11 and the seriousness and recidivism factors, I find this is not
sufficient judicial fact-finding under the H.B. No. 86 amendments to support the
imposition of consecutive sentences. Accordingly, I would vacate Appellant's sentence
Delaware County, Case No. 12CAA030022 11
and remand the matter for the limited purpose of resentencing under H.B. No. 86.
________________________________
HON. WILLIAM B. HOFFMAN
Delaware County, Case No. 12CAA030022 12
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
RANDALL L. BONNELL, JR. :
:
Defendant-Appellant : Case No. 12CAA030022
For the reason stated in our accompanying Opinion, the judgment of the
Delaware County Court of Common Pleas is affirmed. Costs to Appellant.
___________________________________
HON. W. SCOTT GWIN
___________________________________
HON. WILLIAM B. HOFFMAN
___________________________________
HON. SHEILA G. FARMER