State v. Bittner , 2014 Ohio 3433 ( 2014 )

[Cite as State v. Bittner, 2014-Ohio-3433.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO
Plaintiff-Appellee
v.
BONNIE BITTNER
Defendant-Appellant
Appellate Case No. 2013-CA-116
Trial Court Case No. 2013-CR-605
(Criminal Appeal from
(Common Pleas Court)
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OPINION
Rendered on the 8th day of August, 2014.
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RYAN A. SAUNDERS, Assistant Clark County Prosecuting Attorney, Atty. Reg. No. 0091678, 50
East Columbia Street, Fourth Floor, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
HILARY LERMAN, Atty. Reg. No. 0029975, 249 Wyoming Street, Dayton, Ohio 45409
Attorney for Defendant-Appellant
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WELBAUM, J.
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{¶ 1} Defendant-appellant, Bonnie Bittner, appeals from her prison sentence received
in the Clark County Court of Common Pleas following her guilty plea to two counts of forgery.
For the reasons outlined below, the judgment of the trial court will be affirmed.
Facts and Course of Proceedings
{¶ 2} On September 3, 2013, Bittner was indicted on five counts of forgery in violation
of R.C. 2913.31(A)(3), all felonies of the fifth degree. The charges arose from Bittner passing
multiple counterfeit checks on July 11, 15, and 17, 2013, in Clark County, Ohio. On November
7, 2013, Bittner pled guilty to two of the forgery counts1 and the remaining three counts were
dismissed by the State pursuant to a plea agreement. As part of the plea agreement, Bittner
agreed to pay restitution in the amount of $7,566.53.
{¶ 3} At Bittner’s sentencing hearing, the trial court reviewed her criminal record and
noted that she had prior convictions for grand theft, involuntary manslaughter, theft, tampering
with records, and aggravated arson. The court further noted that Bittner received consecutive
prison sentences for those offenses, which amounted to a ten-and-one-half-year prison term.
Additionally, the trial court indicated that at the time of her forgery offenses, Bittner was on
post-release control, as she was under the supervision of the Adult Parole Authority and had 14
months remaining in the program. While Bittner apologized for her behavior and said that she
was ready to accept the consequences for her actions, the trial court noted that it was unclear
1
The forgery counts Bittner pled guilty to stem from her passing two counterfeit checks at two separate branches of Home City
Federal Savings Bank on July 15, 2013. The amount of each counterfeit check was $1,559.34. Bittner claimed that drug dealers gave her
the counterfeit checks and that she would cash the checks and give the cash to the dealers in exchange for drugs.
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whether Bittner’s remorse was genuine. The trial court also indicated that the victims of her
crimes suffered serious economic harm and that her risk of recidivism was moderate based on the
Ohio Risk Assessment System.
{¶ 4} On November 27, 2013, after considering the foregoing factors, the purposes and
principles of felony sentencing in R.C. 2929.11, and the sentencing factors in R.C. 2929.12, the
trial court sentenced Bittner to 11 months in prison for each forgery count, and ordered the
sentences to run consecutively for a total of 22 months in prison. The trial court also ordered
Bittner to pay restitution in the amount of $7,566.53, plus a five percent handling fee, and court
costs.
{¶ 5} Bittner now appeals from the trial court’s imposition of consecutive sentences,
raising one assignment of error for review.
Assignment of Error
{¶ 6} Bittner’s sole assignment of error is as follows:
THE COURT SENTENCED APPELLANT TO CONSECUTIVE SENTENCES
WITHOUT ADEQUATELY FOLLOWING R.C. 2929.14(C)(4).
{¶ 7} Under her sole assignment of error, Bittner argues that the trial court erred in
imposing consecutive sentences without making the required findings under R.C. 2929.14(C)(4).
In addition, she argues that the record fails to support the required findings. We disagree.
{¶ 8} As a preliminary matter, we note that R.C. 2953.08(G)(2) is the appellate
standard of review for all felony sentences, including consecutive sentences. State v. Rodeffer,
2013-Ohio-5759, 5 N.E.3d 1069, ¶ 29 (2d Dist.); State v. Mooty, 2014-Ohio-733, 9 N.E.3d 443, ¶
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68 (2d Dist.). The statute states, in pertinent part, that:
The appellate court may increase, reduce, or otherwise modify a sentence that is
appealed under this section or may vacate the sentence and remand the matter to
the sentencing court for resentencing. The appellate court’s standard for review
is not whether the sentencing court abused its discretion. The appellate court
may take any action authorized by this division if it clearly and convincingly finds
either of the following:
(a) That the record does not support the sentencing court’s findings under
division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of
section 2929.14, or division (I) of section 2929.20 of the Revised Code,
whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
R.C. 2953.08(G)(2).
{¶ 9} We also observed in Rodeffer that:
“the clear and convincing standard used by R.C. 2953.08(G)(2) is written in the
negative. It does not say that the trial judge must have clear and convincing
evidence to support its findings. Instead, it is the court of appeals that must
clearly and convincingly find that the record does not support the court’s
findings.” * * * “In other words, the restriction is on the appellate court, not the
trial judge. This is an extremely deferential standard of review.”
Rodeffer at ¶ 31, quoting State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 21 (8th Dist.).
{¶ 10} As noted earlier, Bittner argues that the trial court erred in imposing consecutive
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sentences. Pursuant to R.C. 2929.14(C)(4), a sentencing court must make certain findings
before imposing consecutive sentences. Specifically, a trial court may impose consecutive
sentences if it determines that: (1) consecutive service is necessary to protect the public from
future crime or to punish the offender; (2) 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)
one or more of the following three findings are satisfied:
(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
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)(a)-(c).
{¶ 11} “[A] trial court is required to make the findings mandated by R.C. 2929.14(C)(4)
at the sentencing hearing and incorporate its findings into its sentencing entry, but it has no
obligation to state reasons to support its findings.” State v. Bonnell, Slip Opinion No.
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2014-Ohio-3177, syllabus.
{¶ 12} In this case, the trial court considered various factors before imposing
consecutive sentences. Specifically, the court considered Bittner’s prior criminal history, that
she was on post-release control at the time of her forgery offenses, and that the victims of her
forgery offenses suffered serious economic harm. The court also questioned the sincerity of
Bittner’s remorse and noted that she exhibited a moderate risk of recidivism based on the Ohio
Risk Assessment System. After considering these factors, the trial court made the following
consecutive-sentence findings at Bittner’s sentencing hearing:
The Court finds that consecutive sentences are necessary to protect the public
from future crime and to punish the offender. Consecutive sentences are not
disproportionate to the seriousness of the Defendant’s conduct and to the danger
the offender poses to the public. Further find [sic] the Defendant committed the
offenses while under the supervision of the Adult Parole Authority and her
criminal history demonstrates that consecutive sentences are necessary to protect
the public from future crime by the Defendant.
Disposition Trans. (Nov. 27, 2013), p. 7-8.
{¶ 13} The trial court incorporated the foregoing findings in its sentencing entry, which
stated the following:
The Court has decided that the offender shall serve the prison terms consecutively,
pursuant to R.C. 2929.14(C)(4), because the court finds that consecutive service is
necessary to protect the public from future crime and to punish the offender and
that consecutive sentences are not disproportionate to the seriousness of the
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offender’s conduct and to the danger the offender poses to the public, and the
Court also finds that the defendant committed one of the offenses while under the
supervision of the adult parole authority, and that the defendant’s criminal
history demonstrates the consecutive sentences are necessary to protect the public
from future crime by the defendant.
Judgment Entry of Conviction (Nov. 27, 2013), Clark County Court of Common Pleas Case No.
13-CR-0605, Docket No. 8, p. 3.
{¶ 14} The trial court’s language at the sentencing hearing and in its sentencing entry
establishes that it made all the required consecutive-sentence findings under R.C. 2929.14(C)(4).
In addition to making the initial findings that: (1) consecutive service is necessary to protect the
public from future crime or to punish the offender; and (2) consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses
to the public; the trial court also made findings under subdivisions (a) and (c) of the statute,
which concern Bittner being on post-release control at the time of the offense and having a
history of criminal conduct. This satisfies the requirement that the trial court make one of the
three findings set forth in R.C. 2929.14(C)(4)(a) through (c).
{¶ 15} We do not clearly and convincingly find that the record does not support the trial
court’s consecutive-sentence findings. Furthermore, we do not clearly and convincingly find
that Bittner’s sentence is otherwise contrary to law. “[A] sentence is not contrary to law when
the trial court imposes a sentence within the statutory range, after expressly stating that it had
considered the purposes and principles of sentencing set forth in R.C. 2929.11, as well as the
factors in R.C. 2929.12.” Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069 at ¶ 32, citing State v.
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Kalish, 120 Ohio St. 3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 18. Here, Bittner’s two
11-month prison sentences for forgery are within the prescribed statutory range for felonies of the
fifth degree. See R.C. 2929.14(A)(5). The trial court also expressly stated at the sentencing
hearing and in its sentencing entry that it had considered the purposes and principles of
sentencing set forth in R.C. 2929.11 and the sentencing factors in R.C. 2929.12.
{¶ 16} For the foregoing reasons, the trial court did not err in imposing consecutive
prison sentences, as the court made all the required findings under R.C. 2929.14(C)(4) at the
sentencing hearing and in its sentencing entry, and the findings are not clearly and convincingly
unsupported by the record. In addition, Bittner’s sentence is not otherwise contrary to law.
{¶ 17} Bittner’s sole assignment of error is overruled.
Conclusion
{¶ 18} Having overruled Bittner’s sole assignment of error, the judgment of the trial
court is affirmed.
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HALL, J., concurs.
DONOVAN, J., concurring:
{¶ 19} In Rodeffer, cited in the majority opinion, we held that we would no longer use
an abuse-of-discretion standard in reviewing a sentence in a criminal case, but would apply the
standard of review set forth in R.C. 2953.08(G)(2). Since then, opinions from this court have
expressed reservations from some judges of this court whether that decision in Rodeffer is
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correct. See, e.g. State v. Garcia, 2d Dist. Greene No. 2013-CA-51, 2014-Ohio-1538, ¶ 9, fn. 1;
State v. Dover, 2d Dist. Clark No. 2013-CA-58, 2014-Ohio-2303, ¶ 21; State v. Johnson, 2d Dist.
Clark No. 2013-CA-85, 2014-Ohio-2308, ¶ 9, fn.1; State v. Byrd, 2d Dist. Montgomery No.
25842, 2014-Ohio-2553, ¶ 9; State v. Collins, 2d Dist. Montgomery No. 25874, 2014-Ohio-2443,
¶ 21, fn. 1.
{¶ 20} In the case before us, I find no error in the sentence imposed. Bittner’s sentence
is neither clearly and convincingly unsupported by the record, an abuse of discretion, nor contrary
to law. Accordingly, I would affirm.
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Copies mailed to:
Ryan A. Saunders
Hilary Lerman
Hon. Richard J. O’Neill