State v. Taflinger , 2018 Ohio 456 ( 2018 )

[Cite as State v. Taflinger, 2018-Ohio-456.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
STATE OF OHIO,
CASE NO. 8-17-20
PLAINTIFF-APPELLEE,
v.
ALYSSA M. TAFLINGER, OPINION
DEFENDANT-APPELLANT.
Appeal from Logan County Common Pleas Court
Trial Court No. CR17-02-0045
Judgment Reversed in Part, Affirmed in Part
and Cause Remanded
Date of Decision: February 5, 2018
APPEARANCES:
Eric J. Allen for Appellant
Sarah J. Warren for Appellee
Case No. 8-17-20
WILLAMOWKSI, P.J.
{¶1} Defendant-appellant Alyssa M. Taflinger (“Taflinger”) appeals the
judgment of the Logan County Court of Common Pleas, alleging (1) that the trial
court erred by imposing consecutive sentences without incorporating its findings
into the judgment entry; and (2) that the imposition of consecutive sentences was
not supported by the record. For the reasons set forth below, the judgment of the
lower court is reversed in part and affirmed in part.
Facts and Procedural History
{¶2} On December 28, 2016, the police stopped Taflinger’s boyfriend—
Larry J. Lyle (“Lyle”)—for a traffic violation near a campground. Doc. 21. At the
time of the stop, Taflinger was sitting in the passenger seat of the vehicle. Id. As
the officer was questioning Lyle about the traffic violation, a man—Kevin Lanham
(“Lanham”)—drove up and accused Lyle of breaking into his camper. Id. The
police officer went to Lanham’s camper where a television was pulled off of the
wall and was partially on the floor. Id. Lanham told the police officer that he arrived
at his property earlier and saw a car he did not recognize in front of his camper. Id.
He then saw Lyle get into his vehicle and drive away at a high speed. Id.
{¶3} In the subsequent investigation, Lyle and Taflinger were linked to
thirty-three breaks-ins that occurred in various campgrounds between November 10,
2016, and January 24, 2017. Id. Altogether, the trial court counted twenty-seven
victims of these break-ins. Tr. 14. Further, the trial court calculated that Taflinger’s
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share of the amount of restitution for the victims of these offenses was $4,313.89.
Tr. 17. Taflinger admitted that she accompanied Lyle while he traveled to various
locations for the purpose of breaking into campers. Presentence Investigation. She
also admitted that she often drove Lyle to these locations, estimating that she had
been on five or six of these trips with him and that he stole around twenty
televisions. Id. However, she said that Lyle would use her car without her on
occasion. Id.
{¶4} Taflinger said that Lyle committed these crimes to support his heroin
addiction. Id. She said that she had no reason to commit these crimes as she had a
job and participated in these offenses only because Lyle threatened her and was
abusive. Id. She expressed regret for her part in these offenses. Id. Prior to 2016,
Taflinger had committed one minor misdemeanor and two fourth degree
misdemeanors. Id.
{¶5} On February 15, 2017, Taflinger was indicted with eighty-five criminal
charges. Doc. 2. This indictment included thirty counts of burglary in violation of
R.C. 2911.12(A)(3); six counts of theft in violation of R.C. 2913.02(A)(1); fifteen
counts of criminal damaging in violation of R.C. 2909.06(A)(1); seventeen counts
of petty theft in violation of R.C. 2913.02(A)(1); fifteen counts of vandalism in
violation of R.C. 2909.05(A); and two counts of attempted burglary in violation of
2911.12(A)(3). Doc. 2, 9.
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{¶6} On May 5, 2017, Taflinger signed a petition to enter a plea of guilty to
two counts of burglary in violation of R.C. 2911.12(A)(3); six counts of theft in
violation of R.C. 2913.02(A)(1); one count of criminal damaging in violation of
R.C. 2909.06(A)(1); eleven counts of petty theft in violation of R.C. 2913.02(A)(1);
and eleven counts of vandalism in violation of R.C. 2909.05(A). Doc. 29. The
petition to enter a plea of guilty was filed with the trial court on May 8, 2017. Doc.
29. The trial court accepted this guilty plea formalizing it by filing a judgment entry
/ change of plea on May 16, 2017. Doc. 30.
{¶7} On June 16, 2017, Taflinger appeared before the trial court for
sentencing. Doc. 68. Prior to this hearing, among other charges, Taflinger had pled
guilty to two burglary charges. The trial court sentenced her to a six-year prison
term for the first of these charges and to a twenty-four-month prison term for the
second of these charges. Doc. 32. The trial judge decided to impose these prison
sentences consecutively and made the following findings on the record:
I believe that consecutive sentences are necessary to punish the
offender and protect the public from future crime, it is not
disproportionate to the seriousness of the conduct and the Court
wants to also make the finding as to another statement of fact, and
that is that * * * there are two or more offenses that are part of
one or more courses of conduct, that the harm caused is so great
or unusual that a single prison term would not adequately reflect
the seriousness of the crime.
Tr. 25. See R.C. 2929.14(C)(4). These findings were not subsequently incorporated
into the trial court’s judgment entry. Doc. 32. At the sentencing hearing, the trial
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court imposed a thirty-day jail sentence for a misdemeanor offense consecutively to
the prison sentences for Taflinger’s felony offenses. Tr. 21-22. Doc. 55, 66.
{¶8} Taflinger filed notice of appeal on July 21, 2017. Doc. 58. In this
appeal, she raises the following two assignments of error:
First Assignment of Error
The trial court abused its discretion when it imposed consecutive
sentences on the defendant without making statutory findings in
the journal entry as required by the holding in State v. Bonnell.
Second Assignment of Error
The imposition of consecutive sentences was not supported by the
record below.
We will consider these two assignments of error in the order in which they were
presented in the appellant’s brief before we consider an issue raised by this Court
sua sponte.
First Assignment of Error
{¶9} In the first assignment of error, the Defense argues that the trial court
erred by imposing consecutive sentences without incorporating the findings
required by R.C. 2929.14(C)(4) into the judgment entry. The Defense does,
however, admit that the trial court “clearly state[d]” the required findings at the
sentencing hearing. Appellant’s Brief, 3.
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Legal Standard
{¶10} In order to impose consecutive sentences, a trial court is required
under R.C. 2929.14(C)(4) to make certain findings for the record and to incorporate
these findings into the judgment entry. R.C. 2929.14(C)(4). State v. Rutschilling,
3d Dist. Mercer Nos. 10-17-06 and 10-17-07, 2017-Ohio-9252, ¶ 10.
[A] trial court must state the required findings as part of the
sentencing hearing * * *. And because a court speaks through its
journal the court should also incorporate its statutory findings
into the sentencing entry. However, a word-for-word recitation
of the language of the statute is not required, and as long as the
reviewing court can discern that the trial court engaged in the
correct analysis and can determine that the record contains
evidence to support the findings, consecutive sentences should be
upheld.
A trial court’s inadvertent failure to incorporate the statutory
findings in the sentencing entry after properly making those
findings at the sentencing hearing does not render the sentence
contrary to law; rather, such a clerical mistake may be corrected
by the court through a nunc pro tunc entry to reflect what actually
occurred in open court. But a nunc pro tunc entry cannot cure
the failure to make the required findings at the time of imposing
sentence.
(Citations omitted.) State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, 16
N.E.3d 659, ¶ 29-30.
Legal Analysis
{¶11} The transcript of the sentencing hearing shows that the trial court did
make the findings that are required by R.C. 2929.14(C)(4) in order to impose
consecutive sentences. Appellant’s Brief, 3. Tr. 25. The trial court, however, failed
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to incorporate these findings into its judgment entry. Doc. 55. Thus, the judgment
entry imposing consecutive sentences was deficient. For this reason, Taflinger’s
first assignment of error is sustained.
Second Assignment of Error
{¶12} In the second assignment of error, the Defense argues that the
imposition of consecutive sentences was not supported by the record. In particular,
the Defense points out that the trial court found that appellant was not a career
criminal. The Defense also argues that the fact that she did not stop her boyfriend
from committing these crimes should not justify the imposition of consecutive
sentences.
Legal Standard
{¶13} R.C. 2929.14(C)(4) reads, in its relevant part, as follows:
(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
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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).
{¶14} “Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence
‘only if it determines by clear and convincing evidence that the record does not
support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law.’” State v. Nienberg, 3d Dist. Putnam No. 12-16-15 and
12-16-16, 2017-Ohio-2920, ¶8, quoting State v. Marcum, 146 Ohio St. 3d 516, 2016-
Ohio-1002, 59 N.E.3d 1231, ¶ 1.
Clear and convincing evidence is that measure or degree of proof
which is more than a mere ‘preponderance of the evidence,’ but
not to the extent of such certainty as is required ‘beyond a
reasonable doubt’ in criminal cases, and which will produce in the
mind of the trier of facts a firm belief or conviction as to the facts
sought to be established.
State v. Sullivan, 2017-Ohio-8937, --- N.E.3d ---, (3d Dist.), ¶ 12, quoting Cross v.
Ledford, 161 Ohio St. 469, 120 N.E.2d 118, at paragraph three of the syllabus
(1954).
Legal Analysis
{¶15} At the sentencing hearing, the trial court mentioned the facts which it
found to be in support of the imposition of consecutive sentences. Doc. 68.
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Taflinger’s offenses had twenty-seven victims. Tr. 14. The trial court also noted
that Taflinger committed a relatively large number of offenses over an extended
period of time. Tr. 24. Further, she was aware of her boyfriend’s course of criminal
conduct, allowed him to use her car to commit crimes, and took no steps to report
him to the authorities. Tr. 10. The trial court considered the fact that she was not a
“career criminal” but determined that this fact was not enough to outweigh the
number of victims and the number of offenses committed in this case. Tr. 17, 24.
Based on these facts, the trial court found that the imposition of consecutive
sentences under R.C. 2929.14(C)(4)(b) was appropriate. Tr. 24-26. After
examining the entire record, we do not find by clear and convincing evidence that
the imposition of consecutive sentences was unsupported by the record. For these
reasons, the appellant’s second assignment of error is overruled.
Sua Sponte Issue
{¶16} In reviewing the assignments of error raised on appeal, this Court
found an error at law in the sentencing hearing. At the sentencing hearing, the trial
court imposed a sentence for a misdemeanor consecutively to Taflinger’s felony
sentences. Doc. 32, 66. We will consider this decision sua sponte under a plain
error standard. See State v. Moore, 3d Dist. Hancock No. 5-07-18, 5-07-21, and 5-
07-21, 2008-Ohio-1152, ¶ 8-9.
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Legal Standard
{¶17} “In order to find plain error under Crim.R. 52(B), there must be an
error, the error must be an ‘obvious’ defect in the trial proceedings, and the error
must have affected ‘substantial rights.’” State v. Bowsher, 3d Dist. Union No. 14-
07-32, 2009-Ohio-6524, ¶ 12, quoting State v. Barnes, 94 Ohio St. 3d 21, 27, 759
N.E.2d 1240 (2002). “The standard for plain error is whether, but for the error, the
outcome of the proceeding clearly would have been otherwise.” State v. Hornbeck,
155 Ohio App. 3d 571, 2003-Ohio-6897, 802 N.E.2d 184, ¶ 16 (2d Dist.), citing
State v. Long, 53 Ohio St. 2d 91, 372 N.E.2d 804 (1978). Notice of plain error is
taken “only to ‘prevent a manifest miscarriage of justice.’” State v. Davis, 3d Dist.
Seneca No. 13-16-30, 2017-Ohio-2916, ¶ 23, quoting Long, supra, at paragraph
three of the syllabus.
{¶18} R.C. 2929.41(A) addresses the issue of multiple sentences and reads,
in its relevant part, as follows:
Except as provided in division (B)(3) of this section, a jail term or
sentence of imprisonment for misdemeanor shall be served
concurrently with a prison term or sentence of imprisonment for
felony served in a state or federal correctional institution.
R.C. 2929.41(A). See State v. Polus, 145 Ohio St. 3d 266, 2016-Ohio-655, 48
N.E.3d 553, ¶ 10 (holding that “subject only to the exceptions stated in R.C.
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2929.41(B)(3), a trial court must impose concurrent sentences for felony and
misdemeanor convictions.”).1
Legal Analysis
{¶19} At the sentencing case in this hearing, the trial court imposed a thirty-
day jail sentence for the misdemeanor offenses committed and ordered that this
sentence be served consecutively to Taflinger’s felony sentences. Tr. 20-21.
However, R.C. 2929.41(A) clearly prohibits imposing sentences in this manner.
This misdemeanor offense also does not fall into one of the exceptions listed in R.C.
2929.41(B)(3). Thus, this order was contrary to the law. See Polus, supra, at ¶ 10.
Further, this order operates to the prejudice of Taflinger as it orders her to serve
thirty additional days in jail after she completes her eight-year prison term. For
these reasons, we find plain error. Thus, the trial court must vacate the previous
sentencing entry and resentence Taflinger in a manner that is consistent with R.C.
2929.41(A).
Conclusion
{¶20} Having found error prejudicial to the appellant in the particulars
assigned and argued in the first assignment of error as well as in the imposition of a
misdemeanor sentence consecutively to appellant’s felony sentences, the judgment
1
The misdemeanor offenses that, under R.C. 2929.41(B)(3), are excepted from the general rule of R.C.
2929.41(A) are driving under suspension or in violation of license restriction in violation of R.C. 4510.11;
driving under OVI suspension in violation of R.C. 4510.11; driving under financial responsibility law
suspension or cancellation in violation of R.C. 4510.16; driving under a nonpayment of judgment suspension
in violation of R.C. 4510.16; failure to reinstate a license in violation of R.C. 4510.21; and driving while
under the influence of alcohol or drugs in violation of R.C. 4511.19.
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of the Logan County Court of Common Pleas is reversed as to these issues and
remanded for resentencing. Having found no error prejudicial to the appellant in
the particulars assigned and argued in the second assignment of error, the judgment
of Logan County Court of Common Pleas is affirmed as to these issues.
Judgment Reversed in Part,
Affirmed in Part,
And Cause Remanded
for Resentencing
SHAW and PRESTON, J.J., concur.
/hls
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