State v. Beall , 2020 Ohio 4099 ( 2020 )

[Cite as State v. Beall, 2020-Ohio-4099.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 5-19-44
v.
MICHAEL L. BEALL, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 5-19-45
v.
MICHAEL L. BEALL, OPINION
DEFENDANT-APPELLANT.
Appeals from Hancock County Common Pleas Court
Trial Court Nos. 2018 CR 0211 and 2017 CR 0372
Judgments Affirmed in Part, Reversed in Part and Causes Remanded
Date of Decision: August 17, 2020
APPEARANCES:
Brian A. Smith for Appellant
Steven M. Powell for Appellee
Case Nos. 5-19-44, 5-19-45
ZIMMERMAN, J.
{¶1} Defendant-appellant, Michael L. Beall (“Beall”) appeals the November
8, 2019 and November 22, 2019 judgment entries of sentencing of the Hancock
County Common Pleas Court. For the reasons that follow, we affirm in part and
reverse in part.
{¶2} On November 28, 2017, the Hancock County Grand Jury indicted Beall
on a single criminal count of domestic violence in violation of R.C. 2919.25(A), a
fourth-degree felony.1 (Case No. 2017 CR 00372, Doc. No. 1).
{¶3} On December 6, 2017, Beall appeared for arraignment and entered a
plea of not guilty. (Case No. 2017 CR 00372, Doc. No. 7).
{¶4} On July 10, 2018, the Hancock County Grand Jury indicted Beall in a
new case on three criminal counts including: Count One of intimidation of victim
in criminal case in violation of R.C. 2921.04(B)(1), a third-degree felony; Count
Two of domestic violence in violation of R.C. 2919.25(A), a fourth-degree felony;
and Count Three of resisting arrest in violation of R.C. 2921.33(A), a second-degree
misdemeanor.2 (Case No. 2018 CR 00211; Doc. No. 1)
{¶5} On August 13, 2018, Beall withdrew his pleas of not guilty and entered
guilty pleas, pursuant to a plea agreement with the State to domestic violence in case
1
The alleged victim is Beall’s fiancé and the mother of his two minor children. (Case No. 2017 CR 00372,
Doc. Nos. 1, 56).
2
The case sub judice involves the same victim as in case number 2017 CR 00372. (Case No. 2018 CR 00211,
Doc. Nos. 1, 11).
-2-
Case Nos. 5-19-44, 5-19-45
number 2017 CR 00372 and to domestic violence in case number 2018 CR 00211.
(Case No. 2017 CR 00372, Doc. Nos. 59, 65); (Case No. 2018 CR 00211, Doc. Nos.
16, 22). Specifically, in exchange for his guilty pleas, the State agreed to dismiss
Counts One and Three in case number 2018 CR 00211. (Case No. 2018 CR 00211,
Doc. Nos. 16, 22, 25). The trial court accepted Beall’s guilty pleas and ordered the
preparation of a PSI. (Case No. 2017 CR 00372, Doc. No. 65); (Case No. 2018 CR
00211, Doc. No. 22).
{¶6} On November 1, 2018, the trial court sentenced Beall to five years of
community control sanctions in both of his cases. (Case No. 2017 CR 00372, Doc.
No. 69); (Case No. 2018 CR 00211, Doc. No. 27). Importantly, the sentencing
entries specifically informed Beall that, if he failed to complete the term of
community control, the trial court reserved 16 months in prison as to Count One in
case number 2017 CR 00372 and 18 months in prison at to Count Two in case
number 2018 CR 00211. (Case No. 2017 CR 00372, Doc. No. 69); (Case No. 2018
CR 00211, Doc. No. 27). Further, the sentencing entries “[ordered] that th[ese]
reserved sentence[s] shall be served consecutively, one after the other, with the
reserved prison term[s] imposed by this Court, this date, [in case numbers 2017 CR
00372 and 2018 CR 00211,] for a total reserve prison term of thirty-four (34) months
in prison.” (Id.); (Id.). The entries were filed on November 27, 2018. (Case No.
2017 CR 00372, Doc. Nos. 69, 70); (Case No. 2018 CR 00211, Doc. Nos. 27, 28).
-3-
Case Nos. 5-19-44, 5-19-45
{¶7} On February 19, 2019, Beall’s probation officer submitted a request to
execute the deferred community control sanction asserting that Beall failed to abide
by the terms of his conditions of supervision by using a mood-altering substance
and failing to obtain a diagnostic assessment in his county of residency, which the
trial court ultimately granted. (Case No. 2017 CR 00372, Doc. No. 84); (Case No.
2018 CR 00211, Doc. No. 42). Beall was ordered to commence serving a seven-
day term of electronic home monitoring (“EHM”) beginning on February 19, 2019
through February 26, 2019. (Id.); (Id.). On February 26, 2019, Beall’s probation
officer submitted a second request to execute the deferred community control
sanction averring that Beall failed to abide by the terms of his conditions of
supervision related to EHM under the terms outlined in the trial court’s order of
February 19, 2019. (Case No. 2017 CR 00372, Doc. No. 87); (Case No. 2018 CR
00211, Doc. No. 45). Consequently, the trial court ordered Beall to serve a seven-
day extension of EHM as a result of his failure to abide by this condition of his
supervision. (Id.); (Id.).
{¶8} On September 9, 2019, the Adult Probation Department notified that
trial court that Beall may have violated a general condition of supervision and
several community-non-residential sanctions.3 (Case No. 2017 CR 00372, Doc.
3
Specifically, while being arrested on a bench warrant arising out of Findlay Municipal Court, Beall tested
positive for use of methamphetamines, amphetamines, THC, and fentanyl. (Oct. 7, 2019 Tr. at 4, Doc. No.
82). Beall also failed to obtain his diagnostic assessment and was deemed non-compliant and discharged
-4-
Case Nos. 5-19-44, 5-19-45
Nos. 89); (Case No. 2018 CR 00211, Doc. No. 46). On October 17, 2019, the trial
court held a revocation hearing wherein Beall waived an evidentiary hearing and
entered an admission to violating his community control sanctions. (Oct. 17, 2019
Tr. at 5-10, Doc. No. 83); (Case No. 2017 CR 00372, Doc. No. 97); (Case No. 2018
CR 00211, Doc. No. 54). Thereafter, the trial court determined that Beall violated
the terms of his community control sanctions, revoked his community control, and
sentenced Beall to 16 months in prison on Count One in case number 2017 CR
00372 and 18 months in prison on Count Two in case number 2018 CR 00211. (Oct.
17, 2019 Tr. at 28, Doc. No. 83); (Id.); (Id.). Moreover, the trial court ordered that
the prison terms be served consecutive to one another for an aggregate term of 34
months in prison. (Id.); (Id.); (Id.). The judgment entry in case number 2017 CR
00372 was filed on November 8, 2019, and the judgment entry in case number 2018
CR 00211 was filed on November 22, 2019. (Case No. 2017 CR 00372, Doc. No.
97); (Case No. 2018 CR 00211, Doc. No. 54).
{¶9} Beall filed his notices of appeal in both cases on December 6, 2019,
which have been consolidated for the purpose of this appeal. (Case No. 2017 CR
00372, Doc. No. 102); (Case No. 2018 CR 00211, Doc. No. 58). He raises two
assignments of error for our review. We will begin by addressing Beall’s first
assignment of error followed by his second assignment of error.
from services as a result of missing his scheduled appointments. (Case No. 2017 CR 00372, Doc. No. 89);
(Case No. 2018 CR 00211, Doc. No. 46). (Oct. 7, 2019 Tr. at 4, Doc. No. 82).
-5-
Case Nos. 5-19-44, 5-19-45
Assignment of Error I
Because the trial court did not state the required findings under
R.C. 2929.14(C)(4) to impose consecutive sentences at Appellant’s
sentencing hearing, the trial court’s sentence was contrary to law.
{¶10} In his first assignment of error, Beall argues that the trial court erred
by imposing consecutive sentences. Specifically, Beall argues that the trial court
did not state the required findings under R.C. 2929.14(C)(4) on the record at the
October 17, 2019 sentencing hearing, and thus, his consecutive sentences are
contrary to law.
Standard of Review
{¶11} 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. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002,
¶ 1. See State v. Jung, 8th Dist. Cuyahoga No. 105928, 2018-Ohio-1514, ¶ 14
(applying the standard of review set forth in R.C. 2953.08(G)(2) to review a
sentence imposed after the defendant’s community control was revoked). See also
State v. Jackson, 150 Ohio St. 3d 362, 2016-Ohio-8127, ¶ 11, (concluding that a
community-control-revocation hearing is a sentencing hearing for the purposes of
R.C. 2929.19(A) and Crim.R. 32(A)(1)). Clear and convincing evidence is that
“‘which will produce in the mind of the trier of facts a firm belief or conviction as
-6-
Case Nos. 5-19-44, 5-19-45
to the facts sought to be established.’” Marcum at ¶ 22, quoting Cross v. Ledford,
161 Ohio St. 469 (1954), paragraph three of the syllabus.
Analysis
{¶12} According to R.C. 2929.14(C)(4), separate prison terms for multiple
offenses may be ordered to be served consecutively if the court finds it 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
factors in R.C. 2929.14(C)(4)(a)-(c) are present:
(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).
{¶13} Revised Code 2929.14(C)(4) requires the trial court to make specific
findings on the record when imposing consecutive sentences. State v. Hites, 3d Dist.
-7-
Case Nos. 5-19-44, 5-19-45
Hardin No. 6-11-07, 2012-Ohio-1892, ¶ 11; State v. Peddicord, 3d Dist. Henry No.
7-12-24, 2013-Ohio-3398, ¶ 33. Specifically, the trial court must find: (1)
consecutive sentences are necessary to either protect the public or punish the
offender; (2) the sentences would not be disproportionate to the offense committed;
and (3) one of the factors in R.C. 2929.14(C)(4)(a), (b), or (c) applies. Id.; Id.
{¶14} The trial court must state the required findings at the sentencing
hearing when imposing consecutive sentences and incorporate those findings into
the sentencing entry. State v. Sharp, 3d Dist. Putnam No. 12-13-01, 2014-Ohio-
4140, ¶ 50, citing State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, ¶ 29. A
trial court “has no obligation to state reasons to support its findings” and is not
“required to give a talismanic incantation of the words of the statute, provided that
the necessary findings can be found in the record and are incorporated into the
sentencing entry.” Bonnell at ¶ 37.
{¶15} Relevant to this discussion and at the October 17, 2019 sentencing
hearing, the following exchange occurred in open court between the trial judge and
Beall.
[Trial Court]: And in the 2018 CR 211 case, I’m going
to order that the 18-month sentence that was
reserved be imposed. Again, finding that the
imposition of a prison sentence is now
-8-
Case Nos. 5-19-44, 5-19-45
consistent a [sic] the principles and purpose
of sentencing.
Further, pursuant to the prior agreements
of the parties and the sentencing entry in 2018
CR 211, I am going to order that those
sentences run consecutively, one after the
other, for a total aggregate prison sentence of
34 months.
It was jointly-recommended consecutive
sentence. I don’t believe I need to make
findings. However, certainly under 2929.14,
as I’ve already discussed, they are offenses of
violence. The 218 [sic] case occurred while
you were on bond in the 2017 case.
And again, they are offense of violence
against the same victim and you have failed
to avail yourself of the community control
that we have offered you.
I think clearly under R.C. 2929.14(C), the
record reflects that the necessary findings
-9-
Case Nos. 5-19-44, 5-19-45
could be made and the court makes those
findings for purposes of imposing
consecutive sentences.
(Oct. 17, 2019 Tr. at 28-29, Doc. No. 83).
{¶16} We are not able to find support in the record for the proposition that
there was a joint-sentencing recommendation made to the trial court as to
consecutive sentences. (Aug. 13, 2018 Tr. at 3-4, Doc. No. 80); (Nov. 1, 2018 Tr.
at 27, Doc. No. 81); (Oct. 17, 2019 Tr. at 28-29, Doc. No. 83); (Case No. 2017 CR
00372, Doc. Nos. 59, 65, 69, 97); (Case No. 2018 CR 00211, Doc. Nos. 16, 22, 25,
27, 54). However, notwithstanding this determination, the trial court did make
alternative findings as to factors it considered in imposing consecutive sentences.
(Oct. 17, 2019 Tr. at 28-29, Doc. No. 83). Specifically, the trial court alluded to
factors relative to the offenses being offenses of violence and involving the same
victim; however neither of these factors are enumerated factors under R.C.
2929.14(C)(4)(a)-(c). (Oct. 17, 2019 Tr. at 28-29, Doc. No. 83). See
2929.14(C)(4)(a)-(c). Nevertheless, the trial court did state that Beall was convicted
of an offense (in case number 2018 CR 00372) while he was out on bond in case
number 2017 CR 00211. (Id.). See R.C. 2929.14(C)(4)(a).
{¶17} Even if we were to conclude that the trial court’s limited discussion
related to R.C. 2929.14(C)(4)(a) was sufficient, the trial court made no statements
-10-
Case Nos. 5-19-44, 5-19-45
relative to the protection of the public, the punishment of the offender, or the
proportionality of the seriousness of the offender’s conduct as required under R.C.
2929.14(C)(4) at the October 17, 2019 sentencing hearing.4 See Sharp, 2014-Ohio-
4140, at ¶ 50, citing Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, at ¶ 29.
Importantly, a trial court must engage in such a discussion relative to the protection
of the public, the punishment of the offender, and the proportionality of the
seriousness of the offender’s conduct analysis each time a criminal defendant is
sentenced in a case. See State v. Jackson, 150 Ohio St. 3d 362, 2016-Ohio-8127, at
¶ 11, quoting State v. Heinz, 146 Ohio St. 3d 374, 2016-Ohio-2814, ¶ 15, quoting
State v. Fraley, 105 Ohio St. 3d 13, 2004-Ohio-7110, ¶ 17, (“We reaffirmed Fraley
* * *, stating in regard to a community-control-revocation hearing that ‘“[a]t this
second hearing, the court sentences the offender anew and must comply with the
relevant sentencing statutes.”’”).
{¶18} Therefore, under the facts presented, we cannot conclude that the trial
court made the statutory findings as required by R.C. 2929.14(C)(4) each time it
sentenced Beall, and consequently, his sentence is clearly and convincingly contrary
to law.
{¶19} Accordingly, we sustain Beall’s first assignment of error.
4
Notably, the trial court did include findings related to protection of the public, punishment of the offender,
and proportionality as to the seriousness of Beall’s conduct in the November 8, 2019 and November 22, 2019
judgment entries. (Case No. 2017 CR 00372, Doc. No. 97); (Case No. 2018 CR 00211, Doc. No. 54).
-11-
Case Nos. 5-19-44, 5-19-45
Assignment of Error II
Because the record, as shown by clear and convincing evidence,
does not support the trial court’s findings under R.C.
2929.14(C)(4), pursuant to R.C. 2953.08(G)(2), the trial court’s
sentence of Appellant was not supported by the record.
{¶20} In his second assignment of error, Beall argues that the sentences he
received are not supported by the record, and are, therefore, contrary to law.
However, our ruling on Beall’s first assignment of error has rendered this argument
moot as we have already vacated his sentences and remanded these cases for
resentencing. For this reason, we decline to address these issues under App.R.
12(A)(1)(c).
{¶21} Having found error prejudicial to the appellant herein in the particulars
assigned and argued in his first assignment of error, we affirm the convictions of the
defendant-appellant, but we reverse the sentences of the trial court and remand these
matters for resentencing in the trial court.
Judgments Affirmed in Part,
Reversed in Part and
Causes Remanded
SHAW, P.J. and PRESTON, J., concur.
/jlr
-12-