State v. Day , 2021 Ohio 164 ( 2021 )

[Cite as State v. Day, 2021-Ohio-164.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
STATE OF OHIO, :
Appellee, : CASE NOS. CA2020-07-042
CA2020-07-043
:
- vs - OPINION
: 1/25/2021
JEFFREY SCOTT DAY, :
Appellant. :
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
Case Nos. 20CR36596 and 20CR36706
David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice
Drive, Lebanon, Ohio 45036, for appellee
Tyler J. Hoffer, 24 1/2 North Broadway Street, Lebanon, Ohio 45036, for appellant
PIPER, J.
{¶1} Appellant, Jeffrey Day, appeals the sentence imposed by the Warren County
Court of Common Pleas after being convicted of domestic violence and violating a
protection order.1
1. Pursuant to Loc.R. 6(A), we sua sponte remove this case from the accelerated calendar for the purpose
of issuing this opinion.
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{¶2} Police received an emergency dispatch reporting a man repeatedly punching
an elderly woman inside a vehicle. Upon responding, officers located Day and his 81-year-
old mother sitting in a vehicle. While speaking with Day's mother, officers observed
abrasions on her face, as well as bruises forming above her eye. Police were familiar with
Day, as he had a history of abusing his mother and her late husband. A protection order
was issued against Day, prohibiting any contact with his mother. However, on multiple
occasions, Day called his mother on the telephone.
{¶3} Day was charged with domestic violence and violating a protection order. He
pled no contest to the charges and the trial court found him guilty. The trial court sentenced
Day to 24 months on the domestic violence charge and six months for violating the
protection order. The trial court ordered the sentences consecutive to one another for an
aggregate sentence of 30 months in prison. Day now appeals his sentence, raising the
following assignment of error:
{¶4} THE WARREN COUNTY COMMON PLEAS COURT'S FINDINGS WERE
NOT SUPPRORTED [sic] BY THE RECORD AND THE SENTENCING FACTORS WERE
NOT PROPERLY CONSIDERED.
{¶5} Within his sole assignment of error, Day challenges the sentence imposed by
the trial court.
{¶6} R.C. 2953.08(G) defines the standard of review for felony-sentencing
appeals. State v. Jones, Slip Opinion No. 2018-0444, 2020-Ohio-6729. R.C. 2953.08(G)(2)
provides,
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
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2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶7} A sentence is not clearly and convincingly contrary to law where the trial court
considers the purposes and principles of R.C. 2929.11, as well as the factors listed in R.C.
2929.12, properly applies postrelease control, and sentences appellant within the
permissible statutory range. State v. Durham, 12th Dist. Warren No. CA2013-03-023, 2013-
Ohio-4764, ¶ 42.
{¶8} The record indicates that the trial court considered the sentencing factors
according to R.C. 2929.11 and 2929.12, as demonstrated in the trial court's sentencing
entry and its sentencing colloquy. The trial court also properly imposed postrelease control
during the sentencing hearing and in the sentencing entry. Lastly, the trial court's 30-month
and 6-month sentences are within the proper statutory range for committing a third-degree
felony and a fifth-degree felony.2 Thus, the trial court's sentences are not contrary to law
as they relate to the individual convictions for domestic violence and violating a protection
order according to R.C. 2953.08(G)(2)(b).
{¶9} However, upon review of the record, we find that the trial court erred in
imposing consecutive sentences without first making the requisite findings at the sentencing
hearing.
{¶10} R.C. 2929.14(C)(4) requires the sentencing court to engage in a three-step
process when imposing a consecutive sentence. State v. Smith, 12th Dist. Clermont No.
CA2014-07-054, 2015-Ohio-1093, ¶ 7. Specifically, the trial court must find,
(1) consecutive sentences are necessary to protect the public
from future crime or to punish the offender,
2. The domestic violence conviction was a felony of the third degree given Day's past domestic violence
conviction and the age of his mother. The violating a protection order conviction was a felony of the fifth
degree because Day was previously convicted of violating a protection order.
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(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 of the following applies:
(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.
{¶11} The trial court's R.C. 2929.14(C)(4) findings are required to be made at
the sentencing hearing and incorporated into the court's sentencing entry. State v. Bonnell,
140 Ohio St.3d 209, 2014-Ohio-3177. While the trial court is not required to give reasons
explaining these findings, it must be clear from the record that the court engaged in the
required sentencing analysis and made the requisite findings. Id.; R.C. 2953.08(G)(2)(a).
{¶12} Upon reviewing the transcript of the trial court's sentencing hearing, the trial
court failed to make findings regarding its imposition of the consecutive sentence. Thus,
we are unable to say that it is clear from the record that the court engaged in the required
sentencing analysis prior to ordering Day's sentences to be served consecutively.
{¶13} The assignment of error is well taken insofar as the consecutive sentences
are hereby reversed and this matter is remanded for the limited purpose of addressing the
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consecutive sentence requirements under R.C. 2929.14(C)(4) in resentencing Day.
{¶14} In all other respects, the judgment of the trial court is affirmed.
{¶15} Judgment reversed in part and remanded.
M. POWELL, P.J., and S. POWELL, J., concur.
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