State v. Wells , 2013 Ohio 1179 ( 2013 )

[Cite as State v. Wells, 2013-Ohio-1179.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98428
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ROBERT WELLS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART,
REVERSED IN PART, AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-536495
BEFORE: Boyle, P.J., Jones, J., and Rocco, J.
RELEASED AND JOURNALIZED: March 28, 2013
ATTORNEY FOR APPELLANT
Rick L. Ferrara
2077 East 4th Street
Second Floor
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Justine Dionisopoulos
Assistant County Prosecutor
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:
{¶1} Defendant-appellant, Robert Wells, appeals his sentence, raising the
following three assignments of error:
I. The trial court acted contrary to law when it imposed consecutive
sentences without authority to do so under the Ohio Revised Code.
II. The trial court erred in imposing a near maximum, consecutive sentence
without considering sentencing factors or the circumstances surrounding
appellants’ violation.
III. The trial court erred in imposing court costs without mentioning the
costs at sentencing.
{¶2} Finding some merit to the appeal, we affirm the trial court’s imposition of
consecutive sentences but reverse its imposition of court costs, remanding solely on this
issue and allowing Wells to raise the issue of his indigency.
Procedural History and Facts
{¶3} In April 2011, Wells pleaded guilty to two counts of criminal nonsupport, in
violation of R.C. 2929.21(A)(2), a fifth degree felony. At the sentencing hearing, the
trial court ordered Wells to be placed on community controlled sanctions for 60 months
with the following conditions: (1) 120 hours of court community work service, (2) random
drug testing, (3) maintain verifiable employment, (4) report to the probation department,
and (5) pay the current child support order — $470.76 in current support per month and
$94.10 toward arrears. The trial court further warned Wells as follows:
If you violate, you’ll receive 12 months in prison on each of the two
felonies of the fifth degree. Those will run consecutive to each other.
Twenty-four months in prison. Pay costs and fees. Nobody wants you to
go to prison. We want you to support your kids the best you can. You
can do better than you’re doing. And you know that.
{¶4} One year later, the court held a probation violation hearing as a result of
Wells failing to report to probation. According to probation officer Erin Becker, Wells
last reported to probation on July 20, 2011. She further represented to the court that
Wells had only paid $285.80 toward child support since the trial court’s order, that he
failed to submit to drug testing, and that he failed to perform his community service
hours.
{¶5} Wells admitted to failing to report to the probation department. As for his
child support payment, Wells indicated to the court that he has obtained employment
where the child support is now automatically deducted.
{¶6} The trial court revoked Wells’s community control sanctions after finding
him in violation. The trial court then sentenced him to prison for 11 months on each
count, and ordered that they run consecutively for a total of 22 months in prison.
{¶7} Wells now appeals his sentence.
Standard of Review
{¶8} An appellate court must conduct a meaningful review of the trial court’s
sentencing decision. State v. Johnson, 8th Dist. No. 97579, 2012-Ohio-2508, ¶ 6, citing
State v. Hites, 3d Dist. No. 6-11-07, 2012-Ohio-1892, ¶ 7. Specifically, R.C.
2953.08(G)(2) provides that our review of consecutive sentences is not an abuse of
discretion. An appellate court must “review the record, including the findings
underlying the sentence or modification given by the sentencing court.” Id. If an
appellate court clearly and convincingly finds either that (1) “the record does not support
the sentencing court’s findings under [R.C. 2929.14(C)(4)]” or (2) “the sentence is
otherwise contrary to law,” then “the appellate court may increase, reduce, or otherwise
modify a sentence * * * or may vacate the sentence and remand the matter to the
sentencing court for resentencing.” Id.Consecutive Sentences
{¶9} In his first assignment of error, Wells argues that the trial court lacked
authority to impose consecutive sentences under former R.C. 2929.41(A) as enacted
under H.B. 86 — the version in effect at the time of sentencing, which provided:
(A) Except as provided in division (B) of this section, division (E) of
section 2929.14, or division (D) or (E) of section 2971.03 of the Revised
Code, a prison term, jail term, or sentence of imprisonment shall be served
concurrently with any other prison term, jail term, or sentence of
imprisonment imposed by a court of this state, another state, or the United
States. 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.
{¶10} Wells contends that none of the exceptions to the presumption of concurrent
sentences apply, and therefore the trial court lacked authority to impose consecutive
sentences. This argument, however, is premised on an established typographical error in
the statute that has since been corrected by the General Assembly. See R.C. 2929.41
(amended on September 28, 2012 by S.B. 337 for the specific purpose of substituting
R.C. 2929.14(C) for R.C. 2929.14(E) in the first sentence of (A)).
{¶11} Notably, in enacting H.B. 86, and following the Ohio Supreme Court’s
decision in State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768, the
General Assembly expressed its intent to revive the statutory fact-finding provisions that
existed as a prerequisite to imposing consecutive sentences that were effective before
State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. Under a prior
version of Ohio’s sentencing law, the judicial fact-finding requirements for consecutive
sentencing were contained in R.C. 2929.14(E); now they appear in R.C. 2929.14(C).
Adhering to well-established statutory principles, this court has already determined that
the reference to R.C. 2929.14(E) in 2929.41(A) was legislative oversight and “resulted in
the failure to update the cross-reference in the ‘revived’ R.C. 2929.41(A) from ‘division
(E) of section 2929.14’ to ‘division (C) of 2929.14.’” State v. Ryan, 8th Dist. No. 98005,
2012-Ohio-5070, ¶ 19. Indeed, “it is clear from the legislature’s stated intent that it
revived the former presumption for concurrent sentences in R.C. 2929.41(A) unless the
trial court makes the required findings for consecutive sentences in R.C. 2929.14(C)(4).”
State v. Walker, 8th Dist. No. 97648, 2012-Ohio-4274, ¶ 81, fn. 2. Accordingly, R.C.
2929.41(A) must be applied as the legislature intended it to be applied, thereby giving
effect to R.C. 2929.14(C) as a means for imposing consecutive sentences. Ryan at ¶ 22.
Therefore, under R.C. 2929.14(C), the trial court has the authority to impose consecutive
sentences in this case.
{¶12} Turning to Wells’s second assignment of error, the issue in this case is
whether the trial court complied with R.C. 2929.14(C) by making the necessary findings
to support the imposition of consecutive sentences. R.C. 2929.14(C)(4), as revived, now
requires that a trial court engage in a three-step analysis in order to impose consecutive
sentences. First, the trial court must find that “consecutive service is necessary to
protect the public from future crime or to punish the offender.” Id. Next, the trial
court must find that “consecutive sentences are not disproportionate to the seriousness of
the offender’s conduct and to the danger the offender poses to the public.” Id. Finally,
the trial court must find that at least one of the following applies: (1) the offender
committed one or more of the multiple offenses while awaiting trial or sentencing, while
under a sanction, or while under postrelease control for a prior offense; (2) 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 offenses 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; or (3) the offender’s history
of criminal conduct demonstrates that consecutive sentences are necessary to protect the
public from future crime by the offender. Id.{¶13} In each step of this analysis, the statutory language directs that the trial court
must “find” the relevant sentencing factors before imposing consecutive sentences. R.C.
2929.14(C)(4). In making these findings, a trial court is not required to use “talismanic
words to comply with the guidelines and factors for sentencing.” State v. Brewer, 1st
Dist. No. C-000148, 2000 Ohio App. LEXIS 5455, *10 (Nov. 24, 2000). But it must be
clear from the record that the trial court actually made the findings required by statute.
See State v. Pierson, 1st Dist. No. C-970935, 1998 Ohio App. LEXIS 3812 (Aug. 21,
1998). A trial court satisfies this statutory requirement when the record reflects that the
court has engaged in the required analysis and has selected the appropriate statutory
criteria. See State v. Edmonson, 86 Ohio St.3d 324, 326, 715 N.E.2d 131 (1999).
{¶14} Prior to imposing consecutive sentences, the trial court made the following
findings:
Now, I’ve issued consecutive sentences here and these are discretionary
consecutive sentences. I believe that the harm was so great or unusual that
a single term would not adequately reflect the seriousness of the conduct of
the defendant. The rearage [sic] amount here is $38,992.58.
You know, I spent 24 years in domestic relations law prior to becoming a judge and that
is as high as any number I ever heard before. I put you on community-control to give
you an opportunity and you’ve paid only $285. You haven’t cooperated in any way of
any substantial manner except completing a class. You failed to submit to drug tests.
Failed to show for employment programming. So, I believe this is the appropriate
sentence at this time.
{¶15} We find that these findings sufficiently comply with R.C. 2929.14(C)(4) to warrant the
imposition of consecutive sentences. It is clear that the trial court found that consecutive sentences
were necessary to adequately punish Wells for his crime, that they were not disproportionate to the
seriousness of Wells’s conduct and his repeated harm, and finally that consecutive sentences are
necessary to protect the public from future crime.
{¶16} We further find that the trial court properly considered the purposes of the
sentencing guidelines prior to imposing the prison term. Notably, the trial court imposed
the consecutive sentences in this case only after Wells violated several terms of the
community controlled sanctions that the trial court originally imposed. Pursuant to R.C.
2929.15(B)(1)(c), the trial court is expressly authorized to impose a prison term upon an
offender who violates the conditions of a community control sanction. The trial court,
however, cannot impose a prison term that exceeds the prison term specified in the notice
provided to the offender at the sentencing hearing. See R.C. 2929.15(B)(2); State v.
Goforth, 8th Dist. No. 90653, 2008-Ohio-5596. Here, the trial court previously notified
Wells that if he violated the terms of his community controlled sanctions that the court
would impose the maximum and consecutive sentences. It therefore complied with R.C.
2929.15 and acted well within its authority in imposing 22 months in prison (less than the
maximum).
{¶17} The second assignment of error is overruled.
Court Costs
{¶18} In his final assignment of error, Wells argues that the trial court erred in
imposing court costs in its sentencing journal entry without mentioning the costs at
sentencing. The Ohio Supreme Court has held “that a court errs in imposing court costs
without so informing a defendant in court.” State v. Joseph, 125 Ohio St.3d 76,
2010-Ohio-954, 926 N.E.2d 278, ¶ 1. The rationale behind this principle is that when
court costs are not mentioned at the sentencing hearing the defendant is denied the
opportunity to seek a timely waiver of those costs. State v. Mays, 2d Dist. No. 24168,
2012-Ohio-838, ¶ 16.
{¶19} The state counters that the trial court mentioned costs at the first sentencing
hearing when it imposed community controlled sanctions. While this is true, we find
that the trial court should have raised the issue at the sentencing hearing where it imposed
the consecutive sentences and actually imposed the court costs. Indeed, Wells’s
indigency may not have been an issue at the first hearing but later an issue at the
subsequent sentencing hearing.
{¶20} Here the trial court failed to tell Wells at the sentencing hearing that it was
imposing court costs on him. The remedy for this error, which we grant, is remanded for
the limited purpose of the defendant to seek a waiver of court costs. See Mays at ¶ 17.
{¶21} The third assignment of error is sustained.
{¶22} Consecutive sentences are affirmed. The imposition of court costs is
reversed and the case is remanded on this single issue.
It is ordered that appellee and appellant share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY J. BOYLE, PRESIDING JUDGE
LARRY A. JONES, SR., J., and
KENNETH A. ROCCO, J., CONCUR