State v. Battle ( 2013 )

[Cite as State v. Battle, 2013-Ohio-816.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98294
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MARTIZE BATTLE
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART; REVERSED IN PART,
AND REMANDED FOR RESENTENCING
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-558439 and CR-559435
BEFORE: Celebrezze, P.J., Kilbane, J., and Blackmon, J.
RELEASED AND JOURNALIZED: March 7, 2013
ATTORNEY FOR APPELLANT
Joseph Vincent Pagano
P.O. Box 16869
Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Brian D. Kraft
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.:
{¶1} Appellant, Martize Battle, seeks reversal of a six-year prison sentence for
several burglary convictions, the imposition of restitution to a victim in the amount of
$1,039.55, and the imposition of court costs when costs were not imposed at sentencing.
Appellant argues his sentence is contrary to law and an abuse of discretion under current
sentencing guidelines. He also argues the amount of restitution was unsupported by
sufficient evidence of loss. After a thorough review of the record and law, we affirm in
part, reverse in part, and remand for resentencing.
I. Factual and Procedural History
{¶2} Appellant was an 18-year-old high school student when he engaged in a
series of thefts and burglaries. He was arrested, and two separate cases arose from his
actions. In Cuyahoga C.P. No. CR-559435, appellant was charged with burglary, theft,
petty theft, and criminal damaging as a result of his actions on December 31, 2011. In
Cuyahoga C.P. No. CR-558439, after being bound over from municipal court, appellant
was charged with five counts of burglary, one count of theft, six counts of criminal
damaging, and two counts of petty theft. These charges stem from criminal activity that
occurred from December 22, 2011 to January 10, 2012.
{¶3} Appellant initially pled not guilty, but ultimately decided to change his plea to
guilty to amended indictments in both cases. On February 27, 2012, appellant pled
guilty in CR-558439 to two second-degree-felony counts of burglary (R.C.
2911.12(A)(2)); one second-degree-felony count of burglary (R.C. 2911.12(A)(1)); and
three second-degree-misdemeanor counts of criminal damaging (R.C. 2909.06(A)(1)).
In CR-559435, appellant pled guilty to one second-degree-felony count of burglary (R.C.
2911.12(A)(1)). The remaining counts in both cases were dismissed.
{¶4} After the court obtained a presentence investigation report, appellant was
sentenced on March 26, 2012. In CR-558439, appellant received an aggregate prison
sentence of six years: three three-year prison terms for burglary and three 90-day county
jail terms for criminal damaging, to be served concurrently to each other, but
consecutively to the three-year prison term imposed in CR-559435. The court also
ordered appellant to pay restitution in CR-558439 to one of his victims in the amount of
$1,039.55 for damage to a steel entry door. The court properly informed appellant of
postrelease control, but failed to impose court costs at the sentencing hearing. However,
costs were imposed in the sentencing journal entry.
{¶5} Appellant appeals his sentence, assigning three errors:
I. The six year prison sentence imposed on appellant was contrary to law
and an abuse of discretion.
II. The trial court erred by ordering appellant to pay restitution.
III. The trial court erred by ordering appellant to pay costs.
II. Law and Analysis
A. Consecutive Sentences
{¶6} In appellant’s first assignment of error, he argues Ohio’s recent sentencing
reforms enacted in H.B. 86 were not complied with when the trial court imposed
consecutive sentences.
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.State v. Lebron, 8th Dist. No. 97773, 2012-Ohio-4156, ¶ 5.
{¶7} Appellant argues that statutory findings were not made that are required
before a court may impose consecutive sentences. According to R.C. 2929.14(C)(4),
[i]f 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 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. (Emphasis added.)
According to this statute, a sentencing court must analyze whether consecutive sentences
are necessary to protect the public, punish the offender, are not disproportionate, and
make one additional finding. “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.” State v. Goins, 8th Dist. No. 98256, 2013-Ohio-263, ¶
10, citing State v. Edmonson, 86 Ohio St.3d 324, 326, 715 N.E.2d 131 (1999).
{¶8} Here, the court found that appellant “had seven different burglaries * * * that
went on over a period of several months,” which included entering into homes while
occupants were present. The court also made note of appellant’s juvenile record.
However, the court did not address any other findings required under R.C. 2929.14(C)(4).
Appellant makes much of his lack of an adult criminal record, but he was 18 years old.
The trial court indicated appellant had serious juvenile adjudications. Appellant’s prior
juvenile criminal history qualifies as an appropriate finding under R.C. 2929.14(C)(4)(c).
Further, appellant’s course of criminal conduct, spanning several weeks and seven
different home invasions, can constitute an appropriate finding under R.C.
2929.14(C)(4)(b). However, the court did not address any other findings. Nor is there
evidence in the record demonstrating a reasoned consideration of these factors.
{¶9} The lack of evidence in the record on the findings required by R.C.
2929.14(C)(4) differentiate this case from Goins. There, this court recently upheld the
imposition of consecutive sentences where the record offered evidence that the trial court
fully engaged in an analysis of R.C. 2929.14(C)(4), even though specific findings were
not stated on the record.
{¶10} The same cannot be said here. Other than the two findings above, the only
evidence that the trial court considered R.C. 2929.14(C)(4) was a statement that it
considered “all of the factors relevant to sentencing * * *.” This is not sufficient to
demonstrate that “the court has engaged in the required analysis and has selected the
appropriate statutory criteria.” Goins at ¶ 10.
{¶11} While it is true that the trial court could have imposed a six-year term on any
one of the burglary counts without making these findings, the court chose to impose
consecutive sentences and was therefore required to engage in an analysis of the factors
found in R.C. 2929.14(C)(4). Accordingly, this case must be remanded in order for the
trial court to make the appropriate findings or impose concurrent sentences.
B. Restitution
{¶12} Appellant next argues that the trial court erred when it imposed restitution in
the amount of $1,039.55 because that amount was not supported by sufficient evidence in
the record.
{¶13} This court normally reviews an order of restitution for an abuse of the trial
court’s discretion. State v. Pollard, 8th Dist. No. 97166, 2012-Ohio-1196, ¶ 7, citing
State v. Marbury, 104 Ohio App.3d 179, 661 N.E.2d 271 (8th Dist.1995). However, just
as in Pollard, appellant failed to object or contest the amount of restitution ordered at
sentencing. This means he has waived all but plain error. To constitute plain error, the
error must be obvious on the record, palpable, and fundamental, so that it should have
been apparent to the trial court without objection. See State v. Tichon, 102 Ohio App.3d
758, 767, 658 N.E.2d 16 (9th Dist.1995). Moreover, plain error does not exist unless the
appellant establishes that the outcome of the trial clearly would have been different but
for the trial court’s allegedly improper actions. State v. Waddell, 75 Ohio St.3d 163,
166, 1996-Ohio-100, 661 N.E.2d 1043. Notice of plain error is to be taken with utmost
caution, under exceptional circumstances, and only to prevent a manifest miscarriage of
justice. State v. Phillips, 74 Ohio St.3d 72, 83, 1995-Ohio-171, 656 N.E.2d 643.
{¶14} R.C. 2929.18(A)(1) provides for
[r]estitution by the offender to the victim of the offender’s crime in * * * an
amount based on the victim’s economic loss. * * * If the court imposes
restitution, at sentencing, the court shall determine the amount of restitution
to be made by the offender. If the court imposes restitution, the court may
base the amount of restitution it orders on an amount recommended by the
victim, the offender, a presentence investigation report, estimates or receipts
indicating the cost of repairing or replacing property, and other information,
provided that the amount the court orders as restitution shall not exceed the
amount of the economic loss suffered by the victim as a direct and
proximate result of the commission of the offense. If the court decides to
impose restitution, the court shall hold a hearing on restitution if the
offender, victim, or survivor disputes the amount. * * *.
{¶15} At the sentencing hearing, the state indicated it possessed evidence of the
victim’s economic loss that totaled $1,039.55. Appellant did not object or otherwise
dispute this evidence. The undisputed amount of the victim’s economic loss was
imposed. Therefore, the trial court did not commit plain error in its restitution order.
Appellant’s second assignment of error is overruled.
C. Court Costs
{¶16} Appellant finally argues that the trial court erred when it did not impose
costs at the sentencing hearing, but ordered him to pay court costs in the journal entry.
The state concedes this error. According to the Ohio Supreme Court, the appropriate
remedy is to remand the case in order to give appellant the opportunity to seek a waiver of
court costs. State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, ¶ 23.
Therefore, appellant’s third assignment of error is sustained.
III. Conclusion
{¶17} The trial court failed to adequately address R.C. 2929.14(C) when it
imposed consecutive sentences. That error can be remedied on remand by either making
the required findings or imposing concurrent sentences. The court also erred when it did
not impose costs in open court as part of the sentence, as is required. However, the court
did not err in ordering restitution where the amount was indicated by the victim at the
sentencing hearing and appellant did not object.
{¶18} Judgment affirmed in part, reversed in part, and remanded to the lower court
for resentencing consistent with this opinion.
It is ordered that appellant and appellee 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
MARY EILEEN KILBANE, J., and
PATRICIA A. BLACKMON, J., CONCUR