State v. Brooks , 2013 Ohio 2169 ( 2013 )

[Cite as State v. Brooks, 2013-Ohio-2169.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. Nos. 26437
26352
Appellee
v.
APPEAL FROM JUDGMENT
GORDON L. BROOKS ENTERED IN THE
COURT OF COMMON PLEAS
Appellant COUNTY OF SUMMIT, OHIO
CASE Nos. CR 11 09 2446
CR 11 11 3172
DECISION AND JOURNAL ENTRY
Dated: May 29, 2013
BELFANCE, Presiding Judge.
{¶1} Defendant-Appellant Gordon L. Brooks appeals from the judgments of the
Summit County Court of Common Pleas. For the reasons set forth below, we affirm in part and
reverse in part.
I.
{¶2} In case number CR-2011-11-3172, Mr. Brooks was indicted for one count of
passing bad checks in violation of R.C. 2913.11, a fifth-degree felony. In case number CR-2011-
09-2446, Mr. Brooks was indicted for one count of forgery in violation of R.C.
2913.31(A)(1)/(3), also a fifth-degree felony. In a separate case number, not subject to this
appeal, Mr. Brooks was indicted on various other counts including aggravated robbery; that
matter was tried to the bench and the court found him not guilty. The cases described above
proceeded before the same trial judge, although the matters were never consolidated below. On
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February 27, 2012, Mr. Brooks pleaded guilty to passing bad checks and forgery. On February
28, 2012, after reading its verdict on the aggravated robbery case, the trial court sentenced Mr.
Brooks to a total of two years in prison for his convictions for passing bad checks and forgery.
Mr. Brooks separately appealed the convictions, and the appeals were consolidated. Mr. Brooks
has raised three assignments of error for our review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ABUSED ITS DISCRETION BY SENTENCING THE
APPELLANT TO A MAXIMUM SENTENCE, BEING 12 MONTHS ON EACH
OFFENSE CONSECUTIVE WHEN THAT SENTENCE DOES NOT MEET
THE REQUIREMENTS SET FORTH IN O.R.C. 2929.14, 2929.11 AND
2929.12.
{¶3} Mr. Brooks asserts in his first assignment of error that the trial court erred in
sentencing him to twelve months on each count as it was inconsistent with the purposes and
principles of sentencing.1 We do not agree.
{¶4} The Ohio Supreme Court held in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-
856, paragraph seven of the syllabus, that “[t]rial courts have full discretion to impose a prison
sentence within the statutory range and are no longer required to make findings or give their
reasons for imposing maximum * * * sentences.” “[N]evertheless, in exercising its discretion,
the court must carefully consider the statutes that apply to every felony case. Those include R.C.
2929.11, which specifies the purposes of sentencing, and R.C. 2929.12, which provides guidance
in considering factors relating to the seriousness of the offense and recidivism of the offender.”
State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, ¶ 38.
1
While Mr. Brooks also complains about the consecutive nature of his sentences, that
argument will be resolved in addressing the merits of his second assignment of error.
3
{¶5} After Foster, a plurality of the Supreme Court of Ohio held that appellate courts
should implement a two-step process when reviewing a felony sentence. State v. Kalish, 120
Ohio St.3d 23, 2008–Ohio–4912, ¶ 26. The Court stated:
First, [appellate courts] must examine the sentencing court’s compliance with all
applicable rules and statutes in imposing the sentence to determine whether the
sentence is clearly and convincingly contrary to law. If this first prong is
satisfied, the trial court’s decision in imposing the term of imprisonment is
reviewed under the abuse-of-discretion standard.
Id.{¶6} “Although a sentencing judge must consider the principals and purposes of
sentencing in imposing a sentence, he or she is not required to make findings or give their
reasons before imposing a maximum sentence.” State v. Jackson, 9th Dist. No. 26234, 2012-
Ohio-3785, ¶ 25. “[W]here the trial court does not put on the record its consideration of [R.C.]
2929.11 and 2929.12, it is presumed that the trial court gave proper consideration to those
statutes.” (Internal quotations and citations omitted.) Id. Nonetheless, because a reviewing
court must also determine whether a trial court abused its discretion in imposing a sentence,
Kalish at ¶ 26, the record must contain sufficient information whereby the appellate court can
discern that the trial court acted within its discretion.
{¶7} In the instant matter, the trial court indicated in its judgment entries that it
considered the factors set forth in R.C. 2929.11 and 2929.12. Moreover, Mr. Brooks’ sentences
were within the statutory range for fifth-degree felonies. See R.C. 2929.14(A)(5).
{¶8} It appears that Mr. Brooks’ argument is that there was not sufficient evidence
presented at the sentencing hearing to justify a maximum sentence when R.C. 2929.11 and
2929.12 are considered. While it is true, that Mr. Brooks’ sentencing hearing was brief, we
cannot conclude that the trial court’s sentence is either contrary to law or an abuse of discretion.
4
The prosecutor requested that the trial court sentence Mr. Brooks to two years total based upon
his criminal record. The prosecutor indicated that Mr. Brooks had prior convictions for receiving
stolen property, and robbery. The prosecutor asked the judge if the judge was aware of Mr.
Brooks’ entire record, and the trial court indicated that it was aware of Mr. Brooks’ record. It is
not clear from the record whether a pre-sentence investigation was ordered in the matter.
However, it appears that the trial court did possess some document or documents detailing Mr.
Brooks’ criminal history. The trial court noted that Mr. Brooks had many convictions for theft in
1989 and 1990. In addition, the trial court noted that “the only time [Mr. Brooks was] not
committing some kind of theft offense [was] when [he was] in prison.” The trial court also noted
that at least one of the two charges was committed while Mr. Brooks was awaiting sentencing on
a case before another judge. See R.C. 2929.12(D)(1), (2), (3). There is no evidence in the record
to suggest that the information the trial court possessed was inaccurate, and no objection to the
accuracy of the information was made by Mr. Brooks’ trial counsel. Furthermore, Mr. Brooks is
not taking issue with the accuracy of the information on appeal. In addition, the trial court may
have reasonably concluded that Mr. Brooks was not remorseful. See R.C. 2929.12(D)(5). Thus,
there was evidence in the record whereby the trial court could consider and apply the principles
and factors in R.C. 2929.11 and 2929.12. Moreover, the record does reflect that, prior to issuing
its sentence, the trial court considered materials given to it.
{¶9} In light of the record before us and the arguments made by Mr. Brooks, we cannot
say that the trial court erred in sentencing Mr. Brooks to the maximum sentence on the two
counts. Accordingly, Mr. Brooks’ first assignment of error is overruled.
5
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED BY IMPOSING CONSECUTIVE SENTENCES
IN VIOLATION OF H.B. NO.[]86, R.[C.] 2929.14(C)(4), AND R.[C.]
2929.41(A), EFFECTIVE SEPTEMBER 30, 2011, WHICH REQUIRES
JUDICIAL FACT FINDING TO ESTABLISH FOUNDATION FOR A
CONSECUTIVE SENTENCE AND THUS TO PROVIDE APPELLATE
REVIEW OF SAID SENTENCE.
{¶10} Mr. Brooks asserts in his second assignment of error that the trial court erred in
sentencing him to consecutive sentences when it failed to make factual findings at the sentencing
hearing. We agree.
{¶11} “On September 30, 2011, the General Assembly enacted 2011 Am.Sub.H.B. 86,
2011 Ohio Laws File 29, thereby revising R.C. 2929.14. In doing so, the General Assembly
struck, and then reinserted, the language from R.C. 2929.14 excised in [State v.] Foster[, 109
Ohio St.3d 1, 2006–Ohio–856].” State v. Just, 9th Dist. No. 12CA0002, 2012-Ohio-4094, ¶ 48.
At the time Mr. Brooks was sentenced, R.C. 2929.14(C)(4) stated that:
[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.
6
{¶12} Thus, it is clear that trial courts must make certain findings prior to imposing
consecutive sentences. See R.C. 2929.14(C)(4). However, while the General Assembly
reenacted the portion of R.C. 2929.14 related to making factual findings prior to imposing
consecutive sentences, the General Assembly did not reenact 2929.19(B)(2)(c) which required
trial courts to give reasons for imposing consecutive sentences. See Just at ¶ 49. In Just, this
Court concluded that the above described actions of the General Assembly when considered in
light of the current wording of R.C. 2929.19(B), indicate that a trial court “was not required to
set forth its findings under R.C. 2929.14(C)(4)(a)-(c) in its sentencing entry[.]” Id.; see also
State v. Bushner, 9th Dist. No. 26532, 2012-Ohio-5996, ¶ 25. However, although this Court has
held that the journal entry need not recite all of the statutory findings, Just at ¶ 49, other Ohio
appellate courts have determined that trial courts must make the required statutory findings even
if they are not actually contained in the journal entry. See, e.g., State v. Alexander, 1st Dist. Nos.
C-110828, C-110829, 2012-Ohio-3349, ¶ 16; State v. LeBron, 8th Dist. No. 97773, 2012-Ohio-
4156, ¶ 11-12. In examining the changes made to R.C. 2929.14 and 2929.19, our sister appellate
districts have noted that, “[w]hile the sentencing court is not required to use ‘talismanic words,’
it must be clear from the record that the trial court actually made the statutorily required
findings.” State v. Cowins, 1st Dist. No. C-120191, 2013-Ohio-277, ¶ 35; see also State v. Oren,
12th Dist. No. CA2012-05-010, 2013-Ohio-531, ¶ 25-31; State v. Martin, 5th Dist. No. 12-COA-
020, 2012-Ohio-6282, ¶ 15; State v. McKenzie, 3d Dist. No. 15-12-07, 2012-Ohio-6117, ¶ 10,
quoting State v. Murrin, 8th Dist. No. 83714, 2004-Ohio-3962, ¶ 12; State v. Pruitt, 8th Dist. No.
98080, 2012-Ohio-5418, ¶ 29.
{¶13} We agree with our colleagues’ sentiments. In an environment of prison
overcrowding, funding limitations, and remedial alternatives to prison, the reenactment of R.C.
7
2929.14(C)(4) evidences the General Assembly’s intent that trial courts carefully consider
certain factors and make certain findings prior to making the decision to impose consecutive
sentences. See Ohio Legislative Service Commission, Fiscal Note and Local Impact Statement,
http://www.lsc.state.oh.us/fiscal/fiscalnotes/129ga/hb0086en.pdf (accessed Mar. 13, 2013)
(noting that the changes made by the new legislation, including the reenactment of some of the
provisions struck by Foster, “are generally designed to reduce the size of the state’s prison
population and related institutional operating expenses[.]”). The fact that trial courts do not have
to explain their reasoning behind their findings does not negate the fact that the trial courts still
must make the findings. See R.C. 2929.14(C)(4). In light of the foregoing, this Court concludes
that such findings must be made at the sentencing hearing on the record. See also Crim.R.
32(A)(4) (“At the time of imposing sentence, the court shall[] * * * [i]n serious offenses, state its
statutory findings and give reasons supporting those findings, if appropriate.”). Ideally, those
findings would also then be memorialized in the sentencing entry.
{¶14} In the instant matter, at the sentencing hearing the trial court stated that:
[b]ased upon, again, the fact that the second of those cases was committed by
[Mr. Brooks] while awaiting sentencing in Judge Hunter’s case, the Court orders
those sentences to be consecutive and not concurrent with one another, and
further orders that they be consecutive to the sentence [Mr. Brooks is] currently
serving in case 2011-05-1139.
{¶15} In the trial court’s sentencing entries, it noted that, based upon Mr. Brooks’
criminal history, consecutive sentences were necessary to protect the public from future crime
and to punish Mr. Brooks, and that Mr. Brooks committed the offense while awaiting sentencing
in another case. See R.C. 2929.14(C)(4)(a). There is nothing in the record to indicate that the
trial court made the second finding or considered it in imposing consecutive sentences, namely
that “consecutive sentences are not disproportionate to the seriousness of the offender’s conduct
8
and to the danger the offender poses to the public[.]” R.C. 2929.14(C)(4). Moreover, the
sentencing hearing transcript is devoid of the level of detail that would allow this Court to
conclude that the trial court engaged in the appropriate analysis. Accordingly, based upon the
record before us, this Court cannot say that the trial court made the factual findings at the
sentencing hearing necessary to impose consecutive sentences. See, e.g., State v. Upkins, 3d
Dist. No. 17-12-13, 2012-Ohio-6114, ¶ 4; see also Crim.R. 32(A)(4). Mr. Brooks’ second
assignment of error is sustained.
ASSIGNMENT OF ERROR III
BROOKS’ CONVICTIONS SHOULD BE REVERSED BECAUSE HE WAS
DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL
COUNSEL MADE STATEMENTS WHICH SUGGESTED THAT A
NEGOTIATED PLEA HAD BEEN ACHIEVED WHICH UNREASONABLY
LE[D] DEFENDANT TO CONCLUDE A BARGAIN HAD BEEN REACHED
AND WHEN TRIAL COUNSEL NEGLECTED TO PROVIDE MITIGATION
AND ARGUMENT FOR SENTENCING OF HIS CLIENT.
{¶16} Mr. Brooks asserts in his third assignment of error that he was denied effective
assistance of counsel during his plea and at sentencing. We do not agree.
{¶17} In order to prevail on an ineffective assistance of counsel claim, a defendant
“must show (1) deficient performance by counsel, i.e., performance falling below an objective
standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that but for
counsel’s errors, the proceeding’s result would have been different.” State v. Mundt, 115 Ohio
St.3d 22, 2007–Ohio–4836, ¶ 62, citing Strickland v. Washington, 466 U.S. 668, 687–688, 694
(1984). “In the context of a guilty plea, the defendant must demonstrate that there is a
reasonable probability that, but for his counsel’s error, he would not have pleaded guilty and
would have insisted on going to trial.” State v. Evans, 9th Dist. No. 09CA0049-M, 2010-Ohio-
3545, ¶ 4.
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{¶18} Mr. Brooks first asserts that trial counsel was ineffective for misrepresenting to
Mr. Brooks that there was a plea bargain whereby Mr. Brooks would plead guilty and receive
prison time concurrent with that which he was already serving when there was no plea bargain.
Mr. Brooks maintains such is evident from trial counsel’s statement at the plea hearing. Trial
counsel stated that:
[M]y client does wish to enter pleas of guilty to forgery and passing bad checks.
As I told my client, and the prosecutor throughout this case, the offer to those two
cases have always been for concurrent time. My client is serving time now to
August 24th, I believe, of this year. So with that understanding, he does wish to
enter those pleas today. With regard to the offer today, your Honor, I’d just said,
five, six years.
{¶19} We note that the meaning of the above is not clear on its face. Moreover, there is
nothing else in the transcript of the plea that would even suggest the existence of a plea
agreement. Mr. Brooks asks this Court to infer from the above that trial counsel told him that
there was a plea deal when in fact there was none. Such an inference cannot be made from the
record before us. Nor can we conclude that the above quoted passage is definitive and detailed
enough to evidence that trial counsel misrepresented the existence of a plea bargain to Mr.
Brooks. We note that the above quoted passage does not require the conclusion that, at the time
of the plea, trial counsel believed that there was any plea bargain in place; instead, it is clear
from the passage that there were discussions and offers for concurrent time in the past. Further,
while the above could possibly be construed as trial counsel’s understanding that there was a
plea bargain in place, Mr. Brooks’ answers to the trial court’s questions do not support the notion
that trial counsel informed Mr. Brooks that there was a plea deal in place. The trial court
informed Mr. Brooks that he was subject to a minimum sentence of six months, concurrent or a
maximum sentence of two years, consecutive. Mr. Books indicated that he understood that.
Additionally, the trial court asked Mr. Brooks if anyone had made Mr. Brooks any promises in
10
exchange for his plea and Mr. Brooks answered in the negative. There are no comments from
Mr. Brooks during the plea, or at the sentencing, that evidence that Mr. Brooks believed there
was a plea deal in place. Thus, anything that would support such an assertion would necessarily
have to come from outside the record and could not be considered in this appeal. See State v.
Garfield, 9th Dist. No. 09CA009741, 2011-Ohio-2606, ¶ 59. In light of the above, we cannot
say that Mr. Brooks has demonstrated that trial counsel’s representation was deficient.
Accordingly, Mr. Brooks’ argument is without merit.
{¶20} Additionally, Mr. Brooks asserts that his trial counsel was ineffective for failing
to present evidence in mitigation of his crimes at the sentencing hearing. Mr. Brooks’ argument
is pure speculation. It presupposes that there is evidence that could have been presented that
would support a lesser sentence. Inherently, to substantiate his argument, Mr. Brooks would
have to rely on evidence outside the record. However, on direct appeal, this Court is limited to
reviewing evidence already in the record. See id. Thus, Mr. Brooks’ third assignment of error is
overruled.
III.
{¶21} In light of the foregoing, we sustain Mr. Brooks’ second assignment of error and
overrule his remaining assignments of error. The matter is remanded to the Summit County
Court of Common Pleas for proceedings consistent with this opinion.
Judgment affirmed in part,
reversed in part,
and cause remanded.
There were reasonable grounds for this appeal.
11
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
EVE V. BELFANCE
FOR THE COURT
CARR, J.
CONCURS
HENSAL, J.
CONCURRING IN JUDGMENT ONLY.
{¶22} I agree that this case must be remanded for resentencing. There is nothing in the
record that indicates that the trial court considered the factors that are required under Revised
Code Section 2929.14(C)(4) before imposing consecutive sentences. I do not agree, however,
with the majority’s conclusion that the court must make findings “on the record[]” at the
sentencing hearing before imposing consecutive sentences.
{¶23} Section 2929.19(B)(1) provides what a trial court must do
“before imposing sentence” “[a]t the sentencing hearing[.]” In State v. Just, 9th Dist. No.
12
12CA0002, 2012-Ohio-4094, this Court noted that Section 2929.19(B)(2)(c) used to provide
that, if the court intended to impose consecutive sentences, it had to “make a finding that gives
its reasons for selecting the sentence imposed[.]” Id. at ¶ 49, quoting R.C. 2929.19(B)(2)(c)
(effective April 7, 2009). In enacting the latest version of the Section 2929.19, however, the
legislature did not include that language. Id. This Court concluded, therefore, that “the General
Assembly has eliminated the requirement that the court codify those findings in its sentencing
entry.” Id.
{¶24} The same logic that led this Court to reason that a trial court does not have to “set
forth its findings under R.C. 2929.14(C)(4)(a)-(c)” in its sentencing entry compels the conclusion
that a court does not have to set forth its findings on the record at the sentencing hearing. Id.
When enacting changes to Section 2929.19(B), a section which specifically governs what a trial
court is required to do “[a]t the sentencing hearing,” the General Assembly removed language
requiring the court to “explicitly set forth” its findings under Section 2929.14(C)(4). Id. I do not
believe that the law, as it stands currently, requires a finding that the trial court must make these
findings at the sentencing hearing. I further believe that this finding is not supported by the
legislative changes to Section 2929.19(B) and may be inconsistent with this Court’s decision in
State v. Just, 9th Dist. No. 12CA0002, 2012-Ohio-4094. Because the record does not indicate
that the court considered all of the necessary factors under R.C. 2929.14(C)(4), however, I agree
that Mr. Brooks must be resentenced.
APPEARANCES:
RICHARD P. KUTUCHIEF, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.