State v. Horobin , 2015 Ohio 5300 ( 2015 )

[Cite as State v. Horobin, 2015-Ohio-5300.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 26639
:
v. : T.C. NO. 14CR4235
:
MARK D. HOROBIN : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the ___18th___ day of ____December____, 2015.
...........
MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, 120 W. Second Street, Suite 706,
Dayton, Ohio 45402
Attorney for Defendant-Appellant
.............
FROELICH, P.J.
{¶ 1} Mark D. Horobin was found guilty by a jury in the Montgomery County Court
of Common Pleas of grand theft (motor vehicle) and theft (over $1,000). He was
sentenced to prison terms of 18 months and 12 months, respectively, to be served
consecutively. Horobin appeals from his conviction, challenging the trial court’s
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imposition of consecutive sentences.
{¶ 2} For the following reasons, the judgment of the trial court will be reversed
and the case will be remanded for further consideration of the imposition of consecutive
sentences.
{¶ 3} In November and December 2014, Horobin was staying with the Jackson
family in the City of Dayton; he was trying to “get off a drug habit” (heroin) and get his life
together. However, on December 10, 2014, Horobin took the family’s van, without their
permission, some electronics that the Jacksons had purchased for their children for
Christmas, and two $50 gift cards. There were also tools inside the van. Horobin never
returned to the house. He attempted to sell some of the items at Cashland; the van was
found with a “blown” motor a few days later.
{¶ 4} Horobin was indicted for grand theft and theft. He was tried by a jury on
March 4 and 5, 2015, and was found guilty of both offenses. He was sentenced to
consecutive sentences totaling 30 months, as described above.
{¶ 5} On appeal, Horobin raises one assignment of error, in which he challenges
the trial court’s imposition of consecutive sentences. Horobin argues that the trial court
failed to make the findings required for imposition of consecutive sentences. He does
not argue that the record does not support such findings.
{¶ 6} After determining the sentence for a particular crime, a sentencing judge
has discretion to order an offender to serve individual sentences consecutively. R.C.
2929.14(C)(4) provides:
If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the prison
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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.
{¶ 7} In most cases, the trial court is not required to give reasons explaining its
findings, nor is it required to recite any “magic” or “talismanic” words when imposing
consecutive sentences. State v. Graham, 2d Dist. Montgomery No. 25934, 2014-Ohio-
4250, ¶ 36, citing State v. Temple, 2d Dist. Clark No. 2012-CA-65, 2013-Ohio-3843, ¶ 21.
As stated by the supreme court, “a word-for-word recitation of the language of the statute
is not required, and as long as the reviewing court can discern that the trial court engaged
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in the correct analysis and can determine that the record contains evidence to support
the findings, consecutive sentences should be upheld.” State v. Bonnell, 140 Ohio St.3d
209, 218, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 29.
{¶ 8} “R.C. 2929.14(C)(4) requires the trial court to make statutory findings prior
to imposing consecutive sentences, and Crim.R. 32(A)(4) therefore directs the court to
state those findings at the time of imposing sentence.” Bonnell, 140 Ohio St.3d 209,
2014-Ohio-3177, 16 N.E.3d 659, ¶ 26. Because the trial court speaks through its journal
entries, it must incorporate the statutory findings into its sentencing entry. Id. at ¶ 30.
“A trial court’s inadvertent failure to incorporate the statutory findings in the sentencing
entry after properly making those findings at the sentencing hearing does not render the
sentence contrary to law; rather, such a clerical mistake may be corrected by the court
through a nunc pro tunc entry to reflect what actually occurred in open court.” Graham at
¶ 37.
{¶ 9} At Horobin’s sentencing hearing, the trial court stated:
Considering the purposes and principles of sentencing in the
Revised Code, the seriousness and recidivism factors contained therein
and considering further that these convictions constitute now a grand total
of 15 theft offenses and considering further that the Defendant has, this is
the Defendant’s, constitutes his seventh felony conviction, four of which
were theft offenses.
***
The Court finds that, and in addition to that the Defendant has a long
history of not complying with community control sanctions or other
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supervision and in connection with this, this oppositionally defiant thief is
not cooperating at all with the pre-sentence investigation.
And because part of this theft was the family’s only means of
transportation and it[’]s Christmas, the Court finds that these sentences are
to be served consecutively for a total of 30 months.
The court also noted that Horobin’s “thievery and other criminal activity” was “long-
standing” and dated back to when he was a juvenile.
{¶ 10} The trial court’s judgment entry states:
The Court has reviewed and considered a written report of a pre-
sentence investigation submitted by the Division of Criminal Justice
Services of this Court and has considered the factors under Sections
2929.11, 2929.12, and 2929.13, as well as all other relevant provisions, of
the Ohio Revised Code. * * *
***
These sentences are ordered to be served consecutively as
Defendant has a consistent long standing history of theft offenses and
Defendant has a long history of non-compliance with supervision.
Defendant was not cooperative with the pre-sentence investigation
process. Furthermore, Defendant took a families [sic] only means of
transportation and during the Christmas season. (Emphasis sic.)
{¶ 11} Read in a light most deferential to the trial court, the court’s statements at
the sentencing hearing related to consecutive sentences were that 1) Horobin had a long
history of criminal offenses, 2) he had not cooperated with the presentence investigation,
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and 3) he had committed his offenses at Christmas time. While some of these factors
might have reasonably supported a finding that consecutive sentences were necessary
to protect the public and were not disproportionate to the danger to the public, the trial
court failed to make these findings, which were necessary for the imposition of
consecutive sentences.
{¶ 12} Similarly, the judgment entry cites Horobin’s history of theft offenses, his
“non-compliance with supervision,” his uncooperativeness with the presentence
investigation, and the victims’ deprivation of a mean of transportation at Christmas time.
Again, some of these reasons may have related to the statutory factors that the court was
required to consider, but the court did not make the findings required by R.C.
2929.14(C)(4).
{¶ 13} Regardless of what the trial judge might say during sentencing regarding
the purposes and goals of criminal sentencing, compliance with R.C. 2929.14(C)(4)
requires separate and distinct findings in addition to any findings relating to purposes and
goals of criminal sentencing. State v. Wills, 2d Dist. Montgomery No. 25357, 2013-Ohio-
4507, ¶ 31. “Too often, we have been called to examine words or phrases scattered
throughout a sentencing transcript and piece them together to decide whether the court
made the required findings. * * * If the word ‘findings’ is to have any meaning at all, it
means nothing less than the court must ‘engage[ ] in the required analysis and select[ ]
the appropriate statutory criteria’ before ordering sentences to be served consecutively.
Only then will the imposition of consecutive sentences not be contrary to law.” Id.,
quoting State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 14-17 (8th Dist.).
{¶ 14} Horobin’s assignment of error is sustained.
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{¶ 15} The judgment of the trial court will be reversed, and the matter will be
remanded to the trial court to consider whether consecutive sentences are appropriate
under R.C. 2929.14(C)(4) and, if so, to enter the proper findings on the record, and in the
judgment entry.
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DONOVAN, J. and HALL, J., concur.
Copies mailed to:
Michele D. Phipps
Robert Alan Brenner
Hon. Gregory F. Singer