State v. Marcum ( 2017 )

[Cite as State v. Marcum, 2017-Ohio-7655.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
STATE OF OHIO C.A. No. 16AP0084
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
CLINTON D. MARCUM COURT OF COMMON PLEAS
COUNTY OF WAYNE, OHIO
Appellant CASE No. 2016 CRC-I 000101
DECISION AND JOURNAL ENTRY
Dated: September 18, 2017
SCHAFER, Presiding Judge.
{¶1} Defendant-Appellant, Clinton Marcum, appeals from his sentence in the Wayne
County Court of Common Pleas. This Court reverses.
I.
{¶2} After his daughter and granddaughters accused him of sexually assaulting them
over different time periods, a grand jury indicted Marcum on two counts of rape, two counts of
gross sexual imposition, four counts of corrupting a minor, three counts of sexual battery, three
counts of sexual imposition, and three counts of public indecency. Marcum waived his right to a
jury trial, and eleven of his counts were either dismissed at the request of the State or by virtue of
the trial court granting his motion for acquittal. The trial court ultimately found him guilty of
two counts of gross sexual imposition, one count of sexual battery, and three counts of sexual
imposition.
2
{¶3} The trial court sentenced Marcum to five-year prison terms on each of his counts
for gross sexual imposition and sexual battery. It then sentenced him to 60-day jail terms on two
of his sexual imposition counts and declined to sentence him on the third sexual imposition
count.1 The court ordered Marcum to serve the sentences on his gross sexual imposition and
sexual imposition counts concurrently with one another, but consecutive to his five-year sentence
on the sexual battery count. Thus, it sentenced Marcum to a total of ten years in prison.
{¶4} Marcum now appeals from the court’s judgment and raises one assignment of
error for our review.
II.
Assignment of Error
The trial court failed to make the findings necessary to impose consecutive
sentences upon Appellant.
{¶5} In his sole assignment of error, Marcum argues that the trial court erred when it
imposed consecutive sentences upon him in the absence of the required statutory findings. We
agree.
{¶6} In reviewing a felony sentence, “[t]he appellate court’s standard for review is not
whether the sentencing court abused its discretion.” R.C. 2953.08(G)(2). “[A]n appellate court
may vacate or modify a felony sentence on appeal only if it determines by clear and convincing
evidence” that: (1) “the record does not support the trial court’s findings under relevant
statutes[,]” or (2) “the sentence is otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d
516, 2016-Ohio-1002, ¶ 1. Clear and convincing evidence is that “which will produce in the
1
During the sentencing hearing, the court found that two of the sexual imposition counts were
allied offenses of similar import. Thus, those counts merged for purposes of sentencing and no
separate sentence was imposed on the third count.
3
mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”
Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
{¶7} A court may order an offender to serve consecutive prison terms for multiple
offenses if: (1) “the court finds that the consecutive service is necessary to protect the public
from future crime or to punish the offender”; (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) the court also makes one of the required findings under R.C. 2929.14(C)(4)(a)-(c). R.C.
2929.14(C)(4). Those required findings are that:
(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 [R.C.] 2929.16, 2929.17, or 2929.18 * * *, 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[; or]
(c) The offender’s history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the offender.
R.C. 2929.14(C)(4)(a)-(c). A court may not impose consecutive prison terms without “mak[ing]
the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporat[ing] its
findings into its sentencing entry * * *.” State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177,
syllabus. Though a “word-for-word recitation of the language of the statute is not required,” a
reviewing court must be able to (1) “discern that the trial court engaged in the correct analysis”;
and (2) “determine that the record contains evidence to support the findings * * *.” Id. at ¶ 29.
“When a trial court imposes consecutive sentences without making the R.C. 2929.14(C)(4)
findings at the sentencing hearing, the remedy is to remand the matter for resentencing.” State v.
Williams, 9th Dist. Medina No. 14CA0072-M, 2015-Ohio-2197, ¶ 9.
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{¶8} The trial court here did not cite R.C. 2929.14(C)(4) in its sentencing entry or
make any written findings corresponding to that subsection. Instead, the court wrote that it had
considered “the purposes and principles of sentencing under R.C. 2929.11, the seriousness and
recidivism factors relevant to the offense and offender pursuant to R.C. 2929.12, and the need for
deterrence, incapacitation, rehabilitation and restitution.” Likewise, at the sentencing hearing,
the court only discussed having fashioned Marcum’s sentence “based upon the overriding
principles and purposes of felony sentencing.” Though the court briefly noted that a sentence
should protect the public, punish the offender, and “be proportional to the harm caused and
impact upon the victims,” the court gave no indication that it was considering Marcum’s conduct
in light of R.C. 2929.14(C)(4). Moreover, the court did not make any statements that this Court
could construe as satisfying one of the required findings under R.C. 2929.14(C)(4)(a)-(c).
{¶9} In its brief on appeal, the State concedes that the trial court failed to make the
requisite findings under R.C. 2929.14(C)(4). Upon review, the record also supports the
conclusion that the trial court failed to make those findings. Because the court sentenced
Marcum to serve consecutive prison terms without making the required statutory findings, this
matter must be remanded for resentencing. Id. Accordingly, Marcum’s sole assignment of error
is sustained.
III.
{¶10} Marcum’s assignment of error is sustained. The judgment of the Wayne County
Court of Common Pleas is reversed, and the cause is remanded for resentencing.
Judgment reversed,
and cause remanded.
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There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Wayne, 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 to Appellee.
JULIE A. SCHAFER
FOR THE COURT
TEODOSIO, J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
MATTHEW J. MALONE, Attorney at Law, for Appellant.
DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting
Attorney, for Appellee.