State v. High , 2018 Ohio 829 ( 2018 )

[Cite as State v. High, 2018-Ohio-829.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. John W. Wise, P.J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
CHRISTOPHER HIGH : Case No. 2017CA00115
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2016CR0090
JUDGMENT: Sentence Vacated & Remanded
DATE OF JUDGMENT: March 5, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO AARON KOVALCHIK
Prosecuting Attorney 116 Cleveland Avenue, NW
By: KRISTINE W. BEARD Suite 808
Assistant Prosecuting Attorney Canton, OH 44702
110 Central Plaza South, Suite 510
Canton, OH 44702-1413
Stark County, Case No. 2017CA00115 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant, Christopher High, appeals his June 2, 2017
resentencing by the Court of Common Pleas of Stark County, Ohio. Plaintiff-Appellee is
the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On March 30, 2016, appellant was found guilty of one count of aggravated
robbery in violation of R.C. 2911.01(A)(1) and/or (3), one count of aggravated burglary
in violation of R.C. 2911.11(A)(1) and/or (2), and one count of felonious assault in
violation of R.C. 2903.11(A)(1). All three counts carried attendant firearm specifications
in violation of R.C. 2941.145. By judgment entry filed April 11, 2016, the trial court (a
visiting judge) sentenced appellant to six years on the aggravated robbery count, six
years on the aggravated burglary count, both to be served concurrently, and four years
on the felonious assault count, to be served consecutively to the six year sentence. The
trial court merged the sentences on the firearm specifications and imposed an additional
three years, to be served consecutively to the ten year sentence for a total term of
thirteen years in prison.
{¶ 3} Appellant filed an appeal, challenging his sentence. This court found the
trial court failed to make findings relative to consecutive sentencing, and failed to merge
the felonious assault and aggravated robbery convictions. This court vacated the
sentence and remanded the matter to the trial court for resentencing. State v. High, 5th
Dist. Stark No. 2016CA00095, 2017-Ohio-1242 (High I).
{¶ 4} Upon remand, the trial court (a different judge) held a resentencing
hearing on May 24, 2017. By judgment entry filed June 2, 2017, the trial court
Stark County, Case No. 2017CA00115 3
sentenced appellant to ten years on the merged aggravated robbery and felonious
assault counts, plus three years on the firearm specification, and ten years on the
aggravated burglary count, plus three years on the firearm specification, to be served
concurrently for a total term of thirteen years in prison.
{¶ 5} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶ 6} "THE TRIAL COURT ABUSED ITS DISCRETION BY ORDERING
APPELLANT TO SERVE A 13 YEAR PRISON TERM."
I
{¶ 7} In his sole assignment of error, appellant claims the trial court erred in
resentencing him to thirteen years in prison. Appellant claims a more reasonable
sentence would be an aggregate term of nine years.
{¶ 8} R.C. 2953.08 governs appeals based on felony sentencing guidelines.
State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002, 59 N.E.3d 1231. Subsection
(G)(2) sets forth this court's standard of review as follows:
(2) The court hearing an appeal under division (A), (B), or (C) of
this section shall review the record, including the findings underlying the
sentence or modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a
sentence that is appealed under this section or may vacate the sentence
and remand the matter to the sentencing court for resentencing. The
Stark County, Case No. 2017CA00115 4
appellate court's standard for review is not whether the sentencing court
abused its discretion. The appellate court may take any action authorized
by this division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court's findings
under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of
section 2929.14, or division (I) of section 2929.20 of the Revised Code,
whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶ 9} "Clear and convincing evidence is that measure or degree of proof which
is more than a mere 'preponderance of the evidence,' but not to the extent of such
certainty as is required 'beyond a reasonable doubt' in criminal cases, and which will
produce in the 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, 120 N.E.2d 118 (1954),
paragraph three of the syllabus.
{¶ 10} " 'An appellate court will not find a sentence clearly and convincingly
contrary to law where the trial court considers the principles and purposes of R.C.
2929.11, as well as the factors listed in R.C. 2929.12, properly imposes postrelease
control, and sentences the defendant within the permissible statutory range.' " State v.
Garrison, 5th Dist. Muskingum No. CT2017-0018, 2018-Ohio-463, ¶ 47, quoting State v.
Ahlers, 12th Dist. Butler No. CA2015-06-100, 2016-Ohio-2890, ¶ 8.
{¶ 11} Appellant was convicted of two felonies in the first degree (aggravated
robbery and aggravated burglary). Felonies of the first degree are punishable by "three,
Stark County, Case No. 2017CA00115 5
four, five, six, seven, eight, nine, ten, or eleven years." R.C. 2929.14(A)(1). Firearm
specifications carry a mandatory three year sentence. R.C. 2929.14(D)(1)(a). The trial
court sentenced appellant to ten years on each count, plus three years on each firearm
specification, to be served concurrently. The sentences are within the statutory range.
{¶ 12} However, in fashioning a sentence, trial courts must consider R.C.
2929.11 (purposes and principles of felony sentencing) and R.C. 2929.12 (seriousness
and recidivism factors). State v. Kalish, 120 Ohio St. 3d 23, 2008-Ohio-4912, 896
N.E.2d 124; Marcum, supra, at ¶ 23. "The trial court has no obligation to state reasons
to support its findings. Nor is it required to give a talismanic incantation of the words of
the statute, provided that the necessary findings can be found in the record and are
incorporated into the sentencing entry." State v. Wilson, 5th Dist. Richland No. 17CA31,
2018-Ohio-396, ¶ 61; State v. Bell, 5th Dist. Muskingum No. CT2016-0050, 2017-Ohio-
2621, ¶ 40.
{¶ 13} We noted this court specifically vacated the previous sentence and
remanded the matter to the trial court for resentencing. As noted by appellee in its brief
at 7, citing Black's Law Dictionary 1546 (7th Ed.1999), "[o]nce a sentence is vacated it
no longer exists; it is a nullity. As a nullity, that sentence is treated as though it had not
taken place."
{¶ 14} The resentencing trial judge was not the same trial judge that originally
imposed sentence. In the resentencing hearing transcript, the trial court stated, "after
reviewing the seriousness and recidivism factors set forth in the Ohio Revised Code, the
Court sentences you * * *." May 24, 2017 T. at 8-9. The trial court noted it was the
same thirteen year sentence imposed by the original trial court, "[f]inding that the
Stark County, Case No. 2017CA00115 6
conduct warrants a 13 year prison term no matter how the years are allocated." Id. at
10. The resentencing judgment entry is devoid of any reference to R.C. 2929.11 and
2929.12.
{¶ 15} We find the record does not sufficiently indicate that the trial court
considered the purposes and principles of sentencing and the seriousness and
recidivism factors as required by R.C. 2929.11 and 2929.12. Although the resentencing
trial court was merely following this court's directives on remand, the trial court did not
specifically adopt the original trial court's consideration (if any) of the R.C. 2929.11 and
2929.12 factors or enter its own independent consideration. In addition, although the
trial court advised appellant of postrelease control during the resentencing hearing, the
resentencing judgment entry is silent as to any postrelease control. Furthermore, the
trial court did not inform appellant during the resentencing hearing of his right to appeal
in violation of Crim.R. 32(B). State v. Hunter, 8th Dist. Cuyahoga No. 12626, 2010-
Ohio-657.
{¶ 16} Upon review, we find the record does not clearly and convincingly support
the sentence imposed by the trial court.
{¶ 17} The sole assignment is granted, albeit for different reasons than argued by
appellant.
Stark County, Case No. 2017CA00115 7
{¶ 18} The sentence of the Court of Common Pleas of Stark County, Ohio is
hereby vacated, and the matter is remanded to the trial court for resentencing per this
opinion and the opinion set forth in High I.
By Wise, Earle, J.
Wise, John, P.J. and
Baldwin, J. concur.
EEW/db 223