State v. Woofter ( 2019 )

[Cite as State v. Woofter, 2019-Ohio-1166.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NOS. 2018-P-0050
- vs - : 2018-P-0051
2018-P-0052
BRIAN K. WOOFTER, :
Defendant-Appellant. :
Criminal Appeals from the Portage County Court of Common Pleas, Case Nos. 2015
CR 00552, 2017 CR 00907 and 2017 CR 01111.
Judgment: Affirmed in part, reversed in part, and remanded.
Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Barbara J. Rogachefsky, Barbara J. Rogachefsky Co., LPA, 12 East Exchange Street,
5th Floor, Akron, OH 44308 (For Defendant-Appellant).
MATT LYNCH, J.
{¶1} Defendant-appellant, Brian K. Woofter, appeals the June 20, 2018
Judgment Entry of the Portage County Court of Common Pleas, sentencing him in three
underlying criminal prosecutions. The issue before this court is whether the sentencing
court complied with the statutory provisions for the imposition of consecutive sentences.
For the following reasons, the lower court’s Judgment is affirmed in part, reversed in
part, and this matter is remanded for further proceedings consistent with this opinion.
{¶2} In Portage County C.P. Case No. 2015 CR 00552, Woofter pled guilty to
Theft, a felony of the fifth degree in violation of R.C. 2913.02. On January 26, 2016, the
trial court sentenced Woofter to a combination of community control sanctions,
specifically, Woofter was placed under “the general control of the Portage County Adult
Probation Department in the Intensive Supervision Program for a period of twelve
months and forty-eight additional months under the General Division of Adult
Probation.” On October 16, 2017, the Adult Probation Department filed a Motion to
Revoke/Modify Probation. On October 31, 2017, the court found that Woofter had
violated the terms of probation and ordered the matter to be set for disposition.
{¶3} In Portage County C.P. Case No. 2017 CR 00907, Woofter pled guilty to
six counts of Receiving Stolen Property, felonies of the fifth degree in violation of R.C.
2913.51.
{¶4} In Portage County C.P. Case No. 2017 CR 01111, Woofter pled guilty to
Receiving Stolen Property, a felony of the fifth degree in violation of R.C. 2913.51.
{¶5} On February 8, 2018, the trial court sentenced Woofter in Case Nos.
00907 and 01111 to a combination of community control sanctions, specifically, Woofter
was placed under “the general control of the Portage County Adult Probation
Department in the Intensive Supervision Program for a period of one year and four
additional years under the General Division of Adult Probation.” On the same date, in
Case No. 00552, the court ordered that Woofter should “continue on probation as
previously ordered.”
{¶6} On May 14, 2018, the Adult Probation Department filed a Motion to
Revoke/Modify Probation in all three cases.
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{¶7} On June 18, 2018, a hearing was held on the motions to modify sanctions
at which Woofter admitted to violating probation. The trial court found that Woofter was
no longer amenable to community control sanctions and that prison sentences were
warranted in these cases. In Case No. 00552, the court imposed a sentence of twelve
months to be served concurrently with the sentences in the other cases. In Case No.
00907, the court sentenced Woofter to serve twelve months in prison for each of the six
counts with five of the sentences being served consecutively and the sixth being served
concurrently. In Case No. 01111, the court imposed a sentence of twelve months to be
served concurrently with the sentences in the other cases.
{¶8} On June 20, 2018, Woofter’s sentences were memorialized in a written
Judgment Entry.
{¶9} On July 17, 2018, Woofter filed Notices of Appeal and, on August 9, 2018,
this court consolidated the appeals. On appeal, Woofter raises the following
assignment of error:
{¶10} “[1.] The Trial Court erred as a matter of law in imposing consecutive
sentences without making the findings required by R.C. 2929.14(C)(4).”
{¶11} “The court hearing an appeal [of a felony sentence] shall review the
record, including the findings underlying the sentence or modification given by the
sentencing court.” R.C. 2953.08(G)(2). “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 * * * if it
clearly and convincingly finds * * * [t]hat the record does not support the sentencing
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court’s findings under division * * * (C)(4) of section 2929.14, or * * * [t]hat the sentence
is otherwise contrary to law.” R.C. 2953.08(G)(2)(a) and (b).
{¶12} The Ohio Revised Code provides, in relevant part, as follows regarding
consecutive felony sentences:
If 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.
R.C. 2929.14(C)(4).
{¶13} Under R.C. 2929.14(C)(4), a sentencing court is required to make three
distinct findings in order to require an offender to serve consecutive prison terms: (1)
that consecutive sentences are “necessary to protect the public from future crime or to
punish the offender”; (2) that consecutive sentences are “not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender poses to the
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public”; (3) “and * * * also” that one of the circumstances described in subdivision (a) to
(c) is present. State v. Beasley, 153 Ohio St. 3d 497, 2018-Ohio-493, 108 N.E.3d 1028,
¶ 252.
{¶14} Moreover, “a trial court is required to make the findings mandated by R.C.
2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing
entry, but it has no obligation to state reasons to support its findings.” State v. Bonnell,
140 Ohio St. 3d 209, 2104-Ohio-3177, 16 N.E.3d 659, ¶ 37.
{¶15} In the present case, the trial court failed to make the requisite findings to
impose consecutive sentences both at the sentencing hearing and in its sentencing
entry. The State does not dispute the error.
{¶16} At the sentencing hearing, the trial court arguably made comments that
could be construed as a finding that consecutive sentences were necessary to protect
the public from future crime and/or punish Woofter, and possibly that Woofter’s history
of criminal conduct requires consecutive sentences to protect the public from future
crime:
[Y]ou have repeatedly come into this Court for different violations of
your community control [and] that tell[s] me you just haven’t figured
it out yet. You do really well for a while, you get a job, you take
care of the things you need to take care of, and then you go
completely off the rails again. And * * * I have to agree with Mr.
Bennett [a victim who testified at the sentencing hearing], it is not
fair to the public to keep allowing you, even if you haven’t
necessarily victimized them recently, to keep allowing you chance
after chance when you are just not doing what you need to do. It *
* * certainly doesn’t make me feel happy to have to send you back
to prison, but I also have to look at my job and it’s to also provide
consequences for behavior.
Compare Bonnell at ¶ 33 (“[w]e can discern from the trial court’s statement that Bonnell
had ‘shown very little respect for society and the rules of society’ that it found a need to
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protect the public from future crime or to punish Bonnell” and “conclude that the court
found that Bonnell’s ‘atrocious’ record related to a history of criminal conduct that
demonstrated the need for consecutive sentences to protect the public from future
crime”).
{¶17} Nothing in the trial court’s comments at the sentencing hearing, however,
permits this court to discern that the court engaged in a proportionality analysis.
{¶18} The trial court’s sentencing entry expressly states that it “finds that the
consecutive sentence is necessary to protect the public from future crime or to punish
the Defendant and consecutive sentences are not disproportionate to the seriousness of
the Defendant’s conduct and to the danger the defendant poses to the public.” The
entry is silent as to anything that could be construed as a finding that one of the
circumstances described in R.C. 2929.14(C)(4)(a) to (c) is present.
{¶19} When the findings at the sentencing hearing and in the sentencing entry
are insufficient to satisfy the requirements of R.C. 2929.14(C)(4), it is well-established
that remand for resentencing is necessary to correct the error. Beasley, 153 Ohio St. 3d
497, 2018-Ohio-493, 108 N.E.3d 1028, at ¶ 260; State v. Snyder, 11th Dist. Ashtabula
Nos. 2017-A-0041, 2017-A-0042, and 2017-A-0043, 2018-Ohio-2826, ¶ 17 (“[s]ince the
record demonstrates that the requisite R.C. 2929.14(C)(4) findings were not made, * * *
[w]e * * * vacate his sentence,” and “the trial court is instructed to resentence Snyder
and, if it re-imposes consecutive sentences, to make all necessary statutory findings”).
{¶20} The State correctly notes that, in Case Nos. 00552 and 01111 (Appellate
Nos. 2018-P-0050 and 2018-P-0052 respectively), the sentences were ordered to be
served concurrently and, therefore, there is no error requiring resentencing.
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{¶21} The sole assignment of error has merit to the extent indicated above.
{¶22} For the foregoing reasons, the June 20, 2018 Judgment Entry of the
Portage County Court of Common Pleas is affirmed in part and reversed in part.
Woofter’s sentence in Portage County C.P. Case No. 2017 CR 00907 (Appellate No.
2018-P-0051) only is vacated and this matter is remanded for further proceedings
consistent with this opinion. Costs to be taxed against the appellee.
THOMAS R. WRIGHT, P.J.,
CYNTHIA WESTCOTT RICE, J.,
concur.
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