State v. Wiley , 2020 Ohio 5428 ( 2020 )

[Cite as State v. Wiley, 2020-Ohio-5428.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109070
v. :
RICKY WILEY, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
RELEASED AND JOURNALIZED: November 25, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-12-566101-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Gittel L. Chaiko, Assistant Prosecuting
Attorney, for appellee.
Mark A. Stanton, Cuyahoga County Public Defender, and
Cullen Sweeney, Assistant Public Defender, for appellant.
MARY J. BOYLE, P.J.:
Defendant-appellant, Ricky Wiley, appeals his sentence. He raises
two assignments of error for our review:
1. The trial court’s 12-month prison sentences for a technical violation
of community control sanctions are contrary to law because they
exceed the 90[-]day maximum sentence authorized by R.C. 2929.15.
2. The trial court imposed a sentence contrary to law and violated Mr.
Wiley’s right to due process when it ordered consecutive sentences
without making the requisite statutory findings and when the findings
it did make were not supported by the record.
We find merit to Wiley’s second assignment of error and vacate the
consecutive portion of his sentence, leaving him with a prison sentence of 12
months. We therefore affirm in part, reverse in part, and remand for the trial court
to issue a new judgment reflecting that Wiley is not subject to consecutive sentences.
I. Procedural History and Factual Background
In January 2013, a jury found Wiley guilty of six counts of criminal
nonsupport in violation of R.C. 2929.21(B), felonies of the fifth degree. The trial
court sentenced Wiley to five years of community control sanctions, which included
submitting to random monthly drug testing, obtaining and maintaining verifiable
employment within 30 days, verifying employment with pay stubs showing that all
taxes and child support were being paid through employment, and paying $527.07
per month in child support. The trial court also notified Wiley that if he violated the
terms of his community control sanctions, it may impose 12 months in prison on
each count for a total prison sentence of six years.
Wiley appealed. This court affirmed his convictions and sentence
except that we agreed with Wiley that his total amount of arrearages could not have
exceeded $31,613.76. State v. Wiley, 8th Dist. Cuyahoga No. 99576, 2014-Ohio-27,
¶ 80. We remanded to the trial court to correct the total arrearage amount for which
Wiley was responsible. Id.In July 2016, the trial court held a community control violation
hearing. Wiley’s probation officer reported that Wiley had not reported or paid child
support since February 9, 2016. Wiley told his probation officer that he was
employed, but his probation officer was not able to verify his employment because
he had just taken over Wiley’s case. Defense counsel explained that Wiley had been
compliant for three of the five years of his community control sanctions, including
reporting and paying child support, but then Wiley began having some difficulties
with depression. The trial court found that Wiley violated the terms of his
community control sanctions and continued them with his prior conditions. The
trial court also ordered Wiley to make up the child support payments that he had
missed and to submit paperwork to his probation officer regarding his current child
support obligations.
In November 2016, Wiley failed to report to his probation officer. The
trial court issued a capias, and Wiley was arrested in December. In January 2017,
the trial court held another community control violation hearing. Wiley’s probation
officer reported that after the last hearing, Wiley provided his current support
obligation that showed he was now supposed to pay $315 per month. The probation
officer stated that Wiley had paid $1,000 towards child support in July 2016, $315
in each of the months of August and September, and $250 in October. Wiley made
no other child support payments after that. The probation officer further stated that
Wiley did not report to him on November 20, 2016. The probation officer called
Wiley, and Wiley told him that he was having back issues and could not walk. The
probation officer requested that Wiley provide him with documentation to verify his
health situation. Wiley submitted some documentation to his probation officer, but
the probation officer was unable to verify it. The probation officer said that he
verified that Wiley was employed but that Wiley was not on the company’s payroll.
Rather, the company treated Wiley as a contractor, and filed a 1099 form to report
Wiley’s pay to the government.
Defense counsel explained that Wiley had substantially complied
with his community control sanctions, including paying significant amounts of child
support, no positive drug tests, and his employment had been verified. Defense
counsel explained that Wiley also had a medical issue that currently prevented him
from working. Wiley explained to the court how he had been unable to walk due to
his back issues.
The trial court found that Wiley violated the conditions of his
community control sanctions and ordered that he serve three months in the county
jail. However, the trial court stated that it might let Wiley out of jail early if he
obtained medical documentation proving why he missed his November 2016
meeting with his probation officer. Wiley provided the trial court with the necessary
documentation less than 30 days later, and the court released him from jail and
ordered that his “previous set conditions remained in effect.”
In June 2017, the trial court issued another capias for Wiley for failing
to report. Wiley was not arrested on this capias until August 2019, over two years
later.
The trial court held a community control violation hearing in
September 2019. Wiley’s probation officer testified that Wiley’s current child
support arrearage was $50,856, and that he had not reported or paid child support
since October 2016, nor had he made any payments towards his supervision fees
and court costs. Further, his probation officer stated that Wiley had an outstanding
warrant dated April 20, 2017, from Warrensville Heights for driving under
suspension.
Defense counsel informed the court that Wiley told her that he has
had major medical issues since he was last in court and that he was now receiving
social security disability in the amount of $500 to $600 a month. Defense counsel
indicated, however, that she had not been able to verify that information. Defense
counsel further stated that Wiley was 63 years old and in “poor health.” She did not
believe that Wiley had any other criminal history. She stated, “He may have a case
from like the ‘70’s, but besides that no other record.” Defense counsel explained that
Wiley had told his probation officer that he had not reported because “he was not
able to physically get [there] due to his medical issues.” Also according to defense
counsel, Wiley told her that he attempted to report to his probation officer but he
was told that he would be receiving a new one who would call him but that he never
received a call.
Wiley told the court that he did report to his probation officer the day
after the last court hearing in January 2017, that he stayed there until 2:00 p.m., and
that he was told to come back the next morning because his probation officer had
been changed. Wiley said that he returned the next morning but was told that they
had not yet selected a new probation officer for him, so he left. He said that he was
told that someone would call him, but no one ever did. Wiley stated that after about
ten days, he began to call the probation supervisor, and so did his sister and brother
on his behalf, but that no one ever “reached out” to him. Wiley further informed the
court that his bad back got worse and he “couldn’t walk.”
Wiley’s probation officer told the court that she was assigned as
Wiley’s new probation officer on February 14, 2017, and that notice was sent to
Wiley’s residence.
The trial court found Wiley to be in violation of his community control
sanctions and sentenced Wiley to a total of three years in prison; 12 months on each
count of nonsupport with Counts 1 through 3 running consecutive to each other and
the remaining counts concurrent to all other counts. The trial court explained:
Number one, he doesn’t appear for any of his court dates throughout
the county, and in this court he hasn’t appeared to the probation
department on numerous occasions, the last one being almost three
years. * * * And three years is not disproportionate to being over
$50,000 in arrears for your children, especially if they’re 20 and 17.
You could have been doing this a long time. And your history of
criminal conduct demonstrates that consecutive sentences are
necessary to protect the public, especially this court from being able to
carry out the law.
The trial court also advised Wiley that he may be subject to three years
of postrelease control upon his release from prison and imposed costs.
It is from this judgment that Wiley now appeals.
II. R.C. 2929.15(B)(1)(c)
In his first assignment of error, Wiley argues that the trial court erred
when it sentenced him to 12 months in prison on each of the six counts, running
three of them consecutive to each other, because the sentence “exceeded the
90[- ]day maximum sentence authorized by R.C. 2929.15[(B)(1)(c)]” for “a technical
violation of community control sanctions.” Wiley maintains that the amendments
of Am.Sub.H.B. No. 49 (“H.B. 49”), which amended R.C. 2929.15(B)(1)(c) and
became effective September 29, 2017, significantly limit the trial court’s discretion
when sentencing offenders for technical violations of their community control
sanctions.
R.C. 2929.15(B)(1) provides that if offenders violate the conditions of
their community control sanctions, the trial court has several penalty options. It
may (1) increase the length of the same community control sanctions provided the
total amount does not exceed the maximum five-year limit, (2) impose a more
restrictive sanction under R.C. 2929.16 (residential sanctions), 2929.17
(nonresidential sanctions), or 2929.18 (financial sanctions), or (3) impose a prison
term. R.C. 2929.15(B)(1)(a) – (c). It is the third option, R.C. 2929.15(B)(1)(c), that
is at issue in this appeal. R.C. 2929.15(B)(1)(c) states that a trial court may impose
the following sanction when an offender violates the conditions of his or her
community control sanctions:
(c) A prison term on the offender pursuant to section 2929.14 of the
Revised Code and division (B)(3) of this section, provided that a prison
term imposed under this division is subject to the following limitations,
as applicable:
(i) If the prison term is imposed for any technical violation of the
conditions of a community control sanction imposed for a felony of the
fifth degree or for any violation of law committed while under a
community control sanction imposed for such a felony that consists of
a new criminal offense and that is not a felony, the prison term shall
not exceed ninety days.
(ii) If the prison term is imposed for any technical violation of the
conditions of a community control sanction imposed for a felony of the
fourth degree that is not an offense of violence and is not a sexually
oriented offense or for any violation of law committed while under a
community control sanction imposed for such a felony that consists of
a new criminal offense and that is not a felony, the prison term shall
not exceed one hundred eighty days.
Before H.B. 49 became effective, a trial court could impose a prison
term when an offender violated the conditions of his or her community control
sanctions if the trial court gave the offender notice of the specific prison term that it
would impose at the original sentencing hearing. See State v. Neville, 2019-Ohio-
151, 128 N.E.3d 937, ¶ 19-21 (8th Dist.), citing R.C. 2929.15(B)(3) and 2929.19(B)(4)
(which we explained remained relatively unchanged by H.B. 49). After H.B. 49
became effective, a trial court can still impose prison for a violation, but if the
violation is a “technical violation,” the trial court cannot impose the full amount of
prison time that it had previously notified the offender it would impose if the
offender violated the terms of his or her community controlled sanctions. Instead,
if there is a technical violation of community control sanctions, the trial court can
now impose only a prison sentence of 90 days for a fifth-degree felony and 180 days
for a fourth-degree felony. R.C. 2929.15(B)(1)(c)(i) and (ii).
A. Meaning of “Technical Violation”
Wiley argues that his violations of the conditions of his community
control sanctions are analogous to this court’s decisions in State v. Stanko, 8th Dist.
Cuyahoga No. 106886, 2019-Ohio-152, and State v. Catron-Wagner, 2019-Ohio-
153, 131 N.E.3d 313 (8th Dist.), because he generally “complied with his terms of
community control sanctions for approximately three years.”
Since this court decided Stanko and Catron-Wagner, however, the
Ohio Supreme Court has recently released two decisions interpreting the meaning
of “technical violation” in R.C. 2929.15(B)(1)(c)(i) and (ii): State v. Nelson, Slip
Opinion No. 2020-Ohio-3690, and State v. Castner, Slip Opinion No. 2020-Ohio-
4590. We therefore must analyze and apply Nelson and Castner to the facts of this
case because they are directly on point and overrule Stanko and Catron-Wagner to
the extent they are inconsistent with the Ohio Supreme Court’s holdings.
1. Nelson
Nelson had been convicted of four drug-related charges, all fourth-
degree felonies. The trial court sentenced him to four years of community control
sanctions and informed him that if he violated the terms of his sanctions, it would
sentence him to 34 months in prison. As part of his community control sanctions,
Nelson was supposed to obey all laws and follow his probation officer’s orders. After
Nelson had been on community control for approximately one year, his probation
officer learned that Nelson had been drinking with Jaime Elliot at her house when
he got into a dispute with her neighbor. The dispute involved a knife. As a result,
Nelson’s probation officer ordered that Nelson not have any contact with Elliot.
Approximately one year after Nelson’s probation officer issued the
no-contact order, Nelson went drinking with Elliot. Nelson had been living with his
aunt at the time, but because his aunt did not allow drinking at her house, he had
not been there for a couple of days. Nelson went back to his aunt’s house, but she
had locked him out. Nelson got very angry, was “screaming” and “yelling profanity,”
and “demanding to be let in” the house. Id. at ¶ 5. Nelson then kicked his aunt’s
door, cracking it open four or five inches. He was subsequently convicted of criminal
damaging. The Ohio Supreme Court explained:
The trial court found that Nelson’s actions violated three standard
community-control conditions. Specifically, Nelson violated the first
standard condition, requiring him to obey all state laws, by “caus[ing]
damage to property.” Nelson violated the second standard condition,
requiring him to obey all orders given to him by his supervising officer,
by having contact with Elliott in December 2017. Finally, Nelson
violated the fifth standard condition, requiring him to conduct himself
as a responsible, law-abiding citizen, by acting in a disorderly manner.
As a result of these violations, the trial court revoked Nelson’s
community control and imposed the 34-month aggregate prison
sentence it had warned Nelson he would face for a community-control
violation at his initial sentencing hearing in 2016.
Id. at ¶ 6. The Second District affirmed his sentence. Id. at ¶ 9, citing State v. Nelson,
2018-Ohio-4763, 124 N.E.3d 450, ¶ 32 (2d Dist.). Nelson appealed to the Supreme
Court, which accepted jurisdiction. Id. at ¶ 10, citing State v. Nelson, 155 Ohio St.3d
1412, 2019-Ohio-1205, 120 N.E.3d 30.
The Ohio Supreme Court began its analysis in Nelson by stating that
its “paramount concern” in interpreting the term “technical violation” in R.C.
2929.15(B)(1)(c) was to “ascertain and give effect to the intention of the General
Assembly.” Id., Slip Opinion No. 2020-Ohio-3690, at ¶ 17. It explained that “[t]he
term * * * [was] not defined in the statute” and that “‘[i]n the absence of a definition
of a word or phrase used in a statute, words are to be given their common, ordinary,
and accepted meaning.’” Id. at ¶ 18, quoting State v. Black, 142 Ohio St.3d 332,
2015-Ohio-513, 30 N.E.3d 918, ¶ 39. The Supreme Court cited to “prominent legal
dictionaries,” Black’s Law Dictionary and Ballentine’s Legal Dictionary and
Thesaurus, which it stated “define ‘technical’ as immaterial and not substantive.” Id.Specifically, the Supreme Court stated:
Black’s Law Dictionary defines “technical” as “[i]mmaterial, not
affecting substantial rights, without substance.” Black’s Law
Dictionary 1463 (6th Ed.1990). Similarly, “technical” is defined in
Ballentine’s Legal Dictionary and Thesaurus as “[i]nvolved in detail or
in form rather than in a principle or in substance.” Lynton, Ballentine’s
Legal Dictionary and Thesaurus 661 (1995).
Id.The Supreme Court rejected Nelson’s argument that violations of
community control sanctions that do not amount to felonies are “technical
violations” for purposes of R.C. 2929.15(B)(1)(c). Id. at ¶ 26. It reasoned that
“[i]nterpreting ‘technical violation’ to encompass all noncriminal conduct would
effectively result in the caps applying to all violation conduct that is not a felony. But
if the General Assembly had intended such a result, it would not have needed to
mention ‘technical violations’ at all.” Id. at ¶ 21.
The Supreme Court held “that the determination whether a violation
is a ‘technical violation’ under R.C. 2929.15(B)(1)(c) does not turn on whether the
conduct at issue is criminal” at all. Id. at ¶ 26. Rather, “a violation is ‘nontechnical’
if, considering the totality of the circumstances, the violation concerns a condition
of community control that was ‘specifically tailored to address’ matters related to
the defendant’s misconduct or if it can be deemed a ‘substantive rehabilitative
requirement which addressed a significant factor contributing to’ the defendant’s
misconduct.” Id., quoting State v. Davis, 12th Dist. Warren No. CA2017-11-156,
2018-Ohio-2672, ¶ 17-18. “On the other hand, a violation is ‘technical’ when the
condition violated is akin to ‘an administrative requirement facilitating community
control supervision.’” Id., quoting Davis at ¶ 18. The Supreme Court went on to
explain:
There is no single factor that determines whether a violation is
technical or nontechnical. As indicated above, the statute allows the
trial court to engage in a practical assessment of the case before it, i.e.,
to consider the nature of the community-control condition at issue and
the manner in which it was violated, as well as any other relevant
circumstances in the case.
Id.In reaching this decision, the Ohio Supreme Court explained that this
approach “enables a practical application of the statute by the trial court.” Nelson,
Slip Opinion No. 2020-Ohio-3690, at ¶ 23, citing Davis and State v. Mannah, 5th
Dist. Fairfield No. 17-CA-54, 2018-Ohio-4219. It reasoned:
Trial courts are presented with many different types of noncriminal
community-control violations, the severity of which varies greatly. In
[Neville, 2019-Ohio-151, 128 N.E.3d 937], for example, the Eighth
District had before it a defendant who had failed to report to her
supervising officer for over three months. It analogized the case to
Davis and Mannah and held that the violation was nontechnical.
Neville at ¶ 44-47. In particular, it stated that although the defendant’s
failure to report may have constituted a technical violation if it had
happened only once, the violation was nontechnical because the
defendant had failed to report at all for over three months. Id. at ¶ 48.
This highlights that under Davis and Mannah, a trial court may find a
violation to be more serious — and therefore nontechnical — based in
part on the manner in which the violation of the community-control
condition occurred; it is not constrained to reviewing only the nature
of the condition itself.
Nelson at ¶ 23.
The Supreme Court also explained that “[t]he language enacted by the
General Assembly indicates its intent to limit the trial court’s discretion in imposing
a sentence for a less serious violation,” while at the same time giving the trial court
“greater discretion in imposing a sentence for a more serious violation, even though
that conduct may not be criminal.” Id. at ¶ 22, citing Neville at ¶ 49 (“the term
‘technical violation’ indicated the statute was ‘intended to allow the judge to retain
some discretion when faced with more serious violations that do not rise to the level
of a crime’”).
The Supreme Court applied its analysis to Nelson’s conduct and
concluded that his conduct amounted to more than a technical violation, and
therefore the trial court was not limited to sentencing Nelson to 180 days. Id. at
¶ 34. It reasoned that Nelson’s violation of a no-contact order was a significant
infraction, not a minor one. Id. at ¶ 33. The no-contact order was put in place by
Nelson’s probation officer after he learned
that Nelson had been drinking with Elliott at her house when he got
into a dispute with her neighbor. The dispute apparently involved a
knife. After Nicholson investigated the matter, he ordered Nelson not
to have any contact with Elliott. He also told Nelson that he believed
Elliott was a bad influence who would cause him to be at risk for
violating his community control.
Id. at ¶ 31.
The Supreme Court explained that Nelson admitted that he had a
problem with drinking and that it was a contributing factor to his conduct at his
aunt’s house on December 23, 2017. He also admitted that socializing with Elliot
had been a contributing factor to his drinking. The Supreme Court explained:
In light of the foregoing, we find that Nelson’s violation of the no-
contact order was not a “technical violation” of the terms of his
community control. Applying the standard described above, the no-
contact order was “specifically tailored to address” Nelson’s substance-
abuse issues. See Davis, 2018-Ohio-2672, at ¶ 17. It was not a mere
“administrative requirement facilitating community control
supervision” but rather was “a substantive rehabilitative requirement
which addressed a significant factor contributing to” Nelson’s
misconduct. See id. at ¶ 18. And the circumstances surrounding the
violation make clear that this was not a minor infraction; it was
significant. When the trial court revoked Nelson’s community control,
it noted that Nelson’s disregard of Nicholson’s no-contact order and his
consumption of alcohol were “risk factors that jeopardized his prosocial
behavior.” Furthermore, the trial court noted that Nelson’s violation of
the no-contact order led to his actions on December 23, 2017, which
resulted in a conviction for a misdemeanor.
Id., Slip Opinion No. 2020-Ohio-3690, at ¶ 33.
2. Castner
In Castner, Slip Opinion No. 2020-Ohio-4590, the Ohio Supreme
Court applied its holding in Nelson to the facts of Castner. The trial court sentenced
Castner to two years of community control sanctions for a fifth-degree felony drug
possession. It advised Castner that if he violated the terms of his community control
sanctions, it would send him to prison for 12 months. The court imposed a number
of conditions directed at addressing Castner’s substance abuse, including a
requirement that he complete a residential treatment program. Because Castner
had recently been released from prison for sexually abusing a young girl, the court
also ordered Castner to participate in a county reentry program “designed to reduce
recidivism rates by providing services, supervision, and support to recently released
prisoners as they transition back into society.” Id. at ¶ 4.
Castner ended up getting kicked out of two residential treatment
programs. He got kicked out of the first one because he would not participate in its
services, and he got kicked out of the second one because he was using their
computers to contact young females. He was also terminated from the reentry
program because he failed to complete either of the residential treatment programs.
The Ohio Supreme Court concluded that Castner’s violations were not technical,
stating:
Applying our analysis in Nelson to the facts of this case, it is evident
that Castner’s violations were not technical in nature. The conditions
imposed by the court mandating that Castner complete the Alvis House
and Re-Entry Court programs were plainly substantive rehabilitative
requirements that were specifically tailored to address Castner’s drug
use and were aimed at reducing his likelihood of recidivism. Indeed,
substance-abuse treatment was the central focus of Castner’s
community-control sanction. When he failed to complete the VOA
treatment program, the trial court worked with him by placing him in
a program better suited to his needs, giving him another opportunity to
receive treatment. And the trial court warned him that if he failed to
complete treatment a second time, prison would likely follow.
Moreover, the circumstances surrounding Castner’s termination from
the Alvis House program belie his claim that his failure to complete the
program was a technical violation. Castner had been at the facility a
mere two weeks before the staff realized that he had been disobeying
the program’s rules regarding computer and phone use so that he could
communicate with young girls — behavior that, given his history, might
well have led to criminal conduct had it continued undetected.
Castner’s termination from the Alvis House program was the direct
result of his own substantial misconduct, which occurred almost
immediately upon his arrival at the facility and without his having
made a serious attempt to engage in the required treatment.
Id. at ¶ 16-17.
B. Analysis
We now turn to whether Wiley’s conduct constituted technical
violations under R.C. 2929.15(B)(1)(c)(i). In doing so, we look at the totality of the
circumstances. Nelson, Slip Opinion No. 2020-Ohio-3690, at ¶ 26.
Wiley contends that he substantially complied with the conditions of
his community control sanctions for three of the five years. He states that although
he failed to report and make monthly child support payments, he had significant
mental and physical health issues that prevented him from complying. Wiley points
out that he did not commit any new criminal offenses besides a traffic offense. He
further asserts that because his violations were “not inherently criminal” and he
substantially complied for three years, his violations were technical. We disagree.
After Wiley’s last community control violation hearing in January
2017, Wiley claims that he reported to the probation department two days in a row
but that he was told that he was going to be reassigned to a new probation officer
who would call him. He claims that no one ever called him. He also claims that he
attempted to call the probation department several times after that, as did his family
members, but no one called him back. The problem with Wiley’s claims, however,
is that he then did not report to the probation department after that. He was not
arrested on a capias until late August 2019. And he had not paid any child support
since October 2016, almost three years previously. Therefore, even though Wiley
complied for the first three years of his five years of community control sanctions,
he then failed to report or pay any child support. Although he did make a few
payments and reported a few times into his fourth year of sanctions, he then
disappeared for over two and one-half years. During this time, Wiley failed to
engage in any of the conditions of his community control sanctions. And as we
stated in Neville, 2019-Ohio-151, 128 N.E.3d 937, if Wiley had not been arrested on
the capias in August 2019, he could have potentially avoided all punishment and
paying child support indefinitely. Id. at ¶ 49.
Moreover, the conditions of Wiley’s community control sanctions
were “specifically tailored to address” his misconduct — failure to pay child support.
By failing to report to the probation department for over two and one-half years and
failing to pay child support for almost three years, with his child support arrears now
amounting to over $50,000, Wiley’s violations were not administrative, minimal, or
immaterial infractions; they were significant ones. Nelson, Slip Opinion No. 2020-
Ohio-3690, at ¶ 26. Thus, we conclude that his violations were more than just
technical violations. Therefore, the trial court was not bound by the sentencing cap
of 90 days set forth in R.C. 2929.15(B)(1)(c)(i).
Wiley’s first assignment of error is overruled.
III. Consecutive Sentences
In his second assignment of error, Wiley contends that the trial court
erred when it sentenced him to consecutive sentences without making the necessary
findings and because the record does not support consecutive sentences.
The Ohio Supreme Court recently held that when a trial court revokes
a defendant’s community control sanctions and imposes consecutive prison terms
for multiple offenses, R.C. 2929.14(C)(4) mandates that the court make the required
consecutive-sentence findings at that time. State v. Howard, Slip Opinion No.
2020-Ohio-3195, ¶ 25. Thus, the trial court in this case was required to make the
consecutive-sentence findings at the September 2019 hearing when it revoked
Wiley’s community control sanctions.
Felony sentences are reviewed under the standard provided in
R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59
N.E.3d 1231, ¶ 16. When reviewing the imposition of consecutive sentences,
“R.C. 2953.08(G)(2)(a) directs the appellate court ‘to review the record, including
the findings underlying the sentence’ and to modify or vacate the sentence ‘if it
clearly and convincingly finds * * * [t]hat the record does not support the sentencing
court’s findings under’” R.C. 2929.14(C)(4). State v. Bonnell, 140 Ohio St.3d 209,
2014-Ohio-3177, 16 N.E.3d 659, ¶ 28, quoting R.C. 2953.08(G)(2)(a).
Before a trial court may impose consecutive sentences, the court must
make specific findings mandated by R.C. 2929.14(C)(4) and then incorporate those
findings in the sentencing entry. Bonnell at ¶ 37. The trial court is not required to
state its reasons to support its findings, nor is it required to give a rote recitation of
the statutory language. Id. “As long as the reviewing court can discern that the trial
court engaged in the correct analysis and can determine that the record contains
evidence to support the findings, consecutive sentences should be upheld.” Id. at
¶ 29.
R.C. 2929.14(C)(4) authorizes the court to order consecutive service
of multiple sentences if consecutive service (1) is necessary to protect the public from
future crime or to punish the offender; (2) is not disproportionate to the seriousness
of the offender’s conduct and to the danger the offender poses to the public; and (3)
the court must find one of the following apply: (a) the offender committed the
offense while awaiting trial or sentencing, under community control monitoring, or
under postrelease control for a prior offense; (b) at least two of the offenses caused
harm so great and unusual that no single term for any offense adequately reflects
the seriousness of the offender’s conduct; or (c) the offender’s history of criminal
conduct demonstrates the necessity of consecutive sentences to protect the public
from future crime. State v. Smeznik, 8th Dist. Cuyahoga Nos. 103196 and 103197,
2016-Ohio-709, ¶ 6.
In this case, the trial court stated that it was imposing consecutive
sentences because Wiley did not “appear for any of his court dates throughout the
county,” apparently referring to the fact that Wiley had an outstanding warrant for
driving under suspension. The court further stated that Wiley had not appeared “to
the probation department on numerous occasions, the last one being almost three
years.” The court stated that three years was “not disproportionate to being over
$50,000 in arrears for [his] children.” The trial court also found that Wiley’s
“history of criminal conduct demonstrates that consecutive sentences [were]
necessary to protect the public, especially this court from being able to carry out the
law.”
After review, we do not agree with Wiley that the trial court failed to
make the required consecutive sentence findings. We can discern from the record
that the trial court made the first two findings. Although it did not explicitly state
that it was imposing consecutive sentences to punish Wiley, it clearly stated that it
was imposing consecutive-sentences because Wiley had not appeared for his court
dates “throughout the county” and had not appeared “to the probation department
on numerous occasions.” It also made the second required finding when it stated
that three years in prison was “not disproportionate to being over $50,000 in
arrears.” Finally, it made the third finding when it found that Wiley’s criminal
history demonstrated that consecutive sentences were necessary.
There is nothing in the record, however, to support the trial court’s
finding that Wiley’s criminal history demonstrated that consecutive sentences were
necessary to protect the public from Wiley’s future crimes. The trial court stated,
“And your history of criminal conduct demonstrates that consecutive sentences are
necessary to protect the public, especially this court from being able to carry out the
law.” But there was no presentence investigation report. Wiley’s defense counsel
informed the court that Wiley “may have a case from like the ‘70’s, but besides that
no other record.” The state did not counter this information. Thus, we find that the
trial court erred when it made the finding that Wiley’s “history of criminal conduct
demonstrates the necessity of consecutive sentences to protect the public from
future crime.” R.C. 2929.14(C)(4)(c).
We further find that the record would not support either of the other
two findings under R.C. 2929.14(C)(4), namely that (a) (the offender committed the
offense while awaiting trial or sentencing, under community control monitoring, or
under postrelease control for a prior offense) or (b) (at least two of the offenses
caused harm so great and unusual that no single term for any offense adequately
reflects the seriousness of the offender’s conduct). Although Wiley still owes a
significant amount of child support, he was 63 years old at the time of sentencing
and in poor health. Further, although he had a warrant out for his arrest for driving
under suspension, he had no other criminal history for 40 years. Finally, the trial
court’s comment that three years of prison were necessary “to protect the public,
especially this court from being able to carry out the law,” is not the type of
protection the legislature intended when it enacted 2011 Am.Sub.H.B. No. 86 and
revived the requirement that trial courts make findings before imposing consecutive
sentences under R.C. 2929.14(C)(4).
We therefore overrule Wiley’s second assignment of error in part and
sustain it in part.
Judgment affirmed in part, reversed in part, and remanded. The
consecutive portion of Wiley’s sentence is vacated, leaving Wiley with a concurrent
sentence of 12 months in prison. Upon remand, the trial court is instructed to issue
a new judgment reflecting Wiley’s 12-month prison sentence.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MARY J. BOYLE, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., and
MICHELLE J. SHEEHAN, J., CONCUR