State v. Moore ( 2022 )

[Cite as State v. Moore, 2022-Ohio-3504.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
ERIE COUNTY
State of Ohio Court of Appeals No. E-21-041
Appellee Trial Court No. 2018CR0103
v.
Jeffrey E. Moore DECISION AND JUDGMENT
Appellant Decided: September 30, 2022
*****
Kevin J. Baxter, Erie County Prosecuting Attorney, and
Kristin R. Palmer, Assistant Prosecuting Attorney, for appellee.
Brett A. Klimkowsky, for appellant.
*****
PIETRYKOWSKI, J.
{¶ 1} Defendant-appellant, Jeffrey Moore, appeals the April 21, 2021 judgment of
the Erie County Court of Common Pleas which, following remand from this court,
resentenced him to a total of 11 years of imprisonment. Because we find that on remand
the court failed to conduct a limited, de novo sentencing hearing, we reverse.
I. History and Relevant Facts
{¶ 2} A detailed factual and case history is found in State v. Moore, 2021-Ohio-
765, 168 N.E.3d 921 (6th Dist.). On April 11, 2018, appellant was indicted on six counts
of having weapons while under disability, all third-degree felonies, possession of and
trafficking of cocaine, second-degree felonies, and possession of heroin, a fourth-degree
felony. The matter proceeded to a jury trial and appellant was found guilty of all counts
of having weapons while under disability and possession of cocaine; appellant was
acquitted of trafficking in cocaine and possession of heroin.
{¶ 3} On June 17, 2019, appellant was sentenced to 36 months in prison on each
count of having weapons while under disability, Count 2 merged with Count 1, Count 4
merged with Count 3, and Count 6 merged with Count 5. The court sentenced appellant
to eight years of imprisonment for possession of cocaine. The merged Counts, 1, 3, and
5, and Count 7 were all ordered to be served consecutively for a total of 17 years of
imprisonment.
{¶ 4} At the sentencing hearing, appellant’s counsel and family and friends made
statements on his behalf; appellant also spoke and denied any wrongdoing. The court
indicated that it had considered the principles and purposes of sentencing, the seriousness
and recidivism factors and the relevant sentencing statutes, explained appellant’s appeal
rights, informed him of postrelease control terms and responsibilities, state and federal
gun restrictions, and fines and costs.
2.
{¶ 5} Imposing a consecutive sentence, the court found:
And this Court finds that under 2929.14(C)(4) consecutive sentences
are necessary to protect the public from future crimes and punish you for
your behavior. They’re not disproportionate to the conduct in which you
are – your conduct, the seriousness and the danger to society that you pose.
Also, the Court finds you have a history of criminal convictions and
conduct that demonstrates consecutive sentences are necessary to protect
you from this Court – or this community from future crimes by you, so this
Court imposes those.
{¶ 6} Its June 18, 2019 sentencing judgment entry reflected that the court made the
necessary statutory findings.
{¶ 7} On appeal, we found that the trial court erred in failing to merge all six of
the weapons under disability charges at sentencing. Moore, 2021-Ohio-765, 168 N.E.3d
921, at ¶ 51. Our holding was based on our determination that the state failed to prove
that the weapons were either possessed separately or acquired at different times. Id. at ¶
50. We reversed appellant’s sentence and remanded the matter for “resentencing
consistent with our determination that all six counts of having weapons while under
disability must be merged as allied offenses of similar import[.]” Id. at ¶ 53.
{¶ 8} Appellant’s resentencing hearing was held on April 8, 2021. Prior to
sentencing, the court inquired whether the parties requested that the court “incorporate
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everything that took place, statements, comments, the Court going over rights and
everything else at the original sentencing on June 17th, 2019?” The parties responded
affirmatively.
{¶ 9} Addressing defense counsel, the court reiterated: “The Court’s incorporating
and adopting everything that took place as far as the comments, the rights, and everything
else that was afforded at that sentencing hearing and strictly resentencing on the count.”
{¶ 10} The court then sentenced appellant as follows:
[O]n Count 1, felony of the third degree, Weapons Under Disability,
to a 36 month prison sentence, a $1,000 fine. Counts 2, 3, 4 5, and 6, all
Weapons Under Disability, hereby merged into one. Count 7, felony of the
second degree, Possession of Cocaine, the Court imposes an eight year
prison sentence, that’s mandatory, with a three year “shall have,” uh, three
years mandatory PRC on the Count 7 and a “may have” three years PRC on
the Count 3. Those all were imposed in the original sentencing and are
imposed again.
Mandatory fine of $10,000 that was imposed originally is also
imposed.
Those counts run consecutive for a total of 11 years and $11,000 in
fines and Court costs, and the Court is – all the other things said at
4.
sentencing regarding those fines and collection of ‘em are hereby also
imposed. Court cost also is imposed.
{¶ 11} In its April 21, 2021 sentencing judgment entry, a preprinted form with
check boxes indicating the court’s “findings, holdings, and orders,” the court marked that
it “considered and weighed the principles and purposes of sentencing (O.R.C. §2929.11/
§ 2929.21 et seq.)” and “considered, weighed, and made findings for sentencing of either
a Concurrent and/or Consecutive sentence (O.R.C. §2929.12/ §2929.13/ 2929.14 et.
seq.)”
{¶ 12} This appeal followed.
II. Assignment of Error
Assignment of Error: The trial court’s sentence of Jeffrey Moore
(“Appellant”) violates R.C. 2929.14(C)(4)— and is thus contrary to law—
insofar as the trial court did not make the appropriate findings of fact for
Appellant to be sentenced in a consecutive manner.
III. Discussion
{¶ 13} Appellant’s sole assignment of error argues that at appellant’s resentencing
hearing, specifically as to the imposition of a consecutive sentence, the trial court failed
to make the necessary findings. The state counters that because the court specifically
incorporated all its findings from the first sentencing hearing, and the required findings
were made therein, the sentence is not contrary to law.
5.
{¶ 14} On review of a felony sentence, this court is guided by R.C. 2953.08(G)(2).
R.C. 2953.08(G)(2) provides that an appellate court may increase, reduce, or otherwise
modify a sentence or may vacate the sentence and remand the matter to the sentencing
court for resentencing 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.
{¶ 15} Reviewing the arguments of the parties, we observe a more fundamental
error with the proceedings on remand pertaining to the scope of resentencing for an allied
offense sentencing error. R.C. 2929.19 sets forth the procedures for court to follow
during felony sentencing hearings. It states, in part:
The court shall hold a sentencing hearing before imposing a sentence
under this chapter upon an offender who was convicted of or pleaded guilty
to a felony and before resentencing an offender who was convicted of or
pleaded guilty to a felony and whose case was remanded pursuant to
section 2953.07 or 2953.08 of the Revised Code.
(Emphasis added.) R.C. 2929.19(A).
6.
{¶ 16} Pertinent to the facts at issue, the Supreme Court of Ohio has held: “When
a cause is remanded to a trial court to correct an allied-offenses sentencing error, the trial
court must hold a new sentencing hearing for the offenses that remain after the state
selects which allied offense or offenses to pursue.” State v. Wilson, 129 Ohio St.3d 214,
2011-Ohio-2669, 951 N.E.2d 381, paragraph one of the syllabus. The Wilson court
acknowledged that such resentencing hearing may be narrowed in scope by the parties
stipulating to the “sentencing court’s considering the record as it stood at the first
sentencing hearing. Id. at ¶ 15, citing State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-
855, 846 N.E.2d 1, ¶ 37.
{¶ 17} Reviewing the proceedings below the parties did, in fact, properly stipulate
to the multiple statements and comments made at the prior hearing. However, the parties
could not stipulate to the mandatory statutory duties imposed on the court when
sentencing a defendant on a felony conviction. Such duties include the court’s
consideration of R.C. 2929.11 and 2929.12 and, if imposing a consecutive sentence, R.C.
2929.14(C)(4). Evidence that the court “engaged in the correct analysis” must be
included in the sentencing hearing transcript and the sentencing judgment entry. State v.
Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 29.
{¶ 18} As demonstrated above, at the April 21, 2021 resentencing hearing the
court failed to make the necessary statutory findings. Accordingly, because we find that
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on remand the trial court failed to conduct a de novo sentencing hearing on the merged
weapons while under disability conviction, appellant’s assignment of error is well-taken.
IV. Conclusion
{¶ 19} Based on the foregoing, the April 21, 2021 judgment of the Erie County
Court of Common Pleas is reversed and the matter is remanded to conduct a limited de
novo sentencing hearing in accordance with this decision. Pursuant to App.R. 24, the
state is ordered to pay the costs of this appeal.
Judgment reversed
and remanded.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. ____________________________
JUDGE
Thomas J. Osowik, J.
____________________________
Gene A. Zmuda, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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