State v. Gable ( 2024 )


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  • [Cite as State v. Gable, 
    2024-Ohio-293
    .]
    IN THE COURT OF APPEALS
    TWELFTH APPELLATE DISTRICT OF OHIO
    CLERMONT COUNTY
    STATE OF OHIO,                                   :
    Appellee,                                 :     CASE NOS. CA2023-07-049
    CA2023-07-050
    :
    - vs -                                                     OPINION
    :              1/29/2024
    CHRISTOPHER A. GABLE,                            :
    Appellant.                                :
    CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
    Case No. 2021 CR 0764
    Mark J. Tekulve, Clermont County Prosecuting Attorney, and Nicholas A. Horton, Assistant
    Prosecuting Attorney, for appellee.
    W. Stephen Haynes, Clermont County Public Defender, and Robert F. Benintendi, Assistant
    Public Defender.
    M. POWELL, J.
    {¶ 1} Appellant, Christopher Gable, appeals the sentence he received in the
    Clermont County Court of Common Pleas following the revocation of his community
    control.
    Clermont CA2023-07-049
    CA2023-07-050
    {¶ 2} In January 2022, Gable pled guilty to two counts of nonsupport of dependents,
    fifth-degree felonies, in Case No. 2021 CR 0764 ("Case No. 0764"). Gable was placed in
    a diversion program, failed to successfully complete the diversion program, was found guilty
    of nonsupport of dependents, and was sentenced to a five-year term of community control.
    {¶ 3} In November 2022, Gable pled guilty to one count of aggravated possession
    of drugs, a fifth-degree felony, in Case No. 2022 CR 0413 ("Case No. 0413"); he was
    sentenced to a three-year term of community control.
    {¶ 4} In June 2023, Gable was charged with and admitted to community control
    violations in both cases. On July 5, 2023, the trial court held a joint sentencing hearing for
    both cases. The trial court revoked Gable's community control and sentenced him to a 12-
    month prison term on Count 1 and to a concurrent 12-month prison term on Count 2 in Case
    No. 0764, and to a 12-month prison term in Case No. 0413, and ordered that the sentences
    be served consecutively for an aggregate prison term of 24 months.
    {¶ 5} Gable now appeals, raising one assignment of error:
    {¶ 6} THE TRIAL COURT ERRED IN ORDERING APPELLANT'S TERMS OF
    IMPRISONMENT TO RUN CONSECUTIVELY.
    {¶ 7} Gable argues that the trial court erred in ordering his 12-month prison
    sentence in Case No. 0413 be served consecutively to his prison sentence in Case No.
    0764 because the trial court failed to make the requisite findings at the sentencing hearing.
    {¶ 8} A    felony   sentence     is   reviewed    under    the   standard    in     R.C.
    2953.08(G)(2). State v. Marcum, 
    146 Ohio St.3d 516
    , 
    2016-Ohio-1002
    , ¶ 1. R.C.
    2953.08(G)(2) states that an appellate court may modify or vacate a sentence if the court
    finds by clear and convincing evidence that "the record does not support the trial court's
    findings under relevant statutes or that the sentence is otherwise contrary to law." 
    Id.
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    {¶ 9} A consecutive sentence is contrary to law where the trial court fails to make
    the consecutive sentencing findings required by R.C. 2929.14(C)(4). State v. Wood, 12th
    Dist. Madison No. CA2018-07-022, 
    2020-Ohio-422
    , ¶ 9. Pursuant to R.C. 2929.14(C)(4),
    a trial court must engage in a three-step analysis and make certain findings before imposing
    consecutive sentences. 
    Id.
     Specifically, the trial court must find that (1) the consecutive
    sentence 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) one of the following applies:
    (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).
    {¶ 10} R.C. 2929.14(C)(4) does not direct when or where a sentencing court must
    make the consecutive sentence findings. However, Crim.R. 32(A)(4) provides that "[a]t the
    time of imposing sentence, the court shall * * * [i]n serious offenses, state its statutory
    findings[.]"   Thus, Crim.R. 32(A)(4) mandates that the statutory consecutive sentence
    findings be made during the sentencing hearing.
    {¶ 11} In State v. Bonnell, 
    140 Ohio St.3d 209
    , 
    2014-Ohio-3177
    , the Ohio Supreme
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    Court definitively answered the question, holding, "In order to impose consecutive terms of
    imprisonment, 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[.]" Id. at ¶
    37. Citing Crim.R. 32(A)(4), the supreme court held that "a trial court must state the required
    findings as part of the sentencing hearing, and by doing so it affords notice to the offender
    and to defense counsel." Id. at ¶ 29. Providing notice of the findings during the sentencing
    hearing is crucial because it affords an offender an opportunity to challenge the findings
    and make a record for appeal. Notice of one or more of the necessary findings for the first
    and only time in the sentencing entry denies the offender this opportunity as the sentencing
    entry is a final appealable order which the sentencing court may not reconsider. State v.
    Ivey, 9th Dist. Summit No. 28162, 
    2017-Ohio-4162
    , citing State v. Raber, 
    134 Ohio St.3d 350
    , 
    2012-Ohio-5636
    ; State v. Gilbert, 
    143 Ohio St.3d 150
    , 
    2014-Ohio-4562
    .
    {¶ 12} In contrast to the requirement that the consecutive sentence findings be made
    during the sentencing hearing, inclusion of the findings in the sentencing entry is neither
    mandated by Crim.R. 32(A)(4) nor necessary to notify the offender and counsel of the
    findings. Incorporation of the findings into the sentencing entry is necessary to formalize
    and memorialize the findings. "[B]ecause a court speaks through its journal, the court
    should also incorporate its statutory findings into the sentencing entry." (Citation omitted.)
    Bonnell at ¶ 29. That is, incorporation of the findings into the sentencing entry is a formality,
    albeit an important one.
    {¶ 13} It is undisputed that the trial court included all the necessary findings under
    R.C. 2929.14(C)(4) to support the imposition of consecutive sentences in its July 6, 2023
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    sentencing entry in Case No. 0413.1 However, Gable asserts, and the state concedes, that
    the trial court failed to make the required necessity and proportionality findings at the
    sentencing hearing.
    {¶ 14} At sentencing, the trial court stated the following regarding its decision to
    impose consecutive sentences: "The Court's going to order and make a finding, based
    upon the totality under [R.C.] 2929.14(C)(4), that —small c—his history of criminal conduct
    demonstrates that a consecutive sentence is necessary to protect the public from future
    crime by the offender." Based upon this language, it is clear the trial court did not address
    the first two factors in the three-step analysis—that is, the required necessity and
    proportionality findings— and only expressly found that Gable's history of criminal conduct
    justified a consecutive sentence under R.C. 2929.14(C)(4)(c).
    {¶ 15} As we recently stated,
    The proportionality and criminal history findings differ in
    important respects and are addressed to different aspects of an
    offender's circumstances. The criminal history finding concerns
    the likelihood of recidivism based upon the offender's criminal
    history. The proportionality finding is not concerned with
    recidivism but with the offender's conduct in the commission of
    the offenses for which he is being sentenced and the menace
    he presents to society, separate and apart from his propensity
    to recidivate. Pursuant to the proportionality finding, the
    sentencing court must assess the nature and gravity of the
    offender's conduct and evaluate what consecutive sentence
    appropriately reflects the severity of the conduct involved in the
    commission of the offenses and the threat the offender poses to
    public safety. This finding is intended to guide the sentencing
    court's discretion in crafting a sentence that is neither excessive
    nor overly lenient.
    To summarize, the main difference between these two findings
    1. The July 6, 2023 sentencing entry in Case No. 0413 states, "The Court finds that the consecutive sentence
    is necessary to protect the public from future crime or to punish the offender. The Court also finds that the
    consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger
    the offender poses to the public. (c) The Court further finds the offender's history of criminal conduct
    demonstrates that consecutive sentences are necessary to protect the public from future crime of the
    offender."
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    lies in their focus. The proportionality finding aims to ensure that
    the consecutive prison term aligns with the seriousness of the
    offense and potential danger the offender presents to
    society. The criminal history finding recognizes the potential risk
    associated with an offender's criminal history and determines
    whether a consecutive sentence is necessary to safeguard the
    public from future crimes. The proportionality and criminal
    history findings are distinct, and we may not assume that finding
    one satisfies the other. As this court has previously noted, even
    if it is likely the trial court did consider the proportionality analysis
    of R.C. 2929.14(C)(4), "the statute does not permit us to infer its
    consideration in this case." State v. Volz, 12th Dist. Clermont
    No. CA2022-06-028, 
    2022-Ohio-4134
    , ¶ 13 (consecutive
    sentences contrary to law where the trial court did not make the
    proportionality finding mandated by R.C. 2929.14[C][4]).
    State v. Halbert, 12th Dist. Warren No. CA2023-03-027, 
    2023-Ohio-4471
    , ¶ 36-37.
    {¶ 16} We therefore vacate that portion of the trial court's judgment imposing
    consecutive sentences and remand this matter to the trial court for resentencing. On
    remand, the trial court shall consider whether consecutive sentences are appropriate under
    R.C. 2929.14(C)(4), and if so, shall make the required statutory findings on the record at
    resentencing and incorporate its findings into a sentencing entry. Bonnell, 
    2014-Ohio-3177
    at ¶ 37; State v. Smith, 12th Dist. Clermont No. CA2014-07-054, 
    2015-Ohio-1093
    , ¶ 16.
    {¶ 17} Judgment reversed and the matter is remanded for the limited purpose of
    resentencing.
    S. POWELL, P.J., concurs.
    PIPER, J. dissents.
    PIPER, J., dissenting.
    {¶ 18} With respect for allegiance to precedent, occasionally prior decisions need to
    be re-examined.     Often our governing precedent cannot be re-evaluated unless an
    opportunity presents itself. For similar reasons expressed in my dissent in State v. Halbert,
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    12th Dist. Warren No. CA2023-03-027, 
    2023-Ohio-4471
    , I also respectfully dissent herein.
    {¶ 19} Again, I voice complaint regarding the manner in which trial courts have been
    instructed to implement consecutive sentences. R.C. 2929.14(C)(4) has been given an
    overly broad interpretation beyond notice to the offender of the statutory findings the trial
    court relied upon in fashioning the sentence. Where a defendant had notice of the trial
    court's findings and the sentence is unquestionably supported by the record, the sentence
    is not contrary to law. In those circumstances a new sentencing hearing is a vain act and
    unwarranted.
    {¶ 20} I agree with the various opinions stating that Bonnell "interpreted" that R.C.
    2929.14(C)(4) findings must be placed twice in the record, once when the sentence is orally
    pronounced and again in the entry. But as discussed in my Halbert dissent and in the
    Bonnell dissent, that interpretation is contrary to the plain reading of the statute which needs
    no interpretation. The record need only demonstrate the sentencing court had a sufficient
    reflective process guided by findings in R.C. 2929.14(C)(4). R.C. 2929.14(C)(4) requires
    the offender receive notice of the sentencing court's considerations via the record. It does
    not say where or when. Gable received notice by the sentencing court's entry of the
    statutory findings the court determined existed in supporting the sentence.
    {¶ 21} The supreme court "promulgated Crim.R. 32(A)(4) as a guide to trial courts in
    complying with the sentencing provisions set forth in R.C. Chapter 2929." Bonnell, 2014-
    Ohio-3177 at ¶ 25. Crim R. 32(A)(4) is not to be interpreted as imposing obligations on a
    trial judge that the legislature has not mandated. 
    Id.
     For example, Crim.R. 32 (A)(4)
    expressly requires a trial court state its reasons at the time of sentencing which support the
    sentence. Yet, Bonnell determined there was no statutory authority requiring such, "[t]hus,
    a trial court is not required by Crim.R. 32(A)(4) to give reasons supporting its decision to
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    impose consecutive sentences." Id. at ¶ 27. Similarly, since there is no legislative authority
    mandating consecutive findings be made at the oral pronouncement of sentencing, Crim.
    R. 32 (A)(4) cannot impose such an obligation as my colleagues suggest.
    {¶ 22} Our majority decision's reliance on Crim. R. 32(A)(4) emphasizes the need for
    Bonnell's clarification. While Bonnell interprets 2929.14(C)(4) as requiring the consecutive
    sentencing findings be repeated at the sentencing hearing and in an entry, the statute itself
    doesn't contain language to that effect. Bonnell also suggests that "a finding in these
    circumstances means only that 'the [trial] court must note that it engaged in the analysis'
    and that it 'has considered the statutory criteria specifie[d] which of the given bases warrants
    its decision.'" Id. at ¶ 26, quoting State v. Edmonson, 
    86 Ohio St.3d 324
    , 326 (1999).
    Simultaneously, Bonnell notes the trial court speaks through its journalized entries (which
    the trial court did herein) and that a word-for-word recitation of the statutory findings is not
    required. Id. at ¶ 29. 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.
    {¶ 23} As in Halbert, Gable does not argue or even remotely suggest he was
    prejudiced. He suggests no legal harm and does not claim to be aggrieved by the sentence.
    Neither does he suggest the claimed error if corrected would have the reasonable
    probability of a different result. Gable does not allege that he was unfairly treated or that
    he didn't have notice as to why his sentence was consecutive. Gable has never suggested,
    before us or before the trial court, that his ongoing criminal history (as reflected upon by the
    trial court) does not merit a consecutive sentence.         Gable does not argue that the
    sentencing court's entry is incorrect. It would be improper for a reviewing court to sua
    sponte ignore the trial court's entry.
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    {¶ 24} If a party is not aggrieved, there is no need of a remedy. Without harm or
    prejudice an error does not require correction. Since Gable does not suggest the trial court's
    entry failed to sufficiently notice him regarding why the court rendered a consecutive,
    vacating the sentence and remanding serves no purpose. Gable's criminal history
    supported a consecutive sentence as supported by the record and the trial court's
    journalized entry. A court speaks through its entries and therefore a new sentencing
    hearing becomes a vain act. State v. Halsey, 12th Dist. Butler No. CA2014-10-211, 2015-
    Ohio-3405, ¶ 14 (it is well established that a court speaks only through its journal entries);
    State v. Harack, 12th Dist. Clermont No. CA2011-01-003, 
    2011-Ohio-6021
     (the law does
    not require vain acts). If we really thought the record clearly and convincingly required a
    different sentence, we could simply modify the sentence.
    {¶ 25} The trial court had familiarity with Gable's track record of contempt for
    authority and the inability to conduct himself within legal boundaries. Despite the trial court's
    multiple efforts to help Gable, the record demonstrates Gable's failures to appear before
    the court and to the probation department. Capiases had to be issued and violations of
    community control resulted. Significant mental health and drug abuse issues persisted and
    continued to interfere with any rehabilitation. While Gable chose street drugs instead of
    financially trying to support his children, it cannot be said he wasn't given opportunities to
    redeem himself. It is not as though the sentencing court had no concern for Gable or his
    rehabilitation—quite the opposite. The record reflects the trial court and Gable were on
    good terms. However, on the outside Gable is a danger to himself and to the public, yet
    with the sentence as pronounced, the court determined rehabilitation was only possible with
    sufficient incarceration. We do not presume a court rendered a sentence greater than
    necessary. The record demonstrates Gable understood his sentence and neither he, nor
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    his counsel, had any objection.
    {¶ 26} Gable presents his claimed error for the first time on appeal. Defendants
    cannot hold their cards only to later play a hand of no consequence on appeal. Such
    equates to invited error or at the very least results in a plain error standard of review. A
    plain error review does not require an automatic default determination that a sentence was
    contrary to law. R.C. 2929.14(C)(4) confers no substantive or constitutional right, only a
    statutory procedural right of notice to the offender that the court considered the statutory
    findings. Since the procedure here supplied that notice, there is no error.
    {¶ 27} We can only vacate a sentence if we clearly and convincingly find the
    defendant's sentence is not supported by the trial court's findings or it was contrary to law.
    R.C.2953.08(G)(2). There was no error in the trial court's sentence as pronounced and
    journalized. R.C. 2929.14(C)(4) was sufficiently addressed and considered. Thus, the
    sentence was not contrary to the law and was supported by the court's findings. If there
    was error, any claimed error was invited error and therefore it was waived as not asserted.
    If it wasn't an invited error, it certainly was a harmless error that does not require the
    sentence to be vacated. Therefore, I would not vacate the sentence and ask that it be
    repeated; doing so undermines judicial economy and efficiency. I would affirm the trial
    court's decision ordering the sentences to be served consecutively.
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Document Info

Docket Number: CA2023-07-049 CA2023-07-050

Judges: M. Powell

Filed Date: 1/29/2024

Precedential Status: Precedential

Modified Date: 1/29/2024