State v. Sergent (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State v. Sergent, Slip Opinion No. 2016-Ohio-2696.]
NOTICE
This slip opinion is subject to formal revision before it is published in
an advance sheet of the Ohio Official Reports. Readers are requested
to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
65 South Front Street, Columbus, Ohio 43215, of any typographical or
other formal errors in the opinion, in order that corrections may be
made before the opinion is published.
SLIP OPINION NO. 2016-OHIO-2696
THE STATE OF OHIO, APPELLANT, v. SERGENT, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Sergent, Slip Opinion No. 2016-Ohio-2696.]
Criminal law―Felony sentencing―Consecutive sentences―R.C.
2929.14(C)(4)―Sentencing judge does not need to make consecutive-
sentencing findings otherwise required by R.C. 2929.14(C)(4) when
consecutive sentence is part of jointly recommended sentence―Such a
sentence is “authorized by law” under R.C. 2953.08(D)(1) and hence is
not subject to review.
(No. 2015-1093—Submitted February 10, 2016—Decided April 27, 2016.)
APPEAL from the Court of Appeals for Lake County, No. 2013-L-125,
2015-Ohio-2603.
KENNEDY, J.
I. Introduction
{¶ 1} In this appeal, we address a certified conflict between a decision of
the Eleventh Appellate District and decisions of the Second and Fourth Appellate
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Districts regarding the following certified question: “In the context of a jointly-
recommended sentence, is the trial court required to make consecutive-sentence
findings under R.C. 2929.l4(C) in order for its sentence to be authorized by law
and thus not appealable?” Relying on our holding in State v. Porterfield, 106
Ohio St. 3d 5, 2005-Ohio-3095, 829 N.E.2d 690, we answer the certified question
in the negative and find that such a sentence is “authorized by law” and not
appealable. Consequently, we reverse the judgment of the court of appeals on this
issue and reinstate the sentence of defendant-appellee, William D. Sergent.
II. Facts and Procedural History
{¶ 2} Appellant, the state of Ohio, charged Sergent with three counts of
raping his minor biological daughter in violation of R.C. 2907.02(A)(2). Sergent
pleaded guilty to all three counts that occurred over three distinct time periods
between June 1, 2009, and August 31, 2010. The written plea agreement, signed
by Sergent, stated that he understood that a three- to ten-year prison term was
mandatory for each count of rape and that the court may order that some or all of
the prison terms be served consecutively to each other. The court held a Crim.R.
11 hearing and in a judgment entry incorporating the agreement, accepted the
plea, stating that Sergent understood the consequences of waiving his
constitutional rights and that his plea was voluntary.
{¶ 3} At the sentencing hearing, Sergent’s counsel stated: “We do have a
joint sentencing recommendation, which I think is to be broken down 8 years for
each count to be run consecutive for a total of 24 years.” Sergent’s counsel
further stated:
We believe that adopting the joint recommendation
certainly would not demean the seriousness of the offense, and
it would adequately protect the public, particularly in light of
the fact that [Sergent] is 53 years of age at this point in time and
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a 24 year prison term is a significant―I mean he will be an
elderly man upon completion of that sentence.
{¶ 4} The prosecutor then spoke, stressing to the court that Sergent was
charged with three counts of rape that were “continuing courses of criminal
conduct.” She further asserted that Sergent used his relationship with his daughter
to force her to have sex, causing her both physical and psychological harm. Finally,
the prosecutor stated: “So based on the victim’s age, fiscal [sic, physical] and
psychological harm, the relationship used to facilitate―the fact this is a
parent―with his daughter who lives in the home with him, we did join in on a joint
recommendation of 24 years.”
{¶ 5} The trial judge then stated:
The Court has considered * * * the overriding purposes of
felony sentencing pursuant to Revised Code 2929.11 which are
to protect the public from future crime by this offender and
others similarly minded, and to punish this offender using the
minimum sanctions that the court determines accomplish the
purposes, without imposing an unnecessary burden on state or
local government resources. I have considered the need for
incapacitation, deterrence, rehabilitation, and restitution. I’ve
considered the joint recommendation of the parties. I have
reasonably calculated this sentence to achieve the two
overriding purposes of felony sentencing, and to be
commensurate with and not demeaning to the seriousness of
this offender’s conduct and its impact not only on the victim,
but on society, and to be consistent with sentences imposed for
similar crimes committed by similar offenders.
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{¶ 6} The judge also stated that he considered the seriousness and recidivism
factors set forth in R.C. 2929.12. The judge imposed the jointly recommended
sentence of three eight-year prison terms, one for each count of rape, to be served
consecutively to each other for an aggregate prison term of 24 years.
{¶ 7} The sentencing entry cited R.C. 2929.14(C)(4) and set out the
statutorily enumerated findings supporting the imposition of consecutive sentences.
Sergent, acting pro se, filed a postsentencing motion to withdraw his plea, which the
court denied.
{¶ 8} Sergent filed a pro se motion for leave to file a delayed appeal, which
the court of appeals granted. The court of appeals appointed counsel to represent
Sergent. After Sergent’s counsel filed an Anders brief,1 the court of appeals
reviewed the record and found that an arguable issue existed to support Sergent’s
appeal under State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, 16 N.E.3d 659.
The arguable issue concerned Sergent’s sentencing, specifically, whether the trial
court, in imposing consecutive sentences, complied with Bonnell by making the
findings required by R.C. 2929.14(C) at the sentencing hearing and incorporating
those findings in the sentencing entry. The court also appointed new counsel to
represent Sergent.
{¶ 9} Sergent’s new counsel filed a brief asserting two assignments of error:
(1) Sergent’s guilty plea was not knowingly and voluntarily entered and (2) the trial
court erred in failing to make the required findings under R.C. 2929.14(C)(4) at
Sergent’s sentencing hearing prior to imposing consecutive sentences of
imprisonment.
1
An Anders brief “permit[s] an attorney who, after conscientious examination of the record,
concludes that a criminal appeal is wholly frivolous to so advise the court and request permission
to withdraw, provided that his request is accompanied with a brief identifying anything in the
record that could arguably support the client's appeal.” Disciplinary Counsel v. Milhoan, 142 Ohio
St.3d 230, 2014-Ohio-5459, 29 N.E.3d 898, ¶ 8.
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{¶ 10} The court of appeals overruled Sergent’s first assignment of error and
held that Sergent’s guilty plea was entered knowingly and voluntarily. 2015-Ohio-
2603, 38 N.E.3d 461, ¶ 48-55 (11th Dist.).
{¶ 11} In addressing Sergent’s second assignment of error, the court of
appeals recognized that a jointly recommended sentence that is “authorized by law”
is not subject to review under R.C. 2953.08(D)(1). Id. at ¶ 26. However, relying on
its decision in State v. Bell, 11th Dist. Portage No. 2014-P-0017, 2015-Ohio-218,
¶ 12, the court of appeals held that “an agreed sentence between the state and the
defendant does not relieve the trial court of its obligation to make the statutorily
required findings to impose consecutive sentences.” Id. at ¶ 22, citing State v.
McFarland, 11th Dist. Lake No. 2013-L-061, 2014-Ohio-2883, ¶ 13-14, and State v.
Underwood, 124 Ohio St. 3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 19-22. The court
found that while the trial court included the findings required by R.C. 2929.14(C)(4)
for imposing consecutive sentences in its sentencing entry, it did not make those
findings at the sentencing hearing, as required by Bonnell. Id. at ¶ 21. Therefore, the
court held that Sergent’s sentence was appealable and that it must be vacated and the
cause remanded for resentencing.
{¶ 12} The Eleventh District sua sponte certified that its judgment, and its
prior judgment in State v. Bell, are in conflict with the Second District’s judgment in
State v. Weese, 2d Dist. Clark No. 2013-CA-61, 2014-Ohio-3267, and the Fourth
District’s judgment in State v. Pulliam, 4th Dist. Scioto No. 14CA3609, 2015-Ohio-
759. We recognized the conflict. 143 Ohio St. 3d 1476, 2015-Ohio-3958, 38 N.E.3d
898.
{¶ 13} The state urges us to adopt the following proposition of law: “In the
context of a jointly-recommended sentence, the trial court is not required to make
consecutive-sentence findings under R.C. 2929.14(C) in order for its sentence to be
authorized by law and thus not appealable.” The state argues that State v.
Porterfield, 106 Ohio St. 3d 5, 2005-Ohio-3095, 829 N.E.2d 690, is controlling, and
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under Porterfield, the absence of consecutive-sentencing findings does not affect
whether a jointly recommended sentence is “authorized by law” under R.C.
2953.08(D)(1). And if a jointly recommended sentence is imposed by a judge and is
“authorized by law,” it is not subject to review on appeal under R.C. 2953.08(D)(1).
Consequently, the state asks that the certified question be answered in the negative,
that the court of appeals’ judgment be reversed, and that Sergent’s sentence be
reinstated.
{¶ 14} Sergent asserts that Porterfield does not apply because it is “outdated”
under “Ohio’s current sentencing structure.” Instead, Sergent argues that even when
the parties jointly recommend that consecutive sentences be imposed, Bonnell
controls and requires a trial court to make the consecutive-sentence findings required
by R.C. 2929.14(C)(4). A sentence imposed without such findings, he contends, is
not “authorized by law” and hence is appealable under R.C. 2953.08(D)(1).
Consequently, Sergent argues that the certified question should be answered in the
affirmative, and because the trial judge did not make the required findings, the
judgment of the court of appeals should be affirmed.
III. Analysis
A. In the Context of a Jointly Recommended Sentence that Includes
Nonmandatory Consecutive Sentences, Consecutive-Sentence Findings Are
Not Required
a. Appealability
{¶ 15} Generally, a defendant’s right to appeal a sentence for a felony
offense is found in R.C. 2953.08. However, under division (D)(1), if a jointly
recommended sentence imposed by a court is “authorized by law,” then the sentence
“is not subject to review.” The question here is, when jointly recommended
consecutive sentences are imposed and the trial judge fails to make the findings
required in R.C. 2929.14(C)(4), is the sentence “authorized by law”?
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b. Consecutive Sentences
{¶ 16} Under Ohio law, absent an order requiring sentences to be served
consecutively, terms of incarceration are to be served concurrently. R.C.
2929.41(A). But there are certain circumstances that require the imposition of
consecutive sentences. See, e.g., R.C. 2929.14(C)(1)(a), which requires that any
mandatory prison term for having a firearm in the commission of a felony shall be
served consecutively to any mandatory sentence imposed for the underlying felony.
Otherwise, trial judges have discretion to order that multiple sentences to be served
consecutively pursuant to R.C. 2929.14(C)(4), which states:
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
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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.
(Emphasis added.)
c. Jointly Recommended Nonmandatory Consecutive Sentences
{¶ 17} We have held that if a trial judge exercises his or her discretion to
impose consecutive sentences, he or she must make the consecutive-sentence
findings set out in R.C. 2929.14(C)(4), and those findings must be made at the
sentencing hearing and incorporated into the sentencing entry. Bonnell, 140 Ohio
St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 23.
{¶ 18} Nine years earlier, in the context of a jointly recommended
sentence that includes consecutive sentences, we addressed whether a trial judge’s
failure to make the consecutive-sentence findings required in former R.C.
2929.14(E)(4)2 rendered the sentence unauthorized by law and thus appealable in
Porterfield, 106 Ohio St. 3d 5, 2005-Ohio-3095, 829 N.E.2d 690.
{¶ 19} In Porterfield, the defendant pleaded guilty to two counts of
aggravated murder, two counts of kidnapping, one count of attempted aggravated
murder, one count of aggravated burglary, and one count of aggravated robbery.
Pursuant to his plea bargain, “Porterfield agreed to the precise sentence that was
imposed,” id. at ¶ 25, which was an aggregate sentence of 53 years to life,
including consecutive prison terms. Id. at ¶ 1-2.
2
Four years after Porterfield was decided R.C. 2929.14(E)(4) was held unconstitutional and
severed in State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856, 845 N.E.2d 470. But it was
subsequently revived in an identically worded provision and renumbered R.C. 2929.14(C)(4), as
will be discussed later in the opinion.
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{¶ 20} The court of appeals affirmed the defendant’s conviction, but
vacated his sentence because the trial court failed to make the consecutive-
sentence findings required by former R.C. 2929.14(E)(4) (now R.C.
2929.14(C)(4)).
{¶ 21} We reversed the judgment of the court of appeals and held that
under R.C. 2953.08(D):
Porterfield’s sentence was authorized by law, was
recommended jointly by him and the prosecution, and was
imposed by a sentencing judge. Pursuant to R.C. 2953.08(D),
Porterfield’s sentence is not subject to review. * * * The
General Assembly intended a jointly agreed-upon sentence to
be protected from review precisely because the parties agreed
that the sentence is appropriate. Once a defendant stipulates
that a particular sentence is justified, the sentencing judge no
longer needs to independently justify the sentence.
(Emphasis added.) Porterfield at ¶ 25.
{¶ 22} Accordingly, Porterfield stands for the proposition that a joint
recommendation to impose consecutive sentences eliminates the need for a trial
judge to make the consecutive-sentence findings set out in R.C. 2929.14(C)(4)
and that such a sentence, once imposed, is not subject to review under R.C.
2953.08(D) (now (D)(1)). Although we held that Porterfield’s sentence was
“authorized by law” under R.C. 2953.08(D), the opinion never addressed the
meaning of that phrase.
{¶ 23} However, several years later in State v. Underwood, 124 Ohio
St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, we clarified the meaning of “authorized
by law.” In Underwood, the court accepted the following certified-conflict
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question: “Is an agreed and jointly recommended sentence ‘authorized by law’
under R.C. 2953.08(D)(1), and thus not reviewable, when the agreed sentence
includes convictions for offenses that are allied offenses of similar import?” Id. at
¶ 9.
{¶ 24} In Underwood, the defendant entered pleas of no contest to four
counts of theft, and although the plea documents did not reflect any sentencing
agreement, the defendant acknowledged that he had a “sentencing bargain” that
would result in no more than two years of incarceration. Id. at ¶ 4. Before
sentencing, the state filed a sentencing recommendation that the defendant be
ordered to pay restitution, that he be sentenced to a minimum of two years in
prison, but that two of the counts are allied offenses of similar import, which
requires the court to sentence the defendant on only two counts. The trial court
sentenced the defendant to be incarcerated on all four counts for an aggregate
sentence of two years, with no recognition of the allied offenses. Id. at ¶ 6.
{¶ 25} The court of appeals held that the multiple sentences for allied
offenses of similar import were not authorized by law and vacated the convictions
for two of the counts.
{¶ 26} The meaning of the term “authorized by law” as used in R.C.
2953.08(D)(1) was critical to our analysis of the certified question in Underwood.
We recognized that some Ohio courts had held that a sentence is “authorized by
law” if “the sentence falls within the statutory range for the offense.”
Underwood, 124 Ohio St. 3d 365, 2010-Ohio-1, 922 N.E.2d 923, at ¶ 19. We
disagreed with that “narrow interpretation” because it “would mean that jointly
recommended sentences imposed within the statutory range but missing
mandatory provisions, such as postrelease control * * * or consecutive sentences
* * * would be unreviewable.” (Emphasis added.) Id. at ¶ 20. In Underwood, we
held that “[a] sentence is ‘authorized by law’ and is not appealable within the
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meaning of R.C. 2953.08(D)(1) only if it comports with all mandatory sentencing
provisions.” (Emphasis added.) Id. at paragraph two of the syllabus.
{¶ 27} We held that merging allied offenses of similar import was a
mandatory sentencing requirement: “R.C. 2941.25(A) clearly provides that there
may be only one conviction for allied offenses of similar import. Because a
defendant may be convicted of only one offense for such conduct, the defendant
may be sentenced for only one offense.” (Emphasis sic.) Id. at ¶ 26. Therefore,
we concluded that “a trial court is prohibited from imposing individual sentences
for counts that constitute allied offenses of similar import.” Id. Consequently, we
affirmed that Underwood’s sentence was appealable and that two of the four
offenses were allied offenses of similar import and must be merged, and the court
could sentence the defendant for only the two remaining counts. Id. at ¶ 30, 33.
{¶ 28} For purposes of analyzing Sergent’s case, it is important to note
that we distinguished our holding in Underwood from our holding in Porterfield:
We have acknowledged that “[t]he General Assembly
intended a jointly agreed-upon sentence to be protected from
review precisely because the parties agreed that the sentence is
appropriate. Once a defendant stipulates that a particular
sentence is justified, the sentencing judge no longer needs to
independently justify the sentence.” State v. Porterfield, 106
Ohio St. 3d 5, 2005-Ohio-3095, 829 N.E.2d 690, ¶ 25.
However, Porterfield did not involve a mandatory sentencing
provision, but merely the discretionary decision to impose
consecutive sentences. Both R.C. 2941.25 and the Double
Jeopardy Clause prohibit multiple convictions for the same
conduct. For this reason, a trial court is required to merge allied
offenses of similar import at sentencing. Thus, when the issue
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of allied offenses is before the court, the question is not whether
a particular sentence is justified, but whether the defendant may
be sentenced upon all the offenses.
(Emphasis added.) Underwood, 124 Ohio St. 3d 365, 2010-Ohio-1, 922 N.E.2d
923, at ¶ 27.
{¶ 29} Underwood holds that to be “authorized by law” under R.C.
2953.08(D)(1), a sentence must comport with all applicable mandatory sentencing
provisions. But Underwood acknowledges that an agreed sentence that involves a
discretionary decision to impose consecutive sentences, as in Porterfield, is
“authorized by law” and unreviewable on appeal even if the trial court fails to
make the consecutive-sentence findings.
{¶ 30} Therefore, Porterfield controls in Sergent’s case. If a jointly
recommended sentence includes nonmandatory consecutive sentences, and the
trial judge fails to make the consecutive-sentence findings set out in R.C.
2929.14(E)(4), the sentence is nevertheless “authorized by law,” and therefore is
not appealable pursuant to R.C. 2953.08(D)(1).
{¶ 31} Most courts in Ohio have reached the same result. State v. Weese,
2d Dist. Clark No. 2013-CA-61, 2014-Ohio-3267, ¶ 5; State v. Morris, 3d Dist.
Hardin No. 6-12-17, 2013-Ohio-1736, ¶ 11; State v. Pulliam, 4th Dist. Scioto No.
14CA3609, 2015-Ohio-759, ¶ 8; State v. Rockwell, 5th Dist. Stark No.
2004CA00193, 2005-Ohio-5213, ¶ 20; State v. Rhodes, 7th Dist. Columbiana No.
2000 CO 60, 2002-Ohio-3056, ¶ 9; State v. Rue, 9th Dist. Summit No. 27622,
2015-Ohio-4008, ¶ 6; State v. Jefferson, 10th Dist. Franklin No. 12AP-238, 2014-
Ohio-11, ¶ 3; Butler v. Warden, Lebanon Corr. Inst., 483 Fed.Appx. 102, 107 (6th
Cir.2012); Peoples v. Moore, S.D. Ohio No. 1:06-CV-00791, 2008 WL 2498136,
at *3 (June 18, 2008).
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B. Consecutive-Sentencing Findings Required Today Are Identical to Those
Required When Porterfield Was Decided
{¶ 32} Sergent argues that Porterfield does not apply because it is
outdated under “Ohio’s current sentencing structure.” We disagree.
{¶ 33} The requirement that a trial court must make findings before
imposing nonmandatory consecutive sentences was first enacted in R.C.
2929.14(E)(4) in 1995. Am.Sub.S.B. No. 2, 146 Ohio Laws, Part IV, 7136, 7464-
7470.
{¶ 34} However, several years after Porterfield was decided, we held that
R.C. 2929.14(E)(4) was unconstitutional in that it “require[d] judicial finding of
facts not proven to a jury beyond a reasonable doubt or admitted by the defendant
before the imposition of consecutive sentences.” State v. Foster, 109 Ohio St. 3d
1, 2006-Ohio-856, 845 N.E.2d 470, paragraph three of the syllabus, citing
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000),
and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403
(2004). So we severed R.C. 2929.14(E)(4) and held that “[t]rial courts have full
discretion to impose a prison sentence within the statutory range and are no longer
required to make findings or give their reasons for imposing maximum,
consecutive, or more than the minimum sentence.” Id. at paragraph seven of the
syllabus.
{¶ 35} Shortly after Foster was decided, the United States Supreme Court
reversed course in Oregon v. Ice, 555 U.S. 160, 129 S. Ct. 711, 172 L. Ed. 2d 517.
There, the court held that the Sixth Amendment’s jury-trial guarantee does not
prohibit judicial fact-finding before imposing consecutive sentences. Thereafter,
we held that “the consecutive-sentencing statutes severed by Foster are not
automatically revived” by Ice, but noted that it was permissible for the General
Assembly to require judicial fact-finding before consecutive sentences may be
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imposed. State v. Hodge, 128 Ohio St. 3d 1, 2010-Ohio-6320, 941 N.E.2d 768,
¶ 36.
{¶ 36} Effective September 30, 2011, the General Assembly enacted
Am.Sub.H.B. No. 86, which “ ‘simultaneously repeal[ed] and revive[d]’ ” the
severed language in R.C. 2929.14(E)(4) and renumbered it as R.C. 2929.14(C)(4).
Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 21, quoting
Section 11 of the bill. R.C. 2929.14(C)(4) is identical to former R.C.
2929.14(E)(4). We recognized that with the repeal of former R.C. 2929.14(E)(4)
and its revival in 2929.14(C)(4), we have “now come full circle on the question of
whether a trial court must engage in judicial fact-finding prior to imposing
consecutive sentences on an offender.” Bonnell at ¶ 1.
{¶ 37} Because judicial fact-finding for consecutive sentences is the same
today as it was when Porterfield was decided in 2005, Porterfield is not outdated.
The legislature’s revival of the same requirement reinforces that Porterfield is still
controlling law.
C. State v. Bonnell is Distinguishable
{¶ 38} However, our analysis is not yet complete. Sergent argues that
Bonnell controls and that because the trial court did not make the consecutive
sentence findings required in Bonnell at his sentencing hearing, his sentence is not
“authorized by law” and R.C. 2953.08(D)(1) does not operate to prevent his
appeal. We disagree.
{¶ 39} Subsequent to the revival of R.C. 2929.14(E)(4) in 2929.14(C)(4),
this court decided Bonnell. In that case, we considered whether a trial court that
imposes consecutive sentences must make consecutive-sentence findings and give
the reasons for those findings at the sentencing hearing and in the sentencing
entry.
{¶ 40} In Bonnell, the defendant pleaded guilty to three counts of burglary
and one count of tampering with coin machines. The trial court imposed
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consecutive sentences for an aggregate prison term of eight years and five
months. The trial court set forth the findings required by R.C. 2929.14(C)(4) in
the sentencing entry, but not at the sentencing hearing. It did not state its reasons
for imposing consecutive sentences.
{¶ 41} We held that the trial court was required to make the findings at the
defendant’s sentencing hearing and incorporate its findings in the sentencing
entry, but was not required to state its reasons for imposing consecutive sentences.
Bonnell, 140 Ohio St. 3d 269, 2014-Ohio-3177, 16 N.E.2d 659, at ¶ 37.
{¶ 42} In Bonnell, there was apparently a plea agreement, but there was no
jointly recommended sentence. In Bonnell, the trial court exercised its discretion
to impose consecutive sentences. In Porterfield, the state and the defendant
proposed the imposition of consecutive sentences, not the judge. Id., 106 Ohio
St.3d 5, 2005-Ohio-3095, 829 N.E.2d 690, at ¶ 2. And it was that agreement
upon a sentence by the parties that we found obviated the need for the trial court
to independently determine whether the sentence was justified under former R.C.
2929.14(E)(4). Id. at ¶ 25. Because Bonnell is factually distinguishable, it is not
controlling in Sergent’s appeal. Accord Pulliam, 2015-Ohio-759, ¶ 8-10; State v.
Marcum, 2d Dist. Montgomery No. 26255, 2015-Ohio-549, ¶ 7, fn. 1. Therefore,
we hold that State v. Porterfield is controlling, and the trial court was not required
to make the consecutive-sentence findings required in Bonnell at Sergent’s
sentencing hearing.
IV. Conclusion
{¶ 43} For all of the aforementioned reasons, we answer the certified
question in the negative and hold that in the context of a jointly recommended
sentence that includes nonmandatory consecutive sentences, a trial court is not
required to make the consecutive-sentence findings set out in R.C. 2929.14(C)(4).
Accordingly, where a trial judge imposes such an agreed sentence without making
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those findings, the sentence is nevertheless “authorized by law” and not
reviewable on appeal pursuant to R.C. 2953.08(D)(1).
{¶ 44} In this case, the state and Sergent jointly recommended an
aggregate 24-year sentence that included consecutive sentences, which the judge
imposed. The trial judge made all of the consecutive-sentence findings in the
sentencing entry, but only some of those findings at the sentencing hearing.
However, compliance with R.C. 2929.14(C)(4) was not necessary because the
consecutive sentences were jointly recommended, and imposition of consecutive
sentences for multiple counts of rape under R.C. 2907.02 is discretionary, not
mandatory. See R.C. 2929.41(A); R.C. 2929.14. Therefore, Sergent’s sentence
was “authorized by law” and pursuant to R.C. 2953.08(D)(1), the sentence is not
subject to review on appeal.
{¶ 45} Accordingly, we reverse the judgment of the court of appeals and
reinstate Sergent’s sentence.
Judgment reversed.
O’CONNOR, C.J., and O’DONNELL, LANZINGER, and FRENCH, JJ., concur.
PFEIFER and O’NEILL, JJ., dissent and would answer the certified question
in the affirmative and would affirm the judgment in accordance with the opinion
of the Eleventh District Court of Appeals.
_________________
Charles E. Coulson, Lake County Prosecuting Attorney, and Teri R.
Daniel, Assistant Prosecuting Attorney, for appellant.
Michael A. Partlow, for appellee.
Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, and
Michael J. Hendershot, Chief Deputy Solicitor, urging reversal for amicus curiae,
Ohio Attorney General Michael DeWine.
_________________
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