State v. Rock

[Cite as State v. Rock, 2015-Ohio-4639.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2015-L-047
- vs - :
DAVID V. ROCK, JR., :
Defendant-Appellant. :
Criminal Appeal from the Lake County Court of Common Pleas.
Case No. 14 CR 000525.
Judgment: Reversed and remanded.
Charles E. Coulson, Lake County Prosecutor, Lake County Administration Building, 105
Main Street, P.O. Box 490, Painesville, OH 44077; and Stephanie G. Snevel, Special
Prosecutor, P.O. Box 572, Wickliffe, OH 44092 (For Plaintiff-Appellee).
Charles R. Grieshammer, Lake County Public Defender, and Vanessa R. Clapp,
Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For
Defendant-Appellant).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, David V. Rock, Jr., appeals the judgment of the Lake County
Court of Common Pleas convicting him of one count of operating a vehicle under the
influence (“OVI”), a third-degree felony, in violation of R.C. 4511.19(A)(1)(a), and an
accompanying R.C. 2941.1413 specification for having been convicted of five or more
OVI offenses within the previous twenty years. Appellant was sentenced to a seven-
year term of imprisonment; his prison sentence is to be served consecutive to the
sentence imposed by the Ashland County Court of Common Pleas, Case No. 10-CRI-
081. Based on the following, we reverse and remand.
{¶2} On July 16, 2014, Mr. Rock, while driving, hit a guardrail and fled the
scene. Based on information from other drivers reporting the accident, Mr. Rock was
found at a car wash in the city of Willoughby by local police some time thereafter.
{¶3} Appellant pled guilty to one count of OVI, a third-degree felony, in violation
of R.C. 4511.19(A)(1)(a), and an accompanying R.C. 2941.1413 specification. At
appellant’s sentencing hearing, appellant admitted to having five previous OVI
convictions within the past twenty years: Lake County Common Pleas Case No.
02CR000085, January 16, 2003; Lake County Common Pleas Case No. 97CR000363,
March 30, 1998; Mentor Municipal Court Case No. 97C01819, June 9, 2007; Willoughby
Municipal Court Case No. 97C03346, May 22, 1997; and Willoughby Municipal Court
Case No. 95C09727, November 6, 1995.
{¶4} At the time of the sentencing hearing, appellant was serving a sentence
based on a probation violation from Ashland County. The trial court sentenced
appellant in this case to thirty-six months for the OVI charge and four years for the
attached specification, for a total seven-year prison term, to run consecutively to the
ten-month sentence appellant was serving from Ashland County.
{¶5} Appellant filed a timely notice of appeal and asserts one assignment of
error:
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{¶6} “The trial court erred by sentencing the defendant-appellant to an
excessive prison term of seven years consecutive to a prison term from another
county.”
{¶7} Under his sole assignment of error, appellant presents two issues for our
review. First, appellant maintains the trial court erred in ordering his prison term in this
case to be served consecutively to the prison term from Ashland County without first
making the statutory findings in R.C. 2929.14(C)(4). Second, appellant argues the trial
court erred when it imposed a prison term without considering the factors under R.C.
2929.12.
{¶8} The disposition of appellant’s first issue requires this court to remand the
matter for resentencing. We do not, however, find error in appellant’s second issue for
review.
{¶9} R.C. 2929.41, which governs multiple sentences, provides, in pertinent
part: “[e]xcept as provided in * * * division (C) of section 2929.14, * * * a prison term, jail
term, or sentence of imprisonment shall be served concurrently with any other prison
term, jail term, or sentence of imprisonment imposed by a court of this state[.]” R.C.
2929.41(A) (emphasis added). R.C. 2929.14(C)(4) provides that a trial court may
require an offender to serve consecutive prison terms if it 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 multiples offenses
while the offender was awaiting trial or sentencing, was under a
sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18
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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.
{¶10} Although a trial court must make the statutory findings to support its
decision to impose consecutive cases, it has no obligation to set forth its reasons to
support its findings as long as they are discernible in the record. State v. Bonnell, 140
Ohio St.3d 209, 2014-Ohio-3177, ¶28-29; State v. Jenkins, 8th Dist. Cuyahoga No.
101899, 2015-Ohio-2762, ¶9. Failure to make the R.C. 2929.14(C)(4) findings at the
sentencing hearing and incorporate them into the judgment entry of sentence renders
the sentence contrary to law. Bonnell at ¶37.
{¶11} Although the trial court did recognize appellant’s long history of criminal
convictions and that he has not responded favorably to previously imposed sanctions, it
failed to recognize the necessary additional findings for imposing consecutive
sentences. See R.C. 2929.14(C)(4). The trial court also failed to set forth any R.C.
2929.14(C)(4) findings in its judgment entry of sentence. Consequently, appellant’s
sentence is contrary to law. See Bonnell at ¶37.
{¶12} We do not, however, find merit in appellant’s second issue for review. A
felony sentence should be reasonably calculated “to protect the public from future crime
by the offender and others and to punish the offender using the minimum sanctions that
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the court determines accomplish those purposes without imposing an unnecessary
burden on state or local government resources.” R.C. 2929.11(A). A court imposing a
felony sentence is required to consider seriousness and recidivism factors found in R.C.
2929.12. However, it is well established that a trial court is “not required to make
findings of fact under the seriousness and recidivism factors in R.C. 2929.12.” State v.
ONeil, 11th Dist. Portage No. 2010-P-0041, 2011-Ohio-2202, ¶34.
{¶13} Our review of the trial court record reveals the trial court considered the
purposes and factors of felony sentencing in R.C. 2929.11 and R.C. 2929.12. The trial
court, both at sentencing and in the judgment of sentence, stated that it had considered
the factors in R.C. 2929.11 and R.C. 2929.12.
{¶14} Appellant’s first assignment of error has merit to the extent indicated. As
such, this court is required to remand the matter for resentencing.
{¶15} Based on the opinion of this court, the judgment of the Lake County Court
of Common Pleas is reversed, and this matter is remanded for proceedings consistent
with this opinion.
CYNTHIA WESTCOTT RICE, J.,
THOMAS R. WRIGHT, J.,
concur.
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