State v. Layson

[Cite as State v. Layson, 2023-Ohio-105.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals No. WD-22-007
WD-22-008
Appellee
Trial Court No. 2021CR0202
2021CR0422
v.
Ricky A. Layson DECISION AND JUDGMENT
Appellant Decided: January 13, 2023
*****
Paul A. Dobson, Wood County Prosecuting Attorney, and
David T. Harold, Chief Assistant Prosecuting Attorney, for appellee.
Jeffrey P. Nunnari, for appellant.
*****
OSOWIK, J.
{¶ 1} Appellant, Ricky A. Layson, appeals the January 13, 2022 judgment of the
Wood County Court of Common Pleas sentencing him to consecutive terms of
imprisonment on two cases. These cases were consolidated in this appeal.
{¶ 2} In case No. 2021CR0202, appellant was found guilty of Theft, in
violation of R.C. 2913.02(A)(l) and 2913.02(8)(2), a felony of the fifth degree.
{¶ 3} However, the judgment entry of sentencing in this case indicates that
Layson was sentenced for an offense of Attempted Theft, in violation of R.C.
2913.02(A)(l) and 2913.02(8)(2), a felony of the fifth degree.
{¶ 4} The record establishes that on November 16, 2022 (with a judgment
entry journalized on November 21, 2022) Layson entered a guilty plea to Theft,
Count One of the indictment, in R.C. 2913.02(A) (l) and 2913.02(8) (2), a felony of
the fifth degree. There was no amendment or reduction of the charge in this case.
The sentencing entry erroneously references the conviction as an Attempted offense.
{¶ 5} In that case, appellant was sentenced to serve a prison sentence of twelve
(12) months in the Ohio Department of Rehabilitation and Corrections. This
sentence was to be served consecutively to the sentence imposed in case No.
2021CR0422.
{¶ 6} In case No. 2021CR0422, the record establishes that Layson pled guilty
to Count One of the indictment, Theft, in violation of R.C. 2913.02(A)(l) and
2913.02(8)(2), a felony of the fifth degree.
{¶ 7} Identically to case No. 2021CR0202, the record establishes that on
November 16, 2022 (with a judgment entry journalized on November 21, 2022)
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Layson entered a guilty plea to Theft, Count One of the indictment, in R.C.
2913.02(A)(l) and 2913.02(8)(2), a felony of the fifth degree.
{¶ 8} Again, in its sentencing judgment entry, the trial court repeated the error
made in case No. 2021CR0202. The judgment entry of sentencing indicates that
Layson was being sentenced on an Attempted Theft charge when the court imposed a
prison sentence of twelve (12) months in the Ohio Department of Rehabilitation and
Corrections, to be served consecutively to the sentence imposed in case No.
2021CR0202. The sentencing entry in this case also erroneously references the
conviction as an Attempted offense.
{¶ 9} Layson presents to this court a single assignment of error for our review
as follows:
THE RECORD DOES NOT CLEARLY AND
CONVINCINGLY SUPPORT THE TRIAL COURT’S FINDINGS
FOR THE IMPOSITION OF CONSECUTIVE SENTENCES.
{¶ 10} Appellant argues that the sentencing judgment entry makes additional
findings that were not made by the trial court at the sentencing hearing. More
specifically, that the court made a finding that Layson was under a community
control sanction at the time that these offenses were committed.
{¶ 11} It is undisputed that the court made the following statements at
sentencing:
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I believe that these are multiple offenses and so that a
consecutive sentence is necessary to protect the public from future
crimes and to punish you. The consecutive sentences are not
disproportionate to the seriousness of your conduct or the danger that
you pose to the public. And in particular this is because your criminal
history and conduct demonstrates that consecutive sentences are
necessary to protect the public from future crime by you.
{¶ 12} The trial court also pointed out the appellant’s criminal history that
included 47 convictions not including these cases for Theft, Attempted Theft,
Receiving Stolen Property, Robbery, or other theft-related offenses.
Standard of Review
{¶ 13} The standard of review for the imposition of consecutive sentences is
governed by the clearly and convincingly standard set forth in R.C. 2953.08(G)(2).
See State v. Gwynne, 158 Ohio St.3d 279, 2019-Ohio-4761, 141 N.E.3d 169, ¶ 16.
{¶ 14} The appellate court may increase, reduce, or otherwise modify a sentence
that is appealed under this section or may vacate the sentence and remand the matter to
the sentencing court for resentencing. The appellate court may take any action authorized
by this division 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
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2929.20 of the Revised Code, whichever, if any, is relevant; (b) That the sentence is
otherwise contrary to law. State v. Nelson, 6th Dist. Wood No. WD-21-083, 2022-Ohio-
4308, ¶ 4-5.
Statutory Findings
{¶ 15} The imposition of consecutive sentences is governed by R.C. 2929.14(C)
(4). That section states:
(4) 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
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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.
{¶ 16} Thus, R.C. 2929.14(C)(4) requires that the trial court make three specific
findings before imposing consecutive sentences, including that: (1) consecutive sentences
are necessary to protect the public or to punish the offender; (2) consecutive sentences are
not disproportionate to the seriousness of the offender’s conduct and to the danger that
the offender poses to the public; and (3) finding that one of the subsection (a) (b) or (c)
statutory factors of R.C. 2929.14(C) (4) applies.
{¶ 17} The Supreme Court of Ohio has held that “[i]n 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 * * *.” State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶
37. Otherwise, the imposition of consecutive sentences is contrary to law. See id.{¶ 18} Although a word-for-word recitation of the language of the statute is not
required, a reviewing court must be able to discern that the trial court engaged in the
correct analysis, and to determine that the record contains evidence to support the trial
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court's findings. State v. Johnson, 6th Dist. Sandusky No. S-20-033, 2021-Ohio-2254, ¶
11-12, citing Bonnell at ¶ 29.
Analysis
{¶ 19} In Layson’s case, the trial court relevantly stated at the sentencing hearing
that the imposition of consecutive sentences were necessary to protect the public from
future crimes and to punish appellant. The trial court also stated that consecutive
sentences are not disproportionate to the seriousness of the conduct or the danger that
appellant poses to the public. The court also found that Layson’s extensive criminal
history supported the imposition of consecutive sentences to protect the public.
{¶ 20} The record establishes that Layson has an extensive criminal history as
the trial court noted at the sentencing hearing. At sentencing, appellant was 68 years
old and had accumulated a criminal history that included 47 convictions involving
predominantly theft-related offenses for Theft, Attempted Theft, Receiving Stolen
Property, Robbery, or other theft-related offenses.
{¶ 21} The record also establishes that the indictment in case No. 2021CR0202
charges appellant with a theft that occurred on December 17, 2020. Appellant was
arrested on April 12, 2021, posted bond, and was released on that date. The
indictment in case No. 2021CR0422 alleges a theft that occurred on May 2, 2021.
{¶ 22} Thus, it is undisputed that the record supports a finding under R.C.
2929.14(C) (4)(a) that Layson committed one or more of the multiple offenses while he
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was awaiting trial. However, at the sentencing hearing, the trial court failed to indicate
this finding as a justification for the imposition of consecutive sentences. Both
sentencing entries make reference to appellant being under a community control sanction
at the time the offenses were committed.
{¶ 23} Nevertheless, in both cases, the sentencing judgment entries explicitly
include the necessary statutory findings made under R.C. 2929.14(C) (4) that the
imposition of consecutive sentences were necessary to protect the public from future
crimes and to punish appellant. Further, that consecutive sentences are not
disproportionate to the seriousness of the conduct or the danger that appellant poses
to the public. The sentencing judgment entries also find one of the necessary
statutory findings under R.C. 2929.14(C) (4) (c) by referencing Layson’s extensive
criminal history.
{¶ 24} Thus, we cannot find that the imposition of consecutive sentences is
clearly and convincingly contrary to law when the trial court makes the necessary
findings and the record supports those findings required under R.C. 2929.14(C)(4)
and incorporated those findings into the judgment entries of sentencing.
{¶ 25} However, since the sentencing judgment entries do not reflect the findings
made at sentencing, we are compelled to remand this case back to the trial court to nunc
pro tunc its judgment entries to delete the references to community control sanctions
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being in place at the time of sentencing. In this manner, the sentencing judgment entries
will be in compliance with the Bonnell holding.
Conclusion
{¶ 26} On consideration whereof, the judgment of the Wood County Court of
Common Pleas is affirmed but these cases are remanded back to the trial court to
effectuate nunc pro tunc judgment entries in each case as follows:
{¶ 27} In case No. 2021CR0202 the sentencing judgment entry concerning the
imposition of sentence should reflect that appellant was convicted of Theft, not
Attempted Theft and further, to delete the finding not made at sentencing that
“Further, defendant’s crimes were committed while under community control
sanctions.”
{¶ 28} In case No. 2021CR0422 the sentencing judgment entry concerning the
imposition entry should reflect that appellant was convicted of Theft, not Attempted
Theft and further, to delete the finding not made at sentencing that “Further,
Defendant’s crimes were committed while under community control sanctions.”
{¶ 29} The judgment of the Wood County Court of Common Pleas is affirmed but
remanded to the trial court to effectuate the nunc pro tunc orders in each case as directed
herein. The costs of this appeal are to be split between the parties pursuant to App.R. 24.
Judgment affirmed
and remanded.
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State of Ohio
v. Ricky A. Layson
WD-22-007, WD-22-008
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________
JUDGE
Christine E. Mayle, J.
____________________________
Myron C. Duhart, P.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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