State v. Troutt

[Cite as State v. Troutt, 2014-Ohio-1705.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. CT2013-0042
KENNETH D. TROUTT, JR.
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court
of Common Pleas, Case No. CR2012-0231
JUDGMENT: Vacated and Remanded
DATE OF JUDGMENT ENTRY: April 17, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RON WELCH WILLIAM T. CRAMER
Assistant Prosecuting Attorney 470 Olde Worthington Rd, Suite 200
27 North Fifth Street Westerville, Ohio 43082
Zanesville, Ohio 43701
Muskingum County, Case No. CT2013-0042 2
Hoffman, P.J.
{¶1} Defendant-appellant Kenneth Troutt appeals his sentence entered by the
Muskingum County Court of Common Pleas. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE CASE1
{¶2} On June 17, 2013, Appellant entered a plea of guilty to one count of rape
by force or threat of force, in violation of R.C. 2907.02(A)(2), and one count of
kidnapping, in violation of R.C. 2905.01(A)(4), both felonies of the first degree.
{¶3} The trial court imposed a sentence of six years incarceration on the
kidnapping charge and ten years incarceration on the rape charge, ordering the
sentences to run consecutively for an aggregate term of sixteen years. The trial court
further imposed a five year term of mandatory post-release control, and designated
Appellant a Tier III sex offender with an obligation to register for life.
{¶4} Appellant assigns as error:
{¶5} "I. THE TRIAL COURT VIOLATED DUE PROCESS AND R.C.
2929.14(C)(4) BY FAILING TO MAKE THE REQUISITE FINDINGS NECESSARY TO
SUPPORT CONSECUTIVE SENTENCES."
I.
{¶6} O.R.C. 2929.14(C) reads,
{¶7} "(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
1
A rendition of the underlying facts is unnecessary for our resolution of this appeal.
Muskingum County, Case No. CT2013-0042 3
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:
{¶8} "(a) The offender committed 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.
{¶9} "(b) The harm caused by the multiple offenses was so great or unusual
that no single prison terms for any of the offenses committed as part of a single course
of conduct adequately reflects' the seriousness of the offender's conduct.
{¶10} "(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime by the
offender.
{¶11} This Court recently addressed the requirements in imposing consecutive
sentences in State v. Williams, Stark App. No. 2013CA00189, 2013-Ohio-3448,
{¶12} "In 2003, the Ohio Supreme Court held in State v. Comer, 99 Ohio St. 3d
463, 2003–Ohio–4165, a court may not impose consecutive sentences unless it 'finds'
three statutory factors enumerated in then 2929.14(E)(4). The statutory factors were the
same as those now enumerated in the revised version of R.C. 2929.14(C)(4) following
enactment of H.B. 86. The revised version of the statute again requires the trial court to
“find” the factors enumerated.
{¶13} "The Court in Comer, supra, read R.C. 2929.14(E)(4), as it existed then, in
conjunction with then R.C. 2929.19(B), to reach its conclusion the trial court must also
state its reasons for the sentence imposed. Then R.C. 2929.19(B) stated the trial court
Muskingum County, Case No. CT2013-0042 4
'shall impose a sentence and shall make a finding that gives its reasons for selecting the
sentence imposed in any of the following circumstances ... (c) if it imposes consecutive
sentences under R.C. 2929.14.'
{¶14} "2011 Am.Sub.H.B. No. 86, which became effective on September 30,
2011, revived the language provided in former R.C. 2929.14(E) and moved it to R.C.
2929.14(C)(4). The revisions to the felony sentencing statutes under 2011 Am.Sub.H.B.
No. 86 now require a trial court to make specific findings when imposing consecutive
sentences.
{¶15} "The trial court must therefore make the required findings in compliance
with State v. Comer, 99 Ohio St. 3d 463, 2003–Ohio–4165. We have consistently stated
the record must clearly demonstrate consecutive sentences are not only appropriate,
but are also clearly supported by the record. See, State v. Fauntleroy, 5th Dist. No.
CT2012–0001, 2012–Ohio–4955; State v. Bonnell, 5th Dist. No. 12CAA3022, 2012–
Ohio–515.
{¶16} "In other words, in reviewing the record we must be convinced the trial
court imposed consecutive sentences because it had found consecutive sentences
were necessary to protect the public or to punish the offender, they are not
disproportionate to the seriousness of his conduct and the danger the offender poses to
the public. In addition, in reviewing the record we must be convinced that the trial court
found the offender's history of criminal conduct demonstrated consecutive sentences
were necessary to protect the public from future crime, or 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
Muskingum County, Case No. CT2013-0042 5
Revised Code, or was under post-release control for a prior offense, or 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.
R.C. 2929.14(C)(4)."
{¶17} At the sentencing hearing herein, the trial court stated on the record,
{¶18} "THE COURT: We are dealing with Count 2 and Count 4, Count 2,
kidnapping, a felony of the first degree, Count 4, rape, as amended, without the [SIC]
with the sexually violent offender specification, also a felony of the first degree. The
state now has recommended a prison sense [SIC] of 22 years, and your attorney has,
on your behalf, argued for an eight-year prison sentence.
{¶19} "***
{¶20} "You're a very dangerous man, Mr. Troutt. You've done some really
dangerous and bad things. They are just bad things clearly. Going through the
presentence investigation, each point where there's a sexual conviction or finding, you
seem to minimize it, your responsibility in it and make excuses for it. This is your first
felony. What are you 22 years old?
{¶21} "THE COURT: First felony convictions. That being said, your sentence on
Count 2, kidnapping, will be six years in prison. Your sentence on Count 4, rape, will be
ten years in prison. That is mandatory prison time. Those two terms to run
consecutively for an aggregate prison sentence of 16 years. You will be ordered to pay
court costs in this matter. You will be given credit for time served, 264 days. "
Muskingum County, Case No. CT2013-0042 6
{¶22} Tr. at 16-17.
{¶23} The trial court's July 23, 2013 Sentencing Entry states,
{¶24} "The Court has considered the record, all statements, any victim impact
statement, the presentence report prepared, the plea recommendation in this matter, as
well as the principles and purposes of sentencing under Ohio Revised Code §2929.11
and its balance of seriousness and recidivism factors under Ohio Revised Code
§2929.12."
{¶25} Upon review of the record, we do not find the trial court made the requisite
findings necessary to support the imposition of consecutive sentences herein.
{¶26} Appellant's sentence in the Muskingum County Court of Common Pleas is
therefore vacated, and the matter remanded for resentencing in accordance with the
law and this opinion.
By: Hoffman, P.J.
Farmer, J. and
Baldwin, J. concur