State v. Fisher

[Cite as State v. Fisher, 2013-Ohio-2081.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff - Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
WILLIAM CHARLES FISHER : Case No. 2012CA00031
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court
of Common Pleas, Case Nos.
2011CR0688 and 2011CR0674
JUDGMENT: REVERSED AND REMANDED
DATE OF JUDGMENT: May 13, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO AARON KOVALCHIK
Prosecuting Attorney 116 Cleveland Avenue N.W.
By: RONALD MARK CALDWELL Suite 808
Assistant Prosecuting Attorney Canton, OH 44702
110 Central Plaza South, Suite 510
Canton, Oh 44702
Stark County, Case No. 2012CA00031 2
Delaney, J.
{¶1} Defendant-Appellant William Charles Fisher appeals the November 21,
2011 judgment entries revoking Fisher’s community control sanctions and sentencing
Fisher to 56 months in prison. Plaintiff-Appellee is the State of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} The facts of this case involve two criminal cases. In Case No.
2011CR0674, Fisher was charged with four counts of trafficking in cocaine in violation
of R.C. 2925.03(A)(1)(c)(4)(a), felonies of the fifth degree. Fisher pleaded guilty to the
charges. On July 28, 2011, the trial court sentenced Fisher to five years community
control. The sentencing entry stated, “[v]iolation of any condition of this sentence shall
lead to either a more restrictive sanction, a longer sanction, or a prison term of forty-four
(44) months.”
{¶3} In Case No. 2011CR0688, Fisher was charged with two counts of
domestic violence. The first count was a third degree felony in violation of R.C.
2919.25(A) and the second count was a fifth degree felony in violation of R.C.
2919.25(A). Fisher entered a plea of guilty to Count One and the State dismissed
Count Two. On July 29, 2011, the trial court sentenced Fisher to five years of
community control. The entry stated, “[v]iolation of any condition of this sentence shall
lead to either a more restrictive sanction, a longer sanction, or a prison term of thirty-six
(36) months.”
{¶4} On October 13, 2011, Fisher’s probation officer filed a Motion to Revoke
Probation or Modify Former Order in both criminal cases. A hearing was held on
November 14, 2011. At the hearing, the State informed the trial court:
Stark County, Case No. 2012CA00031 3
“Prior to today, Your Honor, the Defendant did contact the Canton
Police Department and provided us with information in regards to a
pending homicide trial that the State deems extremely important.
As a result of that, the State of Ohio is here today to ask the Court
to – first of all, there is going to be a stipulation from the Defendant that he
violated the probation or the community control in both cases.
That upon that stipulation, the State of Ohio is going to ask the
Court to Case Number 2011-CR-0674 to reduce the Defendant’s total
sentence to 44 months by 24 months so that he would have a 20-month
sentence; to keep the sentence in 2011-CR-0688 the same which is 36
months so that the Defendant would be serving a total of 56 months in the
state penitentiary and receive credit for time served.
To that extent I have in my hand a document signed by Mr. Fisher
that says he is the Defendant in Case Number 2011-CR-0674. He agrees
to testify truthfully in any and all proceedings, including but not limited to
the trial in Case Number 2011-CR-1240C.
In exchange for his truthful testimony at all proceedings, he
understands the State of Ohio will reduce my total sentence in the amount
of 24 months. He further understands and agrees that should he fail to
testify truthfully as required by this agreement, it can be voided by the
State of Ohio, and his full sentence can be reimposed, and it bears his
signature, Your Honor.”
(Nov. 14, 2011 Hearing, T. 3-5).
Stark County, Case No. 2012CA00031 4
{¶5} The trial court clarified that the 80 months Fisher was originally sentenced
to was reduced by agreement to 24 months, so that the amount of prison time was 56
months. (T. 15). Counsel for Fisher agreed. (T. 16). The Agreement to Testify was
admitted as Exhibit 1 and filed under Case No. 2011CR0674 on December 6, 2011.
{¶6} The trial court sentenced Fisher as follows:
Mr. Fisher, it is the sentence of this court in regard to Case Number
2011-CR-0674, as I have previously stated to you, I am sentencing you to
a 10-month prison term in regard to each of the felonies of the fifth
degree.
First and second count I am running those consecutively with each
other. In regard to Counts 4 and 5, I am running those concurrently with
Counts 1 and 2; to the end that you have a 20-month prison term in regard
to 2011-CR-0674.
In regard to 2011-CR-0688 in regard to the single remaining
charge, which is a felony of the third degree, I am sentencing you to a 36-
month prison term. That is to be run consecutively with the 20 months
that you received in Case Number 2011-CR-0674; to the end that you
have a 56-month prison term.
(Nov. 14, 2011, T. 16-17).
{¶7} The sentences were journalized on November 21, 2011. It is from these
judgment entries Fisher now appeals.
Stark County, Case No. 2012CA00031 5
ASSIGNMENTS OF ERROR
{¶8} Fisher raises two Assignments of Error as to his November 21, 2011
sentencing:
{¶9} “I. THE TRIAL COURT ERRED WHEN IT FAILED TO FOLLOW RC
2929.14 BY ORDERING APPELLANT TO SERVE CONSECUTIVE SENTENCES."
{¶10} “II. THE TRIAL COURT ERRED WHEN IT FAILED TO FOLLOW RC
2929.41 BY ORDERING APPELLANT TO SERVE CONSECUTIVE SENTENCES."
ANALYSIS
I., II.
{¶11} We consider Fisher’s two Assignments of Error together because they are
interrelated. Fisher claims the trial court erred in imposing consecutive sentences
without engaging in judicial fact-finding as required by H.B. No. 86. We agree.
{¶12} Effective September 30, 2011, R.C. 2929.14 was amended by H.B. No.
86. Section 4 of H.B. No. 86 provides that it “appl[ies] to a person who commits an
offense * * * on or after the effective date of this section and to a person to whom
division (B) of section 1.58 of the Revised Code makes the amendments applicable.”
R.C. 1.58(B) states: “If the penalty, forefeiture, or punishment for any offense is reduced
by a reenactment or amendment of a statute, the penalty, forefeiture, or punishment, if
not already imposed, shall be imposed according to the statute as amended.”
{¶13} Fisher’s offenses were committed prior to the effective date of H.B. 86.
Fisher pleaded guilty to the offenses and the trial court imposed community control
sanctions. The sentencing entry in Case No. 2011CR0674 stated, “[v]iolation of any
condition of this sentence shall lead to either a more restrictive sanction, a longer
Stark County, Case No. 2012CA00031 6
sanction, or a prison term of forty-four (44) months.” The sentencing entry in Case No.
2011CR0688 stated, “[v]iolation of any condition of this sentence shall lead to either a
more restrictive sanction, a longer sanction, or a prison term of thirty-six (36) months.”
{¶14} Fisher’s probation officer filed a Motion to Revoke on October 13, 2011
and a sentencing hearing was held on November 14, 2011. Fisher stipulated he
violated the terms of his community control sanctions and the trial court ordered the
community control sanctions be revoked and the prison term imposed. The trial court
sentenced Fisher in Case No. 2011CR0674 to 10 months on each count of Trafficking
in Cocaine, four counts. Fisher was to serve Counts One and Two consecutively;
Counts Three and Four concurrently; and consecutive to Case No. 2011CR0688 for a
total sentence of 56 months. In Case No. 2011CR0688, the trial court sentenced Fisher
to a prison term of 36 months on one count of Domestic Violence.
{¶15} Three appellate districts have recently held that a prison term is not
imposed until the offender’s community control is revoked. State v. Nistelbeck, 10th
Dist. No. 11AP-874, 2012-Ohio-1765; State v. West, 2nd Dist. No. 24998, 2012-Ohio-
4615; State v. Marshall, 6th Dist. No. E-12-022, 2013-Ohio-1481. The basis for so
holding rests upon the language of R.C. 2929.19(B)(5) [now subsection R.C.
2929.19(B)(4)] and the Ohio Supreme Court’s decision in State v. Brooks, 103 Ohio
St.3d 134, 2004-Ohio-4746, 814 N.E.2d 837.
{¶16} R.C. 2929.19(B)(4) states:
If the sentencing court determines at the sentencing hearing that a
community control sanction should be imposed and the court is not
prohibited from imposing a community control sanction, the court shall
Stark County, Case No. 2012CA00031 7
impose a community control sanction. The court shall notify the offender
that, if the conditions of the sanction are violated, if the offender commits a
violation of any law, or if the offender leaves this state without the
permission of the court or the offender's probation officer, the court may
impose a longer time under the same sanction, may impose a more
restrictive sanction, or may impose a prison term on the offender and shall
indicate the specific prison term that may be imposed as a sanction for the
violation, as selected by the court from the range of prison terms for the
offense pursuant to section 2929.14 of the Revised Code.
The Ohio Supreme Court in Brooks held that based upon this language, the trial court is
required, at sentencing, to “notify the offender of the specific prison term that may be
imposed for a violation of the conditions of the sanction, as a prerequisiste to imposing
a prison term on the offender for a subsequent violaton.” State v. Marshall, 2013-Ohio-
1481, ¶ 10 citing Brooks, supra, paragraph two of the syllabus.
{¶17} “Ultimately, the Tenth District held that a prison term applicable only upon
a defendant's violation of community control is not actually imposed until community
control is revoked. Nistelbeck at ¶ 10. Subsequently, the Second District examined the
decision in Nistelbeck and reached the same result. West at ¶ 14.” Marshall at ¶ 11.
The Sixth District also followed Nistelbeck because the trial court in its case stated the
defendant’s prison term “would be imposed” if the community control sanctions were
violated. The conditional language used by the trial court supported the conclusion the
prison term was not actually imposed until the community control sanctions were
revoked, which was after the effective date of H.B. No. 86. Marshall at ¶ 12.
Stark County, Case No. 2012CA00031 8
{¶18} In our case, the trial court stated in both cases a “[v]iolation of any
condition of this sentence shall lead to either a more restrictive sanction, a longer
sanction, or a prison term * * *.” (Emphasis added.) The use of the conditional
language by the trial court supports our agreement with the holdings of Nistelbeck,
West, and Marshall that Fisher’s prison terms were not imposed until Fisher’s
community control sanctions were revoked. The prison terms were imposed on
November 21, 2011, after the effective date of H.B. No 86.
{¶19} H.B. No 86 amended subsection (E)(4) of R.C. 2929.14 [now subsection
(C)(4) ] and subsection (A) of R.C. 2929.41, effective September 30, 2011, and now
state the following, respectively:
(C)(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
Stark County, Case No. 2012CA00031 9
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.
(A) Except as provided in division (B) of this section, division (E) of section
2929.14, or division (D) or (E) of section 2971.03 of the Revised Code, 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, another state, or the United
States. Except as provided in division (B)(3) of this section, a jail term or
sentence of imprisonment for misdemeanor shall be served concurrently
with a prison term or sentence of imprisonment for felony served in a state
or federal correctional institution.
{¶20} Pursuant to R.C. 2929.14, as revised by H.B. 86 in effect at the time of
sentencing herein, the trial court was required to make the statutorily required findings
prior to imposing consecutive sentences. The trial court is not required to recite any
“magic” or “talismanic” words when imposing consecutive sentences provided it is “clear
from the record that the trial court engaged in the appropriate analysis.” State v.
Fauntleroy, 5th Dist. No. CT2012-0001, 2012-Ohio-4955, ¶ 7 citing State v. Murrin, 8th
Dist. No. 83714, 2004–Ohio–3962, ¶ 12. Accord, State v. Jones, 1st Dist. No. C–
110603, 2012–Ohio–2075, ¶ 22. In this case, our review of the sentencing hearing
Stark County, Case No. 2012CA00031 10
demonstrates the trial court did not make the requisite findings. We reverse the
November 21, 2011 judgment entries and remand the matter for limited purpose of
resentencing.
{¶21} The State argues this Court is without jurisdiction to consider Fisher’s
appeal of his sentencing because the sentence was the result of an agreed upon
sentence. Fisher signed an “Agreement to Testify” wherein the State agreed to reduce
Fisher’s total sentence by the amount of 24 months. The State contends the
“Agreement to Testify” is within the purview of R.C. 2953.08(D)(1) which states:
A sentence imposed upon a defendant is not subject to review under this
section if the sentence is authorized by law, has been recommended
jointly by the defendant and the prosecution in the case, and is imposed
by a sentencing judge.
{¶22} The Ohio Supreme Court in State v. Underwood, 124 Ohio St.3d 365,
2010-Ohio-1, 922 N.E.2d 923, held that under R.C. 2953.08(A), a sentence that is
“contrary to law” is appealable by a defendant. Id. at ¶ 16. “A sentence is ‘authorized
by law’ and is not appealable within the meaning of R.C. 2953.08(D)(1) only if it
comports with all mandatory sentencing provisions.” Id. at paragraph two of the
syllabus.
{¶23} In this case, the trial court failed to make the statutorily enumerated
findings pursuant to the requirements of R.C. 2929.14 in imposing consecutive
sentences upon Fisher. The requirements imposed by H.B. No. 86 are applicable
because Fisher’s community control was revoked and the prison term was imposed
after the effective date of H.B. 86. Accordingly, we cannot say the sentence comports
Stark County, Case No. 2012CA00031 11
with all mandatory sentencing provisions therefore making Fisher’s sentence
appealable under R.C. 20953.08(A).
{¶24} Accordingly, Fisher’s first and second Assignments of Error are sustained.
CONCLUSION
{¶25} The November 21, 2011 sentencing entries of the Stark County Court of
Common Pleas are reversed and the matter is remanded to the trial court for
resentencing pursuant to this Opinion and law.
By Delaney, J.
Gwin, P.J. and
Baldwin, J. concur.
_______________________________
_______________________________
_______________________________
JUDGES
PAD/kgb
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
WILLIAM CHARLES FISHER :
:
Defendant-Appellant : CASE NO. 2012CA00031
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Stark County, Ohio is reversed and the
matter remanded. Costs to Appellee.
_______________________________
_______________________________
_______________________________
JUDGES