State v. Reynolds

[Cite as State v. Reynolds, 2012-Ohio-5956.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Julie A. Edwards, J.
-vs-
Case No. 12 CA 7
DARL R. REYNOLDS, SR.
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 10 CR 497
JUDGMENT: Affirmed in Part; Reversed in Part and
Remanded
DATE OF JUDGMENT ENTRY: December 10, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GREGG MARX RUSSELL S. BENSING
PROSECUTING ATTORNEY 1370 Ontario Street
JOCELYN S. KELLY 1350 Standard Building
ASSISTANT PROSECUTOR Cleveland, Ohio 44135
239 West Main Street
Suite 101 BRADLEY KOFFEL
Lancaster, Ohio 43130 THE KOFFEL LAW FIRM
1801 Watermark Drive, Suite 350
Columbus, Ohio 43215
Fairfield County, Case No. 12 CA 7 2
Wise, J.
{¶1} Appellant Darl R. Reynolds, Sr., aka Rick Reynolds, appeals his multiple-
count drug trafficking conviction and sentence in the Court of Common Pleas, Fairfield
County. The relevant facts leading to this appeal are as follows.
{¶2} On December 17, 2010, the Fairfield County Grand Jury indicted appellant
on seven counts of drug trafficking under R.C 2925.03, including one count of
aggravated trafficking in drugs (a felony of the second degree), five counts of
aggravated trafficking in drugs (a felony of the third degree), and one count of
aggravated trafficking in drugs (a felony of the fourth degree). These counts were
based on allegations of several incidents of appellant trafficking in Oxycodone
Hydrochloride, a Schedule II controlled substance, and Oxymorphone, a Schedule II
controlled substance, in August and September 2010.
{¶3} Pursuant to a negotiated plea agreement, appellant pled guilty to an
amended indictment charging him with seven counts of aggravated trafficking in drugs,
R. C. 2925.03(A)(1) and 2925.03(C)(1)(a), all felonies of the fourth degree. A contested
sentencing hearing was held. The State recommended seventeen months in prison on
each count, to be served consecutively, with prison imposed for three counts and
suspended for four counts. Appellant argued to have all prison terms suspended for
community control.
{¶4} The trial court, via a judgment entry filed February 3, 2012, sentenced
appellant to twelve months of imprisonment on each count, to be served consecutively,
with credit for two days previously served. Five of the sentences were suspended for a
term of community control, to begin upon completion of the remaining prison terms.
Fairfield County, Case No. 12 CA 7 3
The court also ordered a driver's license suspension of six months on each count, to be
run consecutively.
{¶5} On February 10, 2012, appellant filed a notice of appeal. He herein raises
the following two Assignments of Error:
{¶6} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW BY
SENTENCING DEFENDANT TO CONSECUTIVE TERMS OF IMPRISONMENT
WITHOUT MAKING FINDINGS AT THE TIME OF THE SENTENCING HEARING,
AND WITHOUT GIVING REASONS FOR THE FINDINGS IN THE JOURNAL ENTRY
OF SENTENCING, AS REQUIRED BY R.C. §2929.14(C)(4).
{¶7} “II. THE TRIAL COURT ERRED AS A MATTER OF LAW BY IMPOSING
CONSECUTIVE DRIVERS LICENSE SUSPENSIONS UNDER R.C. §2925.03(G).”
I.
{¶8} In his First Assignment of Error, appellant contends the trial court erred in
ordering consecutive sentences without making proper findings and reasons under
R.C. 2929.14(C)(4). We disagree.
{¶9} In State v. Kalish, 120 Ohio St.3d 23, 896 N.E.2d 124, 2008–Ohio–4912, a
plurality opinion, the Ohio Supreme Court established a two-step procedure for
reviewing a felony sentence. The first step is to “examine the sentencing court's
compliance with all applicable rules and statutes in imposing the sentence to determine
whether the sentence is clearly and convincingly contrary to law.” Kalish at ¶ 4. The
second step requires the trial court's decision be reviewed under an abuse-of-
discretion standard. Id.Fairfield County, Case No. 12 CA 7 4
{¶10} Furthermore, in the case sub judice, H.B. 86 (effective September 30,
2011) controls the consecutive sentencing issues presented by appellant, who was
sentenced on January 25, 2012 (with a sentencing judgment entry filed February 3,
2012). We note H.B. 86 amended, inter alia, R.C. 2929.14(E)(4), (now subsection
(C)(4)), which now reads:
{¶11} “(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:
{¶12} “(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.
{¶13} “(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.
{¶14} “(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime by the
offender.”
Fairfield County, Case No. 12 CA 7 5
{¶15} Thus, although the enactment of H.B. 86 and the language of R.C.
2929.14(C)(4) now require trial courts to make factual findings when imposing
consecutive sentences, the new provisions do not require a sentencing court to give
reasons for imposing consecutive sentences akin to those once required by the Ohio
Supreme Court’s holding in State v. Comer, 99 Ohio St.3d 463, 793 N.E.2d 473, 2003–
Ohio–4165. State v. Bradley, Stark App.No. 2012CA00011, 2012-Ohio-4787, ¶ 39-¶
40, citing State v. Frasca, Trumbull App.No. 2011–T–0108, 2012–Ohio–3746, ¶ 56-¶
57 (additional citations omitted).
{¶16} The judgment entry of sentencing in the case sub judice reads in pertinent
part as follows:
{¶17} “The Court ordered that said sentences are to be served
consecutively to each other. The Court found on record that it did
consider all the law required to be considered regarding the imposition of
consecutive sentencing, and accordingly found consecutive sentencing is
appropriate in the present case. This included consideration of Revised
Code §2929.14(C)(4). Based on the Court’s statements on the record, the
Court found that such consecutive sentences are 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. Section
2929.14 also requires the Court to find at least one of three factors listed
under Revised Code §2929.14(C)(4)(a), (b) or (c) applicable to impose
consecutive sentencing. Neither paragraph a nor paragraph c applied as
Fairfield County, Case No. 12 CA 7 6
the hearing record reflected that Defendant had no prior history of criminal
conduct, and thus did not commit the offenses while awaiting trial or
sentencing or while under a court imposed sanction or post-release
control. Based on the Court’s statements on the record of considering all
relevant statutes, the Court by reference found the remaining paragraph
§2929.14(C)(4)(b) applicable and accordingly found that 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 any part of the courses of conduct adequately
reflects the seriousness of the offender’s conduct.”
{¶18} Judgment Entry, February 3, 2012, at 4-5.
{¶19} Upon review, we hold the trial court adequately made the findings, in the
sentencing entry, required by R.C. 2929.14(C)(4) in considering appellant’s total
sentence and did not abuse its discretion in reaching its decision.
{¶20} Appellant's First Assignment of Error is therefore overruled.
II.
{¶21} In his Second Assignment of Error, appellant contends the trial court erred
in imposing consecutive drivers license suspensions (six months for each of the seven
counts) under R.C. 2925.03(G). We agree.
{¶22} R.C. 2925.03(G) reads as follows: “When required under division (D)(2) of
this section or any other provision of this chapter, the court shall suspend for not less
than six months or more than five years the driver's or commercial driver's license or
Fairfield County, Case No. 12 CA 7 7
permit of any person who is convicted of or pleads guilty to any violation of this section
or any other specified provision of this chapter. * * *”
{¶23} Clearly, a driver's license suspension serves several legislative goals,
including being “an effective means to protect other drivers and passengers on the
roads and to deter future drug use and punish offenders." See State v. Thompkins
(1996), 75 Ohio St. 3d 558, 561, 664 N.E.2d 926. However, it is well-established that
the sentencing provisions set forth in the Revised Code are to be strictly construed
against the State and liberally construed in favor of the accused. See, e.g., State v.
Fanti, 147 Ohio App.3d 27, 30, 768 N.E.2d 718, 2001-Ohio-7028; R.C. 2901.04(A).
{¶24} We note the Second District Court of Appeals, addressing this same issue
in State v. Phinizee, Clark App.No. 95-CA-54, 1996 WL 391722, concluded that while
consecutive sentences of imprisonment are expressly provided for in R.C. 2929.41(B),
there was no express provision for consecutive driver's license suspensions in former
R.C. 2925.03(M), which utilized virtually the same “not less than six months or more
than five years” language. We are cognizant the case sub judice involved a negotiated
plea arrangement with a contested sentence hearing; however, upon review, we apply
similar reasoning and find reversible error in the trial court’s order of consecutive
license suspensions.
{¶25} Appellant's Second Assignment of Error is therefore sustained.
Fairfield County, Case No. 12 CA 7 8
{¶26} For the reasons stated in the foregoing opinion, the decision of the Court
of Common Pleas, Fairfield County, Ohio, is hereby affirmed in part, reversed in part,
and remanded to the trial court to further review appellant’s driver’s license
suspension.
By: Wise, J.
Gwin, P. J., and
Edwards, J., concur.
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JUDGES
JWW/d 1031
Fairfield County, Case No. 12 CA 7 9
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
DARL R. REYNOLDS, SR. :
:
Defendant-Appellant : Case No. 12 CA 7
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Fairfield County, Ohio, is affirmed in part,
reversed in part and remanded for further proceedings consistent with this opinion.
Costs to be split between the parties.
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JUDGES