State v. Green

[Cite as State v. Green, 2012-Ohio-4362.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Sheila G. Farmer, J.
-vs- :
:
WILLIAM B. GREEN : Case No. 12-CA-17
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 11CR00026
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: September 24, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH W. OSWALT TODD W. BARSTOW
20 South Second Street 4185 East Main Street
4th Floor Columbus, OH 43213
Newark, OH 43055
Licking County, Case No. 12-CA-17 2
Farmer, J.
{¶1} On April 5, 2011, the Licking County Grand Jury indicted appellant,
William Green, on two counts of complicity to unlawful sexual conduct with a minor in
violation of R.C. 2923.03 and 2907.04, both felonies of the third degree. Said charges
arose from appellant's role in facilitating sexual relations between his fifteen year old
son and an adult neighbor.
{¶2} Appellant pled guilty as charged on May 24, 2011. By judgment entry filed
same date, the trial court held appellant's pleas in abeyance and ordered him into a
diversion program. The trial court reserved a sentence of three years on each count, to
be served consecutively, for a total term of six years in prison, if appellant violated the
terms of the diversion program.
{¶3} On January 9, 2012, the state filed a motion to revoke appellant's
community control. A hearing was held on February 1, 2012. By judgment entry filed
same date, the trial court revoked appellant's community control and imposed the
reserved six year prison sentence.
{¶4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶5} "THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY
IMPROPERLY SENTENCING HIM TO CONSECUTIVE TERMS OF INCARCERATION
IN CONTRAVENTION OF OHIO'S SENTENCING STATUTES."
Licking County, Case No. 12-CA-17 3
II
{¶6} "THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING
APPELLANT TO PRISON TERMS."
I
{¶7} Appellant claims the trial court erred in imposing consecutive sentences
without engaging in judicial fact-finding as now required by H.B. No. 86. We agree.
{¶8} 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:
{¶9} "(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:
{¶10} "(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.
{¶11} "(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
Licking County, Case No. 12-CA-17 4
committed as part of any of the courses of conduct adequately reflects the seriousness
of the offender's conduct.
{¶12} "(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime by the
offender.
{¶13} "(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."
{¶14} Appellant argues the trial court erred in imposing consecutive sentences
as it did not make the requisite findings to do so. On May 24, 2011, appellant pled
guilty to the two charges. By judgment entry filed same date, the trial court held
appellant's pleas in abeyance and ordered him into a diversion program. The trial court
reserved a sentence of three years on each count, to be served consecutively, for a
total term of six years in prison, if appellant violated the terms of the diversion program.
{¶15} Because the trial court held appellant's pleas in abeyance and ordered
him into a diversion program, there was no conviction on May 24, 2011. The trial court
revoked appellant's community control and sentenced him on February 1, 2012, after
the effective date of H.B. No. 86, to the reserved sentence of two three-year
Licking County, Case No. 12-CA-17 5
consecutive prison terms. Therefore, we find H.B. No. 86 controlled appellant's
sentencing.
{¶16} Although the trial court stated it was sentencing appellant under the
sentencing principles of R.C. 2929.11 and the seriousness and recidivism factors, we
find this is not judicial fact-finding under the H.B. No. 86 amendments.
{¶17} Assignment of Error I is granted for resentencing under H.B. No. 86.
II
{¶18} Based upon our decision in Assignment of Error I, this assignment is
moot.
{¶19} The judgment of the Court of Common Pleas of Licking County, Ohio is
hereby reversed.
By Farmer, J.
Gwin, P.J. and
Hoffman, J. concur.
_s / Sheila G. Farmer______________
s / W. Scott Gwin_________________
s / William B. Hoffman_____________
JUDGES
SGF/sg 911
[Cite as State v. Green, 2012-Ohio-4362.]
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
WILLIAM B. GREEN :
:
Defendant-Appellant : CASE NO. 12-CA-17
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Licking County, Ohio is reversed, and the
matter is remanded to said court for further proceedings consistent with this opinion.
Costs to appellee.
_s / Sheila G. Farmer______________
s / W. Scott Gwin_________________
s / William B. Hoffman_____________
JUDGES