State v. Holmes

[Cite as State v. Holmes, 2014-Ohio-2724.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
)
PLAINTIFF-APPELLEE, )
) CASE NO. 13 MA 76
V. )
) OPINION
SHEROD HOLMES, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common
Pleas of Mahoning County, Ohio
Case No. 13CR156
JUDGMENT: Reversed and Remanded
APPEARANCES:
For Plaintiff-Appellee Paul Gains
Prosecutor
Ralph M. Rivera
Assistant Prosecutor
21 W. Boardman St., 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant Attorney Edward A. Czopur
42 North Phelps St.
Youngstown, Ohio 44503
JUDGES:
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Dated: June 19, 2014
[Cite as State v. Holmes, 2014-Ohio-2724.]
DONOFRIO, J.
{¶1} Defendant-appellant Sherod Holmes appeals the decision of the
Mahoning County Common Pleas Court sentencing him to consecutive sentences for
one count each of gross sexual imposition and importuning. He contends that the
court erred in imposing consecutive sentences by failing to fulfill its judicial fact-
finding duties under R.C. 2929.14(C).
{¶2} On March 27, 2013, Holmes pleaded guilty to a bill of information
containing two counts of gross sexual imposition in violation of R.C.
2907.05(A)(1)(C)(1), fourth-degree felonies and two counts importuning in violation of
R.C. 2907.07(B)(1)(F)(3), fifth-degree felonies. In exchange, the state agreed to
recommend a twenty-four month term of imprisonment and that it would not object to
judicial release after he had served six months of that sentence.
{¶3} Sentencing was held on April 24, 2013. The court sentenced Holmes to
a concurrent twelve-month term of imprisonment on each of the counts. The court
also ordered the term for one of the gross sexual imposition counts to be served
consecutively with one of the terms for the importuning counts for an aggregate
sentence of twenty-four months in prison on all counts. This appeal followed.
{¶4} Holmes’s sole assignment of error states:
The sentence imposed against Mr. Holmes was in violation of
[R.C.] 2929.14(C)(4) and an abuse of discretion as the trial court did not
make the necessary findings before imposing consecutive sentences.
{¶5} In support of his argument that the trial court did not make the
necessary findings for consecutive sentences, Holmes quotes the court’s statement
at the sentencing hearing concerning the consecutive sentences:
[I]n order to protect the public and recognizing the severity of the
offenses involved and what the Court deems as a recidivism factor in
this type of crime, the Defendant in the second count, Count Four, will
be sentenced -- or in Count Three, will be sentenced consecutively to
the sentence imposed in Count One and Count Two.
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(Sentencing Hearing Tr. 22.)
{¶6} In response, the state argues that the record supports the trial court
imposition of consecutive sentences referring to the fact that: (1) Holmes pleaded
guilty to four sexually-related offenses against three separate victims that occurred
on three separate occasions; (2) Holmes committed the offenses while he was
employed as a probation officer for Mahoning County Juvenile Court; and (3) two of
the victims’ mothers spoke at the sentencing hearing about the effect that these
offenses had on their daughters. The state also points to the trial court’s statement at
the sentencing hearing that it was considering the principles and purposes of
sentencing, and that consecutive sentences were needed to protect the public, based
upon the severity of the offenses, and the likelihood of recidivism.
{¶7} Pursuant to 2011 H.B. 86, effective September 20, 2011, a court
imposing consecutive sentences must make certain findings. This legislation was
enacted in response to the Ohio Supreme Court’s statement that its Foster decision
was incorrect in striking down statutory consecutive sentence provisions and that the
legislature would need to enact a new statute to revive any requirement of findings
for consecutive sentences. State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941
N.E.2d 768, paragraph three of the syllabus.
{¶8} R.C. 2929.14(C)(4) sets forth the findings required for imposition of
consecutive sentences:
(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:
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(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 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.
{¶9} In analyzing whether a sentencing court complied with R.C.
2929.14(C)(4), this court has held that a trial court is not required to recite any magic
or talismanic words when imposing consecutive sentences but it must be clear from
the record that the trial court engaged in the appropriate analysis. State v. Power, 7th
Dist. No. 12 CO 14, 2013-Ohio-4254, ¶ 40; State v. Bellard, 7th Dist. No. 12 MA 97,
2013-Ohio-2956, ¶ 17. “Although the trial court is not required to recite the statute
verbatim, there must be an indication that the court in fact found that (1) consecutive
sentences are necessary to protect the public from future crime or to punish the
offender, (2) that consecutive sentences are not disproportionate to the seriousness
of the defendant’s conduct and to the danger he poses to the public, and (3) one of
the findings described in subsections (a), (b) or (c). R.C. 2929.14(C)(4).” Bellard at ¶
17. See also Power at ¶ 37.
{¶10} Because the record can either contain magic words or words which
reflect that a finding was actually made, determining whether a sentencing court has
complied with R.C. 2929.14(C)(4) has become fact specific, particularly where the
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sentencing court has not employed the magic words. Some recent examples from
this appellate district follows.
{¶11} In State v. Verity, 7th Dist. No. 12 MA 139, 2013-Ohio-1158, the
sentencing court stated:
THE COURT: * * * Well, as everybody is aware, I have the
benefit of having the pre-sentence investigation. I am sure your lawyer
has gone over it with you. And of particular interest to the court is that
these four different counts are your * * * ninth, tenth, eleventh, twelfth
felony count. When you committed these offenses you were already out
on community control. In addition to that, you have a minimum of at
least 12 prior misdemeanor convictions all involving thievery, theft,
criminal trespass, everything, which is indicative also, I might add,
recognizing you that you have obviously some underlying problem. But
your underlying problem, obviously, in the years past has been kicked
aside and ignored and obviously must have [sic] recognized that
something transpired, at least in this twelfth felony, that it was about
time to do something. But at the same time it was a little late. I might
also add I am not taking into account you have had more cases
dismissed than the average citizen has filed against them. And,
obviously, you stood in front of judges and told them that, you know,
you are trying to do what you can. * * *
But taking everything into account, particularly your prior criminal
history, your history of reoffending, all of a similar nature, and in
reviewing the principles and purposes of sentencing, and in particular in
reviewing the crimes that you committed while you are under the control
of another court, and it shows this court that consecutive sentencing is
needed to protect the public. And I might also add that in the PSI, in the
pre-sentence investigation, it is noted that there was a very significant
loss of damages.
-5-
(Emphasis sic.) Verity at ¶ 34.
{¶12} This court found that the above statement was enough to establish
compliance with R.C. 2929.14(C)(4)(c) (history of criminal conduct), but went on to
add that Verity’s sentencing entry contained a more explicit finding from the
sentencing court with regard to proportionality: “The Court finds that in order to
protect the public and not punish the Defendant disproportionately and pursuant to §
2929.14(C)(4) that a consecutive prison term is necessary due to Defendant’s
previous convictions and a high risk of recidivism.” Id. at ¶ 36.
{¶13} In State v. Kornegay, 7th Dist. No. 12 MA 10, 2013-Ohio-658, the
appellant was convicted of violating community control by committing burglary,
robbery and receiving stolen property offenses. Apparently referring to R.C.
2929.14(C)(4)(c) (history of criminal conduct), this court held that the sentencing
court’s findings were enough for imposition of consecutive sentences where:
At sentencing, the trial court found that appellant committed the
crimes “during the course of the time period where he was involved in
other matters” and that this demonstrated that a sentence on a single
term would not adequately represent the seriousness of the offenses
and would not adequately protect the public. (Tr. 13-14). The court also
noted that recidivism was a “big problem”. (Tr. 14). It pointed out that
when it gave appellant the opportunity for day reporting and treatment,
he was not able to comply. (Tr. 14). Thus, the trial court gave adequate
support under R.C. 2929.14(C)(4) for ordering consecutive sentences.
Kornegay at ¶ 19.
{¶14} Conversely in State v. Esmail, 7th Dist. No. 11 CO 35, 2013-Ohio-2165,
this court reversed the trial court’s sentence for failing to make sufficient findings
pursuant to R.C. 2929.14(C)(4). In Esmail, the trial court stated in the sentencing
entry that it considered “the purposes and principles of sentencing, and all other
relevant factors, (O.R.C. 2929.11 and 12).” Id. at ¶ 22. During the sentencing hearing
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the trial court, in addition to acknowledging the defendant’s prior drug trafficking
convictions as noted by the State, made the following findings:
I have considered all of the appropriate factors in this case, I
believe; including the Presentence Investigation.
***
I would also note, sir, back in 2003, according to my review, was
the first time that there was some sort of a drug-related offense. I do not
believe that you are amendable to Community Control. Again, based on
the past record that I see reflected in the Presentence Investigation.”
***
I do believe that this sentence today is consistent with the terms
of Senate Bill 86. Again, the primary purposes of which are to protect
the public and to punish the offender.”
Esmail at ¶ 21.
{¶15} This court held that these findings were insufficient as a matter of law:
The trial court did find that Esmail’s sentence was necessary to
protect the public and to punish the offender, but this was the only one
of the three findings required by R.C. 2929.14(C)(4) the trial court made
before imposing consecutive sentences. The trial court did not find that
the consecutive sentences are not disproportionate to the seriousness
of Esmail’s conduct and to the danger he poses to the public. And
although the trial court noted Esmail’s prior record, it did so in the
context of community control; no finding was made with respect to
consecutive sentences in light of Esmail’s record. While the trial court
did state that it believed the sentence was consistent with “Senate Bill
86.” this was not enough to comply with R.C. 2929.14(C)(4). Although
the trial court was not required to use the exact words of the statute,
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generally citing to H.B. 86 is not sufficient to show the court made the
required statutory findings.
Esmail at ¶ 23.
{¶16} The only findings concerning consecutive sentences that can be
gleaned from the trial court’s statements in this case came towards the end of the
hearing when the court actually pronounced the sentence:
COURT: Okay. Taking everything into consideration and the
Defendant’s appearance of some remorse, and considering the
principles and purposes of sentencing, it is going to be the order of the
Court in Count One, the felony four, Gross Sexual Imposition, the
Defendant will be sentenced to a 12-month stay at the Lorain
Correctional Facility.
In Count Two, that’s also a Gross Sexual Imposition, it will be the
order of the Court that the Defendant will be sentenced to a 12-month
stay in Lorain Correctional Facility. That Count Two will be served
concurrently with Count One.
In Count Three, the Importuning count, a felony of the fifth
degree, the Defendant will be sentenced to a 12-month stay at the
Lorain Correctional Facility, and in order to protect the public and
recognizing the severity of the offenses involved and what the Court
deems as a recidivism factor in this type of a crime, the Defendant in
the second count, Count Four, will be sentenced -- or in Count Three,
will be sentenced consecutively to the sentence imposed in Count One
and Count Two.
Count Four, it’s another felony five, Importuning. The Defendant
will be sentenced to a 12-month stay at the Lorain Correctional Facility
to be served concurrently with the sentence imposed in Count One and
Two.
-8-
Thus, the Defendant has a total of two years’ confinement.
(Emphasis added.) (Sentencing Hearing Tr. 21-23.)
{¶17} The May 3, 2013 sentencing entry itself contains no findings relative to
the court’s imposition of consecutive sentences.
{¶18} Here, the trial court did not make all of the three findings required for
imposition of consecutive sentences. The first required finding is that consecutive
sentences are necessary to protect the public from future crime or to punish the
offender. Here, the court met this requirement when it stated that it was imposing
consecutive sentences “in order to protect the public.”
{¶19} The second required finding is that consecutive sentences are not
disproportionate to the seriousness of the defendant’s conduct and to the danger he
poses to the public. The court’s statement that it was imposing consecutive
sentences in order to “recogniz[e] the severity of the offenses involved” would seem
to be enough to support that there was a finding that consecutive sentences were not
disproportionate to the seriousness of the defendant’s conduct. Arguably, the court’s
statement that it was imposing consecutive sentences “in order to protect the public”
could be construed as a reference to whether Holmes posed any danger to the
public. But, due to the complete absence of the third required finding, it is
unnecessary for us to reach a conclusion in that regard.
{¶20} The third required finding is one of the findings described in subsections
(a), (b), or (c) to R.C. 2929.14(C)(4). Based on the record before this court, it does
not appear that subsections (a) or (c) would be applicable. There was no indication
that Holmes had been under any type of judicial sanction or constraint at the time he
committed these offenses or that he had prior history of criminal conduct. But, given
that there were multiple offenses, subsection (b) might be applicable if the harm
caused was so great or unusual that consecutive sentences were necessary to
address the seriousness of Holmes’s conduct. As indicated, the trial court mentioned
the severity of the offenses. However, it did not reference the harm caused by those
offenses.
-9-
{¶21} In sum, the trial court’s failure to adequately address consecutive
sentences under R.C. 2929.14(C)(4) at the sentencing hearing combined with the
complete absence of any such findings in the judgment entry of sentence itself leads
us to the conclusion that Holmes’s sentence is contrary to law because the trial court
failed to make all of the required findings before imposing consecutive sentences
under R.C. 2929.14(C)(4). Accordingly, Holmes’s sole assignment of error has merit.
{¶22} The judgment of the trial court is reversed and this case remanded for
resentencing.
Waite J., concurs.
DeGenaro, P.J., concurs.