State v. Jude

[Cite as State v. Jude, 2014-Ohio-3441.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-13-1185
Appellee Trial Court No. CR0201202406
v.
Wesley Jude DECISION AND JUDGMENT
Appellant Decided: August 8, 2014
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
David F. Cooper, Assistant Prosecuting Attorney, for appellee.
Steven T. Casiere, for appellant.
*****
YARBROUGH, P.J.
I. Introduction
{¶ 1} Appellant, Wesley Jude, appeals the judgment of the Lucas County Court of
Common Pleas, sentencing him to a total of 11 years in prison following his guilty plea to
aggravated robbery and failure to comply with an order or signal of a police officer. For
the following reasons, we affirm.
A. Factual and Procedural Background
{¶ 2} Appellant’s convictions in this case arose out of an incident that occurred
during the early morning hours of August 15, 2012. On that date, appellant, along with
three other men, approached two females, Brandy Fasnaogh and Thea Grabiec, and asked
them for directions. At the time, Brandy and Thea were standing near Thea’s 2010
Honda automobile. Upon learning that the vehicle belonged to Thea, appellant
brandished a handgun and proceeded to rob Brandy and Thea at gunpoint. In so doing,
appellant pointed the handgun at Thea’s chest and stated “give me everything you have.”
Appellant then instructed the victims to lay on the ground, and explained to them that he
would kill them if they contacted the police. Meanwhile, appellant’s accomplices were
busy going through the victims’ pockets. One of the accomplices removed Thea’s keys,
wallet, and cell phone. After robbing the victims, appellant and his accomplices drove
off in Thea’s automobile. Appellant was the driver of the vehicle.
{¶ 3} Later that morning, Toledo police spotted Thea’s automobile and initiated a
traffic stop. However, appellant refused to stop the vehicle, and a pursuit began.
Ultimately, the pursuit ended when appellant lost control of the vehicle. Appellant was
then apprehended. Police later learned that appellant stole the handgun he used to
commit the robbery from his father. At the time of the incident, appellant was subject to
electronic monitoring as a term of his bond in a case that was pending in Wood County.
2.
However, appellant’s father informed police that appellant removed his electronic ankle
monitor without permission earlier in the morning.
{¶ 4} On August 23, 2012, appellant was indicted on two counts of aggravated
robbery in violation of R.C. 2911.01(A)(1), along with attendant firearms specifications,
and one count of failure to comply with an order or signal of a police officer in violation
of R.C. 2921.331(B) and (C)(5)(a)(ii). Appellant initially entered a plea of not guilty.
However, on October 22, 2012, appellant withdrew his plea of not guilty and entered a
guilty plea to one count of aggravated robbery with the attendant firearms specification
and one count of failure to comply with an order or signal of a police officer. The state
dismissed the remaining aggravated burglary count and firearm specification. After
receiving appellant’s guilty plea, the trial court ordered a presentence investigation report
and continued the matter for sentencing.
{¶ 5} Prior to sentencing in this case, appellant entered a guilty plea in the Wood
County case to two counts of grand theft of a motor vehicle in violation of R.C.
2913.02(A)(1) and (B)(5), and three counts of complicity to burglary in violation of R.C.
2923.03(A)(2) and (3) and R.C. 2911.12(A)(3). Appellant was subsequently sentenced to
six months each on the two counts of grand theft of a motor vehicle, to be served
concurrently. On the counts of complicity to burglary, the trial court ordered appellant to
serve 30 months in prison on each count, and ordered those sentences to be served
consecutively to each other and consecutively to the six months for grand theft, for a total
prison term of eight years.
3.
{¶ 6} On November 5, 2012, approximately two months after appellant was
sentenced in the Wood County case, the trial court in the present action imposed prison
terms of 10 years for aggravated robbery, one year for the firearm specification, and 30
months for failure to comply with an order or signal of a police officer. The trial court
ordered the sentences to be served consecutive to one another. Additionally, the trial
court ordered the sentences served consecutive to the sentence imposed in the Wood
County case. The court justified its imposition of consecutive sentences by stating:
We note that Count 1 [aggravated robbery] and Count 3 [failure to
comply with an order or signal of a police officer] by law must be served
consecutive to one another. We further find that these sentences based
upon the danger the defendant poses we find that he was awaiting * * * a
community control sanction out on bond when he committed these two
offenses, we further find that the harm caused was so great and unusual that
a single prison term for any one of the offenses committed as part of any of
the courses of conduct * * * would not adequately reflect the seriousness of
the offender’s conduct. We further find that the defendant’s criminal
history requires consecutive sentences. We do order that this sentence that
has now been imposed * * * shall be imposed consecutively with the Wood
County case 2012-CR-0205 and it is consecutive as to Count 1, 2, 3, 5 and
8 of that sentence out of Wood County.
4.
{¶ 7} The court reiterated its reasons for imposing consecutive sentences in its
judgment entry, stating:
The sentences imposed in count 1 and count 3 are ordered served
consecutively to each other and served consecutively to the sentence
imposed in Wood County, Ohio, case no. 2012CR0205. The Court finds
that the consecutive sentence is necessary to protect the public from future
crime or to punish the defendant, and not disproportionate to the
seriousness of the defendant’s conduct or the danger the defendant poses[.]
[T]he Court further finds that the defendant was awaiting a community
control sanction and was out on bond when he committed these two
offense[s], and the harm caused 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 and
defendant’s criminal history requires consecutive sentences.
{¶ 8} Appellant has timely appealed the trial court’s judgment to this court.
B. Assignment of Error
{¶ 9} In his appeal, appellant assigns the following error for our review:
1. THE TRIAL COURT VIOLATED OHIO REVISED CODE
SECTIONS 2929.14(C) AND 2929.41(A) WHEN IT ORDERED
APPELLANT’S SENTENCE TO RUN CONSECUTIVELY TO A
SENTENCE PREVIOUSLY IMPOSED IN WOOD COUNTY.
5.
II. Analysis
{¶ 10} We review consecutive sentences using the standard of review set forth in
R.C. 2953.08. State v. Banks, 6th Dist. Lucas No. L-13-1095, 2014-Ohio-1000, ¶ 10.
Under R.C. 2953.08(G)(2), we may either increase, reduce, or otherwise modify a
sentence, or vacate the sentence and remand the matter for resentencing where we clearly
and convincingly find that either the record does not support the trial court’s findings
under R.C. 2929.14(C)(4), or the sentence is otherwise contrary to law.
{¶ 11} In his assignment of error, appellant argues that the trial court failed to
make the required findings under R.C. 2929.14(C)(4) before it ordered the sentence to be
served consecutively to the sentence out of Wood County.1 Appellant also appealed his
sentence in the Wood County case, alleging that the trial court failed to make certain
findings required by statute as a prerequisite to imposing consecutive sentences. In State
v. Jude, 6th Dist. Wood No. WD-13-055, 2014-Ohio-2437, we held that the imposition of
consecutive sentences was clearly and convincingly contrary to law because the trial
court failed to make the statutory findings in its sentencing entry. Thus, we remanded the
matter to the trial court for resentencing. Here, however, we conclude that the trial court
made the requisite findings in its entry to support the consecutive sentence.
1
Appellant acknowledges that the trial court was statutorily required to order consecutive
sentences for aggravated robbery, failure to comply with a signal or order of a police
officer, and the firearm specification.
6.
{¶ 12} R.C. 2929.14(C)(4) provides:
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 sentence 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 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.
7.
{¶ 13} Notably, 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. Wright, 6th Dist. Lucas Nos.
L-13-1056, 1057, 1058, 2013-Ohio-5903, ¶ 33, quoting State v. Murrin, 8th Dist.
Cuyahoga No. 83714, 2004-Ohio-3962, ¶ 12.
{¶ 14} Specifically, appellant argues that the court, at the sentencing hearing, did
not find that consecutive sentences were not disproportionate to the seriousness of
appellant’s conduct. The state, on the other hand, citing to the sentencing hearing
transcript and the trial court’s judgment entry, asserts that the trial court engaged in the
appropriate analysis.
{¶ 15} Upon our review of the record, we agree with the state that the court
engaged in the appropriate analysis in determining whether consecutive sentences were
proportionate to the seriousness of appellant’s conduct and to the danger he poses to the
public under R.C. 2929.14(C)(4). At the sentencing hearing, the trial court stated that
[t]he offense for which [appellant is] to be sentenced is the kind of
offense that when a victim is faced with a firearm, we have seen the
horrible, devastating, eternal consequences of same where the victim is
facing the firearm and the armed robber then chooses to take their life.
Thank heavens that this didn’t occur in this case. But everything else leads
up to such violence.
8.
In addition to its statement at the sentencing hearing, the trial court noted its findings
supporting consecutive sentences in its judgment entry, in which it stated that “the
consecutive sentence is necessary to protect the public from future crime or to punish the
defendant, and not disproportionate to the seriousness of the defendant’s conduct or the
danger the defendant poses.” (Emphasis added.) While the court did not use such
precise language during the sentencing hearing, it is clear from the foregoing that the
court engaged in the appropriate analysis.
{¶ 16} Furthermore, we reject appellant’s assertion, rooted in the Ohio Supreme
Court’s decision in State v. Comer, 99 Ohio St. 3d 463, 2003-Ohio-4165, 793 N.E.2d 473,
that the trial court was required to specifically delineate its R.C. 2929.14(C)(4) findings
on the record at the sentencing hearing. In Comer, the Ohio Supreme Court held,
“Pursuant to R.C. 2929.14(E)(4) and 2929.19(B)(2)(c), when imposing consecutive
sentences, a trial court is required to make its statutorily enumerated findings and give
reasons supporting those findings at the sentencing hearing.” Comer at paragraph one of
the syllabus. At the time, former R.C. 2929.19(B)(2)(c) provided that, at the sentencing
hearing, the trial court “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 section 2929.14 of the Revised Code, its reasons for
imposing the consecutive sentences.” However, in 2011, the legislature amended R.C.
2929.19 as part of the sentencing overhaul in H.B. 86, and in so doing, removed the
original language under subsection (B)(2)(c). Thus, as we held in Jude, supra, there is no
9.
longer a statutory requirement that the trial court expressly make the R.C. 2929.14(C)(4)
findings at the sentencing hearing. Rather, a trial court’s imposition of consecutive
sentences complies with R.C. 2929.14(C)(4) where its findings are recited in the
sentencing entry and supported by the record from the sentencing hearing. State v.
Payne, 6th Dist. Lucas Nos. L-13-1024, 1025, 2014-Ohio-1147, ¶ 13-16; R.C.
2953.08(G)(2)(a).
{¶ 17} Because the sentencing entry in this case recites the trial court’s R.C.
2929.14(C)(4) findings, which are supported by the sentencing record, we hold that the
trial court’s imposition of consecutive sentences was not clearly and convincingly
contrary to law.
{¶ 18} Accordingly, appellant’s assignment of error is not well-taken.
III. Conclusion
{¶ 19} For the reasons stated above, the judgment of the Lucas County Court of
Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant
to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
10.
State v. Jude
C.A. No. L-13-1185
Mark L. Pietrykowski, J. _______________________________
JUDGE
Stephen A. Yarbrough, P.J.
_______________________________
James D. Jensen, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
11.