State v. Wilson

[Cite as State v. Wilson, 2013-Ohio-4035.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99260
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JOSEPH WILSON
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-505583
BEFORE: Blackmon, J., Boyle, P.J., and McCormack, J.
RELEASED AND JOURNALIZED: September 19, 2013
-i-
ATTORNEY FOR APPELLANT
Steve W. Canfil
Standard Building, Suite 2000
1370 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Mary H. McGrath
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:
{¶1} Appellant Joseph T. Wilson appeals from the trial court’s resentencing and
assigns the following errors for our review:
I. The trial court committed plain error by violating Wilson’s constitutional
rights and Crim.R. 43 when it conducted a resentencing hearing via video
conference without obtaining Wilson’s waiver of his right to be physically
present at all proceedings.
II. Wilson was denied his constitutional right to effective assistance of
counsel at the resentencing hearing.
III. The trial court erred when it “incorporated” a previous proceeding into
its decision to reimpose the same sentence.
{¶2} Having reviewed the record and pertinent law, we reverse and remand for a
new sentencing hearing. The apposite facts follow.
{¶3} On July 18, 2008, a jury convicted Wilson of aggravated robbery, felonious
assault, and kidnapping. The convictions flowed from an incident in which Wilson, along
with five others, robbed and viciously attacked the victim as he walked home following
his evening jog. The trial court imposed consecutive sentences of ten years for
aggravated robbery, eight years for felonious assault, and seven years for the kidnapping,
for a total imprisonment of 25 years.
{¶4} Wilson appealed his convictions and sentence. In State v. Wilson, 8th
Dist. Cuyahoga No. 91971, 2010-Ohio-1196 (“Wilson I”), we held that kidnapping and
felonious assault, as well as kidnapping and aggravated robbery, were allied offenses of
similar import, and that Wilson did not have a separate animus for the kidnapping. Id. at
¶ 92, 96.
{¶5} We also held that felonious assault and aggravated robbery were not allied
offenses and, therefore, not subject to merger. Id. at ¶ 97. Consequently, we reversed
Wilson’s sentence and remanded for a new sentencing hearing where the prosecutor
would elect which of the allied offenses he wanted to pursue for sentencing. Id. at ¶ 98.
{¶6} The state appealed our decision to the Ohio Supreme Court and argued that
the trial court lacked authority on remand to conduct a de novo sentencing hearing. In
State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, paragraph one of
the syllabus (“Wilson II”), the Ohio Supreme Court rejected the state’s argument and
affirmed our decision. The Ohio Supreme Court specifically held that when a cause is
remanded to a trial court to correct an allied-offenses sentencing error, the trial court must
hold a new sentencing hearing for the offenses that remain after the state selects which
allied offense or offense to pursue. Id.{¶7} On remand from the Ohio Supreme Court, the trial court held a
resentencing hearing, and the state elected to have Wilson sentenced on the aggravated
robbery and felonious assault convictions. The trial court proceeded to sentence Wilson
to ten years for the aggravated robbery conviction, and six years for the felonious assault
conviction, to be served consecutively for a total of 16 years in prison.
{¶8} Wilson subsequently appealed and argued that his sentence was contrary to
law because the trial court failed to make the findings required by R.C. 2929.14(C)(4) to
impose consecutive sentences. In State v. Wilson, 8th Dist. Cuyahoga No. 97827,
2012-Ohio-4159 (“Wilson III”), we were constrained to remand for another resentencing
hearing because the trial court failed to make the findings required by R.C.
2929.14(C)(4). Specifically, the trial court did not find on the record that consecutive
sentences were necessary to protect the public from future crime or to punish Wilson, and
not disproportionate to the seriousness of his conduct and to the danger he posed to the
public, and that one of the factors set forth in R.C. 2929.14(C)(4)(a) through (c) applied
to Wilson. Id.{¶9} On remand, the trial court conducted a resentencing hearing with Wilson
appearing from prison via video conferencing. The trial court sentenced Wilson to ten
years for the aggravated robbery conviction and six years for the felonious assault
conviction, to be served consecutively for a total of 16 years in prison. Wilson now
appeals.
Incorporating Prior Findings
{¶10} We begin with the third assigned error, which is dispositive of the instant
appeal. Wilson argues the trial court erred when it incorporated findings from the
previous sentencing hearing to impose the same sentence. We are constrained to agree.
{¶11} R.C. 2929.14(C)(4) provides:
(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 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.
{¶12} This statutory language directs that the trial court must “find” the relevant
sentencing factors before imposing consecutive sentences. R.C. 2929.14(C)(4). In making
these findings, a trial court is not required to use “talismanic words,” however, it must be
clear from the record that the trial court actually made the findings required by statute.
State v. Marton, 8th Dist. Cuyahoga No. 99253, 2013-Ohio-3430, citing State v. Venes,
8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, ¶ 14, 17. In this matter, the trial court
stated in pertinent part as follows:
The finding is — yeah, the finding is, number one, this sentence was
imposed to punish you. It is not disproportionate with the rest, and the
court would incorporate the prior sentencing hearing with respect to
proportionality, and the additional finding that the harm was so great that a
single term does not adequately reflect the seriousness is this court’s
finding, * * *. Tr. 12.
{¶13} It is clear from the record that the trial court made two of the findings:
namely that consecutive sentences were necessary to punish the offender and that the
harm caused by two or more of the multiple offenses was so great or unusual that no
single prison term for any of the offenses committed as part of the course of conduct
adequately reflects the seriousness of the offender’s conduct. These two findings satisfy
the first and third prong of the consecutive sentence requirements. Missing is the second
finding that consecutive sentences are not disproportionate to the seriousness of the
offender’s conduct and to the danger the offender poses to the public. State v. Burt, 8th
Dist. Cuyahoga No. 99097, 2013-Ohio-3525.
{¶14} In Wilson III, the trial court never made the finding that consecutive
sentences was not disproportionate to the seriousness of Wilson’s conduct and to the
danger he posed to the public. On remand, the trial court’s only reference to this
requisite finding is the statement that “[i]t is not disproportionate with the rest” and that it
was incorporating the findings from the prior sentencing hearing with regards to
proportionality. There is no indication from the above excerpt that the trial court
measured the imposition of consecutive sentences to the seriousness of Wilson’s conduct
and to the danger he poses to the public.
{¶15} In State v. Hill, 8th Dist. Cuyahoga No. 99186, 2013-Ohio-3245, we stated
that a trial court satisfies this statutory requirement when the record reflects that the court
has engaged in the required analysis and has selected the appropriate statutory criteria.
Id., citing State v. Edmonson, 86 Ohio St.3d 324, 326, 1999-Ohio-110, 715 N.E.2d 131.
{¶16} In Hill, the trial court’s journal entry stated in pertinent part as follows:
The court finds that consecutive sentences are necessary to protect the
public and punish the offender; are not disproportionate to similar crimes
committed by similar [defendants]; that the conduct was so egregious and
the psychological impact on the victim was so great that a single term of
incarceration would demean the seriousness of the offense.
Consequently, we found the record in Hill demonstrates that the trial court correctly set
forth the statutory finding.
{¶17} Here, the trial court used the language: “not disproportionate with the rest”
and we can only surmise that it was referring to Wilson’s codefendants or other
defendants that have committed similar crimes. However, to complicate matters, the
above excerpt reveals that the trial court purported to incorporate, from the previous
sentencing hearing, a finding that we previously found was never made on the record in
Wilson III.
{¶18} In Wilson III, we specifically stated: “[t]he court did not find on the record
that consecutive sentences were necessary to protect the public from future crime or to
punish Wilson, and not disproportionate to the seriousness of Wilson’s conduct * * *.
(Emphasis added.) Wilson III at ¶ 12.
{¶19} This time, the trial court made the first and third findings, but not the second
finding. We are reluctant to return this case to the trial court, but have no choice because
there was no disproportionality finding. The trial court must state all the findings on the
record even if it means reading verbatim from the statute. Only as such, will we as a
reviewing court feel confident that the trial court gave due consideration to the requisite
findings before imposing consecutive sentences.
{¶20} Further, given the presumption in Ohio is that sentencing is to run
concurrent, unless the trial court makes the required findings for consecutive sentences
set forth in R.C. 2929.14(C)(4), it is crucial that the trial court states on the record the
requisite findings. State v. Stowes, 8th Cuyahoga Dist. No. 98774, 2013-Ohio-2996. At
this juncture, our primary role is to review the record to determine whether the trial court
made the findings, not whether they are justified by the record.
{¶21} Accordingly, we sustain the third assigned error, and are constrained, once
again, to reverse Wilson’s sentence and remand for a de novo resentencing hearing.
{¶22} Our disposition of the third assigned error renders the remaining assigned
errors moot. App.R. 12(A)(1)(c).
{¶23} Judgment reversed and remanded for resentencing.
It is ordered that appellant recover of appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE
TIM McCORMACK, J., CONCURS;
MARY J. BOYLE, P.J., CONCURS IN
JUDGMENT ONLY