State v. Fox

[Cite as State v. Fox, 2016-Ohio-3293.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Sheila G. Farmer, P. J.
Plaintiff-Appellee Hon. W. Scott Gwin, J.
Hon. John W. Wise, J.
-vs-
Case No. 15 CAA 10 0082
LARRY FOX
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 12 CR I 10 0409
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 3, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CAROL HAMILTON O'BRIEN TODD A. WORKMAN
PROSECUTING ATTORNEY WORKMAN LAW FIRM
ERIC C. PENKAL 35 North Sandusky Street
ASSISTANT PROSECUTOR Delaware, Ohio 43015
140 North Sandusky Street
Delaware, Ohio 43015
Delaware County, Case No. 15 CAA 10 0082 2
Wise, J.
{¶1} Appellant Larry Fox appeals from the decision of the Court of Common
Pleas, Delaware County, resentencing him following a prior remand resulting from his
2014 direct appeal. Appellee is the State of Ohio. The relevant facts leading to this
appeal are summarized as follows:
{¶2} Appellant and C. T. (an adult) formerly lived in the same trailer park
community in Lewis Center, Ohio. C.T. and his friend Franklin Pyle sometimes hung out
with appellant and his brother, Harry Fox, at appellant's trailer. In early October 2012,
appellant gave Pyle money to buy some marijuana. C.T. and Pyle ended up in Columbus,
but they eventually called appellant and his brother to explain the drug money had been
stolen before they could purchase the marijuana. Appellant told C.T. he had a certain
amount of time to pay him back.
{¶3} On October 16, 2012, Pyle and C.T. went to appellant’s trailer after being
told he wanted to speak with them. Several other individuals were initially present. About
thirty minutes after Pyle and C.T. arrived, appellant got up and locked the door, stating
no one was leaving. C.T. was subsequently forced to sit on the floor, naked and
handcuffed. Appellant proceeded to terrorize C.T. with a machete, questioning him about
the money and the failed drug deal.
{¶4} Appellant then told C.T. he would have to perform “oral favors” in exchange
for the lost money, or appellant would kill him. Appellant, continuing to hold the machete,
subsequently forced C.T. to perform oral sex on him. Appellant later told everyone in the
trailer to leave and not to speak of the incident or he would kill them.
Delaware County, Case No. 15 CAA 10 0082 3
{¶5} On October 26, 2012, appellant was indicted by the Delaware County Grand
Jury on the following counts:
{¶6} Count 1: Kidnapping, to terrorize or inflict serious physical harm (R.C.
2905.01(A)(3)), a felony of the first degree;
{¶7} Count 2: Kidnapping, to facilitate a felony (R.C. 2905.01(A)(2)), a felony of
the first degree;
{¶8} Count 3: Kidnapping, to commit rape (R.C. 2905.01(A)(4)), a felony of the
first degree;
{¶9} Count 4: Abduction by Force (R.C. 2905.02(A)(2)), a felony of the third
degree;
{¶10} Count 5: Rape (R.C. 2907.02(A)(2)), a felony of the first degree;
{¶11} Count 6: Rape (R.C. 2907.02(A)(2)), a felony of the first degree.
{¶12} The kidnapping counts were subsequently reduced to felonies of the second
degree.
{¶13} Following a jury trial, appellant was convicted of the aforesaid charges. Via
a judgment entry issued on September 30, 2014, appellant was sentenced as follows:
{¶14} Count 1: Kidnapping, to terrorize or inflict serious physical harm - a prison
term of eight years.
{¶15} Count 3: Kidnapping, to commit rape - a prison term of eight years, to be
served consecutive to the term imposed on Count 1.
{¶16} Count 5: Rape - a mandatory prison term of eleven years, to be served
consecutive to the term imposed on Counts 1 and 3.
Delaware County, Case No. 15 CAA 10 0082 4
{¶17} Count 6: Rape - a mandatory prison term of eleven years, to be served
consecutive to the terms imposed on Counts 1, 3 and 5.
{¶18} Count 4: Abduction by Force - merged with Count 1 as an allied offense of
similar import, and found to be a lesser offense to the charge of kidnapping.
{¶19} Count 2: Kidnapping, to facilitate a felony - merged with Count 3 for
purposes of sentencing.
{¶20} Appellant was further classified a Tier III sex offender registrant pursuant to
R.C. 2950.032.
{¶21} Appellant then filed a direct appeal to this Court arguing (1) that the trial
court had erred in failing to merge Count 3 (kidnapping to commit rape), with the rape
charges and (2) that his constitutional rights were violated because there was insufficient
evidence to support three separate counts of kidnapping. On August 26, 2015, this Court
sustained appellant’s first assigned error and found his second assigned error to be
moot. See State v. Fox, 5th Dist. Delaware No. 14 CAA10 0065, 41 N.E.3d 230, 2015-
Ohio-3515 (“Fox I”).
{¶22} Following remand, the trial court conducted a resentencing hearing. On
September 21, 2015, the trial court sentenced appellant to a total of thirty years in prison.
Among other things, the trial court orally concluded: "I do feel that consecutive sentences
are necessary to protect the public from future crime and to punish the Defendant, and
consecutive sentences are not disproportionate to the seriousness of the Defendant's
conduct and to the danger that he poses to the public, and also I find that the history of
criminal conduct demonstrates that the consecutive sentences are necessary to protect
the public from future crime by the Defendant." Tr. at 6.
Delaware County, Case No. 15 CAA 10 0082 5
{¶23} Appellant filed a notice of appeal on October 19, 2015. He herein raises the
following sole Assignment of Error:
{¶24} “I. THE TRIAL COURT ERRED WHEN IT FAILED TO MAKE THE
NECESSARY DETERMINATIONS REQUIRED BY LAW WHEN SENTENCING
DEFENDANT/APPELLANT TO A CONSECUTIVE PRISON TERM THEREFORE
MAKING THE SENTENCE CONTRARY TO LAW.”
I.
{¶25} In his sole Assignment of Error, appellant maintains the trial court erred in
failing to make the necessary determinations to support its order of consecutive prison
sentences. We disagree.
{¶26} Under R.C. 2953.08(G)(2)(a), we consider in the present context whether
there is clear and convincing evidence that the record does not support the sentencing
court's findings under R.C. 2929.14(C)(4) to impose consecutive sentences. See State
v. Deeb, 6th Dist. Erie No. E-14-117, 2015-Ohio-2442, ¶ 27.
{¶27} We thus direct our attention to R.C. 2929.14(C)(4), which provides as
follows:
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:
Delaware County, Case No. 15 CAA 10 0082 6
(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.
{¶28} (Emphases added).
{¶29} Thus, in a nutshell, “R.C. 2929.14(C)(4) provides that a trial court may
require the offender to serve multiple 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 one of three facts specified in subdivisions (a), (b), and (c).” State v.
Leet, 2nd Dist. Montgomery No. 25966, 2015–Ohio–1668, ¶ 15 (internal quotations and
brackets omitted).
{¶30} As a brief history, we note 2011 Am.Sub.H.B. No. 86 revived the language
provided in former R.C. 2929.14(E) and moved it to R.C. 2929.14(C)(4). The General
Delaware County, Case No. 15 CAA 10 0082 7
Assembly has thus expressed its intent to revive the statutory fact-finding provisions
pertaining to the imposition of consecutive sentences that were effective in the pre-Foster
era. See State v. Wells, 8th Dist. Cuyahoga No. 98428, 2013–Ohio–1179, ¶ 11.
{¶31} In the case sub judice, appellant first maintains the trial court failed to
properly state “reasons” to support its statutory consecutive sentence findings. In
support, he cites several pre-H.B. 86 cases, including State v. Rich, 4th Dist. Pickaway
Nos. 00CA46 & 00CA0047, 2001-Ohio-2613, which states: “ *** [A]fter a sentencing court
has made the required findings under [former] R.C. 2929.14(E)(4), it must then justify
those findings by identifying specific reasons supporting the imposition of consecutive
prison terms.”
{¶32} However, we have held on numerous occasions that although H.B. 86
requires the trial court to make findings before imposing a consecutive sentence, it does
not require the trial court to give its reasons for imposing the sentence. See, e.g., State
v. Collins, 5th Dist. Knox No. 12 CA 20, 2013-Ohio-2419, ¶ 22, citing State v. Bentley,
Marion App.No. 9–12–31, 2013–Ohio–852, ¶ 12. Moreover, the Ohio Supreme Court
has now clearly held as follows: “In order to impose consecutive terms of imprisonment,
a trial court is required to make the findings mandated by R.C. 2929.14(C)(4) at the
sentencing hearing and incorporate its findings into its sentencing entry, but it has no
obligation to state reasons to support its findings.” State v. Bonnell, 140 Ohio St. 3d 209,
16 N.E.3d 659, 2014–Ohio–3177, syllabus.
{¶33} Accordingly, appellant’s claim regarding a lack of adequate recited reasons
by the trial court concerning consecutive sentences is without merit.
Delaware County, Case No. 15 CAA 10 0082 8
{¶34} Appellant secondly contends the trial court did not have adequate
information to review for purposes of sentencing, as it appears the official court file and
jacket had not yet been returned to the trial court subsequent to this Court’s decision in
Fox I. See Tr., September 21, 2015 Resentencing Hearing, at 5. In that regard, we note
the trial court judge stated that he had “considered the remarks here” and had “looked
through the file that my office has handed to me from my predecessor and considered
all of the information that I can glean about the case of course from the Court of Appeals’
decision ***.” Id. The court also noted it had reviewed the PSI report and victim impact
statement. Sentencing Entry Pursuant to Remand at 2.
{¶35} A presumption of regularity attaches to all trial court proceedings. See, e.g.,
Black v. Chiropractic Assocs. of Zanesville, L.L.C., 5th Dist. Muskingum No. CT2013-
0012, 2014-Ohio-192, ¶ 20, citing Chari v. Vore (2001), 91 Ohio St. 3d 323, 325, 744
N.E.2d 763. In the case sub judice, upon review, we hold the trial court adequately
reviewed the case pursuant to our remand, and we find no clear and convincing evidence
that the record does not support the trial court's findings under R.C. 2929.14(C)(4) for
purposes of imposing consecutive sentences. Deeb, supra.
Delaware County, Case No. 15 CAA 10 0082 9
{¶36} Appellant's sole Assignment of Error is therefore overruled.
{¶37} For the foregoing reasons, the judgment of the Court of Common Pleas,
Delaware County, Ohio, is hereby affirmed.
By: Wise, J.
Farmer, P. J., and
Gwin, J., concur.
JWW/d 0518