DocketNumber: Case No. 82964.
Citation Numbers: 2004 Ohio 2154
Judges: SEAN C. GALLAGHER, JUDGE.
Filed Date: 4/29/2004
Status: Non-Precedential
Modified Date: 4/17/2021
{¶ 1} Appellant Jeremie D. Stover ("Stover") appeals from the decision of the Cuyahoga County Court of Common Pleas to sentence him to maximum consecutive terms of imprisonment with post-release control. For the reasons adduced below, we vacate the sentence and remand for resentencing.
{¶ 2} The following facts give rise to this appeal. Stover was indicted by the Cuyahoga County Grand Jury on one count of domestic violence and one count of felonious assault. Stover entered a guilty plea to the charge of domestic violence, a felony of the fifth degree, and to an amended charge of attempted felonious assault, a felony of the third degree.
{¶ 3} At the sentencing hearing, the trial court made the following findings on the record:
"THE COURT: All right. Under Count One, that is — well, firstof all, the Court will make some findings here that you were onprobation when this act occurred. "THE DEFENDANT: Correct. "THE COURT: You have a prior adjudication of delinquency andcriminal convictions. "You failed to respond favorably in the past to probationarysanctions, and you are not remorseful at all, not really. "If I let you go, you'll do it all over again. She is dumbenough to take you back, so we'll have to do some extraordinarythings."
{¶ 4} The trial court proceeded to impose the maximum sentence of one year's imprisonment on the domestic violence charge and the maximum sentence of five years' imprisonment on the attempted felonious assault charge. The trial court ordered the sentences to run consecutively for a total of six years' imprisonment. Although not mentioned at the hearing, the trial court also included post-release control as part of the sentence in the sentencing journal entry.
{¶ 5} Stover has appealed the trial court's sentencing order raising four assignments of error for our review. For purposes of this opinion, we shall consider the assignments out of the order in which they were raised. We shall first address Stover's second assignment of error, which provides:
{¶ 6} "The trial court violated R.C.
{¶ 7} R.C.
{¶ 8} In addition, R.C.
{¶ 9} Thus, a trial court is required to make at least three findings under R.C.
{¶ 10} In this case, the trial court made only two of the required findings. The court found Stover had prior criminal convictions, failed to respond favorably in the past, was not remorseful, and would do the same thing all over again. We view this as a finding that the sentence was necessary to protect the public from future crime. While the trial court's findings did not mimic the exact language of R.C.
{¶ 11} The court also found that Stover committed the offense while on probation. However, the court made no findings relating to proportionality.
{¶ 12} We have previously recognized that R.C.
{¶ 13} We note that the state also concedes the findings by the trial court were not sufficient. Stover's second assignment of error is sustained.
{¶ 14} Stover's third assignment of error states:
{¶ 15} "The sentence of 6 years for an offender who has not been sentenced to prison previously violated
{¶ 16} R.C.
{¶ 17} Further, in order for a trial court to impose the maximum sentence, it must make the required findings set forth in R.C.
{¶ 18} In the instant case, Stover had never previously served a prison term. The trial court was required, but failed, to find on the record that the shortest prison term would demean the seriousness of the offender's conduct or would not adequately protect the public from future crime by the offender or others. R.C.
{¶ 19} We now return to Stover's first assignment of error that provides:
{¶ 20} "The trial court failed to comply with R.C.
{¶ 21} R.C.
{¶ 22} In State v. Lyons, Cuyahoga App. No. 80220, 2002-Ohio-3424, we held that "with the resources available to it, a trial court will, and indeed it must, make these sentencing decisions in compliance with [R.C.
{¶ 23} While we have recognized that R.C.
{¶ 24} Finally, Stover's fourth assignment of error provides:
{¶ 25} "The court's order that post release control is part of his sentence must be vacated under Woods v. Telb (2000),
{¶ 26} Stover correctly argues that the trial court never mentioned, either at the plea hearing or at the sentencing hearing, that post-release control was part of his sentence. Stover asserts that the post-release control term should be vacated. However, because this matter is being remanded for resentencing, Stover's fourth assignment of error is moot pursuant to App.R. 12.
Sentence vacated and case remanded for resentencing.
This cause is vacated and remanded to the lower court for further proceedings consistent with this opinion.
It is, therefore, ordered that said appellant recover of said appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas 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.
Karpinski, P.J., and Calabrese, Jr., J., concur.