DocketNumber: No. 05CA2850.
Citation Numbers: 2006 Ohio 931
Judges: BOGGINS, J.
Filed Date: 2/23/2006
Status: Non-Precedential
Modified Date: 4/17/2021
{¶ 2} Plaintiff-appellee is the State of Ohio.
{¶ 4} On February 18, 2004, Appellant entered pleas of not guilty to the charges set forth in the indictment at his arraignment.
{¶ 5} On August 3, 2004, this matter was tried before a jury resulting in a verdict of "guilty" on the two counts of felonious assault with a gun specification, both felonies of the second degree. The jury acquitted Appellant on the other counts.
{¶ 6} On September 20, 2004, the trial court conducted a sentencing hearing. The trial court sentenced appellant to the maximum prison term of eight (8) years on each count of felonious assault and the mandatory sentence of three years on each gun specification. The trial court ordered the terms be served consecutive to each other, for a total of twenty-two years.
{¶ 7} It is from this judgment entry appellant appeals, raising the following assignments of error:
{¶ 9} "II. THE TRIAL COURT ERRED BY IMPOSING THE MAXIMUM SENTENCE WITHOUT STATING SUFFICIENT FINDINGS AND REASONS AS REQUIRED BY RC
{¶ 11} In order to impose consecutive sentences, a trial court must comply with R.C. §
{¶ 12} R.C. §
{¶ 13} "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:
{¶ 14} "(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
{¶ 15} "(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.
{¶ 16} "(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender."
{¶ 17} Revised Code 2929.19(B)(2)(c) requires that a trial court state its reasons for imposing consecutive sentences.
{¶ 18} The Ohio Supreme Court addressed when and where a trial court must state the required findings and reasons to impose a consecutive sentence. In State v. Comer, the Ohio Supreme Court held that the findings and reasons to impose consecutive sentences must be stated by the trial court at the sentencing hearing. State v. Comer,
{¶ 19} The import of the decision in State v. Comer, supra, is that the trial court must explain its decision to impose consecutive sentences to a defendant and base its decision upon the statutorily enumerated criteria. This procedure allows trial counsel "the opportunity to correct obvious errors . . . [and] encourages judges to decide how the statutory factors apply to the facts of the case." Id. at 477-78. This procedure will also enable an appellate court to conduct a meaningful review of the sentencing decision. Id. at 465-66. "Meaningful review" means that an appellate court hearing an appeal of a felony sentence may modify or vacate the sentence and remand the matter to the trial court for re-sentencing if the court clearly and convincingly finds that the record does not support the sentence or that the sentence is otherwise contrary to law." Id. at 466. (Citations omitted).
{¶ 20} R.C.
{¶ 21} Although the word "imprisonment" is not defined in R.C. 2929, R.C.
{¶ 22} In the case at bar, the transcript of the sentencing hearing indicates that the trial court found that the two crimes were separate and distinct offenses. (T. at 11.)
{¶ 23} The trial court also found that the Appellant's "criminal history shows that consecutive terms are needed to protect the public. Therefore, the Court will order that the 8-year sentences be served consecutively. Given your nature and your history and all that you have done so far, the Court finds that it's needed to protect the public." (T. at 12).
{¶ 24} Additionally, the trial court found that a minimum sentence would demean the seriousness of the offense and also not adequately protect society, and the maximum sentence is necessary to protect society because [appellant] create[s] the greatest likelihood of committing further crimes of similar nature." (T. at 11-12.)
{¶ 25} Based upon the foregoing, we find that the court made sufficient findings to meet the mandates set forth in R.C. §
{¶ 26} Appellant's first assignment of error is overruled.
{¶ 28} An appellate court may not disturb an imposed sentence unless it finds by clear and convincing evidence that the sentence is not supported by the record or is contrary to law. R.C.
{¶ 29} When reviewing a sentence imposed by the trial court, the applicable record to be examined by the appellate court includes the following: (1) the pre-sentence investigation reports; (2) the trial court record in the case in which the sentence was imposed; and (3) any oral or written statement made to or by the court at the sentencing hearing at which the sentence was imposed. R.C.
{¶ 30} Pursuant to R.C.
{¶ 31} "(C) * * * the court imposing a sentence upon an offender for a felony may impose the longest prison term authorized for the offense pursuant to division (A) of this section only upon offenders who committed the worst form of the offense, upon offenders who pose the greatest likelihood of committing future crimes, upon certain major drug offenders under division (D) (3) of this section, and upon certain repeat violent offenders in accordance with division (D) (2) of this section."
{¶ 32} This statute is to be read in the disjunctive. SeeState v. Comersford (June 3, 1999), Delaware App. No. 98-CAA-01004 at 3. Accordingly, a maximum sentence may be imposed if the trial court finds any one of the above-listed offender categories apply.
{¶ 33} The trial court also received and considered a pre-sentence investigation and report and found nothing in said report to rebut the presumption for prison. (T. at 101-1.)
{¶ 34} Again, as stated above, the trial court noted that the appellant had an extensive criminal record. (Id. at 11-12). The trial court further found Appellant had not learned from his past mistakes. (Id.)
{¶ 35} The trial court also found "that the minimum sentence would demean the seriousness of the offense and also not adequately protect society, and the maximum sentence is necessary to protect society because [appellant] create[s] the greatest likelihood of committing further crimes of similar nature." (T. at 11-12.)
{¶ 36} We find from a review of the transcript of the sentencing hearing that the trial court made sufficient findings to meet the mandates set forth in R.C.
{¶ 37} Appellant's second assignment of error is overruled.
{¶ 38} For the foregoing reasons, the judgment of the Court of Common Pleas of Muskingum County, Ohio, is hereby affirmed.
Boggins, J. Gwin, P.J. and Farmer, J., concur.