State v. Fulford

[Cite as State v. Fulford, 2014-Ohio-5436.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 101505, 101511, and 101512
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DENNIS FULFORD
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-12-567594-A, CR-12-569285-A, and CR-12-570001-A
BEFORE: Kilbane, J., Boyle, A.J., and Keough, J.
RELEASED AND JOURNALIZED: December 11, 2014
ATTORNEY FOR APPELLANT
Patrick S. Lavelle
Van Sweringen Arcade
123 West Prospect Avenue
Suite 250
Cleveland, Ohio 44115
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Brett Hammond
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:
{¶1} Defendant-appellant, Dennis Fulford, appeals from the imposition of consecutive
sentences following his convictions in three separate cases. The plaintiff-appellee, state of Ohio,
concedes that the trial court did not make the factual findings required pursuant to R.C.
2929.14(C)(4) regarding all three cases, and therefore, we reverse and remand the matter for
resentencing.
{¶2} On October 15, 2012, appellant was indicted in CR-12-567594-A, on one count of
felonious assault with a notice of prior conviction specification, a repeat violent offender
specification, and a furthermore clause identifying the victim as a peace officer. He was also
charged on two counts of failure to comply with the order or signal of a police officer, one count
of receiving stolen property (a motor vehicle), one count of criminal damaging, and one count of
possession of criminal tools.
{¶3} On December 11, 2012, appellant was indicted in CR-569285-A on one count of
breaking and entering (fifth-degree felony), and one count of petty theft.
{¶4} On January 10, 2013, appellant was indicted in CR-570001-A, on one count of
receiving stolen property (a motor vehicle) and one count of failure to comply with the order or
signal of a police officer.
{¶5} On April 4, 2013, appellant entered guilty pleas in all three matters. In
CR-567594-A, he pled guilty to the count of felonious assault, which was amended to dismiss
the furthermore clause, and to one count of failure to comply with the order or signal of a police
officer. The remaining charges were dismissed. In CR-569285-A, appellant pled guilty to the
charge of breaking and entering, and the remaining charge was dismissed. In CR-570001-A,
appellant pled guilty to receiving stolen property and the failure to comply. At this hearing, the
trial court outlined all of the potential penalties for the offenses and then acknowledged that the
parties had entered into an agreed sentence of six years.
{¶6} The trial court held a sentencing hearing on April 10, 2013. The trial court
sentenced appellant to a three-year term in CR-567594-A, a one-year term in CR-569285-A, and
a two-year term in CR-570001-A. The court ordered all terms to be served consecutively with
one another. Herein, appellant challenges the sentence and assigns the following error for our
review:
The trial court abused its discretion by imposing consecutive sentences without
making findings of fact as required by Ohio Revised Code Section 2929.14(E)(4).
{¶7} Within this assignment of error, appellant argues that the trial court erred by
imposing consecutive sentences without making the factual findings required pursuant to R.C.
2929.14(C)(4).
{¶8} Pursuant to R.C. 2953.08(G)(2), in reviewing felony sentences, “[t]he appellate
court’s standard for review is not whether the sentencing court abused its discretion.” Rather,
the reviewing court must determine whether it “clearly and convincingly” finds that (1) “the
record does not support the sentencing court’s findings under [R.C. 2929.14(C)(4)],” or that (2)
“the sentence is otherwise contrary to law.” The reviewing court may then “increase, reduce, or
otherwise modify a sentence * * * or may vacate the sentence and remand the matter to the
sentencing court for re-sentencing.” R.C. 2953.08(G)(2). See State v. Hammond, 8th Dist.
Cuyahoga No. 100656, 2014-Ohio-4673, ¶ 7; State v. Venes, 8th Dist. Cuyahoga No. 98682,
2013-Ohio-1891, ¶ 11.
{¶9} Pursuant to R.C. 2929.14, a trial court may impose consecutive sentences if the
court finds that (1) a consecutive sentence is necessary to protect the public from future crime or
to punish the offender and (2) that consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender poses to the public. In
addition to these two factors, the court must find 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.
Id.{¶10} The state concedes that in this matter:
[T]he trial court was required to find that consecutive sentences are “not
disproportionate to the seriousness of the offender’s conduct and to the danger the
offender poses to the public.” The trial court never made this factual finding and
therefore the State concedes that the trial court erred by imposing consecutive
sentences without making the required factual findings. Accordingly, the
appropriate remedy is for this Court to remand this case to the trial court for the
limited purpose of determining whether the trial court can make the appropriate
factual findings pursuant to R.C. 2929.14(C)(4) to justify consecutive sentences.
State v. Nia, 8th Dist. [Cuyahoga] No. 99387, 2014-Ohio-2527.
{¶11} We have independently reviewed the record and we agree that the trial court did
not make the findings necessary under R.C. 2929.14(C)(4). We therefore reverse the sentence
and remand the matter for the limited purpose of having the trial court consider whether
consecutive sentences are appropriate under R.C. 2929.14(C)(4) and, if so, to make the required
findings on the record and to incorporate those findings into the court’s sentencing entry. State
v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659; State v. Ziska, 8th Dist.
Cuyahoga No. 101168, 2014-Ohio-4692.
{¶12} Appellant’s sole assignment of error is sustained.
{¶13} Judgment is reversed and remanded to the trial court for resentencing consistent
with this opinion.
It is ordered that appellant recover from 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 common pleas
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.
MARY EILEEN KILBANE, JUDGE
MARY J. BOYLE, A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR