State v. Elizondo

2016 Ohio 774

• Court: Ohio Court of Appeals
• Decided: February 29, 2016
• Docket: 14-CA-20
• Status: Published

Opinion

[Cite as State v. Elizondo, 2016-Ohio-774.]

COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. Sheila G. Farmer, P.J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : Hon. John W. Wise, J. -vs- : : DUSTIN ELIZONDO : Case No. 14-CA-20 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 13-CR-494

JUDGMENT: Sentence Vacated and Remanded

DATE OF JUDGMENT: February 29, 2016

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOSHUA S. HORACEK SARAH M. SCHREGARDUS 239 West Main Street 492 City Park Avenue Suite 101 Columbus, OH 43215 Lancaster, OH 43130 Fairfield County, Case No. 14-CA-20 2

Farmer, P.J.

{¶1} Following a bench trial, appellant, Dustin Elizondo, was found guilty of three

counts of attempted murder in violation of R.C. 2903.02 and 2923.02, three counts of

felonious assault in violation of R.C. 2903.11, five counts of kidnapping in violation of R.C.

2905.01, one count of abduction in violation of R.C. 2905.02, three counts of domestic

violence in violation of R.C. 2912.25, and one count of assault in violation of R.C. 2903.13.

See, Entry of Verdict filed February 7, 2014. By judgment entry of sentence filed February

19, 2014, the trial court determined the three counts of attempted murder were not allied

offenses, determined the felonious assault counts, the kidnapping counts, the abduction

count, and two of the domestic violence counts merged with each other and with the

attempted murder counts, and merged the remaining domestic violence count and the

assault count, but did not merge them with the other counts. The state elected sentencing

on the three attempted murder counts and the merged domestic violence/assault count.

The trial court sentenced appellant to seven years on each of the attempted murder

counts, to be served consecutively, and one hundred thirty days in jail on the domestic

violence/assault count, to be served consecutively, for a total sentence of twenty-one

years in prison plus one hundred thirty days in jail.

{¶2} Appellant filed an appeal, claiming manifest weight of the evidence, and this

court affirmed the trial court's decision. State v. Elizondo, 5th Dist. Fairfield No. 14-CA-

20, 2015-Ohio-1109. The Supreme Court of Ohio declined jurisdiction. State v. Elizondo,

143 Ohio St.3d 1499, 2015-Ohio-4468.

{¶3} On June 15, 2015, appellant filed with this court an application to reopen

his appeal, claiming ineffective assistance of counsel for his appellate counsel's failure to Fairfield County, Case No. 14-CA-20 3

assign as error the improper imposition of consecutive sentences. By judgment entry

filed August 28, 2015, this court granted the application, finding a colorable claim on the

issue of ineffective assistance of counsel, and reopened the appeal on the limited issue

set forth in his application, to wit: "appellate counsel was ineffective for failing to cite as

error the trial court's failure to make the requisite findings to impose consecutive

sentences under R.C. 2929.14(C)(4) at the sentencing hearing and trial counsel's failure

to object to the claimed error."

{¶4} This matter is now before this court for consideration. Assignments of error

are as follows:

I

"THE TRIAL COURT ERRED WHEN IT FAILED TO MAKE THE REQUISITE

FINDINGS TO IMPOSE CONSECUTIVE SENTENCES UNDER R.C. 2929.14(C)(4)."

II

"TRIAL COUNSEL WAS INEFFECTIVE WHEN HE FAILED TO OBJECT TO THE

IMPOSITION OF A SENTENCE THAT WAS CONTRARY TO LAW."

III

"APPELLANT WAS DEPRIVED [OF] THE EFFECTIVE ASSISTANCE OF

APPELLATE COUNSEL WHEN COUNSEL FAILED TO RAISE ASSIGNMENTS OF

ERROR I AND II."

{¶5} Appellant claims the trial court erred in failing to make the requisite findings

to impose consecutive sentences under R.C. 2929.14(C)(4) at the sentencing hearing.

We agree. Fairfield County, Case No. 14-CA-20 4

{¶6} R.C. 2929.14(C)(4) states the following:

(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. Fairfield County, Case No. 14-CA-20 5

{¶7} In State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, syllabus, the

Supreme Court of Ohio held: "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." (Emphasis added.)

{¶8} A review of the February 14, 2014 sentencing hearing transcript indicates

the trial court did not meet the requirements of R.C. 2929.14(C)(4) and Bonnell, and the

state concedes the issue. T. at 41-42; Appellee's Brief at 3, 5.

{¶9} Upon review, we vacate the sentence and remand the matter to the trial

court for rehearing on the issue of consecutive sentencing.

{¶10} Assignment of Error I is granted. Fairfield County, Case No. 14-CA-20 6

II, III

{¶11} Based upon our decision in Assignment of Error I, these assignments are

moot.

By Farmer, P.J.

Hoffman, J. and

Wise, J. concur.

SGF/sg 218