[Cite as State v. Fauntleroy, 2012-Ohio-4955.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. Julie A. Edwards, J. : -vs- : : Case No. CT2012-0001 WAYNE FAUNTLEROY : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Muskingum County Court of Common Pleas, Case No. CR2011-0002
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 24, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RONALD L. WELCH ROBERT D. ESSEX Assistant Prosecuting Attorney 604 East Rich Street 27 North Fifth Street Columbus, OH 43215 Zanesville, OH 43701 [Cite as State v. Fauntleroy, 2012-Ohio-4955.]
Gwin, P.J.
{¶1} Defendant-appellant Wayne Fauntleroy [“Fauntleroy”] appeals his
sentence entered by the Muskingum County Court of Common Pleas. Plaintiff-appellee
is the State of Ohio.
PROCEDURAL HISTORY
{¶2} Fauntleroy was indicted on one count of burglary in violation of R.C.
2911.12(A)(2), a felony of the third degree; one count of theft of firearms, in violation of
R.C. 2913.02(A)(1), a felony of the fourth degree; one count of theft, a felony of the fifth
degree; one count of receiving stolen property, a felony of the fourth degree; and one
count of having weapons under disability, a felony of the third degree. On October 31,
2011, Fauntleroy entered a plea of guilty to the burglary, one of the theft counts and
receiving stolen property charges. The prosecutor agreed at the time of the plea the
burglary and theft counts should merge.
{¶3} On December 5, 2011, a sentencing hearing was held. The trial court
sentenced Fauntleroy to thirty-six months on the burglary count and eighteen months
on the receiving stolen property count, ordering the terms to run consecutively for a
total term of fifty-four months. Fauntleroy now appeals, assigning as error:
{¶4} “I. PURSUANT TO OHIO REVISED CODE 2953.08, THE TRIAL
COURT’S SENTENCE WAS CLEARLY AND CONVINCINGLY CONTRARY TO LAW,
WAS AN ABUSE OF DISCRETION, AND VIOLATED THE PROPORTIONALITY
REQUIREMENT OF OHIO SENTENCING LAWS.” Muskingum County, Case No. CT2012-0001 3
ANALYSIS
{¶5} 2011 Am.Sub.H.B. No. 86, which became effective on September 30,
2011, revived the language provided in former R.C. 2929.14(E) and moved it to R.C.
2929.14(C)(4). The revisions to the felony sentencing statutes under 2011
Am.Sub.H.B. No. 86 now require a trial court to make specific findings when imposing
consecutive sentences. R.C. 2929.14(C)(4) provides, in relevant part:
(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. Muskingum County, Case No. CT2012-0001 4
(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
(Emphasis added). In Section 11, the legislature explained that in amending former R.C.
2929.14(E)(4), it intended “to simultaneously repeal and revive the amended language
in those divisions that was invalidated and severed by the Ohio Supreme Court's
decision in State v. Foster (2006), 109 Ohio St.3d 1.” The General Assembly further
explained that the amended language in those divisions “is subject to reenactment
under the United States Supreme Court's decision in Oregon v. Ice (2009), 555 U.S.
160, and the Ohio Supreme Court's decision in State v. Hodge (2010), ––– Ohio St.3d –
–––, Slip Opinion No.2010–Ohio–6320.” Thus, it is the legislature's intent that courts
interpret the language in R.C. 2929.14(C)(4) in the same manner as the courts did prior
to State v. Foster, 109 Ohio St.3d 1, 2006–Ohio–856, 845 N.E.2d 470.
{¶6} The First District Court of Appeals has observed,
The consecutive-sentence findings required by R.C. 2929.14(C) are
not the same as those required by former R.C. 2929.19(B)(2), which
provided that the trial court “shall impose a sentence and shall make a
finding that gives its reasons for selecting the sentence * * * (c) If it
imposes consecutive sentences .” (Emphasis added.) See State v. Comer,
99 Ohio St.3d 463, 2003–Ohio–4165, 793 N.E.2d 473, ¶ 14–16. In 2003,
the Ohio Supreme Court held that the requirement that a trial court give its
reasons for selecting consecutive sentences was “separate and distinct
from the duty to make the findings,” and it imposed an obligation on trial Muskingum County, Case No. CT2012-0001 5
courts to articulate the reasons supporting their findings at the sentencing
hearing. Id. at ¶ 19–20, 793 N.E.2d 473. The trial court's obligation to “give
its reasons” is now gone from the sentencing statutes. Gone with it, we
hold, is the requirement that the trial court articulate and justify its findings
at the sentencing hearing. A trial court is free to do so, of course. But
where, as here, there is no statutory requirement that the trial court
articulate its reasons, it does not commit reversible error if it fails to do so,
as long as it has made the required findings. See Phillips, 1st Dist. No. C–
960898, 1997 Ohio App. LEXIS 2615, 1997 WL 330605.
State v. Alexander, 1st Dist. Nos. C-110828, C-110829, 2012-Ohio-3349, ¶ 18. Accord,
State v. Frasca, 11th Dist. 2011-T-0108, 2012-Ohio-3746, ¶ 57.
{¶7} The trial court is not required to recite any “magic” or “talismanic” words
when imposing consecutive sentences provided it is “clear from the record that the trial
court engaged in the appropriate analysis.” State v. Murrin, 8th Dist. No. 83714, 2004–
Ohio–3962, ¶ 12. Accord, State v. Jones, 1st Dist. No. C-110603, 2012-Ohio-2075, ¶
22; An appellate court may only sustain an assignment of error challenging the
imposition of consecutive sentences under R.C. 2929.14 if the appellant shows that the
judgment was clearly and convincingly contrary to law. R.C. 2953.08(G).
{¶8} In the case at bar, the trial court found that in 2000, Fauntleroy was
convicted of committing 16 burglaries, nine counts of theft of firearms and 12 counts of
felony theft for which he was sentenced to prison for seven years. (Sent. T. at 12-13).
Fauntleroy was again convicted of breaking and entering in 2009 for which he was
sentenced to one year in prison. (Id. at 13).
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[Cite as State v. Fauntleroy, 2012-Ohio-4955.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. Julie A. Edwards, J. : -vs- : : Case No. CT2012-0001 WAYNE FAUNTLEROY : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Muskingum County Court of Common Pleas, Case No. CR2011-0002
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 24, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RONALD L. WELCH ROBERT D. ESSEX Assistant Prosecuting Attorney 604 East Rich Street 27 North Fifth Street Columbus, OH 43215 Zanesville, OH 43701 [Cite as State v. Fauntleroy, 2012-Ohio-4955.]
Gwin, P.J.
{¶1} Defendant-appellant Wayne Fauntleroy [“Fauntleroy”] appeals his
sentence entered by the Muskingum County Court of Common Pleas. Plaintiff-appellee
is the State of Ohio.
PROCEDURAL HISTORY
{¶2} Fauntleroy was indicted on one count of burglary in violation of R.C.
2911.12(A)(2), a felony of the third degree; one count of theft of firearms, in violation of
R.C. 2913.02(A)(1), a felony of the fourth degree; one count of theft, a felony of the fifth
degree; one count of receiving stolen property, a felony of the fourth degree; and one
count of having weapons under disability, a felony of the third degree. On October 31,
2011, Fauntleroy entered a plea of guilty to the burglary, one of the theft counts and
receiving stolen property charges. The prosecutor agreed at the time of the plea the
burglary and theft counts should merge.
{¶3} On December 5, 2011, a sentencing hearing was held. The trial court
sentenced Fauntleroy to thirty-six months on the burglary count and eighteen months
on the receiving stolen property count, ordering the terms to run consecutively for a
total term of fifty-four months. Fauntleroy now appeals, assigning as error:
{¶4} “I. PURSUANT TO OHIO REVISED CODE 2953.08, THE TRIAL
COURT’S SENTENCE WAS CLEARLY AND CONVINCINGLY CONTRARY TO LAW,
WAS AN ABUSE OF DISCRETION, AND VIOLATED THE PROPORTIONALITY
REQUIREMENT OF OHIO SENTENCING LAWS.” Muskingum County, Case No. CT2012-0001 3
ANALYSIS
{¶5} 2011 Am.Sub.H.B. No. 86, which became effective on September 30,
2011, revived the language provided in former R.C. 2929.14(E) and moved it to R.C.
2929.14(C)(4). The revisions to the felony sentencing statutes under 2011
Am.Sub.H.B. No. 86 now require a trial court to make specific findings when imposing
consecutive sentences. R.C. 2929.14(C)(4) provides, in relevant part:
(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. Muskingum County, Case No. CT2012-0001 4
(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
(Emphasis added). In Section 11, the legislature explained that in amending former R.C.
2929.14(E)(4), it intended “to simultaneously repeal and revive the amended language
in those divisions that was invalidated and severed by the Ohio Supreme Court's
decision in State v. Foster (2006), 109 Ohio St.3d 1.” The General Assembly further
explained that the amended language in those divisions “is subject to reenactment
under the United States Supreme Court's decision in Oregon v. Ice (2009), 555 U.S.
160, and the Ohio Supreme Court's decision in State v. Hodge (2010), ––– Ohio St.3d –
–––, Slip Opinion No.2010–Ohio–6320.” Thus, it is the legislature's intent that courts
interpret the language in R.C. 2929.14(C)(4) in the same manner as the courts did prior
to State v. Foster, 109 Ohio St.3d 1, 2006–Ohio–856, 845 N.E.2d 470.
{¶6} The First District Court of Appeals has observed,
The consecutive-sentence findings required by R.C. 2929.14(C) are
not the same as those required by former R.C. 2929.19(B)(2), which
provided that the trial court “shall impose a sentence and shall make a
finding that gives its reasons for selecting the sentence * * * (c) If it
imposes consecutive sentences .” (Emphasis added.) See State v. Comer,
99 Ohio St.3d 463, 2003–Ohio–4165, 793 N.E.2d 473, ¶ 14–16. In 2003,
the Ohio Supreme Court held that the requirement that a trial court give its
reasons for selecting consecutive sentences was “separate and distinct
from the duty to make the findings,” and it imposed an obligation on trial Muskingum County, Case No. CT2012-0001 5
courts to articulate the reasons supporting their findings at the sentencing
hearing. Id. at ¶ 19–20, 793 N.E.2d 473. The trial court's obligation to “give
its reasons” is now gone from the sentencing statutes. Gone with it, we
hold, is the requirement that the trial court articulate and justify its findings
at the sentencing hearing. A trial court is free to do so, of course. But
where, as here, there is no statutory requirement that the trial court
articulate its reasons, it does not commit reversible error if it fails to do so,
as long as it has made the required findings. See Phillips, 1st Dist. No. C–
960898, 1997 Ohio App. LEXIS 2615, 1997 WL 330605.
State v. Alexander, 1st Dist. Nos. C-110828, C-110829, 2012-Ohio-3349, ¶ 18. Accord,
State v. Frasca, 11th Dist. 2011-T-0108, 2012-Ohio-3746, ¶ 57.
{¶7} The trial court is not required to recite any “magic” or “talismanic” words
when imposing consecutive sentences provided it is “clear from the record that the trial
court engaged in the appropriate analysis.” State v. Murrin, 8th Dist. No. 83714, 2004–
Ohio–3962, ¶ 12. Accord, State v. Jones, 1st Dist. No. C-110603, 2012-Ohio-2075, ¶
22; An appellate court may only sustain an assignment of error challenging the
imposition of consecutive sentences under R.C. 2929.14 if the appellant shows that the
judgment was clearly and convincingly contrary to law. R.C. 2953.08(G).
{¶8} In the case at bar, the trial court found that in 2000, Fauntleroy was
convicted of committing 16 burglaries, nine counts of theft of firearms and 12 counts of
felony theft for which he was sentenced to prison for seven years. (Sent. T. at 12-13).
Fauntleroy was again convicted of breaking and entering in 2009 for which he was
sentenced to one year in prison. (Id. at 13). Fauntleroy was 19 years old when he was Muskingum County, Case No. CT2012-0001 6
first sentenced to prison in 2000. (Id. at 14). He was last released from prison in
September 2010. (Id. at 14). The trial court recognized that at age 32, Fauntleroy was
still committing burglaries. (Id. at 15). The trial court found that Fauntleroy served
seven years in prison and upon release went right back to burglarizing homes. (Id. at
15-16). The trial court remarked,
You know, there’s one thing that being a citizen and an American
provides us, and that’s the right to own property and have a sanctuary in
our home. It’s off limits to everyone that we don’t want there. Our homes
are off limits, and you abused that, right?
***
On numerous occasions. That’s our sanctuary is our home. Off
limits. We want to feel safe, secure, exclude everyone in the world out of
our home if we want to.
Sent. T. at 16.
{¶9} Such findings have been found sufficient to satisfy the factual findings
requirement under R.C. 2929.19(C)(4). State v. Jones, supra, 2012–Ohio–2075 ¶ 23
(where the trial court stated during the sentencing hearing that it was ordering the
prison terms to be served consecutively because the defendant had an extensive
criminal history and the victims had been seriously injured, these statements were
sufficient to show that the trial court's imposition of consecutive sentences was
appropriate and complied with R.C. 2929 .14(C)(4)); State v. Johnson, 8th Dist. No.
97579, 2012–Ohio–2508 ¶ 12 (when the court made findings related to the appellant's
specific conduct in the case and his repeated engagement in criminal activity, it Muskingum County, Case No. CT2012-0001 7
properly found that the sentence was not disproportionate to his conduct and threat he
posed to society).
{¶10} Although the trial court in the present matter may not have used the exact
wording of the statute in reaching the findings to support the imposition of consecutive
sentences, courts have found that, in making findings regarding consecutive
sentencing, “a verbatim recitation of the statutory language is not required by the trial
court.” State v. Green, 11th Dist. No. 2003–A–0089, 2005–Ohio–3268 ¶ 26, citing State
v. Grissom, 11th Dist. No. 2001–L–107, 2002–Ohio–5154 ¶ 21. State v. Frasca, supra,
2012-Ohio-3746, ¶ 60.
{¶11} We find that the record adequately reflect consecutive sentences were
necessary to protect the public and to punish Fauntleroy, and that they were not
disproportionate to the seriousness of his conduct and the danger he posed to the
public. In addition, Fauntleroy’s history of criminal conduct demonstrated that
consecutive sentences were necessary to protect the public from future crime.
{¶12} We overrule Fauntleroy’s sole assignment of error. Muskingum County, Case No. CT2012-0001 8
{¶13} For the reasons set forth above, Fauntleroy’s the judgment of the
Muskingum County Court of Common Pleas is affirmed.
By Gwin, P.J., and
Edwards, J., concur;
Hoffman, J., dissents
_________________________________ HON. W. SCOTT GWIN
_________________________________ HON. WILLIAM B. HOFFMAN
_________________________________ HON. JULIE A. EDWARDS
WSG:clw 1002 Muskingum County, Case No. CT2012-0001 9
Hoffman, J., dissenting
{¶14} I respectfully dissent from the majority opinion. H.B. 86 revised the
statutory language to require the trial court to make certain statutorily enumerated
findings prior to imposing consecutive sentences. I find the record does not
demonstrate the trial court made those findings herein. The majority cites the facts of
the case and the trial court's remarks "our homes are off limits" and "our sanctuary is
our home" as sufficient “findings”. I disagree, and would remand the matter to the trial
court for the limited purpose of resentencing in accordance with the law as revised by
H.B. 86.
________________________________ HON. WILLIAM B. HOFFMAN [Cite as State v. Fauntleroy, 2012-Ohio-4955.]
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : WAYNE FAUNTLEROY : : : Defendant-Appellant : CASE NO. CT2011-0001
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Muskingum County Court of Common Pleas is affirmed.
Costs to appellant.