State v. Havergne

2012 Ohio 810

• Court: Ohio Court of Appeals
• Decided: March 1, 2012
• Docket: 96951
• Status: Published

Opinion

[Cite as State v. Havergne, 2012-Ohio-810.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96951

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

TYRELL HAVERGNE DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-523541

BEFORE: Celebrezze, J., Boyle, P.J., and Jones, J.

RELEASED AND JOURNALIZED: March 1, 2012 ATTORNEYS FOR APPELLANT

Robert L. Tobik Cuyahoga County Public Defender BY: John T. Martin Assistant Public Defender 310 Lakeside Avenue Suite 200 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor BY: Mary Court Weston Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 FRANK D. CELEBREZZE, JR., J.:

{¶1} Appellant, Tyrell Havergne, appeals his sentence imposed after remand from

this court for merger of allied offenses. Appellant claims that the United States Supreme

Court’s decision in Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009),

requires the trial court to make certain findings to order consecutive sentences. This

court disagrees.

I. Facts and Procedural History

{¶2} In 2010, appellant was convicted of one count of aggravated robbery with

one- and three-year gun specifications, kidnapping, and a felony count of receiving stolen

property. 1 Appellant received a total prison sentence of nine years — six years for

aggravated robbery and kidnapping, and 11 months for receiving stolen property, to be

served concurrently to each other, but consecutively to a three-year sentence for the

firearm specification, and consecutively to the sentence imposed in another case (Case

No. CR-519476).

{¶3} Appellant successfully argued before this court that his convictions for

aggravated robbery and kidnapping were allied offenses and that the state failed to adduce

1A more detailed recitation of the facts underlying this case can be found in State v. Havergne, 8th Dist. No. 95090, 2011-Ohio-935, 2011 WL 743217, ¶ 4-13 (“Havergne I”). sufficient evidence of the value of the stolen property necessary to sustain a felony

charge. Havergne I.

{¶4} On remand for resentencing, on May 17, 2011, the trial court merged the

aggravated robbery and kidnapping counts, and the state elected to proceed with

sentencing on the aggravated robbery charge. The court imposed the same aggregate

nine-year sentence by eliminating the concurrent six-year term of incarceration for

kidnapping and reducing the sentence for receiving stolen property from 11 months to six,

to be served concurrently to each other, but consecutively to the three-year firearm

specification as required by R.C. 2929.14 and 2941.145. The trial court still ordered the

sentence to be served consecutively to that imposed in CR-519476. Appellant objected

to the consecutive sentences without findings by the trial court pursuant to R.C. 2929.14

and 2929.19 in light of the Ice decision. The trial court overruled the objection, and

appellant filed the instant appeal.

II. Law and Analysis

A. Specific Findings are not Required in Order to Impose Consecutive Sentences

{¶5} The recently intractable history of imposing consecutive sentences began with

the Ohio Supreme Court’s decision striking provisions of Ohio’s criminal sentencing

statutes embodied in R.C. 2929.14. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856,

845 N.E.2d 470. This decision was based on the interpretation of the Supreme Court

cases, Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000),

and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). In Apprendi, the Court held that, “[o]ther than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490.

{¶6} Blakely took that holding even further where Washington’s sentencing laws

allowed for enhanced sentences based on factors other than those that were used in

computing the standard range sentence for the offense. Id. at 304. It held that the

statutory maximum was that which a “judge may impose solely on the basis of the facts

reflected in the jury verdict or admitted by the defendant.” (Emphasis sic.) Id.

Anything further would improperly usurp the role of a jury as factfinder and

unconstitutionally inhibit a defendant’s Sixth Amendment rights.

{¶7} The Ohio Supreme Court determined that Ohio’s statutorily required findings

necessary to impose consecutive sentences impinged upon a defendant’s Sixth

Amendment right to a trial by jury. Foster at paragraph one of the syllabus. However,

after Foster was decided, the Supreme Court determined that a state could require its

judiciary to make specific findings necessary to impose consecutive rather than

concurrent sentences without impinging on a jury’s role as factfinder. Ice, 555 U.S. at

163-164, 129 S.Ct. 711, 172 L.Ed.2d 517.

{¶8} To rectify this apparent contradiction, the Ohio Supreme Court decided that

Foster still validly excised those sections requiring findings before imposing maximum or

consecutive sentences. State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d

768. It, however, held that the state legislature could enact similar legislation. Id. at paragraph three of the syllabus. This pragmatic approach culminated in an overhaul of

Ohio’s sentencing provisions, including some similar requirements to those in existence

prior to Foster.2

{¶9} At the time of appellant’s resentencing, Hodge had been decided, but the new

sentencing guidelines had not been enacted by the legislature. Therefore, the trial court

was not required to make findings in order to impose a sentence consecutive to that

imposed in Case No. CR-519476. Hodge at paragraph three of the syllabus; State v.

Nimmer, 8th Dist. No. 95471, 2011-Ohio-1807, 2011 WL 1419751, ¶ 6-8; State v.

Walker, 8th Dist. No. 96076, 2011-Ohio-4505, 2011 WL 3941265, ¶ 4-5; State v. Weaver,

8th Dist. No. 96505, 2011-Ohio-6163, 2011 WL 5999005.

{¶10} Accordingly, appellant’s sole assignment of error is overruled.

{¶11} Judgment affirmed.

It is ordered that appellee recover from appellant 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. Case remanded to the trial court for

execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

2 The trial court must now make certain findings in order to impose consecutive sentences according to the revised sentencing provisions found in 2011 H.B. 86, effective September 30, 2011. FRANK D. CELEBREZZE, JR., JUDGE

MARY J. BOYLE, P.J., and LARRY A. JONES, SR., J., CONCUR