[Cite as State v. Hunter, 2014-Ohio-4728.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio Court of Appeals No. L-12-1101
Appellee Trial Court No. CR0201201060
v.
Joseph R. Hunter DECISION AND JUDGMENT
Appellant Decided: October 24, 2014
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and David F. Cooper, Assistant Prosecuting Attorney, for appellee.
Karin L. Coble, for appellant.
PIETRYKOWSKI, J.
{¶ 1} Joseph J. Hunter, appellant, appeals a March 30, 2012 judgment of the Lucas
County Court of Common Pleas of conviction and sentence entered against him after a
jury trial. Hunter was convicted on all four counts of a four count indictment charging
him with involuntary manslaughter; attempt to commit murder, felonious assault and aggravated robbery. Each count included an R.C. 2941.145 firearm specification. A
detailed account of the charges and convictions is provided in our prior decision in this
appeal. State v. Hunter, 6th Dist. Lucas No. L-12-1101, 2013-Ohio-4738, ¶ 1-3.
{¶ 2} The trial court concluded that the felonious assault and attempt to commit
murder convictions are allied offenses of similar import and merged the convictions for
purposes of sentencing. The state elected to proceed at sentencing on the attempt to
commit murder conviction. The parties and the court also agreed that the remaining three
firearm specifications were to be merged at sentencing.
{¶ 3} Initially this appeal was brought under Anders v. California, 386 U.S. 738,
87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) procedures. In the prior decision in this case, we
found issues of arguable merit exist for appeal and appointed new counsel to pursue the
appeal on appellant’s behalf. Appellant now asserts three assignments of error on appeal:
Assignments of Error
Assignment of Error 1: The trial court did not correctly merge
appellant’s sentences for the three gun specifications.
Assignment of Error 2: The trial court erred in sentencing appellant
to consecutive sentences.
Assignment of Error 3: The trial court did not correctly enter a
waiver of costs in the judgment entry of conviction and sentence.
2. Standard of Review
{¶ 4} After September 30, 2011, R.C. 2953.08(G)(2) provides the standard of
review by appellate courts with respect to felony sentencing. State v. Tammerine, 6th
Dist. Lucas No. L-13-1081, 2014-Ohio-425, ¶ 11; State v. Steck, 6th Dist. Wood Nos.
WD-13-017 and WD-13-018, 2014-Ohio-3623, ¶ 11-14. This court outlined the standard
of review in Tammerine:
R.C. 2953.08(G)(2) establishes that an appellate court may increase,
reduce, modify, or vacate and remand a dispute[d] sentence if it clearly and
convincingly finds either of the following:
(a) That the record does not support the sentencing court’s findings
under division (B) or (D) of section 2929.13(B) or (D), division (B)(2)(e) or
(C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised
Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law. Tammerine at
¶ 11, quoting R.C. 2953.08(G)(2).
{¶ 5} Under assignment of error No. 1, appellant argues (1) that the trial court did
not correctly merge the sentences for the three firearm specifications and (2) that the
sentences on the firearm specifications are at variance with the sentences pronounced at
the sentencing hearing. The state concedes that a clerical error occurred with respect to
sentencing on the firearm specifications and agrees that the case should be remanded for
resentencing as to the merged firearm specifications.
3. {¶ 6} We find assignment of error No. 1 well-taken. We reverse the trial court
judgment with respect to sentencing on the three firearm specifications, and remand this
matter to the trial court for resentencing, to permit the trial court to merge the three
firearm specifications for purposes of sentencing and impose a single sentence on one
firearm specification.
{¶ 7} Under assignment of error No. 2, appellant argues that the trial court erred in
sentencing appellant to consecutive sentences on the involuntary manslaughter, attempt
to commit murder, and aggravated robbery convictions. Appellant contends that the trial
court erred by failing to make R.C. 2929.14(C)(4) findings at the sentencing hearing that
are required to impose consecutive sentences.
{¶ 8} R.C. 2929.14(C)(4) provides:
(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
4. 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.
{¶ 9} Appellant argues that the trial court did not make any of the required
findings under R.C. 2929.14(C)(4) at the sentencing hearing, and that the court was
simply silent on the issue. Appellant also asserts that the record does not reflect that the
trial court engaged in the analysis required under R.C. 2929.14(C)(4) at the sentencing
hearing.
{¶ 10} The state contends that statements by the trial court at the sentencing
hearing, when considered in combination with the more specific findings in the
sentencing judgment entry were sufficient to meet R.C. 2929.14(C)(4) requirements. We
disagree.
{¶ 11} After briefing on this appeal was completed, the Ohio Supreme Court
announced its decision in State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177,
5. 16 N.E.3d 659. In Bonnell, the Ohio Supreme Court held that “R.C. 2929.14(C)(4)
requires the trial court to make statutory findings prior to imposing consecutive
sentences, and Crim.R. 32(A)(4) therefore directs the court to state those findings at the
time of imposing sentence.” Id. at ¶ 26. The court stated further:
When imposing consecutive sentences, a trial court must state the
required findings as part of the sentencing hearing, and by doing so it
affords notice to the offender and to defense counsel. See Crim.R.
32(A)(4). And because a court speaks through its journal, State v. Brooke,
113 Ohio St.3d 199, 2007-Ohio-1533, 863 N.E.2d 1024, ¶ 47, the court
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[Cite as State v. Hunter, 2014-Ohio-4728.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio Court of Appeals No. L-12-1101
Appellee Trial Court No. CR0201201060
v.
Joseph R. Hunter DECISION AND JUDGMENT
Appellant Decided: October 24, 2014
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and David F. Cooper, Assistant Prosecuting Attorney, for appellee.
Karin L. Coble, for appellant.
PIETRYKOWSKI, J.
{¶ 1} Joseph J. Hunter, appellant, appeals a March 30, 2012 judgment of the Lucas
County Court of Common Pleas of conviction and sentence entered against him after a
jury trial. Hunter was convicted on all four counts of a four count indictment charging
him with involuntary manslaughter; attempt to commit murder, felonious assault and aggravated robbery. Each count included an R.C. 2941.145 firearm specification. A
detailed account of the charges and convictions is provided in our prior decision in this
appeal. State v. Hunter, 6th Dist. Lucas No. L-12-1101, 2013-Ohio-4738, ¶ 1-3.
{¶ 2} The trial court concluded that the felonious assault and attempt to commit
murder convictions are allied offenses of similar import and merged the convictions for
purposes of sentencing. The state elected to proceed at sentencing on the attempt to
commit murder conviction. The parties and the court also agreed that the remaining three
firearm specifications were to be merged at sentencing.
{¶ 3} Initially this appeal was brought under Anders v. California, 386 U.S. 738,
87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) procedures. In the prior decision in this case, we
found issues of arguable merit exist for appeal and appointed new counsel to pursue the
appeal on appellant’s behalf. Appellant now asserts three assignments of error on appeal:
Assignments of Error
Assignment of Error 1: The trial court did not correctly merge
appellant’s sentences for the three gun specifications.
Assignment of Error 2: The trial court erred in sentencing appellant
to consecutive sentences.
Assignment of Error 3: The trial court did not correctly enter a
waiver of costs in the judgment entry of conviction and sentence.
2. Standard of Review
{¶ 4} After September 30, 2011, R.C. 2953.08(G)(2) provides the standard of
review by appellate courts with respect to felony sentencing. State v. Tammerine, 6th
Dist. Lucas No. L-13-1081, 2014-Ohio-425, ¶ 11; State v. Steck, 6th Dist. Wood Nos.
WD-13-017 and WD-13-018, 2014-Ohio-3623, ¶ 11-14. This court outlined the standard
of review in Tammerine:
R.C. 2953.08(G)(2) establishes that an appellate court may increase,
reduce, modify, or vacate and remand a dispute[d] sentence if it clearly and
convincingly finds either of the following:
(a) That the record does not support the sentencing court’s findings
under division (B) or (D) of section 2929.13(B) or (D), division (B)(2)(e) or
(C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised
Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law. Tammerine at
¶ 11, quoting R.C. 2953.08(G)(2).
{¶ 5} Under assignment of error No. 1, appellant argues (1) that the trial court did
not correctly merge the sentences for the three firearm specifications and (2) that the
sentences on the firearm specifications are at variance with the sentences pronounced at
the sentencing hearing. The state concedes that a clerical error occurred with respect to
sentencing on the firearm specifications and agrees that the case should be remanded for
resentencing as to the merged firearm specifications.
3. {¶ 6} We find assignment of error No. 1 well-taken. We reverse the trial court
judgment with respect to sentencing on the three firearm specifications, and remand this
matter to the trial court for resentencing, to permit the trial court to merge the three
firearm specifications for purposes of sentencing and impose a single sentence on one
firearm specification.
{¶ 7} Under assignment of error No. 2, appellant argues that the trial court erred in
sentencing appellant to consecutive sentences on the involuntary manslaughter, attempt
to commit murder, and aggravated robbery convictions. Appellant contends that the trial
court erred by failing to make R.C. 2929.14(C)(4) findings at the sentencing hearing that
are required to impose consecutive sentences.
{¶ 8} R.C. 2929.14(C)(4) provides:
(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
4. 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.
{¶ 9} Appellant argues that the trial court did not make any of the required
findings under R.C. 2929.14(C)(4) at the sentencing hearing, and that the court was
simply silent on the issue. Appellant also asserts that the record does not reflect that the
trial court engaged in the analysis required under R.C. 2929.14(C)(4) at the sentencing
hearing.
{¶ 10} The state contends that statements by the trial court at the sentencing
hearing, when considered in combination with the more specific findings in the
sentencing judgment entry were sufficient to meet R.C. 2929.14(C)(4) requirements. We
disagree.
{¶ 11} After briefing on this appeal was completed, the Ohio Supreme Court
announced its decision in State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177,
5. 16 N.E.3d 659. In Bonnell, the Ohio Supreme Court held that “R.C. 2929.14(C)(4)
requires the trial court to make statutory findings prior to imposing consecutive
sentences, and Crim.R. 32(A)(4) therefore directs the court to state those findings at the
time of imposing sentence.” Id. at ¶ 26. The court stated further:
When imposing consecutive sentences, a trial court must state the
required findings as part of the sentencing hearing, and by doing so it
affords notice to the offender and to defense counsel. See Crim.R.
32(A)(4). And because a court speaks through its journal, State v. Brooke,
113 Ohio St.3d 199, 2007-Ohio-1533, 863 N.E.2d 1024, ¶ 47, the court
should also incorporate its statutory findings into the sentencing entry. Id.
at ¶ 29.
{¶ 12} In Bonnell, the Ohio Supreme Court stated that a “word for word
recitation” of the statutory language is not required to comply with R.C. 2929.14(C):
[A] word-for-word recitation of the language of the statute is not
required, and as long as the reviewing court can discern that the trial court
engaged in the correct analysis and can determine that the record contains
evidence to support the findings, consecutive sentences should be upheld.
Id.
{¶ 13} We have reviewed the record including the transcript of the sentencing
hearing. At the hearing, the trial court did not discuss R.C. 2929.14(C) or findings under
the statute. Although the court was not required to engage in a word-for-word recitation
6. of the language of the statute, we nevertheless are unable to discern from our review of
the record whether the trial court engaged in the fact finding analysis required under R.C.
2929.14(C) to impose consecutive sentences.
{¶ 14} As the record does not support a conclusion that the trial court made all
findings required by R.C. 2929.14(C) at the time it imposed consecutive sentences in this
case, the imposition of consecutive sentences in this case is contrary to law. See Bonnin
at ¶ 37.
{¶ 15} We find assignment of error No. 2 well-taken.
{¶ 16} We vacate appellant’s sentence and remand this matter to the trial court for
resentencing with respect to imposition of consecutive sentences on appellant’s
convictions for involuntary manslaughter, attempt to commit murder, and aggravated
robbery.
{¶ 17} Under assignment of error No. 3, appellant argues the trial court erred with
respect to waiver of costs. Appellant states that a variance exists, with respect to waiver
of court costs, between the trial court’s pronouncement of sentence at the sentencing
hearing and the terms of the sentencing judgment entry.
{¶ 18} The state agrees that at the sentencing hearing the trial court appeared to
have granted appellant a waiver of costs due to his indigence and that the judgment entry
is inconsistent and ambiguous with respect to waiver. The judgment found appellant both
indigent and able to pay costs.
7. {¶ 19} The parties agree that the sentencing judgment with respect to waiver of
court costs should be reversed and the case remanded to permit the trial court to correct
its judgment to unambiguously waive court costs on the basis of indigency.
{¶ 20} Good cause appearing, we find assignment of error No. 3 well-taken. We
vacate the trial court judgment with respect to waiver of court costs on the basis of
indigency and remand the matter to the trial court for resentencing.
{¶ 21} Justice having been denied the party appealing, we vacate the March 30,
2012 judgment of the Lucas County Court of Common Pleas as set forth in this judgment
and remand for resentencing.
{¶ 22} In summary, we vacate the judgment (1) with respect to sentencing on the
three firearm specifications, (2) with respect to imposition of consecutive sentences for
the involuntary manslaughter, attempt to commit murder, and aggravated robbery
convictions, and (3) with respect to waiver of court costs on the basis of indigency. We
remand this matter to the trial court for resentencing on these three matters. We order
appellee to pay the costs of this appeal pursuant to App.R. 24.
Judgment reversed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
8. State v. Hunter C.A. No. L-12-1101
Mark L. Pietrykowski, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ James D. Jensen, J. JUDGE CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.
9.