State v. Jude

2014 Ohio 3441

• Court: Ohio Court of Appeals
• Decided: August 8, 2014
• Docket: L-13-1185
• Status: Published

Opinion

[Cite as State v. Jude, 2014-Ohio-3441.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio Court of Appeals No. L-13-1185

Appellee Trial Court No. CR0201202406

v.

Wesley Jude DECISION AND JUDGMENT

Appellant Decided: August 8, 2014

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and David F. Cooper, Assistant Prosecuting Attorney, for appellee.

Steven T. Casiere, for appellant.

YARBROUGH, P.J.

I. Introduction

{¶ 1} Appellant, Wesley Jude, appeals the judgment of the Lucas County Court of

Common Pleas, sentencing him to a total of 11 years in prison following his guilty plea to aggravated robbery and failure to comply with an order or signal of a police officer. For

the following reasons, we affirm.

A. Factual and Procedural Background

{¶ 2} Appellant’s convictions in this case arose out of an incident that occurred

during the early morning hours of August 15, 2012. On that date, appellant, along with

three other men, approached two females, Brandy Fasnaogh and Thea Grabiec, and asked

them for directions. At the time, Brandy and Thea were standing near Thea’s 2010

Honda automobile. Upon learning that the vehicle belonged to Thea, appellant

brandished a handgun and proceeded to rob Brandy and Thea at gunpoint. In so doing,

appellant pointed the handgun at Thea’s chest and stated “give me everything you have.”

Appellant then instructed the victims to lay on the ground, and explained to them that he

would kill them if they contacted the police. Meanwhile, appellant’s accomplices were

busy going through the victims’ pockets. One of the accomplices removed Thea’s keys,

wallet, and cell phone. After robbing the victims, appellant and his accomplices drove

off in Thea’s automobile. Appellant was the driver of the vehicle.

{¶ 3} Later that morning, Toledo police spotted Thea’s automobile and initiated a

traffic stop. However, appellant refused to stop the vehicle, and a pursuit began.

Ultimately, the pursuit ended when appellant lost control of the vehicle. Appellant was

then apprehended. Police later learned that appellant stole the handgun he used to

commit the robbery from his father. At the time of the incident, appellant was subject to

electronic monitoring as a term of his bond in a case that was pending in Wood County.

2. However, appellant’s father informed police that appellant removed his electronic ankle

monitor without permission earlier in the morning.

{¶ 4} On August 23, 2012, appellant was indicted on two counts of aggravated

robbery in violation of R.C. 2911.01(A)(1), along with attendant firearms specifications,

and one count of failure to comply with an order or signal of a police officer in violation

of R.C. 2921.331(B) and (C)(5)(a)(ii). Appellant initially entered a plea of not guilty.

However, on October 22, 2012, appellant withdrew his plea of not guilty and entered a

guilty plea to one count of aggravated robbery with the attendant firearms specification

and one count of failure to comply with an order or signal of a police officer. The state

dismissed the remaining aggravated burglary count and firearm specification. After

receiving appellant’s guilty plea, the trial court ordered a presentence investigation report

and continued the matter for sentencing.

{¶ 5} Prior to sentencing in this case, appellant entered a guilty plea in the Wood

County case to two counts of grand theft of a motor vehicle in violation of R.C.

2913.02(A)(1) and (B)(5), and three counts of complicity to burglary in violation of R.C.

2923.03(A)(2) and (3) and R.C. 2911.12(A)(3). Appellant was subsequently sentenced to

six months each on the two counts of grand theft of a motor vehicle, to be served

concurrently. On the counts of complicity to burglary, the trial court ordered appellant to

serve 30 months in prison on each count, and ordered those sentences to be served

consecutively to each other and consecutively to the six months for grand theft, for a total

prison term of eight years.

3. {¶ 6} On November 5, 2012, approximately two months after appellant was

sentenced in the Wood County case, the trial court in the present action imposed prison

terms of 10 years for aggravated robbery, one year for the firearm specification, and 30

months for failure to comply with an order or signal of a police officer. The trial court

ordered the sentences to be served consecutive to one another. Additionally, the trial

court ordered the sentences served consecutive to the sentence imposed in the Wood

County case. The court justified its imposition of consecutive sentences by stating:

We note that Count 1 [aggravated robbery] and Count 3 [failure to

comply with an order or signal of a police officer] by law must be served

consecutive to one another. We further find that these sentences based

upon the danger the defendant poses we find that he was awaiting * * * a

community control sanction out on bond when he committed these two

offenses, we further find that the harm caused was so great and unusual that

a single prison term for any one of the offenses committed as part of any of

the courses of conduct * * * would not adequately reflect the seriousness of

the offender’s conduct. We further find that the defendant’s criminal

history requires consecutive sentences. We do order that this sentence that

has now been imposed * * * shall be imposed consecutively with the Wood

County case 2012-CR-0205 and it is consecutive as to Count 1, 2, 3, 5 and

8 of that sentence out of Wood County.

4. {¶ 7} The court reiterated its reasons for imposing consecutive sentences in its

judgment entry, stating:

The sentences imposed in count 1 and count 3 are ordered served

consecutively to each other and served consecutively to the sentence

imposed in Wood County, Ohio, case no. 2012CR0205. The Court finds

that the consecutive sentence is necessary to protect the public from future

crime or to punish the defendant, and not disproportionate to the

seriousness of the defendant’s conduct or the danger the defendant poses[.]

[T]he Court further finds that the defendant was awaiting a community

control sanction and was out on bond when he committed these two

offense[s], and the harm caused 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 and

defendant’s criminal history requires consecutive sentences.

{¶ 8} Appellant has timely appealed the trial court’s judgment to this court.

B. Assignment of Error

{¶ 9} In his appeal, appellant assigns the following error for our review:

1. THE TRIAL COURT VIOLATED OHIO REVISED CODE

SECTIONS 2929.14(C) AND 2929.41(A) WHEN IT ORDERED

APPELLANT’S SENTENCE TO RUN CONSECUTIVELY TO A

SENTENCE PREVIOUSLY IMPOSED IN WOOD COUNTY.

5. II. Analysis

{¶ 10} We review consecutive sentences using the standard of review set forth in

R.C. 2953.08. State v. Banks, 6th Dist. Lucas No. L-13-1095, 2014-Ohio-1000, ¶ 10.

Under R.C. 2953.08(G)(2), we may either increase, reduce, or otherwise modify a

sentence, or vacate the sentence and remand the matter for resentencing where we clearly

and convincingly find that either the record does not support the trial court’s findings

under R.C. 2929.14(C)(4), or the sentence is otherwise contrary to law.

{¶ 11} In his assignment of error, appellant argues that the trial court failed to

make the required findings under R.C. 2929.14(C)(4) before it ordered the sentence to be

served consecutively to the sentence out of Wood County.1 Appellant also appealed his

sentence in the Wood County case, alleging that the trial court failed to make certain

findings required by statute as a prerequisite to imposing consecutive sentences. In State

v. Jude, 6th Dist. Wood No. WD-13-055, 2014-Ohio-2437, we held that the imposition of

consecutive sentences was clearly and convincingly contrary to law because the trial

court failed to make the statutory findings in its sentencing entry. Thus, we remanded the

matter to the trial court for resentencing. Here, however, we conclude that the trial court

made the requisite findings in its entry to support the consecutive sentence.

1 Appellant acknowledges that the trial court was statutorily required to order consecutive sentences for aggravated robbery, failure to comply with a signal or order of a police officer, and the firearm specification.

6. {¶ 12} R.C. 2929.14(C)(4) provides:

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 sentence 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.

7. {¶ 13} Notably, 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. Wright, 6th Dist. Lucas Nos.

L-13-1056, 1057, 1058, 2013-Ohio-5903, ¶ 33, quoting State v. Murrin, 8th Dist.

Cuyahoga No. 83714, 2004-Ohio-3962, ¶ 12.

{¶ 14} Specifically, appellant argues that the court, at the sentencing hearing, did

not find that consecutive sentences were not disproportionate to the seriousness of

appellant’s conduct. The state, on the other hand, citing to the sentencing hearing

transcript and the trial court’s judgment entry, asserts that the trial court engaged in the

appropriate analysis.

{¶ 15} Upon our review of the record, we agree with the state that the court

engaged in the appropriate analysis in determining whether consecutive sentences were

proportionate to the seriousness of appellant’s conduct and to the danger he poses to the

public under R.C. 2929.14(C)(4). At the sentencing hearing, the trial court stated that

[t]he offense for which [appellant is] to be sentenced is the kind of

offense that when a victim is faced with a firearm, we have seen the

horrible, devastating, eternal consequences of same where the victim is

facing the firearm and the armed robber then chooses to take their life.

Thank heavens that this didn’t occur in this case. But everything else leads

up to such violence.

8. In addition to its statement at the sentencing hearing, the trial court noted its findings

supporting consecutive sentences in its judgment entry, in which it stated that “the

consecutive sentence is necessary to protect the public from future crime or to punish the

defendant, and not disproportionate to the seriousness of the defendant’s conduct or the

danger the defendant poses.” (Emphasis added.) While the court did not use such

precise language during the sentencing hearing, it is clear from the foregoing that the

court engaged in the appropriate analysis.

{¶ 16} Furthermore, we reject appellant’s assertion, rooted in the Ohio Supreme

Court’s decision in State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165, 793 N.E.2d 473,

that the trial court was required to specifically delineate its R.C. 2929.14(C)(4) findings

on the record at the sentencing hearing. In Comer, the Ohio Supreme Court held,

“Pursuant to R.C. 2929.14(E)(4) and 2929.19(B)(2)(c), when imposing consecutive

sentences, a trial court is required to make its statutorily enumerated findings and give

reasons supporting those findings at the sentencing hearing.” Comer at paragraph one of

the syllabus. At the time, former R.C. 2929.19(B)(2)(c) provided that, at the sentencing

hearing, the trial court “shall make a finding that gives its reasons for selecting the

sentence imposed in any of the following circumstances: * * * (c) If it imposes

consecutive sentences under section 2929.14 of the Revised Code, its reasons for

imposing the consecutive sentences.” However, in 2011, the legislature amended R.C.

2929.19 as part of the sentencing overhaul in H.B. 86, and in so doing, removed the

original language under subsection (B)(2)(c). Thus, as we held in Jude, supra, there is no

9. longer a statutory requirement that the trial court expressly make the R.C. 2929.14(C)(4)

findings at the sentencing hearing. Rather, a trial court’s imposition of consecutive

sentences complies with R.C. 2929.14(C)(4) where its findings are recited in the

sentencing entry and supported by the record from the sentencing hearing. State v.

Payne, 6th Dist. Lucas Nos. L-13-1024, 1025, 2014-Ohio-1147, ¶ 13-16; R.C.

2953.08(G)(2)(a).

{¶ 17} Because the sentencing entry in this case recites the trial court’s R.C.

2929.14(C)(4) findings, which are supported by the sentencing record, we hold that the

trial court’s imposition of consecutive sentences was not clearly and convincingly

contrary to law.

{¶ 18} Accordingly, appellant’s assignment of error is not well-taken.

III. Conclusion

{¶ 19} For the reasons stated above, the judgment of the Lucas County Court of

Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant

to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

10. State v. Jude C.A. No. L-13-1185

Mark L. Pietrykowski, J. _______________________________ JUDGE Stephen A. Yarbrough, P.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.

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