State v. Kozic

2017 Ohio 946

• Court: Ohio Court of Appeals
• Decided: March 15, 2017
• Docket: 15 MA 0212
• Status: Published

Opinion

[Cite as State v. Kozic, 2017-Ohio-946.] STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO. 15 MA 0212 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) JAMIE KOZIC ) ) DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 2010 CR 506A

JUDGMENT: Affirmed in part. Reversed in part. Remanded in part.

APPEARANCES:

For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney 21 West Boardman Street, 6th Floor Youngstown, Ohio 44503

For Defendant-Appellant: Atty. Edward A. Czopur DeGenova & Yarwood, Ltd. 42 North Phelps St. Youngstown, Ohio 44503

JUDGES:

Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary DeGenaro Dated: March 15, 2017 [Cite as State v. Kozic, 2017-Ohio-946.] WAITE, J.

{¶1} Appellant Jamie Kozic appeals a November 16, 2015 Mahoning County

Common Pleas Court resentencing entry. Appellant contends that the trial court

failed to make the requisite R.C. 2929.14(C)(4) consecutive sentence findings.

Pursuant to State v. (Zoltan) Kozic, 7th Dist. No. 15 MA 0215, 2016-Ohio-8556 (“Z.

Kozic”), Appellant’s arguments are without merit. However, the trial court

erroneously resentenced Appellant on two counts that should have been merged.

Accordingly, the judgment of the trial court is reversed in part and the matter is

remanded for a limited resentencing hearing to correct only this issue.

Factual and Procedural History

{¶2} Appellant and his codefendant were collectively charged in a twenty-

two count indictment stemming from a rash of burglaries. Of those twenty-two

counts, seventeen pertained to Appellant. Appellant was indicted on the following:

eight counts of burglary, a felony of the second degree in violation of R.C.

2911.12(A)(2), (C); two counts of attempted burglary, a felony of the third degree in

violation of R.C. 2911.12(A)(2)(c) and R.C. 2923.02; one count of burglary, a felony

of the third degree in violation of R.C. 2911.12(A)(3), (C); one count of possession of

criminal tools, a felony of the fifth degree in violation of R.C. 2923.24(A), (C); two

counts of drug trafficking, a felony of the fourth degree in violation of R.C.

2925.03(A)(1), (C)(1)(a); one count of drug trafficking, a felony of the second degree

in violation of R.C. 2925.03 (A)(1), (C)(1)(c); one count of drug trafficking, a felony of

the third degree, in violation of R.C. 2925.03 (A)(1), (C)(1)(b); and one count of -2-

engaging in corrupt activity, a felony of the first degree in violation of R.C.

2923.32(A)(1), (B).

{¶3} Ultimately, Appellant was convicted on seven counts of burglary, one

count of attempted burglary, one count of possession of criminal tools, three counts

of drug trafficking, and one count of engaging in corrupt activity. The trial court

imposed an aggregate sentence of 20 years of incarceration. Appellant filed a direct

appeal with this Court, contesting both his convictions and sentence. State v. Kozic,

7th Dist. No. 11 MA 135, 2014-Ohio-3807 (“Kozic I”). We affirmed the judgment of

the trial court in part and reversed in part. As to Appellant’s conviction, we vacated

count twelve (possession of criminal tools). Regarding his sentence, we ordered a

limited remand, only for the purpose of removing count twelve from sentencing and

to merge counts sixteen and seventeen (drug trafficking). The remaining aspects of

Appellant’s conviction and sentence were affirmed.

{¶4} On August 24, 2015, the trial court held a limited resentencing hearing.

The court imposed an 18-year aggregate sentence on Appellant. It is from this

sentence that Appellant timely appeals.

ASSIGNMENT OF ERROR

Appellant’s sentence is both contrary to law and an abuse of discretion

as the trial court failed to make any of the findings required by R.C.

2929.14(C)(4) prior to imposing consecutive sentences.

{¶5} Appellant contends that the trial court failed to make the requisite R.C.

2929.14(C)(4) findings at the resentencing hearing and within the resentencing entry. -3-

{¶6} In response, the state argues that this Court issued a limited remand in

Kozic I for the sole purposes of vacating count twelve and merging counts sixteen

and seventeen. Since this Court ordered only a limited remand, the state argues that

the trial court lacked jurisdiction to revisit any other issue. As such, the state argues

that Appellant is barred by res judicata from raising an argument regarding

consecutive sentences. The state also notes that R.C. 2929.14(C)(4) does not apply

here, as it was enacted several weeks after Appellant was originally sentenced.

{¶7} An appellate court is permitted to review a felony sentence to determine

if it is contrary to law. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59

N.E.3d 1231, ¶ 23. Further, a reviewing court “may vacate or modify any sentence

that is not clearly and convincingly contrary to law only if the appellate court finds by

clear and convincing evidence that the record does not support the sentence.” Id. at

¶ 23.

{¶8} Pursuant to R.C. 2929.14(C)(4), before a trial court can impose

consecutive sentences on a defendant, the court must find:

[T]hat 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} A trial court judge must make the consecutive sentence findings at the

sentencing hearing and must additionally incorporate the findings into the sentencing

entry. State v. Williams, 7th Dist. No. 13 MA 125, 2015-Ohio-4100, 43 N.E.3d 797,

¶ 33-34, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659,

¶ 37. The court need not state reasons to support its finding nor is it required to use

any “magic” or “talismanic” words, so long as it is apparent that the court conducted

the proper analysis. Id. citing State v. Jones, 7th Dist. No. 13 MA 101, 2014-Ohio-

2248, ¶ 6; State v. Verity, 7th Dist. No. 12 MA 139, 2013-Ohio-1158, ¶ 28-29.

{¶10} We recently visited this issue in the appeal of Appellant’s codefendant.

Z. Kozic, supra. In Z. Kozic, we reversed the appellant’s convictions and sentences

in part and affirmed in part. Specifically, we reversed two fourth-degree drug -5-

trafficking convictions and ordered a limited remand for the purpose of entering

convictions on third-degree drug trafficking, instead, and to resentence accordingly.

We affirmed the remaining aspects of the appellant’s convictions and sentences.

The trial court held a resentencing hearing and sentenced Appellant’s codefendant

according to this Court’s Opinion. Codefendant again appealed his sentence and

argued that the trial court failed to address R.C. 2929.14(C)(4). We acknowledged

that the trial court did not address R.C. 2929.14(C)(4), but held that the court lacked

jurisdiction to do so, as we had ordered only a limited remand for the sole purpose of

addressing the drug trafficking counts.

{¶11} Appellant, here, raises the same argument. Pursuant to Z. Kozic, the

trial court’s failure to address R.C. 2929.14(C)(4) is not error as the court lacked

jurisdiction to address the imposition of consecutive sentences on remand. In Kozic I

we clearly ordered a very limited remand:

As indicated under appellant’s thirteenth assignment of error,

appellant’s sentence is reversed and remanded for a new sentencing

hearing so that appellant’s conviction and sentence for counts 16 (drug

trafficking) and 17 (drug trafficking) can be merged. Additionally,

pursuant to our resolution of appellant’s second assignment of error,

appellant’s sentence on count 12 (possessing criminal tools) is vacated

and the matter is remanded for resentencing to address the removal of

that sentence. (Emphasis added.) -6-

Id. at ¶ 185. As the trial court had jurisdiction for the sole purpose of addressing

counts twelve, sixteen, and seventeen, the court’s failure to completely resentence to

address R.C. 2929.14(C)(4) is not error.

{¶12} However, although we ordered the trial court to merge counts sixteen

and seventeen, the sentencing entry reflects that Appellant was again sentenced on

both counts. These sentences were ordered to run concurrently. However,

“[s]entencing concurrently on merged counts does not satisfy the merger doctrine as

no sentence at all should be entered on one of the two merged counts.” State v.

Tapscott, 7th Dist. No. 11 MA 26, 2012-Ohio-4213, 978 N.E.2d 210, ¶ 48, citing State

v. Gardner, 7th Dist. No. 10 MA 52, 2011-Ohio-2644, ¶ 24; State v. Whitfield, 124

Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 17. Accordingly, the judgment of

the trial court is reversed in part. This matter is remanded for a limited resentencing

hearing where the state must elect which charge to pursue for sentencing purposes.

Conclusion

{¶13} Appellant contends that the trial court failed to make the requisite R.C.

2929.14(C)(4) consecutive sentence findings. However, pursuant to Z. Kozic, supra,

the trial court lacked jurisdiction to resentence using R.C. 2929.14(C)(4).

Accordingly, Appellant’s arguments are without merit. However, the trial court failed

to properly merge counts sixteen and seventeen. Accordingly, the judgment of the

trial court is reversed in part and the matter is remanded only for a limited

resentencing, where the state must elect which charge to pursue for sentencing

purposes. -7-

Donofrio, J., concurs.

DeGenaro, J., concurs.