State v. Martin

950 N.E.2d 221, 192 Ohio App. 3d 681
Ohio Court of Appeals·Decided March 3, 2011·No. No. 09AP-1073·Published·Cited by 1 cases

Opinion

Connor, Judge.

{¶ 1} This case is before the court upon applications for reconsideration and for en banc consideration filed by appellant, the state of Ohio, regarding our decision [683]*683to affirm the trial court’s resentencing of the defendant to a period of community control. These applications arise out of a second appeal filed by the state of Ohio.

{¶2} In its first appeal, the state of Ohio presented the following two assignments of error:

First Assignment of Error
The trial court erred in imposing community control when it failed to make the required findings and failed to give adequate reasons for overcoming the presumption in favor of a prison term.
Second Assignment of Error
The trial court’s imposition of community control is contrary to law, as defendant cannot overcome the presumption in favor of a prison term.

State v. Martin, 10th Dist. No. 08AP-1103, 2009-Ohio-3485, 2009 WL 2101833, ¶ 4 (“Martin I ”).

{¶ 3} With respect to the first assignment of error, Judge French wrote for the majority:

Here, the trial court attempted to provide the requisite findings and reasons in its sentencing entry. Nevertheless, a trial court must provide the findings and reasons at the sentencing hearing. See State v. Wooden, 10th Dist. No. 05AP-330, 2006-Ohio-212 [2006 WL 158434], ¶ 5. Although the trial court said at the sentencing hearing that community control “is the best way to protect the public,” the court did not find that, under the R.C. 2929.12 factors, a community control sanction would adequately punish appellee and protect the public from future crime. Likewise, the trial court failed to find at the sentencing hearing that, under the R.C. 2929.12 factors, a community control sanction would not demean the seriousness of appellee’s offense. Without these findings, the court failed to provide the required reasons to support a community control sanction. Therefore, we conclude that the trial court contravened R.C. 2929.13(D)(2) and 2929.19(B)(2)(b) when it imposed community control without providing the required findings and supporting reasons at the sentencing hearing. Accordingly, we sustain appellant’s first assignment of error.

Martin I at ¶ 7.

{¶ 4} With respect to the state’s second assignment of error, Judge French wrote:

In its second assignment of error, appellant asks us to review the record and determine that appellee must be sentenced to prison because the statutory findings and supporting reasons for a community control sanction cannot be made. We decline. Because the trial court sentenced appellee to community control without providing the required statutory findings and supporting [684]*684reasons at the sentencing hearing, the sentencing laws mandate that we remand this case to give the trial court the opportunity to do so. R.C. 2953.08(G)(1); State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855 [846 N.E.2d 1], ¶ 35-36. Therefore, we overrule appellant’s second assignment of error.

Martin I at ¶ 8. The case was then remanded, and the trial court held a resentencing hearing on October 22, 2009. After the resentencing hearing, the trial court again found that the presumption in favor of prison had been overcome and sentenced the defendant to community control. By this time, the defendant had been incarcerated 312 days.

{¶ 5} The state of Ohio appealed the trial court’s sentencing a second time and again raised the same two assignments of error that were raised in the first appeal.

{¶ 6} On December 2, 2010, Judge Tyack, writing for the majority, found:

A panel of this court overruled the second assignment of error, which is identical to the second assignment of error the State alleges in this appeal. This issue has already been decided by this appellate court. The second assignment of error in this appeal is therefore overruled, based upon the doctrine of res judicata.
In the first appeal, a panel of this court found that the trial court had not made all the findings required to overcome the legal presumption in favor of incarceration in a state prison for the offense of felonious assault. The trial court needed to find, under R.C. 2929.13(D)(2)(a) and (b):
(a) A community control sanction * * * would adequately punish the offender and protect the public from future crime, because the applicable factors under section 2929.12 of the Revised Code indicating a lesser likelihood of recidivism outweigh the applicable factors under that section indicating a greater likelihood of recidivism.
(b) A community control sanction * * * would not demean the seriousness of the offense, because one or more factors under section 2929.12 of the Revised Code that indicate that the offender’s conduct was less serious than conduct normally constituting the offense are applicable, and they outweigh the applicable factors under that section that indicate that the offender’s conduct was more serious than conduct normally constituting the offense.
Following a remand to the trial court, the trial judge took great pains to attempt to comply with our mandate. The trial court held an additional sentencing hearing and issued a detailed sentencing entry which included the following.

State v. Martin, 10th Dist. No. 09AP-1073, 2010-Ohio-5863, 2010 WL 4925841, ¶ 6-8 (“MaHin II ”).

[685]*685{¶ 7} Judge Tyack quoted the trial judge’s findings made in open court, writing:

The trial court went on to explain its findings, including a detailed review of Martin’s mental health challenges and states:
In summary, the court finds that the presumption in favor of a term of imprisonment is rebutted on the evidence before it.
We find that the trial court followed our mandate and made the appropriate findings necessary to grant community control in this case. We, therefore, overrule the first assignment of error.

Martin II at ¶ 10-11.

{¶ 8} The state alleges several errors in its applications for reconsideration and en banc consideration. When presented with an application for reconsideration, an appellate court must determine whether the application calls to the court’s attention an obvious error in its decision, or raises an issue for consideration that was either not considered at all or not fully considered by the court when it should have been. State v. Rowe (Feb. 10, 1994), 10th Dist. No. 93AP-1763, 1994 WL 41312, citing Matthews v. Matthews (1981), 5 Ohio App.3d 140, 5 OBR 320, 450 N.E.2d 278. However, “[a]n application for reconsideration is not designed for use in instances where a party simply disagrees with the conclusions reached and the logic used by an appellate court.” State v. Owens (1996), 112 Ohio App.3d 334, 336, 678 N.E.2d 956. “App.R.

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State v. Martin, 950 N.E.2d 221, 192 Ohio App. 3d 681 (Ohio Ct. App. 2011).

950 N.E.2d 221 (State v. Martin) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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