State v. Phelps

2017 Ohio 7550

• Court: Ohio Court of Appeals
• Decided: September 7, 2017
• Docket: 17 CAA 03 0014
• Status: Published

Opinion

[Cite as State v. Phelps, 2017-Ohio-7550.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. Patrica A. Delaney, P.J. Plaintiff - Appellee : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. -vs- : : JOSHUA W. PHELPS : Case No. 17 CAA 03 0014 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 13 CR I 11 0561

JUDGMENT: Reversed and Remanded for Resentencing

DATE OF JUDGMENT: September 7, 2017

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CAROL HAMILTON O'BRIEN CHRISTOPHER J. BURCHINAL Prosecuting Attorney 40 North Sandusky Street, Suite 202 Delaware, Ohio 43015 By: MARK C. SLEEPER Assistant Prosecuting Attorney 140 North Sandusky Street Delaware, Ohio 43015 Delaware County, Case No. 17 CAA 03 0014 2

Baldwin, J.

{¶1} Appellant Joshua W. Phelps appeals the judgment of the Delaware County

Common Pleas Court revoking his community control and sentencing him to twelve

months in prison, to be served consecutively to a sentence appellant was serving from

Union County.

STATEMENT OF THE FACTS AND CASE

{¶2} On November 27, 2013, appellant was indicted by the Delaware County

Grand Jury with one count of violation of a protection order in violation of R.C.

2919.27(A)(2). He entered a plea of guilty and was sentenced to five years community

control.

{¶3} A motion to suspend community control was filed on January 5, 2017, based

on a new conviction for menacing by stalking in Union County, for which appellant was

sentenced to eighteen months incarceration. Appellant admitted the community control

violation in Delaware County. His community control was revoked and he was sentenced

to twelve months incarceration, to be served consecutively to the Union County sentence.

{¶4} The trial court’s judgment of sentence was filed on January 30, 2017.

Although the form entry included boxes to check to make specific findings to support the

imposition of consecutive sentences, the court failed to make the requisite findings. In a

nunc pro tunc entry filed March 7, 2017, the court again failed to check the boxes to make

specific findings to support the imposition of consecutive sentences.

{¶5} Appellant assigns a single error:

{¶6} “THE TRIAL COURT ERRED WHEN IT FAILED TO EXPRESSLY MAKE

THE FINDINGS REQUIRED BY O.R.C. §2929.14(C)(4) IN ITS SENTENCING ENTRY.” [Cite as State v. Phelps, 2017-Ohio-7550.]

{¶7} In order to impose consecutive terms of imprisonment, a trial court is required

to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and

incorporate its findings into its sentencing entry, but it has no obligation to state reasons

to support its findings. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177,

16 N.E.3d 659, syllabus (2014).

{¶8} The State concurs with appellant that the trial court erred in the instant case

in failing to make the findings required by R.C. 2929.14(C)(4) before imposing consecutive

sentences. However, the parties disagree about the remedy for the court’s error.

Appellant asks this court to order the sentences to run concurrently, while the State argues

a remand for resentencing is the appropriate remedy.

{¶9} In Bonnell, supra, the Ohio Supreme Court found the trial court erred in

failing to state its reasons for imposing consecutive sentences pursuant to R.C.

2929.14(C)(4), and remanded to the court for resentencing. 140 Ohio St. 3d at ¶37.

Accordingly, we reject appellant’s argument that we must impose concurrent sentences

in the instant case. {¶10} The assignment of error is sustained. The judgment of the Delaware County

Common Pleas Court is reversed, and this case is remanded to that court for

resentencing. Costs are assessed to appellee.

By: Baldwin, J.

Delaney, P.J. and

John Wise, J. concur.