State v. Sanders

2020 Ohio 4608

Opinion

[Cite as State v. Sanders, 2020-Ohio-4608.]

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

State of Ohio Court of Appeals Nos. WM-19-016 WM-19-017 Appellee Trial Court Nos. 19CR050 v. 19CR136

Mark Sanders DECISION AND JUDGMENT

Appellant Decided: September 25, 2020

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Katherine J. Zartman, Williams County Prosecuting Attorney, and Stacey S. Stiriz, Assistant Prosecuting Attorney, for appellee.

Karin L. Coble, for appellant.

PIETRYKOWSKI, J.

{¶ 1} In this consolidated appeal, appellant, Mark Sanders, appeals from the

judgment entries of the Williams County Court of Common Pleas which, following

negotiated guilty pleas to the charges of aggravated possession of drugs and failure to

appear, sentenced him to a consecutive sentence of 28 months of imprisonment. We conclude that the prison sentence was in conformity with the law; however, the

imposition of a consecutive sentence was contrary to law, and the costs of appointed

counsel was not properly imposed.

I. Facts and Procedural Background

{¶ 2} On February 26, 2019, appellant was indicted for aggravated possession of

drugs, a fifth-degree felony. Appellant failed to appear for the hearing on his motion to

suppress and was indicted for failure to appear, a fourth-degree felony.

{¶ 3} On July 3, 2019, appellant entered guilty pleas to the charges. The state

recommended own recognizance (“OR”) release in order to determine whether he was an

appropriate community control candidate. Appellant represented to the court his plan to

go to recovery services, complete the presentence investigation, and get a job as soon as

he was released.

{¶ 4} At the August 15, 2019 sentencing hearing, the state notified the court of

appellant’s failure to appear at his scheduled appointment with probation and

recommended a consecutive sentence to protect the public. Appellant rebutted claiming

that he was only late to the appointment and had rescheduled. However, the trial court

after considering the factors under R.C. 2929.12, found that a prison sentence was

consistent with the purposes of R.C. 2929.11 and sentenced him to 28 months in prison:

11 months for possession of drugs, and 17 months for failure to appear. The court further

ordered that the sentences be served consecutively due to the great or unusual harm,

appellant’s criminal history, and the need to protect the public.

2. {¶ 5} In the sentencing judgment entries, the court ordered appellant to pay any

court-appointed counsel costs, prosecution costs, and supervision fees. This appeal

followed.

II. Assignments of Error

{¶ 6} Appellant now raises two assignments of error for our review:

Assignment of Error One: The consecutive sentence is clearly and

convincingly not supported by the record and should be modified on

appeal.

Assignment of Error Two: The trial court erred when it imposed

costs of appointed counsel in the judgment entry but failed to impose those

costs at sentencing, and without finding appellant had the ability to pay.

III. Law and Analysis

{¶ 7} We review felony sentences under R.C. 2953.08(G)(2). State v. Marcum,

146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 16. We may increase, modify,

or vacate and remand a judgment only if we clearly and convincingly find either of the

following: “(a) the record does not support the sentencing court’s findings under division

(B) or (D) of section 2929.13, 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” or “(b) the

sentence is otherwise contrary to law.” State v. Yeager, 6th Dist. Sandusky No. S-15-025,

2016-Ohio-4759, ¶ 7, quoting R.C. 2953.08(G)(2).

3. A. Consecutive Sentencing

{¶ 8} In his first assignment of error, appellant argues that the sentence is contrary

to the purpose and principles of felony sentencing and that the trial court’s order to serve

his sentence consecutively was not supported by the record.

{¶ 9} A felony sentence is considered to be “contrary to law” if the trial court

failed to consider the purposes of felony sentencing set forth in R.C. 2929.11 and the

seriousness and recidivism factors set forth in R.C. 2929.12 when determining the

appropriate sentence. State v. Williams, 6th Dist. Lucas No. L-13-1083, 2014-Ohio-3624,

¶ 8.

{¶ 10} To impose a consecutive sentence, the trial court is required to make three

findings: (1) consecutive sentences are “necessary to protect the public from future crime

or to punish the offender * * * ”; (2) the imposition of consecutive sentences is not

“disproportionate to the seriousness of the offender’s conduct and to the danger the

offender poses to the public * * * ”; and (3) one of the factors in R.C. 2929.14(C)(4)(a)-

(c) applies. R.C. 2929.14(C)(4). R.C. 2929.14(C)(a)-(c) provides:

(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

4. 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.

{¶ 11} At sentencing, a trial court must make its findings under R.C.

2929.14(C)(4), and incorporate them into the sentencing judgment entry. State v.

Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. But the trial

court is not required to state the reasons behind its findings. Id. Thus, the trial court’s

recitation of the statute is sufficient to support the imposition of consecutive sentences.

State v. Braswell, 6th Dist. Lucas No. L-16-1197, 2018-Ohio-3208, ¶ 40, citing State v.

Ault, 6th Dist. Ottawa No. OT-13-037, 2015-Ohio-556, ¶ 12.

{¶ 12} On the date of sentencing, the prison terms for a fourth-degree felony

ranged from six to 18 months. R.C. 2929.14(A)(4). The prison terms for a fifth-degree

felony ranged from six to 12 months. R.C. 2929.14(A)(5). R.C. 2929.13(B)(1) provides,

in relevant part:

(b) The court has discretion to impose a prison term upon an

offender who is convicted of or pleads guilty to a felony of the fourth or

fifth degree that is not an offense of violence or that is a qualifying assault

offense if any of the following apply:

5. ***

(ix) The offender at the time of the offense was serving, or the

offender previously had served, a prison term.

(x) The offender committed the offense while under a community

control sanction, while on probation, or while released from custody on a

bond or personal recognizance.

{¶ 13} In sentencing appellant, the trial court indicated that it considered the

record, oral statements, appellant’s criminal history, the principles and purposes of

sentencing under R.C. 2929.11 and the seriousness and recidivism factors under R.C.

2929.12. Here, the 17-month prison sentence imposed for failure to appear and the

11-month sentence for possession of drugs were within the statutory ranges. Thus, the

individual sentences were proper.

{¶ 14} At the sentencing hearing, the trial court also ordered the sentence to be

served consecutively stating:

I find that consecutive sentences are necessary to protect the public

and to punish you for your conduct. That one crime was committed while

you were on probation or under sanction with this Court. The harm was so

great or unusual that a single term does not adequately reflect the

seriousness of your conduct. And that your criminal history shows that

consecutive terms are necessary.

6. {¶ 15} However, the transcript of appellant’s sentencing hearing further shows

that the trial court did not make the findings required by R.C. 2929.14(C)(4). The

findings included in the judgment entry stated:

The Court finds that consecutive sentences are necessary because the

offender committed one or more of the offenses while awaiting trial, the

harm caused by the offender was so great or unusual that a single prison

term would not adequately reflect the seriousness of the offense and the

offender’s history of criminal conduct demonstrates that consecutive

sentences are necessary to protect the public from future crime by the

offender.

{¶ 16} An appellate court must conduct a “meaningful review” of a trial court’s

decision to impose consecutive sentences pursuant to R.C. 2953.08(G)(2). State v.

Peters, 8th Dist. Cuyahoga No. 108068, 2019-Ohio-4461, ¶ 30. See R.C. 2953.08(F)

(“On the appeal of a sentence under this section, the record to be reviewed shall include

* * * (1) [a]ny presentence, psychiatric, or other investigative report that was submitted

to the court in writing before the sentence was imposed[;] * * * (2) [t]he trial record in

the case in which the sentence was imposed; [and] (3) [a]ny oral or written statements

made to or by the court at the sentencing hearing at which the sentence was imposed[.]”).

{¶ 17} Upon review of the record, we clearly and convincingly find that the

imposition of a consecutive sentence was contrary to law. The trial court made only two

of the three findings required under R.C. 2929.14(C)(4) before it imposed a consecutive

7. sentence. Specifically, the trial court found that the consecutive sentences were

necessary to protect the public from future crime or punish the offender and found that all

of the factors in R.C. 2929.14(C)(4)(a)-(c) applied. However, the trial court did not find

that imposition of a consecutive sentence was not “disproportionate to the seriousness of

the offender’s conduct and to the danger the offender poses to the public.” R.C.

2929.14(C)(4). See State v. Tea, 6th Dist. Sandusky No. S-15-013, 2016-Ohio-741, ¶ 11.

The judgment entry of sentence is similarly devoid of this required finding. Because the

trial court did not make all of the R.C. 2929.14(C)(4) findings on the record prior to

imposing a consecutive sentence, we find that its imposition was contrary to law.

{¶ 18} Based on the foregoing, we conclude that the prison sentences were not

contrary to law and were supported by the record, but the consecutive sentence was

contrary to the law for the reasons stated above. Appellant further requests that this court

modify the judgments and impose a concurrent sentence. After reviewing the record we

cannot say that nothing in the record exists to support a consecutive sentence. It is not

this court’s role to reverse a sentence simply because we disagree with it. Compare State

v. Regalo, 8th Dist. Cuyahoga No. 108430, 2020-Ohio-917 (appellate court imposed a

concurrent sentence where defendant was employed, had no criminal record, and he

committed no offenses following the criminal conduct at issue.) Appellant’s first

assignment of error is well-taken, in part.

8. B. Costs

{¶ 19} In his second assignment of error, appellant argues the trial court erred in

ordering him to pay court-appointed counsel fees without first determining whether he

had the ability to pay and erred in ordering appellant to pay costs without orally notifying

appellant of the imposition at sentencing. We agree.

{¶ 20} The assessment of the costs of assigned counsel is discretionary and “must

be conditioned on appellant’s ability to pay.” State v. Wymer, 6th Dist. Lucas No.

L-18-1108, 2019-Ohio-1563, ¶ 14. Prior to imposing these costs, the trial court must

affirmatively find that the defendant has, or reasonably may be expected to have, the

ability to pay. Id.; State v. Gray, 6th Dist. Lucas No. L-15-1072, 2015-Ohio-5021, ¶ 21.

The finding of ability to pay must be supported by clear and convincing evidence in the

record. Id. When the record on appeal contains no evidence reflecting the trial court’s

consideration of present or future ability to pay these costs—such as consideration of

defendant’s age, health, employment history, or level of education—the imposition of

these costs is improper and must be vacated. State v. Stovall, 6th Dist. Lucas No.

L-18-1048, 2019-Ohio-4287, ¶ 37.

{¶ 21} Further, Crim.R. 43(A) provides “the defendant must be physically present

at every stage of the criminal proceeding and trial, * * * and the imposition of

sentence[.]” This court recently found it is “not sufficient, in regard to Crim.R. 43(A),

for a trial court to order the payment of costs in its sentencing judgment entry when the

court did not mention the imposition of costs during the sentencing hearing.” State v.

9. Wells, 6th Dist. Wood No. WD-19-007, 2019-Ohio-4620, ¶ 7, citing, State v. Temple, 6th

Dist. Lucas No. L-18-1070, 2019-Ohio-3503, ¶ 11-13. This court has further held that a

trial court’s failure in finding the offender has the ability to pay requires vacating the

order. State v. Simon, 6th Dist. Fulton No. F-18-012, 2019-Ohio-3020, ¶ 4.

{¶ 22} At the sentencing hearing, the trial court neither mentioned imposition of

attorney fee costs orally nor did it find that appellant had the ability to pay. The

judgment entry stated “[d]efendant is ordered to pay all costs of prosecution, any court-

appointed counsel costs, and any supervision fees permitted, pursuant to Ohio Revised

Code §2929.18(A)(4).” The court did not notify appellant that it was imposing these

costs and there is nothing in the record to support the trial court’s finding that appellant is

now, or will be in the future, able to pay these costs. Although appellant indicated that he

was actively seeking employment, he had not worked in years due to health problems and

never held a job of any kind.

{¶ 23} In sum, the trial court erred in ordering appellant to pay costs in its

sentencing judgment entry when the court failed to mention the imposition of any fees or

costs during the sentencing hearing in violation of Crim.R. 43(A). Thus, appellant’s

second assignment of error is found well-taken.

IV. Conclusion

{¶ 24} Upon consideration of the foregoing, we find that the judgments of the

Williams County Court of Common Pleas are reversed, in part, and we vacate the portion

of the trial court’s judgments imposing consecutive sentences and remand to the trial

10. court for resentencing. We further modify the August 15, 2019 judgments of the

Williams County Court of Common Pleas to vacate the imposition of attorney fees and

costs. Pursuant to App.R. 24, the state is to pay the costs of this appeal.

Judgments reversed, in part.

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

Mark L. Pietrykowski, J. _______________________________ JUDGE Thomas J. Osowik, J. CONCUR. _______________________________ JUDGE

Gene A. Zmuda, J. _______________________________ DISSENTS, IN PART, JUDGE CONCURS, IN PART, AND WRITES SEPARATELY.

ZMUDA, P.J.

{¶ 25} Because I find the trial court complied with the requirements for

consecutive sentencing under R.C. 2929.14(C)(4), I dissent, in part, and would affirm the

trial court’s consecutive sentence. I concur, in part, with the majority’s determination

11. regarding the imposition of each sentence as appropriate under R.C. 2929.13, and

regarding the improperly assigned costs of assigned counsel.

{¶ 26} As an initial matter, I agree that the 17-month prison sentence imposed for

failure to appear and the 11-month sentence for possession of drugs are within the

statutory ranges. I would add, however, that the trial court was within its discretion in

imposing a prison term for a fourth and fifth-degree felony because the record

demonstrated that the requirements under R.C. 2929.13(B)(1) were met. The trial court

ordered these terms shall be served consecutively.

{¶ 27} As noted by the majority, imposition of consecutive sentences requires

three statutorily enumerated findings as mandated by R.C. 2929.14(C)(4). State v.

Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. These findings

need not include “talismanic” words, however, but need only be sufficient to satisfy the

statute. Bonnell at ¶ 37.

{¶ 28} In this case, the trial court ordered the sentences to be served consecutively,

and stated the following at the sentencing hearing:

I find that consecutive sentences are necessary to protect the public and to

punish you for your conduct. That one crime was committed while you

were on probation or under sanction with this court. The harm was so great

or unusual that a single term does not adequately reflect the seriousness of

your conduct. And that your criminal history shows that consecutive terms

are necessary.

12. The trial court incorporated this finding in the judgment entry, stating:

The sentences of incarceration in Case Numbers 19CR050 and 19CR136

shall run consecutively. The Court finds that consecutive sentences are

necessary because the offender committed one or more of the offenses

while awaiting trial, the harm caused by the offender was so great or

unusual that a single prison term would not adequately reflect the

seriousness of the offense and the offender’s history of criminal conduct

demonstrates that consecutive sentences are necessary to protect the public

from future crime by the offender.

{¶ 29} Based on the findings at hearing and in the judgment entry, the trial court

made the necessary findings under R.C. 2929.14(C)(4), which 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 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

13. imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised

{¶ 30} While the trial court’s findings do not the track the statutory list of findings

in sequence, and the trial court did not recite the statutory factors verbatim, the trial court

nevertheless determined that consecutive sentences were necessary to “protect the public

from future crime,” that consecutive sentences were “not disproportionate to the

seriousness of the offender’s conduct” in that a single, concurrent term would not

adequately reflect the seriousness of that conduct, and at least one of the offenses was

committed “while the offender was awaiting trial or sentencing[.]” Meaningful review of

the trial court’s decision must include consideration of the meaning of the words

employed by the court.

{¶ 31} The majority determined the trial court failed to consider whether

imposition of consecutive sentences was proportionate to the seriousness of conduct and

the protection of the public because the trial court stated its finding in terms of adequacy

and necessity. However, finding a concurrent sentence would be inadequate in

addressing the seriousness of the conduct and necessary for the protection of the public,

is essentially a proportionality determination or a determination after weighing the

alternatives. “‘Proportionality’ relates solely to the punishment in the context of the

offender’s conduct (does the punishment fit the crime).” State v. Rombkowski, 6th Dist.

Lucas No. L-18-1092, 2019-Ohio-2650, ¶ 12, quoting State v. Brewster, 8th Dist.

14. Cuyahoga No. 103789, 2016-Ohio-3070, ¶ 10. A sentence is “not disproportionate” if it

is adequate and fits the crime.

{¶ 32} And while the trial court failed to reiterate its adequacy determination in

considering the need to protect the public, I see no purpose in requiring a trial court to

recite its findings in duplicate, merely because the statute includes potentially redundant

terms. It is possible that a trial court could find consecutive sentences proportionate, yet

not necessary. But I find no possibility that a trial court could find a necessity to protect

the public without also satisfying the proportionality consideration.

{¶ 33} By stating that consecutive sentences are necessary, as opposed to

unnecessary, I find the trial court satisfied the statutory findings in both the sentencing

hearing and the sentencing entry. While the trial court could have better organized its

articulation of sentencing considerations, we do not require “talismanic” recitations of the

statute but look to the meaning of the language actually used. Accordingly, I would

affirm the trial court’s judgment imposing consecutive sentences, and find appellant’s

first assignment of error not well-taken. I agree with the majority, however, regarding

the error in imposing the cost of appointed counsel and concur in finding appellant’s

second assignment of error well-taken.

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.supremecourt.ohio.gov/ROD/docs/.

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