State v. Sprague

2023 Ohio 4343, 230 N.E.3d 549

• Court: Ohio Court of Appeals
• Decided: December 1, 2023
• Docket: L-23-1060, L-23-1061, L-23-1062
• Status: Published

Opinion

[Cite as State v. Sprague, 2023-Ohio-4343.]

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

State of Ohio Court of Appeals Nos. L-23-1060 L-23-1061 Appellee L-23-1062

Trial Court Nos. CR0201803247 CR0202101870 CR0202202976

v.

Joshua Paul Sprague DECISION AND JUDGMENT

Appellant Decided: December 1, 2023

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and Lorrie J. Rendle, Assistant Prosecuting Attorney, for appellee.

Lawrence A. Gold, for appellant.

SULEK, J.

{¶ 1} In this consolidated appeal, appellant Joshua Sprague and appellee the state

of Ohio respectively appeal and cross-appeal the judgments of the Lucas County Court of

Common Pleas, sentencing appellant Joshua Sprague to three consecutive prison terms totaling a 40-month prison sentence. Because the trial court failed to make the required

R.C. 2929.14(C)(4) findings at the sentencing hearing, the judgments of the Lucas

County Court of Common Pleas are reversed and these matters are remanded to the trial

court for resentencing.

I. Factual Background and Procedural History

{¶ 2} This appeal involves three separate criminal actions. In case No. CR-2018-

3247, Sprague pleaded no contest to, and was found guilty of, one count of unauthorized

use of a vehicle in violation of R.C. 2913.03(B)(1), (D)(1), and (D)(3), a felony of the

fifth degree. On May 16, 2019, Sprague was ordered to serve three years of community

control.

{¶ 3} Sprague violated the terms of his community control, and on July 8, 2020,

the trial court continued his community control with additional conditions.

{¶ 4} Thereafter, Sprague committed another felony and was indicted in case No.

CR-2021-1870 on one count of possession of a fentanyl-related compound in violation of

R.C. 2925.11(A), (C)(11), and (C)(11)(a), a felony of the fifth degree. Sprague pleaded

guilty to the count of possession of a fentanyl-related compound in case No. CR-2021-

1870, and admitted to violating the terms of his community control in case No. CR-2018-

3247.

{¶ 5} On October 28, 2021, the trial court held a combined sentencing hearing on

both cases. In case No. CR-2018-3247, the trial court continued Sprague’s community

2. control until May 16, 2024, and added the additional condition that if he violated the

terms of community control he could be sentenced to 11 months in prison. Similarly, in

case No. CR-2021-1870, the trial court ordered Sprague to serve four years on

community control with the added condition that if he violated the terms of community

control he could be sentenced to 11 months in prison.

{¶ 6} Sprague then committed another felony, and on June 30, 2022, the Lucas

County Grand Jury indicted him in case No. CR-2022-2076 on one count of breaking and

entering in violation of R.C. 2911.13(A) and (C), a felony of the fifth degree, and one

count of robbery in violation of R.C. 2911.02(A)(3), a felony of the third degree.

Sprague pleaded guilty to an additional amended count of trespassing in a habitation in

violation of R.C. 2911.12(B) and (E), a felony of the fourth degree, with the state

agreeing to dismiss the original two counts. Sprague also admitted to violating the terms

of his community control in case Nos. CR-2018-3247 and CR-2021-1870.

{¶ 7} On February 14, 2023, the trial court conducted a combined sentencing

hearing on all three cases. During the hearing, the trial court stated,

We get a little confused in the criminal justice system sometimes,

the modern system, because there is an aspect now where we try to address

the issues that bring people to court. As a matter of fact, this court has a

special program recently renamed adult treatment court which Mr. Sprague,

he was a part of it before it was renamed and has been a participant for

3. sometime (sic). By calendar, but not by participation, because he often

absconds from treatment and those facilities that the court used to help him

address his addiction.

As it (sic) recently against my better judgment, at the behest of

counsel I placed Mr. Sprague in a local treatment facility on bond on the

new case and that ended up in termination as well due to violation of that

program’s rules. If I recall correctly, there was a use of illicit substances in

a treatment facility which returned him back to custody in the Lucas

County Corrections Center.

You stand before the court today with 12 prior adult convictions, 22

misdemeanor convictions. If my math is correct, that would be 35 criminal

convictions as an adult. A little less than 10 percent of those have been on

my docket.

It’s not about just using. You are on community control in the 2018

case. One of the violations was the new case in 2021. Community control

was continued even though you committed a new felony while on

community control. You were placed into a treatment program, given

resources most people wouldn’t believe and now you’re standing before the

court with another new felony conviction.

4. I’m all about helping people, but ultimately, the public must be

protected from criminal activity.

And that’s the point we are at now.

The trial court then made findings and imposed the sentences:

For the reasons stated, I find the following. That prison is consistent

with the principles and purposes of sentencing; the defendant is not

amenable to community control. I order that he serve the following

sentences: 2018-3247, eleven months; 2021-1870, eleven months; 2022-

2076, eighteen months. The sentences are ordered to be served

consecutively.

As I stated, you’re on community control and you commit a new

offense and I have already recited your criminal history which requires

consecutive sentences.

{¶ 8} In addition to imposing the consecutive prison sentences, the trial court

notified Sprague that he would be subject to a discretionary period of post-release control

for up to two years in case No. CR-2018-3247, 18 months in case No. CR-2021-1870,

and two years in case No. CR-2022-2076.

{¶ 9} Notably, in the subsequent judgment entries, the trial court specifically

found that consecutive sentences were

5. necessary to protect the public from future crime or to punish the offender

and are not disproportionate to the seriousness of the offender’s conduct

and to the danger the offender poses to the public. The court further finds

the defendant was on community control, and the defendant’s criminal

history demonstrates that consecutive sentences are necessary to protect the

public * * *.

II. Assignments of Error

{¶ 10} Sprague has timely appealed his judgments of conviction and now asserts

one assignment of error for review:

1. The trial court did not make the findings required by R.C.

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

The state has cross-appealed in case No. CR-2021-1870, raising as its assignment of

error:

1. As to his conviction in CR-2021-1870, Appellant is subject to a

discretionary term of post-release control of up to two years.

III. Analysis

{¶ 11} Felony sentences are reviewed pursuant to R.C. 2953.08(G)(2), which

provides, in pertinent part,

The appellate court may increase, reduce, or otherwise modify a

sentence that is appealed under this section or may vacate the sentence and

6. remand the matter to the sentencing court for resentencing. The appellate

court’s standard for review is not whether the sentencing court abused its

discretion. The appellate court may take any action authorized by this

division if it clearly and convincingly finds either of the following:

(a) That 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;

(b) That the sentence is otherwise contrary to law.

A. Consecutive Sentence Findings

{¶ 12} In his assignment of error, Sprague argues that the trial court failed to make

the required findings under R.C. 2929.14(C)(4) at the sentencing hearing when it

imposed consecutive sentences. 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 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:

7. (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.

{¶ 13} As an aside, the Ohio Supreme Court has recently spoken on the standard

by which an appellate court should review a trial court’s consecutive sentences findings.

In State v. Gwynne, Slip Opinion No. 2023-Ohio-3851, ¶ 5, the Ohio Supreme Court

reconsidered its prior decision in State v. Gwynne, 2022-Ohio-4607, --- N.E.3d ---, and

held that “[t]he plain language of R.C. 2953.08(G)(2) requires an appellate court to defer

to a trial court’s consecutive-sentence findings, and the trial court’s findings must be

upheld unless those findings are clearly and convincingly not supported by the record.”

8. {¶ 14} This case, however, does not turn on the holdings in Gwynne.1 Sprague

does not ask this court to hold that the trial court’s consecutive sentences findings were

not supported by the record. Instead, Sprague argues that the trial court completely failed

to make those findings at the sentencing hearing when it was required to do so.

{¶ 15} On that point, it is well-settled that “[i]n 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. “However, a word-for-

word recitation of the language of the statute is not required, and as long as the reviewing

court can discern that the trial court engaged in the correct analysis and can determine

that the record contains evidence to support the findings, consecutive sentences should be

upheld.” Id. at ¶ 29.

{¶ 16} Here, the trial court did not recite the findings required by R.C.

2929.14(C)(4). Nonetheless, the state argues that the record of the sentencing hearing

demonstrates that the trial court engaged in the proper analysis. Upon careful review, it

is evident that the trial court made some, but not all, of the required findings.

1 This court sua sponte afforded the parties an opportunity to file supplemental briefing following the Ohio Supreme Court’s reconsideration in Gwynne. The state filed a supplemental brief; Sprague did not.

9. {¶ 17} Under R.C. 2929.14(C)(4), a trial court must find three things before it

imposes consecutive sentences: (1) that consecutive sentences are necessary to protect

the public or to punish the offender; (2) 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 (3) that one of the conditions in R.C. 2929.14(C)(4)(a)-

(c) applies. State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, ¶

252.

{¶ 18} As to the first required finding, the trial court recounted Sprague’s criminal

history and his conduct during the proceedings of the most recent case. After noting that

the prior interventions were unsuccessful, the court remarked, “I’m all about helping

people, but ultimately, the public must be protected from criminal activity. And that’s

the point we are at now.” From this, it can be determined that the trial court engaged in

the proper analysis and found that consecutive sentences were necessary to protect the

public or to punish the offender.

{¶ 19} Similarly, as to the third required finding, the trial court stated, “you’re on

community control and you commit a new offense and I have already recited your

criminal history which requires consecutive sentences.” Thus, the record demonstrates

that the trial court engaged in the appropriate analysis and made the findings that R.C.

2929.14(C)(4)(a) and (c) applied.

10. {¶ 20} However, there is nothing in the sentencing transcript to demonstrate that

the trial court made the second finding that consecutive sentences were not

disproportionate to the seriousness of Sprague’s conduct and to the danger he posed to

the public. “Inherent in the proportionality finding is that a trial court engage in a

weighing process, comparing or balancing these two factors, which it stands in the best

position to do.” State v. Elmore, 2016-Ohio-890, 60 N.E.3d 794, ¶ 58 (7th Dist.). Here,

the trial court did not make a finding on the record regarding the proportionality of the

consecutive sentences to Sprague’s conduct, nor did it engage in a weighing process.

{¶ 21} Accordingly, because the trial court failed to make all of the required

consecutive sentencing findings during the sentencing hearing, Sprague’s sentence is

contrary to law. State v. Wadding, 6th Dist. Erie No. E-21-006, 2021-Ohio-3266, ¶ 9.

“Where the trial court fails to make a required finding at a sentencing hearing for

consecutive sentences under R.C. 2929.14(C)(4), the error cannot be cured nunc pro tunc,

and the proper remedy is remand for a new hearing.” Id., citing State v. Resendez, 6th

Dist. Lucas No. L-20-1020, 2020-Ohio-6653, ¶ 11.

{¶ 22} Sprague’s assignment of error is well-taken.

B. Post-Release Control

{¶ 23} In its assignment of error on cross-appeal, the state argues that Sprague’s

sentence in case No. CR-2021-1870 is contrary to law because the trial court improperly

notified Sprague that he was subject to a discretionary term of up to 18 months of post-

11. release control, when he should be subject to a discretionary term of up to two years of

post-release control.

{¶ 24} In support, the state cites R.C. 2967.28(C), which provides, in relevant part,

Any sentence to a prison term for a felony of the third, fourth, or

fifth degree that is not subject to division (B)(1) or (4) of this section shall

include a requirement that the offender be subject to a period of post-

release control of up to two years after the offender’s release from

imprisonment, if the parole board, in accordance with division (D) of this

section, determines that a period of post-release control is necessary for that

offender.

{¶ 25} The state notes that in case No. CR-2021-1870, Sprague was convicted of

possession of a fentanyl-related compound in violation of R.C. 2925.11(A), (C)(11), and

(C)(11)(a), a felony of the fifth degree. Because the felony that Sprague was convicted of

was not subject to R.C. 2967.28(B)(1) (felony sex offenses) or R.C. 2967.28(B)(4)

(felony of the third degree that is an offense of violence but not a felony sex offense), a

discretionary period of post-release control of up to two years applies.

{¶ 26} Ultimately, however, because Sprague’s conviction must be reversed and

the matter remanded for resentencing based upon the trial court’s failure to make the

required findings under R.C. 2929.14(C)(4), the state’s assignment of error on cross-

appeal is moot. See State v. Gideon, 165 Ohio St.3d 156, 2020-Ohio-6961, 176 N.E.3d

12. 720, ¶ 26 (“[A]n assignment of error is moot when an appellant presents issues that are

no longer live as a result of some other decision rendered by the appellate court”); see

also App.R. 12(A)(1)(c).

IV. Conclusion

{¶ 27} For the foregoing reasons, the judgments of the Lucas County Court of

Common Pleas are reversed, and these matters are remanded to the trial court for

resentencing. Costs of this appeal are assessed to the state in accordance with App.R. 24.

Judgment reversed, and remanded.

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

Christine E. Mayle, J. ____________________________ JUDGE Myron C. Duhart, P.J. ____________________________ Charles E. Sulek, 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.supremecourt.ohio.gov/ROD/docs/.

13.