State v. Wells

2013 Ohio 1179

• Court: Ohio Court of Appeals
• Decided: March 28, 2013
• Docket: 98428
• Status: Published

Opinion

[Cite as State v. Wells, 2013-Ohio-1179.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 98428

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

ROBERT WELLS DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-536495

BEFORE: Boyle, P.J., Jones, J., and Rocco, J.

RELEASED AND JOURNALIZED: March 28, 2013 ATTORNEY FOR APPELLANT

Rick L. Ferrara 2077 East 4th Street Second Floor Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor BY: Justine Dionisopoulos Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 MARY J. BOYLE, P.J.:

{¶1} Defendant-appellant, Robert Wells, appeals his sentence, raising the

following three assignments of error:

I. The trial court acted contrary to law when it imposed consecutive sentences without authority to do so under the Ohio Revised Code.

II. The trial court erred in imposing a near maximum, consecutive sentence without considering sentencing factors or the circumstances surrounding appellants’ violation.

III. The trial court erred in imposing court costs without mentioning the costs at sentencing.

{¶2} Finding some merit to the appeal, we affirm the trial court’s imposition of

consecutive sentences but reverse its imposition of court costs, remanding solely on this

issue and allowing Wells to raise the issue of his indigency.

Procedural History and Facts

{¶3} In April 2011, Wells pleaded guilty to two counts of criminal nonsupport, in

violation of R.C. 2929.21(A)(2), a fifth degree felony. At the sentencing hearing, the

trial court ordered Wells to be placed on community controlled sanctions for 60 months

with the following conditions: (1) 120 hours of court community work service, (2) random

drug testing, (3) maintain verifiable employment, (4) report to the probation department,

and (5) pay the current child support order — $470.76 in current support per month and

$94.10 toward arrears. The trial court further warned Wells as follows:

If you violate, you’ll receive 12 months in prison on each of the two

felonies of the fifth degree. Those will run consecutive to each other. Twenty-four months in prison. Pay costs and fees. Nobody wants you to

go to prison. We want you to support your kids the best you can. You

can do better than you’re doing. And you know that.

{¶4} One year later, the court held a probation violation hearing as a result of

Wells failing to report to probation. According to probation officer Erin Becker, Wells

last reported to probation on July 20, 2011. She further represented to the court that

Wells had only paid $285.80 toward child support since the trial court’s order, that he

failed to submit to drug testing, and that he failed to perform his community service

hours.

{¶5} Wells admitted to failing to report to the probation department. As for his

child support payment, Wells indicated to the court that he has obtained employment

where the child support is now automatically deducted.

{¶6} The trial court revoked Wells’s community control sanctions after finding

him in violation. The trial court then sentenced him to prison for 11 months on each

count, and ordered that they run consecutively for a total of 22 months in prison.

{¶7} Wells now appeals his sentence.

Standard of Review

{¶8} An appellate court must conduct a meaningful review of the trial court’s

sentencing decision. State v. Johnson, 8th Dist. No. 97579, 2012-Ohio-2508, ¶ 6, citing

State v. Hites, 3d Dist. No. 6-11-07, 2012-Ohio-1892, ¶ 7. Specifically, R.C.

2953.08(G)(2) provides that our review of consecutive sentences is not an abuse of discretion. An appellate court must “review the record, including the findings

underlying the sentence or modification given by the sentencing court.” Id. If an

appellate court clearly and convincingly finds either that (1) “the record does not support

the sentencing court’s findings under [R.C. 2929.14(C)(4)]” or (2) “the sentence is

otherwise contrary to law,” then “the appellate court may increase, reduce, or otherwise

modify a sentence * * * or may vacate the sentence and remand the matter to the

sentencing court for resentencing.” Id.

Consecutive Sentences

{¶9} In his first assignment of error, Wells argues that the trial court lacked

authority to impose consecutive sentences under former R.C. 2929.41(A) as enacted

under H.B. 86 — the version in effect at the time of sentencing, which provided:

(A) Except as provided in division (B) of this section, division (E) of section 2929.14, or division (D) or (E) of section 2971.03 of the Revised Code, a prison term, jail term, or sentence of imprisonment shall be served concurrently with any other prison term, jail term, or sentence of imprisonment imposed by a court of this state, another state, or the United States. Except as provided in division (B)(3) of this section, a jail term or sentence of imprisonment for misdemeanor shall be served concurrently with a prison term or sentence of imprisonment for felony served in a state or federal correctional institution.

{¶10} Wells contends that none of the exceptions to the presumption of concurrent

sentences apply, and therefore the trial court lacked authority to impose consecutive

sentences. This argument, however, is premised on an established typographical error in

the statute that has since been corrected by the General Assembly. See R.C. 2929.41 (amended on September 28, 2012 by S.B. 337 for the specific purpose of substituting

R.C. 2929.14(C) for R.C. 2929.14(E) in the first sentence of (A)).

{¶11} Notably, in enacting H.B. 86, and following the Ohio Supreme Court’s

decision in State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768, the

General Assembly expressed its intent to revive the statutory fact-finding provisions that

existed as a prerequisite to imposing consecutive sentences that were effective before

State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. Under a prior

version of Ohio’s sentencing law, the judicial fact-finding requirements for consecutive

sentencing were contained in R.C. 2929.14(E); now they appear in R.C. 2929.14(C).

Adhering to well-established statutory principles, this court has already determined that

the reference to R.C. 2929.14(E) in 2929.41(A) was legislative oversight and “resulted in

the failure to update the cross-reference in the ‘revived’ R.C. 2929.41(A) from ‘division

(E) of section 2929.14’ to ‘division (C) of 2929.14.’” State v. Ryan, 8th Dist. No. 98005,

2012-Ohio-5070, ¶ 19. Indeed, “it is clear from the legislature’s stated intent that it

revived the former presumption for concurrent sentences in R.C. 2929.41(A) unless the

trial court makes the required findings for consecutive sentences in R.C. 2929.14(C)(4).”

State v. Walker, 8th Dist. No. 97648, 2012-Ohio-4274, ¶ 81, fn. 2. Accordingly, R.C.

2929.41(A) must be applied as the legislature intended it to be applied, thereby giving

effect to R.C. 2929.14(C) as a means for imposing consecutive sentences. Ryan at ¶ 22.

Therefore, under R.C. 2929.14(C), the trial court has the authority to impose consecutive

sentences in this case. {¶12} Turning to Wells’s second assignment of error, the issue in this case is

whether the trial court complied with R.C. 2929.14(C) by making the necessary findings

to support the imposition of consecutive sentences. R.C. 2929.14(C)(4), as revived, now

requires that a trial court engage in a three-step analysis in order to impose consecutive

sentences. First, the trial court must find that “consecutive service is necessary to

protect the public from future crime or to punish the offender.” Id. Next, the trial

court must find that “consecutive sentences are not disproportionate to the seriousness of

the offender’s conduct and to the danger the offender poses to the public.” Id. Finally,

the trial court must find that at least one of the following applies: (1) the offender

committed one or more of the multiple offenses while awaiting trial or sentencing, while

under a sanction, or while under postrelease control for a prior offense; (2) 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 offenses 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; or (3) the offender’s history

of criminal conduct demonstrates that consecutive sentences are necessary to protect the

public from future crime by the offender. Id.

{¶13} In each step of this analysis, the statutory language directs that the trial court

must “find” the relevant sentencing factors before imposing consecutive sentences. R.C.

2929.14(C)(4). In making these findings, a trial court is not required to use “talismanic

words to comply with the guidelines and factors for sentencing.” State v. Brewer, 1st Dist. No. C-000148, 2000 Ohio App. LEXIS 5455, *10 (Nov. 24, 2000). But it must be

clear from the record that the trial court actually made the findings required by statute.

See State v. Pierson, 1st Dist. No. C-970935, 1998 Ohio App. LEXIS 3812 (Aug. 21,

1998). A trial court satisfies this statutory requirement when the record reflects that the

court has engaged in the required analysis and has selected the appropriate statutory

criteria. See State v. Edmonson, 86 Ohio St.3d 324, 326, 715 N.E.2d 131 (1999).

{¶14} Prior to imposing consecutive sentences, the trial court made the following

findings:

Now, I’ve issued consecutive sentences here and these are discretionary consecutive sentences. I believe that the harm was so great or unusual that a single term would not adequately reflect the seriousness of the conduct of the defendant. The rearage [sic] amount here is $38,992.58.

You know, I spent 24 years in domestic relations law prior to becoming a judge and that

is as high as any number I ever heard before. I put you on community-control to give

you an opportunity and you’ve paid only $285. You haven’t cooperated in any way of

any substantial manner except completing a class. You failed to submit to drug tests.

Failed to show for employment programming. So, I believe this is the appropriate

sentence at this time.

{¶15} We find that these findings sufficiently comply with R.C. 2929.14(C)(4) to warrant the

imposition of consecutive sentences. It is clear that the trial court found that consecutive sentences

were necessary to adequately punish Wells for his crime, that they were not disproportionate to the

seriousness of Wells’s conduct and his repeated harm, and finally that consecutive sentences are

necessary to protect the public from future crime. {¶16} We further find that the trial court properly considered the purposes of the

sentencing guidelines prior to imposing the prison term. Notably, the trial court imposed

the consecutive sentences in this case only after Wells violated several terms of the

community controlled sanctions that the trial court originally imposed. Pursuant to R.C.

2929.15(B)(1)(c), the trial court is expressly authorized to impose a prison term upon an

offender who violates the conditions of a community control sanction. The trial court,

however, cannot impose a prison term that exceeds the prison term specified in the notice

provided to the offender at the sentencing hearing. See R.C. 2929.15(B)(2); State v.

Goforth, 8th Dist. No. 90653, 2008-Ohio-5596. Here, the trial court previously notified

Wells that if he violated the terms of his community controlled sanctions that the court

would impose the maximum and consecutive sentences. It therefore complied with R.C.

2929.15 and acted well within its authority in imposing 22 months in prison (less than the

maximum).

{¶17} The second assignment of error is overruled.

Court Costs

{¶18} In his final assignment of error, Wells argues that the trial court erred in

imposing court costs in its sentencing journal entry without mentioning the costs at

sentencing. The Ohio Supreme Court has held “that a court errs in imposing court costs

without so informing a defendant in court.” State v. Joseph, 125 Ohio St.3d 76,

2010-Ohio-954, 926 N.E.2d 278, ¶ 1. The rationale behind this principle is that when

court costs are not mentioned at the sentencing hearing the defendant is denied the opportunity to seek a timely waiver of those costs. State v. Mays, 2d Dist. No. 24168,

2012-Ohio-838, ¶ 16.

{¶19} The state counters that the trial court mentioned costs at the first sentencing

hearing when it imposed community controlled sanctions. While this is true, we find

that the trial court should have raised the issue at the sentencing hearing where it imposed

the consecutive sentences and actually imposed the court costs. Indeed, Wells’s

indigency may not have been an issue at the first hearing but later an issue at the

subsequent sentencing hearing.

{¶20} Here the trial court failed to tell Wells at the sentencing hearing that it was

imposing court costs on him. The remedy for this error, which we grant, is remanded for

the limited purpose of the defendant to seek a waiver of court costs. See Mays at ¶ 17.

{¶21} The third assignment of error is sustained.

{¶22} Consecutive sentences are affirmed. The imposition of court costs is

reversed and the case is remanded on this single issue.

It is ordered that appellee and appellant share the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

MARY J. BOYLE, PRESIDING JUDGE

LARRY A. JONES, SR., J., and KENNETH A. ROCCO, J., CONCUR