State v. Lime , 2015 Ohio 3677 ( 2015 )


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  • [Cite as State v. Lime, 2015-Ohio-3677.]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 102642
    STATE OF OHIO
    PLAINTIFF-APPELLEE
    vs.
    MARK LIME
    DEFENDANT-APPELLANT
    JUDGMENT:
    AFFIRMED
    Criminal Appeal from the
    Cuyahoga County Court of Common Pleas
    Case No. CR-567359-A
    BEFORE:          Blackmon, J., Boyle, P.J., and Laster Mays, J.
    RELEASED AND JOURNALIZED:                    September 10, 2015
    ATTORNEY FOR APPELLANT
    David L. Doughten
    David L. Doughten Co., L.P.A.
    4403 St. Clair Avenue
    Cleveland, Ohio 44103
    ATTORNEYS FOR APPELLEE
    Timothy J. McGinty
    Cuyahoga County Prosecutor
    By: Eric L. Foster
    Anthony Thomas Miranda
    Assistant County Prosecutors
    9th Floor Justice Center
    1200 Ontario Street
    Cleveland, Ohio 44113
    PATRICIA ANN BLACKMON, J.:
    {¶1} Appellant Mark Lime appeals his sentence following our remand for
    resentencing. Lime assigns the following errors for our review:
    I. The appellant’s sentence of five years is contrary to law as the record fails
    to support the need for consecutive sentences.
    II. Because the sentencing judge failed to make sufficient findings to
    support consecutive sentencing, the resultant sentence must be concurrent.
    The court may not “correct” its findings in a remand hearing.
    {¶2} Having reviewed the record and pertinent law, we affirm the trial court’s
    imposition of consecutive sentence. The apposite facts follow.
    {¶3} On September 28, 2012, the Cuyahoga County Grand Jury returned a
    multicount indictment against Lime for one count of theft in office, one count of theft, 36
    counts of tampering with records, and 36 counts of unauthorized use of property and
    computer systems. These charges arose from Lime stealing money from the reparation
    fees paid by bail bondsmen while he was the supervisor of the Cuyahoga County Clerk of
    Courts Criminal Division. Lime stole $8,765 between 2004 and 2011, when he was
    finally caught.
    {¶4}       On July 25, 2013, pursuant to a plea agreement with the state, Lime
    pleaded guilty to one count of theft in office, 18 counts of tampering with records, and 18
    counts of unauthorized use of a computer. It was agreed that the tampering with evidence
    counts and the unauthorized use of a computer counts were allied offenses and would
    merge. The remaining counts were nolled.
    {¶5}    The trial court sentenced Lime to 30 months for Count 1, theft in office,
    and 30 months for Count 3, tampering with records, to be served consecutively to each
    other. The court also sentenced Lime to nine months on the remaining 17 counts of
    tampering with records and ordered it served concurrently with the counts one and three.
    Thus, Lime received a total sentence of five years in prison. In addition, the trial court
    ordered Lime to pay restitution in the sum of $8,765 and imposed a fine of $5,000 to be
    paid into the Victims of Crime Assistance Fund.
    {¶6} On October 11, 2013, in his direct appeal, Lime argued the trial court failed
    to make the requisite findings, pursuant to R.C. 2929.14(C), to impose consecutive
    sentences.    On June 9, 2014, in State v. Lime, 8th Dist. Cuyahoga No. 100515,
    2014-Ohio-2647, we stated:
    The court failed to make the first and second findings under R.C.
    2929.14(C)(4). The court said nothing about whether “the consecutive
    service is necessary to protect the public from future crime or to punish the
    offender[,]” and (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.”
    Consequently, we reversed and remanded the matter for the trial court to resentence Lime
    regarding the consecutive portion of his sentence.
    {¶7} On January 27, 2015, the trial court conducted the resentencing hearing. At
    the hearing, after considering defense counsel’s sentencing memorandum that stressed the
    appropriateness of a concurrent sentence over a consecutive sentence, the trial court
    stated the following:
    * * * And the Court of Appeals said that while I found that the harm was so
    great that it would demean the seriousness of the crimes, that the court
    failed to make the first and second findings and reversed and remanded to
    the Court to make those further findings * * *.
    Tr.4.
    {¶8} Thereafter, the trial court proceeded to make the requisite findings pursuant
    to our remand and the mandates of R.C. 2929.14(C), specifically that consecutive
    sentences were necessary to protect the public and provide the proper punishment; that
    consecutive sentences were not disproportionate to the seriousness of Lime’s conduct;
    and that one or more of the offenses were of the same course of conduct and the harm
    was so great that one sentence is not adequate. Tr. 11-12, 14.
    {¶9} The trial court then reimposed the original sentence of 30 months on Count
    1, 30 months on Count 3, to be served consecutively for a total period of incarceration of
    five years. The trial court advised Lime of the optional period of postrelease control,
    ordered him to pay $8,765 in restitution, and imposed a $5,000 fine. Lime now appeals.
    Consecutive Sentences
    {¶10} Because of their common basis in fact and law, we will address both
    assigned together. Within the assigned errors, Lime argues his sentence was contrary to
    law and that the record failed to support the imposition of consecutive sentences.
    {¶11} R.C. 2929.14(C)(4) requires a sentencing judge to make three statutory
    findings before imposing consecutive sentences and incorporate those findings in the
    journal entry. State v. Bonnell, 
    140 Ohio St. 3d 209
    , 2014-Ohio-3177, 
    16 N.E.3d 659
    , ¶
    29. First, the trial court must find that “consecutive service is necessary to protect the
    public from future crime or to punish the offender.” R.C. 2929.14(C)(4). Second, 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. {¶12} Finally,
    the trial court must find that at least one of the following applies:
    (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 postrelease 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.
    R.C. 2929.14(C)(4).
    {¶13} “[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. The failure
    to make the findings, however,
    is “contrary to law.” State v. Vargas, 8th Dist. Cuyahoga No. 101796, 2015-Ohio-2856,
    citing Bonnell at ¶ 37.
    {¶14} In the instant case, as previously discussed, at the original sentencing
    hearing the trial court failed to make all the requisite findings prior to imposing
    consecutive sentences. As such, pursuant to 
    Bonnell, supra
    , we vacated Lime’s sentence
    and remanded for resentencing for          the limited purpose of considering whether
    consecutive sentences are appropriate under R.C. 2929.14(C)(4), and to make the
    necessary findings. See State v. Nia, 2014-Ohio-2527, 
    15 N.E.3d 892
    , ¶ 28 (8th Dist.).
    {¶15} The record establishes that the trial court made all the requisite findings
    pursuant to our remand and the mandates of the statute. Nonetheless, Lime argues that
    the record does not support the trial court’s findings.      However, from the history of
    Lime’s prior appeal, the record indicates that Lime stole reparation fees from individuals
    when he worked alone in the clerk’s office on Saturdays for a period of years. The record
    also reveals that to cover his tracks, Lime would either: 1) docket the fee in the court’s
    system and later void the transaction, or 2) simply fail to docket the fee at all. The record
    further reveals that Lime manipulated the policies and procedures of the clerk’s office to
    enable his theft when he insisted that he be the only one who could handle cash for bond
    judgments.
    {¶16} At the resentencing hearing, the trial court emphasized that Lime violated
    the duties of his office and the public trust “over and over,” that he did not take full
    responsibility initially, and that he changed workplace policies to keep his crime spree
    going. The trial court underscored the significant harm done to the public trust as a
    result of Lime’s actions. Tr. 10-11.    Consequently, we conclude that the record clearly
    and convincingly supports the trial court’s imposition of consecutive sentences. The
    sentence was within the statutory range and the record reveals that the trial court made the
    necessary findings.
    {¶17} We appreciate the reasoning in State v. Adams, 2d Dist. Clark No.
    2014-CA-13, 2015-Ohio-1160; State v. Mansley, 2d Dist. Montgomery No. 26417,
    2015-Ohio-2785; State v. Overholser, 2d Dist. Montgomery No. 26417, 2015-Ohio-2785.
    However, we adhere to the fundamental principle that was pronounced in Bonnell, which
    is that no appellate court should overrule a sentence unless it is clearly and convincingly
    established by the record that the consecutive sentences are unsupported by the record.
    {¶18} Here, the trial court did not merely, with formalistic ease, recite the statutory
    findings. The record established that Lime, in stealing reparation fines, manipulated the
    policies of the clerk’s office to cover his deeds. This allowed Lime’s crimes to go
    undetected for several years. The trial court stated this as a part of its findings and the
    record supported the trial court’s conclusion. Accordingly, we overrule both assigned
    errors.
    {¶19} Judgment affirmed.
    It is ordered that appellee recover of appellant costs herein taxed.
    The court finds there were reasonable grounds for this appeal.
    It is ordered that a special mandate be sent to the Cuyahoga County Court of
    Common Pleas 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.
    PATRICIA ANN BLACKMON, JUDGE
    MARY J. BOYLE, P.J., and
    ANITA LASTER MAYS, J., CONCUR
    

Document Info

Docket Number: 102642

Citation Numbers: 2015 Ohio 3677

Judges: Blackmon

Filed Date: 9/10/2015

Precedential Status: Precedential

Modified Date: 9/10/2015