State v. Thomas , 2014 Ohio 1120 ( 2014 )

[Cite as State v. Thomas, 2014-Ohio-1120.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 25331 and 25332
v. : T.C. NO. 11CR2231 and 11CR4305
MICHAEL A. THOMAS : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
..........
OPINION
Rendered on the 21st day of March , 2014.
..........
MATTHEW T. CRAWFORD, Atty. Reg. No. 0089205, Assistant Prosecuting Attorney, 301
W. Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
CHARLES W. MORRISON, Atty. Reg. No. 0084368, 1105 Wilmington Avenue, Dayton,
Ohio 45420
Attorney for Defendant-Appellant
..........
DONOVAN, J.
{¶ 1} Defendant-appellant Michael A. Thomas appeals his conviction and
sentence for one count of aggravated possession of drugs, and one count of possession of
2
heroin. Thomas filed a motion for delayed appeal with this Court. For good cause, we
granted the delayed appeal.
{¶ 2} On January 19, 2012, Thomas was indicted in Case No. 2011-CR-2231 for
one count of aggravated possession of drugs. . Shortly thereafter, Thomas was indicted in a
separate case, Case No. 2011-CR-4305, for one count of possession of heroin and one count
of possession of cocaine. At his arraignment in Case No. 2011-CR-2231, Thomas stood
mute, and the trial court entered a plea of not guilty on his behalf. A not guilty plea was
also entered on Thomas’ behalf at his arraignment in Case No. 2011-CR-4305.
{¶ 3} On February 23, 2012, Thomas plead guilty to one count of aggravated
possession of drugs in Case No. 2011-CR-2231 and one count of possession of heroin in
Case No. 2011-CR-4305. As part of a negotiated plea deal, the State dropped the count of
possession of cocaine in Case No. 2011-CR-4305 and agreed to remain silent at sentencing.
{¶ 4} At his sentencing hearing, Thomas made an oral motion to withdraw his
guilty pleas and have new counsel appointed to represent him. The trial court proceeded
with sentencing on the two counts and announced that new counsel would be appointed to
assist Thomas on his motion to withdraw his guilty pleas. The trial court sentenced Thomas
to eleven months for aggravated possession of drugs in Case No. 2011-CR-2231 and
seventeen months for possession of heroin in Case No. 2011-CR-4305. The trial court
ordered that the sentences run consecutively.
{¶ 5} On May 18, 2012, the trial court held an evidentiary hearing on Thomas’
motion to withdraw his guilty pleas. At the close of evidence, the trial court overruled
Thomas’ motion from the bench and journalized it.
3
{¶ 6} It is from this judgment that Thomas now appeals.1
{¶ 7} Because they are interrelated, Thomas’s first and second assignments of
error will be discussed together as follows:
“APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL,
BECAUSE COUNSEL SHOULD HAVE REQUESTED A HEARING DEVICE FOR HIS
HEARING-IMPAIRED CLIENT AT HIS PLEA HEARING.”
“THE TRIAL COURT ERRED IN FAILING TO HOLD AN EVIDENTIARY
HEARING TO DETERMINE THE EXTENT OF APPELLANT’S HEARING
IMPAIRMENT AFTER BEING PLACED ON NOTICE OF HIS IMPAIRMENT.”
{¶ 8} In his first assignment of error, Thomas contends that his trial counsel was
ineffective for failing to request that a hearing device be supplied to him by the trial court at
his plea hearing. Thomas asserts that he was prejudiced in this regard because, but for his
counsel’s alleged deficient performance, he would not have entered the guilty pleas. Thus,
Thomas argues that he was denied his right to effective assistance of counsel, and his
convictions should therefore, be reversed. In his second assignment, Thomas argues that
the trial court erred when it failed to hold an evidentiary hearing once it became aware of his
hearing difficulties at beginning of the hearing.
{¶ 9} In order to demonstrate ineffective assistance of trial counsel, a
defendant must demonstrate that counsel’s performance was deficient and fell
1
We note that on January 23, 2014, the State filed a notice of additional
authority in support of its position regarding the fourth assignment of error. The
two cases cited by the State are State v. Rodeffer, 2d Dist. Montgomery No.
25574, 2013-Ohio-5759, and State v. Polhamus, 2d Dist. Miami No. 2013-CA-3,
2014-Ohio-145.
4
below an objective standard of reasonable representation, and that the defendant
was prejudiced by counsel’s performance; that is, there is a reasonable probability
that but for counsel’s unprofessional errors, the result of the defendant’s trial or
proceeding would have been different. Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538
N.E.2d 373 (1989). “Hindsight is not permitted to distort the assessment of what
was reasonable in light of counsel’s perspective at the time, and a debatable
decision concerning trial strategy cannot form the basis of a finding of ineffective
assistance of counsel.” State v. Hill, 2d Dist. Greene No. 2004 CA 79, 2005-Ohio
3176. “When the evidence a defendant relies upon [sic] dehors the record that
evidence must meet a threshold of cogency.” Id. “Cogent evidence is that which is
more than ‘marginally significant’ and advances a claim ‘beyond mere hypothesis
and desire for further discovery.’” Id.{¶ 10} Upon review, the record of the plea hearing does not support Thomas’ claim
that his counsel was ineffective. The record establishes that Thomas’ counsel and the trial
court were aware of his hearing difficulties and took adequate steps in order to ensure that he
could hear and understand the proceedings. During the plea hearing, the following
exchange occurred:
Defense Counsel: We may have to come closer, Your Honor.
The Court: Yeah. Let’s – typically as we do with Mr. Thomas, since
he has a hearing issue, if we could just have him step right up here in front of
me so he can hear everything clearly.
***
5
The Court: Hi, Mr. Thomas.
Thomas: Hi.
The Court: With this proximity between us, can you hear me okay?
Thomas: Yeah.
The Court: And are you able to hear what [defense counsel] has been
telling you?
Thomas: Yeah.
The Court: Okay. So, [defense counsel], how are we proceeding?
Defense Counsel: Your Honor, at this time, I believe Mr. Thomas is
going to enter a plea to two counts. One is a Felony 4, possession of heroin
in 2011-4305 [sic] and a Felony 5 count of aggravated possession in
2011-2231 [sic].
The Court: Okay.
Defense Counsel: The State is dismissing Count 2, possession, in
4305. And we will acknowledge that these pleas constitute grounds for
revocation [indiscernible].
The Court: And, Mr. Thomas, is that you want to do, sir?
Thomas: Uh, yes.
The Court: Okay. So it’s – what [defense counsel] has told me is that
you’re going to enter a guilty plea to a fourth-degree felony and a guilty plea
to a fifth-degree felony; right?
Thomas: (No audible response.)
6
The Court: Okay. Is the what you want to do?
Thomas: Yeah.
***
The Court: Okay. So as I go through this process of taking your
guilty pleas, if you have any questions or concerns, I need you to stop me and
let me know. Or, if there’s anything that you’re not hearing clearly, I need
you to let me know that. Okay? Because I can repeat it but if you don’t tell
me that you’re not hearing clearly, I’m going to assume that you’re hearing
everything I’m saying. Fair enough?
Thomas: Correct.
*** (Plea Colloquy)
The Court: Okay. Do you – and, obviously, I know you have a
hearing issue and we’re taking care of that by putting you really close to me;
right?
Thomas: Correct.
The Court: Okay. Do you have any other condition that would make
it difficult for you to understand your legal rights as I explain them to you?
Thomas: No, ma’am.
The Court: And you understand that you have to tell me if you don’t
hear anything, right?
Thomas: Right.
***
7
The Court: Okay. And you understand that you’re going to be
entering a guilty plea to a fifth degree felony and a fourth degree felony?
Thomas: Yes.
***
The Court: Okay. Are you being able to hear me –
Thomas: Yes.
The Court: – so far? Any questions or
concerns over what we’ve gone
over so far?
Thomas: No.
The Court: Okay. And are you entering your guilty pleas today on
these two cases – a Felony 4 and a Felony 5 – of your own free will.
Thomas: Yes.
***
The Court: Okay. Now, we’re going to have the next charge, the
Felony 5 charge read to you now.
The State: In Case No. 2011-CR-2231, the State charges that Michael
A. Thomas, on or about February 2, 2011, in Montgomery County, State of
Ohio, did knowingly obtain, possess, or use a controlled substance, to wit,
Methadone, a drug included in Section I or II, contrary to the form of the
statute in violation of Section 2925.11(A).
8
The Court: And, Mr. Thomas, did you hear and understand what the
prosecutor just said?
Thomas: Yes, ma’am.
The Court: And you understand that’s the other charge that you’re
pleading guilty to today?
Thomas: Yes, ma’am.
The Court: And are those facts true?
Thomas: Yes.
***
The Court: Okay. And are you
sat
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pr
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s?
Thomas: Yes.
***
The Court: Have you heard everything that I’ve gone over with you?
Thomas: Yes, ma’am.
***
The Court: *** Now, were you able to hear and understand
everything that we’ve gone over, sir.
Thomas: Yes.
The Court: Okay. Very good. I’ll see you then on March 8th for
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sentencing.
Now, when you do get interviewed for your pre-sentence
investigation, it’s going to be important that you tell them that you have a
hearing problem so they can make sure that they make arrangements so you
can understand what they’re asking you.
Thomas: Okay.
The Court: Okay? Thank you, sir.
Defense Counsel: Thank you.
Thomas: Thank you.
{¶ 11} Thomas argues that defense counsel’s awareness of his hearing difficulties
should have prompted counsel to request that a hearing device be provided to him at the plea
hearing. Thomas asserts that without a hearing device, he was unaware that he was
pleading guilty to a fifth degree felony, and therefore, did not appreciate the maximum
possible sentences which could be imposed. The record clearly refutes his claim.
{¶ 12} Initially, we note that Thomas does not direct us to, nor have we located on
our own, any specific instances in the record where he was unable to hear or understand
everything that was discussed at the plea hearing. Defense counsel raised the issue of
Thomas’ hearing difficulties at the beginning of the hearing when he asked the trial court if
Thomas could move closer to the bench during the plea colloquy. Defense counsel alerted
the trial court to Thomas’ hearing impairment, and steps were immediately taken to
accommodate him. At every significant juncture throughout the plea hearing, the trial court
repeatedly asked Thomas if he could hear and understand the proceedings. In each
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instance, Thomas indicated “yes.” Thomas never expressed any doubt or confusion
regarding the nature of the proceedings or the charges to which he was pleading guilty.
Specifically, Thomas never stated that he couldn’t hear the plea colloquy after the trial court
permitted him to move closer to the bench in order to compensate for his hearing
difficulties. Thus, we cannot say, based on the record before us and in view of the
presumption of defense counsel’s competency, that counsel’s performance was deficient for
failing to request a hearing device for Thomas during the plea hearing.
{¶ 13} In his second assignment, Thomas argues that the trial court erred when it
failed to hold an evidentiary hearing in order to determine the extent of his hearing
impairment after being made aware of the condition at the beginning of the plea hearing.
{¶ 14} The Confrontation Clause of the Sixth Amendment to U.S. Constitution
contains three essential elements, to wit: 1) that the defendant be afforded the opportunity to
be physically present at trial; 2) that he be competent to assist in his defense; and 3) that he
be able to understand the language of the forum. State v. Mahan, 2d Dist. Montgomery No.
15071, 1996 WL 65250 (February 16, 1996). The Ohio Supreme Court has stated that “[a]
defendant who cannot hear is analogous to a defendant who cannot understand English, and
a severely hearing-impaired defendant cannot be tried without adopting reasonable measures
to accommodate his or her disability.” State v. Schaim, 65 Ohio St.3d 51, 64, 600 N.E.2d
661 (1992). Accordingly, the Court construed the Sixth Amendment to require “a trial
court to grant an evidentiary hearing when a defendant makes a credible claim that he or she
is seriously hearing-impaired.” Id. at 64-65. “Once a court grants an evidentiary hearing to
determine the degree of the defendant’s disability, it is within the trial court’s discretion to
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decide whether the defendant requires assistance to understand the proceedings and the best
means to accomplish that goal.” Id. at 65.
{¶ 15} Initially, we note that no objection was made at the time of the plea hearing.
Thus Thomas has waived all but plain error under Crim. R. 52(B) regarding the trial court’s
failure to hold an evidentiary hearing. In State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804 (1978), the Supreme
Court has provided guidance for the consideration of plain error:
Ordinarily, * * * the failure to object * * * constitutes a waiver of any claim of error relative thereto.
Further, * * * [it] does not constitute a plain error or defect under Crim.R. 52(B) unless, but for the error, the
outcome of the trial clearly would have been otherwise. Notice of plain error under Crim.R. 52(B) is to be taken
with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.
{¶ 16} In support of his argument that the trial court was required to hold an evidentiary hearing to determine the
extent of his hearing impairment, Thomas cites to State v. Schaim, 65 Ohio St.3d 51, wherein the Ohio Supreme Court
discussed the case of a defendant who had been unable to hear significant portions of the trial testimony against him. The Schaim
court held that when a defendant makes a credible claim that he or she is severely hearing impaired, the trial court is required by the
Sixth Amendment to hold an evidentiary hearing to determine the extent of the impairment and what reasonable accommodations will
be necessary to address the issue.
{¶ 17} Thomas also cites a case from the Tenth Appellate District, City of
Columbus v. Morris, 10th Dist. Franklin No. O1AP-1026, 2002-Ohio-1986, in which the
court held that the trial court was precluded from proceeding to trial without holding an
evidentiary hearing to determine whether the defendant needed an interpreter, where the
13
defendant alerted the trial court in both pre-trial proceedings and during the trial that he was
deaf and did not understand the majority of the proceedings.
{¶ 18} The facts in Schaim and Morris, however, are clearly distinguishable from
the case at bar. In the instant case, Thomas made no claim at the beginning of the plea
hearing that he was severely hearing impaired, nor that his hearing was so poor that he could
not understand the nature of the proceedings. Once the trial court permitted Thomas to
move closer to the bench, he affirmatively stated that he could hear what the trial court was
saying. As previously noted, the trial court stopped the proceedings at several points and
asked Thomas if he understood what was being said, including the charges read by the
prosecutor. Each time, Thomas responded in the affirmative.2 Therefore, we conclude that
the record establishes that the accommodations made by the trial court to address Thomas’
hearing difficulties were satisfactory. The trial court did not have to hold a separate
evidentiary hearing because there was no indication that Thomas was unable to hear and
understand the proceedings once he moved closer to the bench. By Thomas’ own
admission at the plea hearing, he was able to hear the trial court’s colloquy and respond
appropriately to all of the questions he was asked. Accordingly, the trial court did not err,
plainly or otherwise, when it failed to hold an evidentiary hearing in order to address the
extent of Thomas’ impairment.
{¶ 19} Thomas’ first and second assignments of error are overruled.
{¶ 20} Thomas’ third assignment of error is as follows:
2
We have reviewed the audio visual recording of the plea, and Thomas is
standing just beneath the trial judge in front of the bench. Further, all responses
were appropriate to the questions asked by the trial court.
14
{¶ 21} “THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S
MOTION TO WITHDRAW PLEAS.”
{¶ 22} In his third assignment, Thomas contends that the trial court erred when it
denied his motion to withdraw. Specifically, Thomas asserts that the trial court should have
granted his motion to withdraw because he did not understand the possible defenses to the
crimes for which he was charged and the range of potential sentences for those charges.
Thomas blames his lack of understanding on his trial counsel who he alleged failed to
adequately advise him regarding the charged offenses and their potential sentences.
Thomas also argues that the trial court’s Crim. R. 11 colloquy was deficient as he was
unable to hear entire portions of the plea hearing due to his hearing difficulties.
{¶ 23} We note that Thomas orally moved to withdraw his pleas on the day of his
sentencing hearing but before the trial court imposed sentence. Thomas then filed a pro se
motion to withdraw four days after the sentencing hearing. The trial court analyzed
Thomas’ motion to withdraw under both the pre and post- sentencing standards. The trial
court ultimately held that Thomas’ motion to withdraw failed under either standard.
{¶ 24} As this Court has previously noted:
* * * Crim.R. 32 .1 provides: “A motion to withdraw a plea of
guilty or no contest may be made only before sentence is imposed;
but to correct a manifest injustice the court after sentence may set
aside the judgment of conviction and permit the defendant to
withdraw his or her plea.” Under the foregoing rule, a pre-sentence
motion to vacate a guilty plea “should be freely and liberally granted.”
State v. Xie (1992), 62 Ohio St.3d 521, 527. Nevertheless, even
15
under the pre-sentence standard, the right to withdraw a plea is not
absolute and a trial court retains discretion to overrule a pre-sentence
plea-withdrawal motion. Id. The pre-sentence standard, however, is
far more lenient than the “manifest injustice” standard applicable to
post-sentence motions. State v. Fugate, Montgomery App. No.
21574, 2007-Ohio-26, ¶ 10.
***
But even under the more lenient pre-sentence standard, “a
defendant must show a reasonable and legitimate basis for the
withdrawal of the plea.” * * * “A change of heart is not enough,” and
a trial court's finding regarding a defendant's true motivation is entitled
to deference. * * * Likewise, a trial court's ultimate decision to grant or
deny a pre-sentence motion to withdraw a guilty plea is subject to
review for an abuse of discretion. Fugate, at ¶ 10. State v. Simpson,
2d Dist. Montgomery No. 24266, 2011-Ohio-6181,¶ 7, 10.
{¶ 25} “Abuse of discretion” has been defined as an attitude that is
unreasonable, arbitrary, or unconscionable. Huffman v. Hair Surgeons, Inc., 19
Ohio St.3d 83, 482 N.E.2d 1248 (1985). A decision is unreasonable if there is no
sound reasoning process that would support that decision. AAAA Enterprises, Inc.
v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 553
N.E.2d 597 (1990). Feldmiller v. Feldmiller, 2d Dist. Montgomery No. 24989,
2012-Ohio-4621, ¶ 7.
{¶ 26} As this Court has noted:
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“A trial court does not abuse its discretion in overruling a
motion to withdraw: (1) where the accused is represented by highly
competent counsel, (2) where the accused was afforded a full
hearing, pursuant to Crim. R. 11, before he entered the plea, (3)
when, after the motion to withdraw is filed, the accused is given a
complete and impartial hearing on the motion, and (4) where the
record reveals that the court gave full and fair consideration to the
plea withdrawal request.” State v. Askew, 2d Dist. Montgomery No.
20110, 2005-Ohio-4026, ¶ 8, quoting State v. Barnett, 73 Ohio
App.3d 244, 250, 596 N.E.2d 1101 (2d Dist. 1991).
{¶ 27} Further, this Court in Askew noted as follows:
When conducting the hearing on the motion to withdraw, the
trial court may consider: “(1) whether the state will be prejudiced by
withdrawal; (2) the representation afforded to the defendant by
counsel; (3) the extent of the Crim. R. 11 plea hearing; (4) the extent
of the hearing on the motion to withdraw, * * * (5) whether the timing
of the motion was reasonable; (6) the reasons for the motion; (7)
whether the defendant understood the nature of the charges and
potential sentences, and (8) whether the accused was perhaps not
guilty or had a complete defense to the charge.” Askew, at ¶ 11,
quoting State v. Cuthbertson, 139 Ohio App.3d 895, 898-899, 746
N.E.2d 197 (7th Dist. 2000).
{¶ 28} Crim.R. 11(C)(2) provides:
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In felony cases the court may refuse to accept a plea of guilty *
* * and shall not accept a plea of guilty * * * without first addressing
the defendant personally and doing all of the following:
(a) Determining that the defendant is making the plea
voluntarily, with understanding of the nature of the charges and of the
maximum penalty involved, and if applicable, that the defendant is not
eligible for probation or for the imposition of community control
sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the
defendant understands the effect of the plea of guilty * * * , and that
the court, upon acceptance of the plea, may proceed with judgment
and sentence.
(c) Informing the defendant of and determining that the
defendant understands that by the plea the defendant is waiving the
rights to jury trial, to confront witnesses against him or her, to have
compulsory process for obtaining witnesses against him or her, to
have compulsory process for obtaining witnesses in the defendant’s
favor, and to require the state to prove the defendant’s guilt beyond a
reasonable doubt at a trial at which the defendant cannot be
compelled to testify against himself or herself.
{¶ 29} At the hearing on the motion to withdraw, Thomas’ trial counsel, Matthew
Arntz, testified that prior to the plea, he met with Thomas at the jail and advised him of the
maximum penalty he could receive after entering the negotiated plea. Attorney Arntz further testified that he informed
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Thomas that a prison term was likely. Prior to the March 8, 2012, sentencing hearing, Arntz met with the trial court in chambers to
discuss the case. After the meeting, Arntz informed Thomas that the judge was inclined to send him to prison. The trial court
credited Arntz’s testimony over that of Thomas’ and found that there were adequate attorney-client communications prior to the plea
hearing.
{¶ 30} Moreover, although Thomas claimed to have missed portions of the plea
hearing due to his hearing impairment, his claim is undermined by the record. With the
exception of only one instance where the trial court had to repeat itself at the plea hearing,
the record establishes that Thomas heard and understood the proceedings. Upon review,
we note that Thomas indicated that he was satisfied with the representation
afforded him, and he had sufficient time to discuss the matter with his lawyer.
Thomas acknowledged that he had not been threatened or promised anything
other than the dismissal of a charge against him in return for his guilty pleas.
Thomas stated he was not under the influence of drugs or alcohol. Thomas did
not indicate to the court that he was under any emotional stress. Thomas
indicated that his plea was voluntary and acknowledged that he understood the
nature of the charges against him. Thomas acknowledged all of his rights,
indicated that he understood them, and signed the plea forms.
{¶ 31} When Thomas testified at the hearing on the motion to withdraw his
plea, he stated several reasons for wanting to withdraw his plea, and he
contradicted many of the statements he made at the plea hearing, such as his
previous responses to the trial judge that he had heard and understood the plea.
Nevertheless, the trial court was not required to credit this testimony at the hearing
19
on the motion to withdraw his pleas. The trial court gave full and fair consideration
to Thomas’ motion to withdraw his pleas. On this record, the trial court did not
abuse its discretion in denying Thomas’ request to withdraw his guilty plea.
{¶ 32} Thomas’ third assignment of error is overruled.
{¶ 33} Thomas’ fourth assignment of error is as follows:
{¶ 34} “THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO
CONSECUTIVE SENTENCES WITHOUT MAKING THE REQUISITE JUDICIAL
FINDINGS MANDATED BY R.C. 2929.14(C)(4).”
{¶ 35} In his fourth assignment, Thomas argues that the trial court failed to make
the requisite judicial findings pursuant to R.C. 2929.14(C)(4) before imposing consecutive
sentences in the instant case.
{¶ 36} In State v. Nichols, 2d Dist. Clark No. 2012 CA 38, 2013-Ohio-3285, ¶ 9,
we recently stated the following:
Recently, the Eighth District Court of Appeals held that in a
sentencing or re-sentencing occurring on or after the effective date of
H.B. 86, September 30, 2011, the revived version of R.C.
2929.14(C)(4) was in effect and the court had to make certain findings
before imposing consecutive sentences. State v. Venes,
2013-Ohio-1891, --- N.E.2d ---, 2013 WL 1932857 (8th Dist.).
Nichols was originally sentenced on May 6, 2010, after pleading guilty
to four counts of GSI. As previously stated, Nichols appealed his
sentence, and we reversed and remanded for re-sentencing. On
20
May 4, 2012, the trial court re-sentenced Nichols to three years on
each of the four GSI counts and ordered the sentences to be served
consecutively. Nichols was sentenced after the effective date of H.B.
86. Therefore, pursuant to H.B. 86, the trial court was required to
make certain findings before imposing consecutive sentences. See
Id.{¶ 37} Similar to the defendant in Nichols, we find that the trial court’s decision to impose
consecutive sentences was governed by R.C. 2929.14(C)(4). Furthermore, we
conclude on this record that the court’s imposition of consecutive terms fails to
meet the statutory criteria.
{¶ 38} R.C. 2929.14(C)(4) under H.B. 86 requires a trial court to make certain findings before imposing consecutive
sentences:
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 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,
21
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.
{¶ 39} Thomas contends that the trial court failed to find that the consecutive sentence is not disproportionate to the
seriousness of the offender’s conduct and not disproportionate to the danger the offender poses to the public, as required by R.C.
292.14(C)(4). When it imposed consecutive sentences upon Thomas, it made the following finding:
And one of the reasons that the Court is requiring that the sentences be served consecutively is
because he has two prior cases where he is on supervision. And I’m imposing consecutive sentences to try to
create the maximum deterrent effect as well as punishment for picking up so many cases.
{¶ 40} Upon review, we conclude that the record is devoid of any finding that the consecutive sentence is not
disproportionate to the seriousness of the offender’s conduct and not disproportionate to the danger the offender poses to the public.
The trial court did not include these two findings in the judgment entries imposing sentence or pronounce these findings orally at the
sentencing hearing. Simply put, the trial court failed to make the findings necessary for the imposition of consecutive sentences
pursuant to R.C. 2929.14(C)(4). Nichols, 2013-Ohio-3285; State v. Wills, 2d Dist. Montgomery No. 25357, 2013-Ohio-4507. “As a
remedy the matter will be remanded to the trial court to consider whether consecutive sentences are appropriate under R.C.
2929.14(C)(4) and, if so, to enter the proper findings on the record.” Wills, at ¶ 32.
{¶ 41} Thomas’ fourth and final assignment of error is sustained.
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{¶ 42} Thomas’ fourth assignment of error having been sustained, his sentence is
reversed, and the matter is remanded to the trial court to consider whether consecutive
sentences are appropriate under R.C. 2929.14(C)(4), and if so, to enter the proper findings
on the record. In all other respects, the judgment of the trial court is affirmed.
..........
HALL, J., and WELBAUM, J., concur.
Copies mailed to:
Matthew T. Crawford
Charles W. Morrison
Hon. Mary L. Wiseman