State v. Tackett , 2019 Ohio 4960 ( 2019 )

[Cite as State v. Tackett, 2019-Ohio-4960.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
MEIGS COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case Nos. 18CA22
: 18CA23
vs. :
: DECISION AND
NATASHA M. TACKETT, : JUDGMENT ENTRY
:
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:
Michael R. Huff, Athens, Ohio, for Appellant.
James K. Stanley, Meigs County Prosecuting Attorney, Pomeroy, Ohio, for
Appellee.
_____________________________________________________________
Smith, P.J.
{¶1} This is an appeal from a Meigs County Common Pleas Court judgment
of conviction and sentence. Appellant, Natasha Tackett, pled guilty to one count
of breaking and entering, a fifth-degree felony in violation of R.C. 2911.13(A), and
one count trafficking in drugs, a fifth-degree felony in violation of R.C.
2925.03(A)(2). The trial court sentenced Appellant to twelve-month prison terms
for each offense and ordered that the prison terms be served consecutively. On
appeal, Appellant contends that the trial court committed error by imposing
consecutive sentences without making all of the findings mandated by R.C.
Meigs App. Nos. 18CA22 & 18CA23 2
2929.14(C)(4) and properly incorporating the statutory findings into the sentencing
entries. Because the trial court failed to make the required findings before
imposing consecutive sentences and also failed to incorporate the necessary
findings into the sentencing entries, we conclude Appellant’s sole assignment of
error is meritorious and it is sustained. Accordingly, the sentences imposed by the
trial court are hereby vacated and the matter is remanded to the trial court for a
new sentencing hearing.
FACTS
{¶2} Appellant, Natasha Tackett, was indicted on February 15, 2018 for one
count of breaking and entering, a fifth-degree felony in violation of R.C.
2911.13(A), stemming from an incident that occurred on January 3, 2018. She was
later indicted on April 11, 2018, on one count of trafficking in drugs, a fifth-degree
felony in violation of R.C. 2925.03(A)(2) and (C)(2)(a), stemming from an
incident that occurred on September 21, 2017. The two cases proceeded through
the litigation process below and were never consolidated. However, it appears
Appellant entered into plea negotiations with the State which resulted in her
entering guilty pleas to both charges in exchange for a jointly recommended
sentence. The terms of the plea agreement required Appellant to enter guilty pleas
to both charges in exchange for the State’s recommendation that she be sentenced
to a twelve-month prison term for her conviction for trafficking in drugs, and that
Meigs App. Nos. 18CA22 & 18CA23 3
she be sentenced to a five-year term of community control for her breaking and
entering conviction, to be served upon completion of her prison term.
{¶3} On the day of her sentencing hearing Appellant submitted to a drug
screen. The trial court stated on the record that the results of the drug screen
indicated Appellant had Amphetamines, Methamphetamines, Suboxone and “Oxy”
in her system.1 Appellant disputed the results of the screen and asked for further
testing, however, the record before us does not contain any further test results or
updated information. Thereafter, by separate entries dated August 30, 2018, the
trial court sentenced Appellant to twelve-month prison terms for both offenses and
ordered them to be served consecutively for a total prison term of twenty-four
months.
{¶4} Appellant filed a pro se motion for leave to file delayed appeals in both
cases on February 7, 2019. Her motion was granted by this Court on April 3,
2019. These cases were consolidated for purposes of appeal and Appellant was
appointed counsel. Now, on appeal, Appellant raises a single assignment of error
for our review and consideration.
ASSIGNMENT OF ERROR
I. “THE TRIAL COURT COMMITTED ERROR BY IMPOSING
CONSECUTIVE SENTENCES BUT FAILED TO MAKE
ALL THE FINDINGS MANDATED BY R.C. 2929.14(C)(4)
1
The State attached a copy of what purports to be Appellant’s drug screen results to its appellate brief. However,
because it does not appear the test results were made part of the record below, they are not part of the record for
purposes of appeal.
Meigs App. Nos. 18CA22 & 18CA23 4
AND PROPERLY INCORPORATING ITS STATUTORY
FINDINGS INTO THE SENTENCING ENTRIES.”
LEGAL ANALYSIS
{¶5} In her sole assignment of error Appellant contends that the trial court
erred in imposing consecutive sentences without making all of the findings
required by R.C. 2929.14(C)(4) and without properly incorporating the necessary
statutory findings into the sentencing entries. More specifically, Appellant argues
that the trial court “failed to comment in any way on the proportionality language
of the initial language of (C)(4)” and thus failed to 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.” Appellant further argues that although
the trial court stated consecutive sentences were “necessary to protect the public,”
it failed to further state that they were necessary to protect the public “from future
crime.” Appellant also notes that although the trial court found the offenses were
“part of a course of conduct,” the offenses were committed on two different dates
and were unrelated. Finally, Appellant argues that the trial court failed to
incorporate the necessary findings into the sentencing entries, and instead simply
stated “the Court makes the appropriate findings to impose said consecutive
sentence as required by Section 2929.14(C)(4) of the Revised Code.” The State
responds by arguing that “[t]he trial court did not commit error by imposing
consecutive sentences because the trial court made all the findings mandated by
Meigs App. Nos. 18CA22 & 18CA23 5
R.C. 2929.14(C)(4) and properly incorporated its statutory findings into the
sentencing entries.”
{¶6} Generally, appellate courts review felony sentences under the standard
set forth in R.C. 2953.08(G)(2). State v Blanton, 4th Dist. Adams No. 16CA1031,
2018-Ohio-1275, ¶ 97; State v. Bever, 4th Dist. Washington No. 13CA21, 2014-
Ohio-600, ¶ 13. That statute directs an appellate court to “review the record,
including the findings underlying the sentence,” and to modify or vacate the
sentence “if it clearly and convincingly finds * * * (a) [t]hat the record does not
support the sentencing court's findings under division * * * (C)(4) of section
2929.14 * * * of the Revised Code * * * [or] (b) [t]hat the sentence is otherwise
contrary to law.” R.C. 2953.08(G)(2). This means that the appellate court must
clearly and convincingly find that the record does not support the trial court's
findings, which is an extremely deferential standard of review. Blanton at ¶ 99;
State v. Bass, 4th Dist. Washington No. 16CA32, 2017-Ohio-7059, ¶ 7.
{¶7} “[I]n order to impose consecutive terms of imprisonment, a trial court
is required to make 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, ¶ 29. A failure to make the findings
required by R.C. 2929.14(C)(4) renders a consecutive sentence contrary to law.
Meigs App. Nos. 18CA22 & 18CA23 6
State v. Bever, supra, at ¶ 17; State v. Stamper, 12th Dist. Butler No. CA2012–08–
166, 2013–Ohio–5669, ¶ 23. Specifically, the sentencing court must find, pursuant
to R.C. 2929.14(C)(4) that: (1) “the consecutive sentence is necessary to protect
the public from future crime or to punish the offender”; (2) “the 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) one 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, 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
Meigs App. Nos. 18CA22 & 18CA23 7
public from future crime by the offender.
{¶8} A review of the record before us reveals that the trial court failed to
make a finding that consecutive sentences were not disproportionate to the
seriousness of the offender's conduct and to the danger the offender posed to the
public. It appears that although the trial court did make an earlier statement that
included the word “proportionate” under its general consideration of the overriding
principles and purposes of felony sentencing as required by R.C. 2929.11, 2929.12
and 2929.13, it did not make such a finding as to the imposition of consecutive
sentences under R.C. 2929.14. For instance, the trial court stated as follows:
The Court is also ensuring that sentence is not based on
impermissible purposes, and is consistent with other similar
offenses committed by like offenders, is proportionate harm
caused the impact upon any victim. [sic].
However, when the trial court transitioned into its justifications for imposing
consecutive sentences, the court only stated as follows:
Um, the Court is going to make a finding also pursuant to
twenty-nine, twenty-nine fourteen “c” four (2929.14)(C)(4),
that two (2) or more offenses are part of a course of conduct
and the harm caused is so great or unusual that a single
prison term will not accurately reflect the seriousness of
Meigs App. Nos. 18CA22 & 18CA23 8
the conduct or criminal history. It demonstrates that consecutive
sentences are necessary to protect the public.
{¶9} Thus, as argued by Appellant, there was no finding made by the
trial court in reference to the imposition of consecutive sentences that
“consecutive sentences are not disproportionate to the seriousness of the
offender's conduct and to the danger the offender poses to the public,” or
that they were necessary to protect to the public “from future crime by the
offender.” This Court recently held in State v. Robinson, a case involving an
essentially identical argument and involving the same court, that findings in
support of the imposition of consecutive sentences “must be separate and
distinct, in addition to any findings that relate to the purposes and goals of
criminal sentencing.” State v. Robinson, 2019-Ohio-2155, -- N.E.3d –, ¶ 33
(4th Dist. 2019), citing State v Blanton, supra, at ¶ 96 and State v. Bever,
supra, at ¶ 17. As a result, we must find that here, the record before us
demonstrates the trial court failed to make the necessary findings before
imposing consecutive sentences.
{¶10} Further, based upon the record before us, it appears the trial court
erred in finding that the offenses at issue here were committed as “part of a course
of conduct.” As noted by Appellant in her brief, the two offenses at issue were
committed on separate dates and there is nothing in the record before us to indicate
Meigs App. Nos. 18CA22 & 18CA23 9
they were related. Appellant was indicted on February 15, 2018, on one count of
breaking and entering that occurred on January 3, 2018. Appellant was later
indicted on April 11, 2018, on one count of trafficking in drugs that occurred on
September 21, 2017. There is no evidence in the record explaining how these two
offenses were related or were committed as part of one or more courses of conduct.
The same error was also found in State v. Robinson, supra, and resulted in the
sentences being vacated. State v. Robinson at ¶ 35. In Robinson, we reasoned that
“[t]ypically, a finding of the course of conduct factor is reserved for multiple
instances or related acts.” (Citation omitted.) Id. In the case presently before us
there is simply no evidence that these two offenses were even related. In the
absence of such evidence we cannot find that the record supports this finding made
by the trial court.
{¶11} Finally, Appellant argues that the trial court erred in failing to
incorporate the statutory findings required for the imposition of consecutive
sentences into the sentencing entries. As Appellant notes, a review of the
sentencing entries here reveals that the trial court did not include any specific
findings in support of consecutive sentences in the sentencing entries. Instead, the
trial court simply stated that “[t]he Court makes the appropriate findings to impose
said consecutive sentence as required by Section 2929.14(C)(4) of the Ohio
Revised Code.” The initial problem with this statement is that, as discussed above,
Meigs App. Nos. 18CA22 & 18CA23 10
the court did not make the “appropriate findings to impose said consecutive
sentence[s]” on the record at the sentencing hearing. Thus, this statement is
factually inaccurate. The exact same issue was presented in State v. Robinson,
supra, at ¶ 36. In Robinson we described the court’s statement as only a “cursory
statement” and held that because the trial court had failed to actually make the
necessary findings on the record during the sentencing hearing, the trial court
failed to comply with R.C. 2929.14(C) and State v. Bonnell, supra, at ¶ 37. In
Bonnell, the Supreme Court of Ohio held 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 * * *.” Id. We cannot conclude that a generic reference to
findings made at the sentencing hearing constitutes incorporating the findings into
the sentencing entry, as contemplated by Bonnell, especially when the findings
made on the record at the sentencing hearing were deficient.
{¶12} Therefore, we conclude the trial court did not adequately comply with
R.C. 2929.14(C) and did not adequately provide the necessary support for the
course of conduct finding. As such, the consecutive sentences imposed were
contrary to law. Furthermore, not only did the trial court fail to make the necessary
findings at the sentencing hearing, it failed to specifically incorporate any of its
findings into the sentencing entry consistent with the dictates of State v. Bonnell,
Meigs App. Nos. 18CA22 & 18CA23 11
supra. Thus, in light of the foregoing, Appellant’s sole assignment of error is
sustained, the sentences imposed by the trial court are hereby vacated, and the
matter is remanded to the trial court for a new sentencing hearing.
JUDGMENT REVERSED AND CAUSE REMANDED FOR
RESENTENCING CONSISTENT WITH THIS OPINION.
Meigs App. Nos. 18CA22 & 18CA23 12
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE REVERSED AND CAUSE
REMANDED FOR RESENTENCING CONSISTENT WITH THIS OPINION.
Costs be assessed to Appellee.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Meigs County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON
BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR
THIS COURT, it is temporarily continued for a period not to exceed sixty days
upon the bail previously posted. The purpose of a continued stay is to allow
Appellant to file with the Supreme Court of Ohio an application for a stay during
the pendency of proceedings in that court. If a stay is continued by this entry, it
will terminate at the earlier of the expiration of the sixty day period, or the failure
of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the
forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses
the appeal prior to expiration of sixty days, the stay will terminate as of the date of
such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Abele, J. & Hess, J.: Concur in Judgment and Opinion.
For the Court,
BY: __________________________________
Jason P. Smith, Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.