State v. Cousino , 2018 Ohio 2589 ( 2018 )

[Cite as State v. Cousino, 2018-Ohio-2589.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
SANDUSKY COUNTY
State of Ohio Court of Appeals No. S-17-033
Appellee Trial Court No. 17 CR 157
v.
Thomas A. Cousino DECISION AND JUDGMENT
Appellant Decided: June 29, 2018
*****
Timothy Braun, Sandusky County Prosecuting Attorney, and
Mark E. Mulligan, Assistant Prosecuting Attorney, for appellee.
Jon M. Ickes, for appellant.
*****
MAYLE, P.J.
{¶ 1} Defendant-appellant, Thomas A. Cousino, appeals the August 28, 2017
judgment of the Sandusky County Court of Common Pleas, convicting him of numerous
sexual offenses and sentencing him to an aggregate prison term of 13 years. For the
reasons that follow, we reverse the trial court judgment.
I. Background
{¶ 2} On March 6, 2017, 47-year-old Thomas Cousino was indicted on three
counts of rape, violations of R.C. 2907.02(A)(1)(a); one count of sexual battery, a
violation of R.C. 2907.03(A)(5); and one count of gross sexual imposition, a violation of
R.C. 2907.05(A)(1). These charges arose from Cousino’s sexual abuse of 17-year-old
foreign exchange student, Y.D., whom he and his wife hosted from Ukraine. While
Y.D.’s allegations of sexual abuse were being investigated, Cousino was found to be in
possession of a number of pornographic videos and images of children, leading to his
indictment on 20 counts of pandering sexually-oriented material involving a minor,
violations of R.C. 2907.322(A)(1).
{¶ 3} On July 14, 2017, Cousino entered a plea of guilty to sexual battery
(Count 4), gross sexual imposition (Count 5), and two counts of pandering sexually-
oriented material involving a minor (Counts 6 and 7). On August 22, 2017, the trial court
sentenced him to 60 months in prison and a fine of $1,500 on Count 4; 18 months in
prison and a fine of $1,000 on Count 5; eight years in prison and a fine of $1,500 on
Count 6; and eight years in prison and a fine of $1,500 on Count 7. The court ordered
that the sentences imposed for Counts 4 and 5 be served concurrently to each other, that
the sentences imposed for Counts 6 and 7 be served concurrently to each other, and that
the sentences imposed for Counts 4 and 5 be served consecutively to the sentences
imposed for Counts 6 and 7. This resulted in an aggregate prison term of 13 years. This
sentence was memorialized in a judgment entry journalized on August 28, 2017.
2.
{¶ 4} Cousino appealed and assigns a single error for our review:
The trial court failed to make the requisite findings under Ohio
Revised Code Section 2929.14(C)(4) justifying the imposition of
consecutive sentences on the Appellant.
II. Law and Analysis
{¶ 5} Cousino challenges the trial court’s decision to impose consecutive
sentences. He argues that the court failed to make the findings required by R.C.
2929.14(C)(4) to justify the imposition of consecutive sentences.1
{¶ 6} R.C. 2929.14(C)(4) provides as follows:
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:
1
Although not acknowledged by either Cousino or the state, Cousino failed to raise this
objection in the trial court. He has, therefore, waived all but plain error. See State v.
Ross, 2017-Ohio-675, 85 N.E.3d 398, ¶ 29 (6th Dist.). Ohio courts have recognized,
however, that “when the record demonstrates that the trial court failed to make the
findings required by R.C. 2929.14(C)(4) before imposing consecutive sentences on
multiple offenses, appellant’s sentence is contrary to law and constitutes plain error.”
(Internal quotations and citations omitted.) State v. Adams, 10th Dist. Franklin No.
13AP-783, 2014-Ohio-1809, ¶ 7.
3.
(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.
{¶ 7} The Ohio Supreme Court recently reiterated that this statute requires the trial
court to make three statutory findings before imposing consecutive sentences. State v.
Beasley, Slip Opinion No. 2018-Ohio-493, ¶ 252; State v. Bonnell, 140 Ohio St. 3d 209,
2014-Ohio-3177, 16 N.E.3d 659, ¶ 26. It must find (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
that the offender poses to the public; and (3) that R.C. 2929.14(C)(4)(a), (b), or (c) is
applicable. Beasley at ¶ 252. “[T]he trial court must make the requisite findings both at
the sentencing hearing and in the sentencing entry.” (Emphasis in original.) Id. at ¶ 253,
4.
citing Bonnell at ¶ 37. While “a word-for-word recitation of the language of the statute is
not required,” a reviewing court must be able to discern that the trial court engaged in the
correct analysis and the record must contain evidence to support the trial court’s findings.
Bonnell at ¶ 29.
{¶ 8} At the sentencing hearing, the trial court explained its reasons for imposing
consecutive sentences:
I’m going to impose the maximum sentence, and in line with the
principles of sentencing, I am going to make that consecutive to the eight
years that the Court imposed for the charge of pandering involving a
juvenile. The Court does find that it’s necessary. It’s not disproportionate.
It’s necessary to protect the public. It is necessary to send a message that
this will not be tolerated, not just in this County, but in this country. The
offenses were so different, even though they were, perhaps, committed at or
about the same time, that the Court feels that it would de – demean the
conviction for sexual battery to run at the same time as a conviction for
pandering sexually oriented material involving this. The Court just feels
that it does not have a choice but to make the sentences consecutive and
maximum.
{¶ 9} Its August 28, 2017 sentencing entry includes the following explanation for
its decision to impose consecutive sentences:
5.
The Court finds in order to adequately punish the defendant and to
protect the public and after considering the harm caused by the commission
of the offenses in COUNTS 4 & 5 was so great that no single prison term
for any of the offenses committed adequately reflects the seriousness of the
defendant’s conduct that the sentences imposed in COUNTS 4 & 5 shall be
served CONSECUTIVELY to the sentences imposed in COUNTS 6 & 7
for an AGGREGATE TERMS of 13 YEARS. (Emphasis in original.)
{¶ 10} We review felony sentences under R.C. 2953.08(G)(2). State v. Goings,
6th Dist. Lucas No. L-13-1103, 2014-Ohio-2322, ¶ 20. We may increase, modify, or
vacate and remand a judgment only if we clearly and convincingly find that: (1) “the
record does not support the sentencing court’s findings under division * * * (C)(4) of
section 2929.14, * * *” or (2) “the sentence is otherwise contrary to law.” Id., citing R.C.
2953.08(G)(2). The imposition of consecutive sentences without the requisite findings
renders the sentence contrary to law. See Bonnell at ¶ 37; State v. Kubat, 6th Dist.
Sandusky No. S-13-046, 2015-Ohio-4062, ¶ 35. We, therefore, review the record to
ensure that the trial court considered each factor under R.C. 2929.14(C)(4) before
sentencing Cousino to consecutive prison terms.
{¶ 11} As to the first statutory factor—that consecutive sentences are necessary to
protect the public or to punish the offender—the trial court found at the sentencing
hearing that consecutive sentences were “necessary to protect the public.” This was also
6.
included in its sentencing entry. We find that the first factor was properly considered by
the trial court.
{¶ 12} As to the second statutory factor—that consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to the danger that the
offender poses to the public—the trial court found at the sentencing hearing that the
sentences were “not disproportionate.” To satisfy R.C. 2929.14(C)(4), the consecutive
sentences must not be disproportionate “to the seriousness of the offender’s conduct and
to the danger the offender poses to the public.” It is not clear from the record that these
were the factors weighed by the trial court. Moreover, this finding is not reflected in the
sentencing entry. We cannot say, therefore, that the trial court properly considered the
second R.C. 2929.14(C)(4) factor.
{¶ 13} And as to the third statutory factor—a finding that either R.C.
2929.14(C)(4)(a), (b), or (c) is applicable—it appears that the trial court found (b) to
apply, however, the court never explicitly cited this provision of the statute. Under (b),
the court must find, first, that at least two of the multiple offenses were committed as part
of one or more courses of conduct, and, second, that the harm caused was so great or
unusual that no single prison term adequately reflects the seriousness of the offender’s
conduct. The trial court found at the hearing that “[t]he offenses were so different, even
though they were, perhaps, committed at or about the same time.” We cannot say that
this constituted a finding that “at least two of the multiple offenses were committed as
part of one or more courses of conduct.” What’s more, this finding is not incorporated
7.
into the court’s sentencing entry. As to the second finding required under (b)—that the
harm caused was so great or unusual that no single prison term adequately reflects the
seriousness of the offender’s conduct—the court made this finding in its sentencing entry,
but did not do so at the sentencing hearing. We cannot say, therefore, that the third R.C.
2929.14(C)(4) factor was properly considered.
{¶ 14} “[A] trial court’s inadvertent failure to incorporate the statutory findings in
the sentencing entry after properly making those findings at the sentencing hearing does
not render the sentence contrary to law; rather, such a clerical mistake may be corrected
by the court through a nunc pro tunc entry to reflect what actually occurred in open
court.” Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at ¶ 30. In other
words, if the appropriate findings were made at the sentencing hearing but were not
incorporated into the sentencing entry, we could remand this matter for a nunc pro tunc
entry to rectify the mistake.
{¶ 15} Here, however, there were some findings made at the sentencing hearing
that were not incorporated into the judgment entry, but there were also findings that were
not made at all at the sentencing hearing. These errors cannot be corrected by a nunc pro
tunc entry. Rather, we must reverse the trial court judgment and remand for a new
sentencing hearing. See Kubat, 6th Dist. Sandusky No. S-13-046, 2015-Ohio-4062, at
¶ 38, quoting State v. Corker, 10th Dist. Franklin Nos. 13AP-264, 13AP- 265 and 13AP-
266, 2013-Ohio-5446, ¶ 38 (“‘[W]hen the trial court fails to articulate the appropriate
findings required by R.C. 2929.14(C)(4), the case is to be remanded for the trial judge to
8.
consider whether consecutive sentences are appropriate under [R.C. 2929.14(C)(4)] and,
if so, to enter the proper findings on the record.’”).
{¶ 16} Accordingly, we find Cousino’s sole assignment of error well-taken.
III. Conclusion
{¶ 17} We find Cousino’s sole assignment of error well-taken. The trial court
failed to properly consider the second and third factors required under R.C.
2929.14(C)(4) before imposing consecutive sentences. We, therefore, reverse the
August 28, 2017 judgment of the Sandusky County Court of Common Pleas and remand
for resentencing. Appellee is ordered to pay the costs of this appeal pursuant to
App.R. 24.
Judgment reversed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Christine E. Mayle, P.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/.
9.