State v. Greene , 2018 Ohio 3135 ( 2018 )

[Cite as 17AP-667,668, 2018-Ohio-3135.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
No. 17AP-667
Plaintiff-Appellee, : (C.P.C. No. 05CR-5445)
and
v. : No. 17AP-668
(C.P.C. No. 07CR-7093)
Reginald L. Greene, :
(REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on August 7, 2018
On brief: Ron O'Brien, Prosecuting Attorney, and
Kimberly M. Bond, for appellee.
On brief: Yeura R. Venters, Public Defender, and Timothy E.
Pierce, for appellant.
APPEALS from the Franklin County Court of Common Pleas
BRUNNER, J.
{¶ 1} Defendant-appellant, Reginald L. Greene, appeals two judgments of the
Franklin County Court of Common Pleas issued on August 25, 2017 revoking his
community control in Franklin C.P. Nos. 05CR-5445 and 07CR-7093 and sentencing him
to two consecutive one-year prison terms as a result. Because Greene could have raised but
did not raise arguments about his community control sentences when originally imposed,
and because he could have but did not appeal them at either the times they were originally
imposed or at the time they were reactivated after he completed an unrelated prison term,
res judicata prevents litigation of that issue now. However, we agree with Greene that the
trial court plainly erred in imposing consecutive sentences in these two cases at the time it
revoked his community control sentence in both of them. We sustain Greene's first
Nos. 17AP-667 and 17AP-668 2
assignment of error, overrule his second assignment of error, and we reverse and remand
for a new sentencing hearing.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On August 15, 2005, a Franklin County Grand Jury indicted Greene for
failure to pay court-ordered child support to his child, B. S., for 26 accumulated weeks of a
2-year period. (Aug. 15, 2005 Indictment 05CR-5445.) He pled guilty to that offense on
February 13, 2006. (Feb. 13, 2006 Plea Tr. 05CR-5445, filed Nov. 17, 2017; Feb. 13, 2006
Plea Form 05CR-5445.) However, due to circumstances not relevant to this appeal, Greene
failed to appear for sentencing. Thus, he was not sentenced until June 2007, when he was
placed on community control for a period of 5 years. (June 8, 2007 Jgmt. Entry 05CR-
5445 at 2; June 5, 2007 Sentencing Tr. 05CR-5445 in passim, filed Nov. 8, 2017.) In the
course of sentencing, the plaintiff-appellee, State of Ohio, agreed that charges it anticipated
indicting in the near future would not constitute a violation of community control in case
No. 05CR-5445. (June 5, 2007 Sentencing Tr. 05CR-5445 at 15.)
{¶ 3} On October 1, 2007, a Franklin County Grand Jury indicted Greene for failure
to pay court-ordered child support to a different child, B. F., for 26 accumulated weeks of a
2-year period. (Oct. 1, 2007 Indictment 07CR-7093.) He pled guilty on June 26, 2008.
(June 26, 2008 Plea Tr. 07CR-7093, filed Nov. 8, 2017; June 26, 2008 Plea Form 07CR-
7093.) During the plea hearing, he also pled guilty in Franklin C.P. No. 07CR-6580 in
which he possessed 111.5 grams of powder cocaine. (June 26, 2008 Plea Tr. 07CR-7093 at
17.) He was sentenced to serve 3 years in prison on the cocaine case and placed under
community control supervision for 5 years on the new child support case. (Sept. 4, 2008
Jgmt. Entry 07CR-7093 at 2; Sept. 2, 2008 Sentencing Tr. 07CR-7093 at 4, 7-8, filed
Feb. 23, 2018.)
{¶ 4} When the trial court stated Greene's sentences at the hearing, it announced
it would suspend Greene's existing and newly imposed periods of community control in
case Nos. 05CR-5445 and 07CR-7093 until after he completed his prison sentence in the
cocaine case (No. 07CR-6580). (Sept. 2, 2008 Sentencing Tr. 07CR-7093 at 7-8.) In its
judgment entry in case No. 07CR-7093, the trial court suspended the imposition of
community control until after he had completed his prison sentence in the cocaine case.
(Sept. 4, 2008 Jgmt. Entry 07CR-7093 at 1-2; Sept. 2, 2008 Sentencing Tr. 07CR-7093 at
7-8.) Shortly after imposing sentence in case No. 07CR-7093, the trial court also suspended
Nos. 17AP-667 and 17AP-668 3
the period of community control in case No. 05CR-5445. (Sept. 18, 2008 Entry 05CR-
5445.)
{¶ 5} Following Greene's release from prison, and according to an entry filed on
November 18, 2013, the trial court reactivated Greene's term of community control in case
No. 05CR-5445, his original child support case, on October 30, 2013, and set a completion
date of July 14, 2017. (Nov. 18, 2013 Entry 05CR-5445.) On January 6, 2014, the trial court
filed a virtually identical entry in case No. 07CR-7093 amounting to a new start date for
Greene's five-year period of community control in his second child support case. He began
community control in his second child support case at the same time as the reactivation of
community control in his first child support case, October 30, 2013. The trial court set a
completion date of August 30, 2018 for Greene's second child support case. (Jan. 6, 2014
Entry 07CR-7093.) Greene did not appeal any of these entries suspending and reactivating
his periods of community control nor did he appeal any of the original sentencing entries
for the two cases in which he received community control sentences.
{¶ 6} On July 5, 2017, the probation department requested that Greene's
community control be revoked in both child support cases, Nos. 05CR-5445 and 07CR-
7093. (July 5, 2017 Req. for Revocation 05CR-5445; July 5, 2017 Req. for Revocation
07CR-7093.) At a hearing on August 25, 2017, Greene stipulated to the alleged violations
of his community control and the trial court moved directly to mitigation and sentencing.
(Aug. 25, 2017 Hearing Tr. at 3, filed Nov. 8, 2017.) Because of the age of the underlying
cases, the trial court orally announced that it was going to give Greene a "bit of a break" by
revoking his community control and sentencing him to 12 months in prison in each child
support case, to be served concurrently with each other but consecutively to a term of
imprisonment Greene was already serving in Scioto County. Id. at 9-10. However, in the
judgment entry in each child support case, the trial court imposed the 12-month sentences
consecutively to each other and consecutively to the Scioto County sentence. (Aug. 25, 2017
Revocation Entry 05CR-5445 at 1; Aug. 25, 2017 Revocation Entry 07CR-7093 at 1.)
{¶ 7} Greene now appeals.
II. ASSIGNMENTS OF ERROR
{¶ 8} Greene assigns two errors for review:
[1.] The lower court violated Appellant's right to Due Process of
Law under the Fifth and Fourteenth Amendments of the
Nos. 17AP-667 and 17AP-668 4
United States Constitution, and his right to Due Course of Law
under Article I, Sections 1 and 16 of the Ohio Constitution,
when the tribunal failed at the August 25, 2017 sentencing
hearing to generate the R.C. 2929.14(C)(4) findings necessary
to authorize consecutive sentence punishment. The
Appellant's sentences are therefore contrary to law per R.C.
2953.08(G)(2)(b) and must be set aside[.]
[2.] The lower court's September 2, 2008 sentence in case no.
07CR-7093 was void because the court ordered that the period
of community control imposed there commence upon the
Appellant's completion of a prison term imposed in another
case. In light of this the lower court violated Appellant's right
to Due Process of Law under the Fifth and Fourteenth
Amendments of the United States Constitution, and his right to
Due Course of Law under Article I, Sections 1 and 16 of the Ohio
Constitution, when it revoked Appellant's community control
in case no. 07CR-7093 and re-imposed the previously-
suspended sentence of incarceration. The sentence in that case
is contrary to law and must be set aside per R.C.
2953.08(G)(2)(b)[.]
Because the trial court could only have sentenced Greene on the revocations if community
control was still properly in effect, we find it appropriate to address the second assignment
of error first.
III. DISCUSSION
A. Second Assignment of Error - Whether the Trial Court Properly
Extended Community Control by Suspending it During Greene's Prison
Term and Whether Res Judicata Prevents Consideration of that
Argument
{¶ 9} Greene argues that, unlike the community control term imposed in case No.
05CR-5445, the community control term imposed in No. 07CR-7093 could not have been
tolled during his prison term on the cocaine case because it was imposed on the same day
he was sentenced to prison in the cocaine case. (Greene's Brief at 19-27.) In essence,
Greene does not find fault with the trial court's tolling of his community control term in
case No. 05CR-5445, but argues that the term in case No. 07CR-7093 could not have been
"tolled" because it had not yet begun. Id. The State responds that even if Greene is correct
in his characterization and the case No. 07CR-7093 term could not have been properly
tolled, it could have been (and was) imposed consecutively to the term of imprisonment in
the cocaine case. (State's Brief at 9-12.) However, we need not address the merits of these
Nos. 17AP-667 and 17AP-668 5
arguments because the State also raises the issue of res judicata and we conclude that these
are arguments that could have been and should have been presented in any prior appeal of
the judgment entry originally sentencing him in case No. 07CR-7093 (the second child
support case).
{¶ 10} We have previously explained:
In criminal cases, res judicata generally bars a defendant from
litigating claims in a proceeding subsequent to the direct
appeal "if he or she raised or could have raised the issue at the
trial that resulted in that judgment of conviction or on an
appeal from that judgment." (Emphasis sic.) State v. Jackson,
141 Ohio St. 3d 171, 2014-Ohio-3707, ¶ 92; see also State v.
Szefcyk, 77 Ohio St. 3d 93, 95-96 (1996). Stated differently, in
criminal cases res judicata may preclude issues, arguments, or
positions that could have been (even if they were not actually)
litigated. See State v. Breeze, 10th Dist. No. 15AP-1027, 2016-
Ohio-1457, ¶ 9.
(Emphasis sic.) State v. Barber, 10th Dist. No. 16AP-172, 2017-Ohio-9257, ¶ 19. At the time
it imposed sentence in case No. 07CR-7093, the trial court orally stated its intention to
suspend the term of community control until Greene had finished serving his sentence on
the cocaine case. (Sept. 4, 2008 Jgmt. Entry 07CR-7093 at 1-2; Sept. 2, 2008 Sentencing
Tr. 07CR-7093 at 8.) Greene was therefore well aware of the issue, did not require any
information from outside the record to litigate it, and should have and could have raised it
in a direct appeal from that judgment. He did not do so. Hence, he is now barred by res
judicata from doing so now.
{¶ 11} We overrule Greene's second assignment of error.
B. First Assignment of Error - Whether the Trial Court Erred in Failing to
Orally Make Findings as Required by R.C. 2929.14(C)(4)
{¶ 12} Reviewing the transcript in relation to Greene's argument that the trial court
orally imposed concurrent sentences for the two community control revocation cases, our
review of the record shows that the trial court did not specify at Greene's resentencing
hearing whether the two prison terms for his child support cases were concurrent or
consecutive. In sentencing Greene, the court made the oral statement that it was giving
Greene a "bit of a break" by imposing the 12-month sentences concurrently with each other
(though still consecutively to his Scioto County sentence). (Aug. 25, 2017 Hearing Tr. at 9-
10.) Yet, in the revocation entries the trial court imposed the 12-month sentences
Nos. 17AP-667 and 17AP-668 6
consecutively to each other and consecutively to the Scioto County sentence. (Aug. 25, 2017
Revocation Entry 05CR-5445 at 1; Aug. 25, 2017 Revocation Entry 07CR-7093 at 1.)
{¶ 13} Generally there is a presumption that sentences imposed "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." R.C. 2929.41(A). However,
that presumption may be dispelled if, in sentencing a defendant, the trial court finds that
the offender meets the criteria set forth in R.C. 2929.14(C)(4):
(4) 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, 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.
{¶ 14} In this case, while the trial court's judgment entries included language the
statute requires for consecutive sentences, the trial court did not orally make these required
findings at Greene's resentencing hearing or mention anything that remotely approximated
what would be required by R.C. 2929.14(C)(4) for consecutive sentencing among the two
child support cases. (Aug. 25, 2017 Hearing Tr. in passim; Aug. 25, 2017 Revocation Entry
05CR-5445 at 2; Aug. 25, 2017 Revocation Entry 07CR-7093 at 2.) The State argues that
we should find that this error has been forfeited because Greene's counsel failed to object
Nos. 17AP-667 and 17AP-668 7
to the imposition of consecutive sentences and it, therefore, is only reviewable under a plain
error standard. (State's Brief at 3-6.)
{¶ 15} We agree based on State v. Rogers, 143 Ohio St. 3d 385, 2015-Ohio-2459,
¶ 22. Under this analysis, not meeting the statutory requirements for imposing one or more
prison sentences is an obvious error that results in prejudice to the substantial rights of the
defendant. R.C. 2929.41(A); R.C. 2929.14(C)(4); Crim. R. 52(B). Specifically, in Greene's
case, sentencing consecutively without first overcoming the presumption that sentences are
to be imposed concurrently "is contrary to law and constitutes plain error." State v. Jones,
10th Dist. No. 14AP-80, 2014-Ohio-3740, ¶ 18, citing State v. Boynton, 10th Dist. No. 12AP-
975, 2013-Ohio-3794, ¶ 12; State v. Wilson, 10th Dist. No. 12AP-551, 2013-Ohio-1520, ¶ 18.
{¶ 16} The trial court did not overcome the presumption that sentences are to be
served concurrently, not having made the oral findings at the sentencing hearing necessary
for consecutive sentences in Greene's two child support cases. The trial court's subsequent
imposition of consecutive sentences in its judgment entries are an obvious error that results
in prejudice to the substantial rights of the defendant. R.C. 2929.41(A); Crim. R. 52(B).
Greene's first assignment of error is sustained and the case is remanded for a new
sentencing hearing.
IV. CONCLUSION
{¶ 17} The trial court informed Greene on the record at his original sentencing
hearing in case No. 07CR-7093, Greene's second child support case, that it was imposing
community control but delaying enforcement of the sentence until after he served his
prison sentence in an unrelated cocaine case. The trial court later issued entries to that
effect at both the time of original sentencing and when Greene completed that prison
sentence. Greene could have but did not challenge any of these judgment entries in one or
more direct appeals. Res judicata prevents him from doing this now.
{¶ 18} However, the trial court plainly erred in resentencing Greene consecutively
at the hearing on the two child support community control revocations when it did not
orally at the revocation hearing make the required findings for consecutively imposing
these two sentences. We sustain Greene's first assignment of error, overrule his second
Nos. 17AP-667 and 17AP-668 8
assignment of error, reverse the judgment of the Franklin County Court of Common Pleas,
and remand these cases for the imposition of new sentences.
Judgment reversed and remanded.
DORRIAN and HORTON, JJ., concur.
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