State v. Cade , 2013 Ohio 5162 ( 2013 )

[Cite as State v. Cade, 2013-Ohio-5162.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
: Appellate Case No. 2012-CA-72
Plaintiff-Appellee :
: Trial Court Case No. 2012-CR-158
v. :
:
LINDSAY THOMAS CADE, III : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 22nd day of November, 2013.
...........
LISA M. FANNIN, Atty. Reg. #0082337, Clark County Prosecutor’s Office, 50 East Columbia
Street, 4th floor, Post Office Box 1608, Springfield, Ohio 45501
Attorney for Plaintiff-Appellee
BRIAN A. MUENCHENBACH, Atty. Reg. #0088722, 130 West Second Street, Suite 2103,
Dayton, Ohio 45402
Attorney for Defendant-Appellant
.............
HALL, J.,
{¶ 1} Lindsay Thomas Cade appeals from his conviction and sentence on charges of
receiving stolen property and forgery.
[Cite as State v. Cade, 2013-Ohio-5162.]
{¶ 2} In his sole assignment of error, Cade contends the trial court erred in failing to
make the findings required for maximum, consecutive sentences.
{¶ 3} The record reflects that a jury found Cade guilty of the foregoing offenses, which
involved receiving and then using a stolen credit card. At sentencing, the trial court discussed the
“seriousness” and “recidivism” factors under R.C. 2929.12. (Sentencing Tr. at 9-12). It noted that
Cade was on post-release control at the time of his offenses. It also outlined his lengthy criminal
history and multiple prior prison terms. (Id.). The trial court then imposed maximum, consecutive
twelve-month prison sentences for the two fifth-degree felony convictions. In support of
consecutive sentences, it stated: “The Court finds, having found the Defendant committed these
two offenses, he was under post-release control, also finds that the Defendant’s history of
criminal conduct demonstrates that consecutive sentences are necessary.” (Id. at 12-13).
{¶ 4} In its written judgment entry, the trial court indicated that it had considered,
among other things, the purposes and principles of sentencing and the seriousness and recidivism
factors. With regard to its imposition of consecutive sentences, the trial court stated: “The
offender committed one or more of the multiple offenses while the offender was under
post-release control for a prior offense. The offender’s history of criminal conduct demonstrates
the consecutive sentences are necessary to protect the public from future crime by the offender.”
(Doc. #16 at 2).
{¶ 5} On appeal, Cade challenges the trial court’s sentencing decision. Specifically, he
contends the trial court “failed to make the requisite fact finding and consider the appropriate
factors under R.C. 2929.12, R.C. 2929.14, and R.C. 2929.41 to demand the imposition of
maximum consecutive sentences.” (Appellant’s brief at 2).
{¶ 6} We review a felony sentence using a two-step procedure. State v. Kalish, 120
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Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶4. “The first step is to ‘examine the
sentencing court’s compliance with all applicable rules and statutes in imposing the sentence to
determine whether the sentence is clearly and convincingly contrary to law.’” State v. Stevens,
179 Ohio App. 3d 97, 2008-Ohio-5775, 900 N.E.2d 1037, ¶4 (2d Dist.), quoting id. “If this step is
satisfied, the second step requires that the trial court’s decision be ‘reviewed under an
abuse-of-discretion standard.’” Id., quoting Kalish at ¶ 4.
{¶ 7} “The trial court has full discretion to impose any sentence within the authorized
statutory range, and the court is not required to make any findings or give its reasons for
imposing maximum or more than minimum sentences. * * * However, the trial court must
comply with all applicable rules and statutes * * *.” (Citations omitted.) State v. King,
2013-Ohio-2021, 992 N.E.2d 491, ¶45 (2d. Dist.). Effective September 30, 2011, Ohio law
requires judicial fact-finding for consecutive sentences. Id. at ¶46. Specifically, a trial court must
find “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 * * *.” R.C. 2929.14(C)(4).
A trial court also must find at least 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
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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.
Id.
{¶ 8} Cade first challenges the trial court’s evaluation of the R.C. 2929.12
“seriousness” and “recidivism” factors. We see no error in this aspect of the trial court’s decision.
A trial court is not required to make any findings under R.C. 2929.12. State v. Smith, 2d Dist.
Clark No. 2012 CA 67, 2013 WL 3193679, *4 (June 21, 2013). We even will presume from a
silent record that the seriousness and recidivism factors were considered. Id. Here, however, the
trial court did discuss the seriousness and recidivism factors and make corresponding findings.
The trial court found no factors making Cade’s offenses more serious. It found one factor making
the offenses less serious. (Sentencing Tr. at 9). The trial court’s sentencing decision appears to
have been driven primarily by its evaluation of the recidivism factors. After pointing out that
Cade was on post-release control at the time of his offenses and detailing his extensive criminal
record, the trial court found that the recidivism factors “indicate a great likelihood of
re-offending.” (Id. at 12). The record fully supports this determination. In addition to being on
post-release control when he committed the present offenses, Cade had prior convictions for
robbery, passing bad checks, fleeing and eluding, receiving stolen property, burglary, resisting
arrest, forgery, breaking and entering, theft, obstructing official business, and felonious assault.
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(Id. at 10-11). The trial court complied with the law by considering the seriousness and
recidivism factors, and we see no abuse of discretion in its evaluation of them.
{¶ 9} The primary issue Cade raises on appeal concerns the trial court’s imposition of
consecutive sentences. He notes that R.C. 2929.41(A) provides for concurrent sentences unless
an enumerated exception applies. One such exception is found in R.C. 2929.14(C)(4), which
authorizes consecutive sentences when the required findings mentioned above are made. Cade
claims the trial court did not make those findings. We agree.
{¶ 10} To impose consecutive sentences under R.C. 2929.14(C)(4), the trial court was
required to find such sentences “necessary to protect the public from future crime or to punish the
offender.” It also was required to find that such sentences “are not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender poses to the public * * *.”
Finally, it was required to make one of three findings under R.C. 2929.14(C)(4)(a), (b), or (c).
{¶ 11} At the sentencing hearing, the trial court did not make all of the required
findings. It did find that Cade was on post-release control at the time of his offenses. This finding
satisfied R.C. 2929.14(C)(4)(a). The trial court failed, however, to find that consecutive
sentences were “necessary to protect the public from future crime or to punish the offender.” It
simply found that “the Defendant’s history of criminal conduct demonstrates that consecutive
sentences are necessary.” (Sentencing Tr. at 12-13). Arguably, we might infer that the trial court
found consecutive sentences necessary to protect the public from future crime based on its
reference to Cade’s “history of criminal conduct.”
{¶ 12} A greater problem is the trial court’s failure to find that consecutive sentences
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were “not disproportionate to the seriousness of the offender’s conduct and to the danger the
offender poses to the public * * *.” Even if it can be appropriate to infer the findings required
by R.C. 2929.14(C)(4), which is questionable,1 we cannot confidently infer from the record that
the trial court believed consecutive sentences were not disproportionate to the seriousness of
Cade’s conduct. The record reflects that he was convicted of receiving a stolen credit card and
using it at a pharmacy to purchase $80.24 worth of merchandise. When discussing the statutory
“seriousness” factors under R.C. 2929.12, the trial court found no factors present making Cade’s
conduct “more serious.” It found the presence of one factor making his conduct “less serious.” It
nevertheless imposed maximum twelve-month prison sentences for the two fifth-degree felonies
and ordered them served consecutively. The State argues that, on the record before it, the trial
court did not abuse its sentencing discretion. Absent a finding that consecutive sentences were
not disproportionate to the seriousness of Cade’s conduct and to the danger he poses to the
public, however, imposing consecutive sentences was contrary to law—regardless of whether the
evidence might support consecutive sentences if the requisite findings were made. Accordingly,
Cade’s assignment of error is sustained.
{¶ 13} The trial court’s judgment is reversed with respect to Cade’s sentence, and the
1
See State v. Wills, 2d Dist. Montgomery No. 25357, 2013-Ohio-4507, ¶31 (“The State asserts that the findings necessary for the
imposition of consecutive sentences are ‘implicit in the court’s remarks at sentencing.’ While the trial court was not required to recite the
exact language of R.C. 2929.14(C)(4), the trial court was nevertheless required to make the specific findings required by the statute, and we
are hesitant to impute our interpretation to the trial court’s comments.”); State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶14, 17 (8th
Dist.) (“R.C. 2929.14(C)(4) requires the court to make specific ‘findings.’ In the past, we have found those findings can be implicit in context
when the court’s statements during sentencing are intended to encompass the relevant provisions of the sentencing statutes. * * * But in doing
so, we have arguably frustrated the purposes underlying the requirement for findings as a predicate for ordering consecutive sentences. * * *
Too often, we have been called to examine words or phrases scattered throughout a sentencing transcript and piece them together to decide
whether the court made the required findings.”); but see State v. Temple, 2d Dist. Clark No. 2012-CA-65, 2013-Ohio-3843, ¶22-26
(seemingly inferring the consecutive-sentence findings from the trial court’s sentencing remarks).
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cause is remanded for the trial court to consider whether consecutive sentences are appropriate
under R.C. 2929.14(C)(4) and, if so, to make all required findings on the record.
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FAIN, P.J., and GALLAGHER, J., concur.
(Hon. Eileen A. Gallagher, Eighth District Court of Appeals, sitting by assignment of the Chief
Justice of the Supreme Court of Ohio).
Copies mailed to:
Lisa M. Fannin
Brian A. Muenchebach
Hon. Richard J. O’Neill