State v. Miller , 2014 Ohio 4009 ( 2014 )

[Cite as State v. Miller, 2014-Ohio-4009.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
) CASE NO. 13 MA 186
PLAINTIFF-APPELLEE, )
)
VS. ) OPINION
)
CHRISTOPHER MILLER, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas
Court, Case No. 12CR352.
JUDGMENT: Reversed and Remanded.
APPEARANCES:
For Plaintiff-Appellee: Attorney Paul Gains
Prosecuting Attorney
Attorney Ralph Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant: Attorney J. Michael Thompson
42 North Phelps Street
Youngstown, Ohio 44503
JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: September 8, 2014
[Cite as State v. Miller, 2014-Ohio-4009.]
VUKOVICH, J.
{¶1} Defendant-appellant Christopher Miller appeals the sentencing decision
of the Mahoning County Common Pleas Court. As the trial court did not make
consecutive sentence findings at the sentencing hearing or in the sentencing entry,
the state confesses judgment. This case is reversed and remanded for a new
sentencing hearing.
STATEMENT OF THE CASE
{¶2} Appellant was indicted on five counts of rape and seventeen counts of
gross sexual imposition involving two teenage minors. On September 16, 2013, he
pled guilty to the seventeen fourth-degree felony counts of gross sexual imposition in
violation of R.C. 2907.05(A)(1), which involves purposely compelling another to
submit to sexual contact by force or threat of force. In return, the state dismissed the
rape counts and agreed to stand silent at sentencing.
{¶3} At the October 17, 2013 sentencing hearing, a victim, the victims’
father, defense counsel, and appellant spoke. In sentencing appellant, the court split
the offenses into six groups, running the offenses within each group concurrent and
running the groups themselves consecutive. Appellant was sentenced to eighteen
months on each count. With the consecutive imposition among the six groupings,
this totaled nine years in prison. The court labeled him a Tier I sex offender and
imposed five years of post-release control.
{¶4} In support of the sentencing decision, the court recited that the court
afforded the defendant all rights pursuant to Crim.R. 32, considered the record, the
oral statements, the recommendation in the presentence investigation report, and the
purposes and principles of sentencing in R.C. 2929.11, and balanced the
seriousness and recidivism factors under R.C. 2929.12. (Tr. 14-15). The court also
stated that appellant was not amenable to community control and that prison was
consistent with the purposes of sentencing. (Tr. 15).
{¶5} The November 26, 2013 sentencing entry set forth the sentence and
recited the same statements in support of sentencing that were made at the
sentencing hearing. Appellant filed a timely appeal from the sentencing order.
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ASSIGNMENT OF ERROR
{¶6} Appellant’s assignment of error provides:
{¶7} “The trial court erred because it failed to make any of the statutory
findings required by Ohio Revised Code Section 2929.14(C) before imposing
maximum and consecutive sentences.”
{¶8} The sole argument on appeal is that the trial court’s sentence is clearly
and convincingly contrary to law because the court did not make any statutorily-
required finding for imposing consecutive sentences at the sentencing hearing or in
the sentencing entry.1 Appellant asserts, “the record is absolutely silent” as to the
consecutive sentence findings required by R.C. 2929.14(C)(4). The state filed a one-
sentence confession of judgment agreeing that the court failed to make the requisite
findings under R.C. 2929.14(C) when it imposed consecutive sentences.
{¶9} Pursuant to R.C. 2929.14(C)(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
1
Although the text of the assignment of error mentions maximum as well as consecutive
sentences, there are no maximum sentence findings required under current R.C. 2929.14(C) or
elsewhere and no arguments are made regarding maximum sentences.
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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.
{¶10} This requirement for consecutive sentence findings was reenacted on
September 30, 2011. Express consideration of these factors by a sentencing court
imposing consecutive sentences is now standard procedure. And, the state is known
to confess judgment in cases where the findings were not made at the hearing or in
the entry. See State v. Miller, 7th Dist. No. 13MA12, 2014-Ohio-2939, ¶ 148. In fact,
it has recently been established that the sentencing court must make the consecutive
sentence findings both at the sentencing hearing and in the sentencing entry. State
v. Bonnell, __ Ohio St.3d __, 2014-Ohio-3177, __ N.E.3d __, syllabus.
{¶11} As no consecutive sentence findings were made at the sentencing
hearing, appellant must be resentenced at a new sentencing hearing where the
statutory findings must be made to support the imposition of consecutive sentences.
See id. at ¶ 30 (nunc pro tunc can only be used where court made findings at the
hearing but failed to place them in the entry). And thereafter, an entry must be filed
that also makes the consecutive sentence findings. See id. at syllabus.
{¶12} Finally, in order to avoid any issue on resentencing, we note that the
trial court imposed five years of mandatory post-release control at the sentencing
hearing. (Tr. 16). However, the court did not then notify the defendant that for a
violation of post-release control, the parole board can impose a prison term of up to
one-half of his original sentence as required by R.C. 2929.19(B)(2)(e). This must be
done at the sentencing hearing (and not merely placed in an entry). See State v.
Mikolaj, 7th Dist. No. 13MA152, 2014-Ohio-____. See also State v. Peck, 7th Dist.
No. 12MA205, 2013-Ohio-5526. The trial court should thus comply with R.C.
2929.19(B)(2)(e) on remand.
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{¶13} For the foregoing reasons, appellant’s sole assignment of error is
sustained. The sentencing judgment of the trial court is reversed, and this case is
remanded for resentencing.
Donofrio, J., concurs.
DeGenaro, P.J., concurs.