State v. Green , 2015 Ohio 4078 ( 2015 )

[Cite as State v. Green, 2015-Ohio-4078.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 102421
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
HEIDI GREEN
DEFENDANT-APPELLANT
JUDGMENT:
SENTENCE VACATED; REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-585230-B
BEFORE: E.A. Gallagher, P.J., S. Gallagher, J., and Blackmon, J.
RELEASED AND JOURNALIZED: October 1, 2015
ATTORNEY FOR APPELLANT
Mathew Bangerter
Bangerter Law, L.L.C.
P.O. Box 148
Mentor, Ohio 44061
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Brian R. Radigan
Frank Romeo Zeleznikar
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, P.J.:
{¶1} Defendant-appellant Heidi Green appeals from her sentences imposed in the
Cuyahoga County Common Pleas Court. Green argues that the trial court erred in
imposing maximum consecutive sentences for her offenses. For the following reasons, we
affirm, in part, and reverse, in part.
{¶2} Green pled guilty to two counts of endangering children in violation of R.C.
2919.22(A). The trial court imposed prison sentences of three years on each count and
ordered the counts to be served consecutively.
{¶3} In her sole assignment of error, Green argues that the trial court failed to
make the required findings pursuant to R.C. 2929.14(C)(4) prior to imposing consecutive
sentences and that the trial court failed to consider the mitigating factors listed in R.C.
2929.12(C) and (E) prior to imposing the maximum sentences.
{¶4} When reviewing a felony sentence, we follow the standard of review set forth
in R.C. 2953.08(G)(2), which provides in relevant part:
The court hearing an appeal under division (A), (B), or (C) of this section
shall review the record, including the findings underlying the sentence or
modification given by the sentencing court. The appellate court may
increase, reduce, or otherwise modify a sentence that is appealed under this
section or may vacate the sentence and remand the matter to the sentencing
court for resentencing. The appellate court’s standard for review is not
whether the sentencing court abused its discretion. The appellate court may
take any action authorized by this division if it clearly and convincingly
finds either of the following:
(a) That the record does not support the sentencing court’s findings under
division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of
section 2929.14, or division (I) of section 2929.20 of the Revised Code,
whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
Id.{¶5} We first consider Green’s consecutive sentences argument. R.C.
2929.14(C)(4) requires a trial court to engage in a three-step analysis before it imposes
consecutive sentences. First, the court must find that “consecutive service is necessary to
protect the public from future crime or to punish the offender.” Id. Second, the trial court
must 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.” Id. Third, the trial
court must find that at least one of the following applies:
(a) the offender committed one or more of the multiple offenses while
awaiting trial or sentencing, while under a sanction, or while under
postrelease 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
offenses 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; [or]
(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.{¶6} The court must make the statutory findings as stated above at the sentencing
hearing and incorporate those findings into its sentencing entry. See State v. Bonnell, 140
Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. Although the trial court was
not required to use “talismanic words,” it must be clear from the record that it actually
made the findings required by statute. Id. at ¶ 37.
{¶7} In this instance the trial court found that consecutive sentences were
necessary to protect the public from future crime and punish Green. The court further
found that consecutive sentences were not disproportionate to the seriousness of Green’s
conduct or the danger the Green posed to the public. Finally, the trial court found that
Green’s history of criminal conduct demonstrated that consecutive sentences were
necessary to protect the public from future crime.
{¶8} Green challenges only the trial court’s finding regarding her history of
criminal conduct. A presentence investigation report was prepared in this case and
indicates that Green had no prior criminal record or juvenile delinquency adjudications.
The trial court further acknowledged at sentencing that “there is [an] absence of a
criminal history.” The state maintains that Green’s conduct in the present case can
satisfy the “history of criminal conduct” finding of R.C. 2929.14(C)(4)(c). We disagree.
{¶9} The state correctly notes that R.C. 2929.14(C)(4)(c) references criminal
“conduct” as opposed to “convictions,” a distinction noted by the First District Court of
Appeals in State v. Bromagen, 1st Dist. Hamilton No. C-120148, 2012-Ohio-5757. The
Bromagen court explained:
If, as Bromagen argues, the General Assembly had intended to limit a
sentencing court’s review of prior actions to criminal convictions, it could
have done so. But the legislature, in both former R.C. 2929.14(E)(4)(c) and
newly enacted R.C. 2929.14(C)(4)(c), at issue here, has stated that “an
offender’s history of criminal conduct” can support the imposition of
consecutive sentences. We must give effect to the words the General
Assembly actually used. In determining legislative intent, we are not free to
delete words or insert words not used.
(Citations and internal quotation marks omitted.) Id. at ¶ 8.
{¶10} Although Bromagen held “criminal conduct” to include juvenile
delinquency adjudications, it did not extend the phrase beyond convictions and
delinquency adjudications as the state argues is appropriate in this case.
{¶11} The fact that an individual has been has been arrested and later released or
acquitted of crimes with which (s)he has been charged cannot, and should not, be the
basis for imposition of consecutive sentences.
{¶12} Contrary to the state’s interpretation of the First District’s opinion in
Bromagen, a mere accusation, without more, is insufficient to establish conduct of an
individual. As we are aware, some criminal complaints are made in retribution or in a fit
of anger and later found to be unsubstantiated. Some actions that have been charged as
a crime are later resolved through an affirmative defense of self-defense and,
occasionally, as the law evolves that which was originally deemed to be a crime upon a
jury conviction is later reversed on appeal. State v. Kozlosky, 195 Ohio App.3d 343,
2011-Ohio-4814, 959 N.E.2d 1097 (8th Dist.).
{¶13} Criminal conduct must be limited to conduct wherein an adjudication has
been made that an individual has, in fact, committed a crime.
{¶14} The state further seeks to rely on Green’s criminal conduct in the underlying
offenses to establish a “history of criminal conduct.” This court previously rejected this
argument in State v. Ferrell, 8th Dist. Cuyahoga No. 100659, 2014-Ohio-4377:
Here, the trial court made the first two findings but failed to make the third
finding to support the imposition of consecutive sentences. In attempting to
make the finding, the trial judge erroneously focused on the defendant’s
history of criminal conduct related to the underlying charges — not his
criminal conduct in general. However, given that this case involves two
victims, the possibility exists for the trial court to make another finding to
support the imposition of consecutive sentences, and therefore we must
remand for the trial court to consider the remaining factors of R.C.
2929.14(C)(4).
Id. at ¶ 46.
{¶15} We find the limitation noted in Ferrell to be consistent with the definition of
the word “history.” The word “history” is used in a various contexts; however, “history”
followed by the term “of” is defined by the Oxford English Dictionary as:
[a] record of past activity or behavior of a particular type; a previous
tendency to engage in a specified action repeatedly or habitually.
***
[Ex.] He has a history of violence.
Oxford English Dictionary,OED Online,“history,n.”,
http://www.oed.com/view/Entry/87324?rskey=LWpXmX&result=1 (accessed Sept. 10,
2015).
{¶16} Merriam-Webster’s Online Dictionary similarly defines “history” as “an
established record” such as “a prisoner with a history of violence.” State v. Turner, 7th
Dist. Mahoning No. 08-MA-4, 2009-Ohio-2640, ¶ 45.
{¶17} The present case mirrors Ferrell in that, although the trial court erroneously
relied on the Green’s underlying conduct to support a finding under R.C.
2929.14(C)(4)(c), the possibility exists for the trial court to make another finding to
support the imposition of consecutive sentences. Therefore, we must vacate Green’s
consecutive sentences and remand this matter to the trial court for resentencing on the
question of consecutive sentences.
{¶18} We next consider Green’s argument that the trial court failed to consider
R.C. 2929.12(C) and (E) prior to imposing the maximum sentence on each count.
{¶19} A sentence is not clearly and convincingly contrary to law where the trial
court considers the purposes and principles of sentencing under R.C. 2929.11 as well as
the seriousness and recidivism factors listed in R.C. 2929.12, properly applies postrelease
control and sentences a defendant within the permissible statutory range. State v. A.H.,
8th Dist. Cuyahoga No. 98622, 2013-Ohio-2525, ¶ 10, citing State v. Kalish, 120 Ohio
St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124.
{¶20} This court has previously explained that, “[t]he decision as [to] how long a
sentence should be — assuming it falls within a defined statutory range — is a pure
exercise of discretion.” State v. Akins, 8th Dist. Cuyahoga No. 99478, 2013-Ohio-5023, ¶
16. Trial courts have full discretion to impose a prison sentence within the statutory
range. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, paragraph
seven of the syllabus. Apart from any claim that the sentencing judge failed to fulfill a
statutorily mandated obligation before imposing sentence, a sentence falling within the
statutory range is unreviewable. Akins at ¶ 16.
{¶21} In this instance, the record reflects that the trial court considered all required
factors of law including the principles and purposes of sentencing under R.C. 2929.11, as
well as the seriousness and recidivism factors under R.C. 2929.12. The trial court noted
that it had read Green’s presentence investigation report as well as a court clinic report on
mitigation that documented the “horrible abuse” Green had suffered in her life.
However, the trial court explained that the seriousness of Green’s conduct was
extraordinary in this case: Green allowed a man who had previously sexually abused her
daughters to move back in with them after he was released from prison and abuse them
again. The trial court concluded that Green’s conduct demanded the harshest term it
could impose. The record demonstrates that the trial court read and heard evidence in
mitigation of Green’s offenses and considered the relevant factors in R.C. 2929.12.
Therefore, Green’s maximum sentences are not contrary to law.
{¶22} Green’s assignment of error is sustained, in part, and overruled in part.
{¶23} We vacate Green’s consecutive sentences and remand this case for further
proceedings consistent with this opinion.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
______________________________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE
PATRICIA A. BLACKMON, J., CONCURS;
SEAN C. GALLAGHER, J., DISSENTS (WITH SEPARATE OPINION)
SEAN C. GALLAGHER, J., DISSENTING:
{¶24} I respectfully dissent. The legislature specifically referenced “history of
criminal conduct” in drafting R.C. 2929.14(C)(4). As a court, we must give the words
and phrases used in statutes their plain and ordinary meaning unless the legislative intent
indicates otherwise. Coventry Towers, Inc. v. Strongsville, 18 Ohio St.3d 120, 122, 480
N.E.2d 412 (1985). Formal convictions are not required to satisfy the finding. For
example, as the majority stated, courts have determined that delinquency proceedings,
although not criminal convictions, are examples of “criminal conduct.” State v. Phipps,
2d Dist. Montgomery No. 20793, 2005-Ohio-6680, ¶ 32-33, citing State v. Walls, 96 Ohio
St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829.
{¶25} The majority’s conclusion that “criminal conduct must be limited to conduct
wherein an adjudication has been made that an individual has, in fact, committed a crime”
is judicial legislation, reading modifiers into statutes where none exist. In other
provisions of the Revised Code, the legislature specifically indicated its understanding of
the difference between a conviction and criminal conduct. For example, when
considering mitigating factors for sentencing in death penalty cases, courts must consider
the “offender’s lack of significant history of prior criminal convictions and delinquency
adjudications.” (Emphasis added.) R.C. 2929.04(B). If the legislature intended
R.C. 2929.14(C)(4) to be limited to criminal convictions or delinquency adjudications, the
same language could have been borrowed from R.C. 2929.04(B). The decision to use
the phrase “history of criminal conduct” must be given meaning, and therefore, “history
of criminal conduct” is not limited to criminal convictions or delinquency adjudications
alone.
{¶26} Finally, I disagree with the conclusion that the “history of criminal conduct”
precludes the state from using the conduct underlying the charges. At the risk of being
overly pedantic, all events are in the past when an offender appears for sentencing. The
definition of “history,” as being past events, provides no meaningful guidance. History
of criminal conduct includes all criminal conduct and has no limitation. If the
legislature intended, it could have drafted R.C. 2929.14(C)(4)(c) to limit consideration to
an offender’s “prior history of criminal conduct.” The absence of any modifier
necessarily implies that the offender’s entire history is a consideration, and thus, I
disagree with the unsupported conclusion to the contrary in State v. Ferrell, 8th Dist.
Cuyahoga No. 100659, 2014-Ohio-4377.
{¶27} Nevertheless, there are factual differences that compel a different outcome
in this case. As the state made clear, the charges against Green were based on allowing
the known abuser of her children to move into Green’s home with Green’s children. At
sentencing, the trial court found Green’s failure to report the abuse on multiple occasions
after her daughters revealed the recurrence of the abuse constituted the history of criminal
conduct. Failing to report child abuse is separate criminal conduct unrelated to the
charges to which Green pleaded guilty; therefore, the trial court correctly relied on
Green’s history of criminal conduct in fashioning the final sentence. I would
accordingly affirm the conviction.