State v. Alexander , 2012 Ohio 3349 ( 2012 )

[Cite as State v. Alexander, 2012-Ohio-3349.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-110828
C-110829
Plaintiff-Appellee, : TRIAL NOS. B-1104473
B-1103448
vs. :
YVONNE ALEXANDER, :
Defendant-Appellant. : O P I N I O N.
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgments Appealed From Are: Affirmed
Date of Judgment Entry on Appeal: July 27, 2012
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Fox & Scott, PLLC, and Bradley Fox, for Defendant-Appellant.
Please note: These cases have been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
CUNNINGHAM, Judge.
{¶1} Defendant-appellant Yvonne Alexander challenges the sentences imposed
following her pleas of guilty to ten counts of theft from elderly or disabled adults in the
case numbered B-1103448 and to a single count of Medicaid fraud in the case numbered
B-1104473. Alexander had used her position as a manager of a group home for
developmentally disabled adults to steal the retirement and disability payments of those in
her care. The theft offenses were variously punishable as second-, third-, and fourth-
degree felonies. The Medicaid-fraud offense was punishable as a fourth-degree felony.
The trial court’s sentence included an order that each prison term be served consecutively,
for an aggregate prison term of 19½ years.
{¶2} Alexander was sentenced after the effective date of the revisions to the
felony sentencing statutes found in Am.Sub.H.B. No. 86. Because the trial court’s findings
to support consecutive sentences are amply demonstrated in the record, because the court
considered the seriousness and the likelihood of recidivism in reaching its sentencing
decision, and because it did not otherwise abuse its discretion in imposing sentence, we
affirm.
I. The Sentencing Hearing
{¶3} In exchange for Alexander’s pleas of guilty, the state dismissed 26 other
serious felony charges. The trial court accepted her pleas, found her guilty of each
remaining offense, and continued the matter for the preparation of a presentence
investigation.
{¶4} At a sentencing hearing conducted on November 30, 2011, the trial court
indicated that it had reviewed the presentence investigation, which included evidence that
Alexander had been convicted of welfare theft in Seattle in 1992 and had been convicted of
falsification in Hamilton County in 1979. The court heard the statements of Deb Lyle, a
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OHIO FIRST DISTRICT COURT OF APPEALS
representative of the group home. Lyle noted that the victims, disabled women from 39 to
67 years of age, had trusted and relied on Alexander for over 14 years. Alexander’s duties
had included overseeing the financial arrangements made for residents of the group
home. The victims had “perceived her as a parent figure.” Yet, Lyle explained how, over a
period of years, Alexander had “stole[n] their money, lied to them, broke[n] promises and
betrayed their trust.” She recounted how Alexander had stolen the women’s retirement
and disability payments and had collected funds for “bogus cemetery plots.” Lyle stated
that, even after being terminated by the group home, Alexander had forged documents
and had lied to her former employer and to state agencies to obtain the state-retirement
payments of a disabled victim, leaving the home to charge the state and county for the
victim’s care.
{¶5} The court also heard the statement of Holly Mott, an investigator for
Hamilton County’s developmental-disabilities agency. Mott described Alexander’s
actions as “one of the most tragic and sad cases” and noted that “Alexander is one of the
most manipulative and calculating perpetrators” to be investigated. Mott provided more
detail regarding Alexander’s schemes and the tremendous impact they had on the
defenseless victims. According to Mott, Alexander had capitalized on the victims’ beliefs
that Alexander was “a special person that they could trust.” She also noted that
Alexander had lied to investigators when first confronted by allegations of her
malfeasance at the group home. The court then received the comments of an Ohio
assistant attorney general and police detectives who recounted more details of
Alexander’s theft and fraud activities.
{¶6} After entertaining the arguments of counsel, the trial court then
explained to Alexander:
[The victim-impact statements], boy, they really nailed it
on the head just how I felt. And I was going to quote some of
them but they did it enough, and so I’ll just move on.
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OHIO FIRST DISTRICT COURT OF APPEALS
What I do have to say to you, I’m the Mental Health
Court judge, so I have - - well, what you’ve done is just so
disturbing and reprehensible to me, to take advantage and prey
upon the most vulnerable, the most trusting, the most
defenseless, the most assailable members of society is just
wrong. It’s more than wrong.
***
You, ma’am, are never to work with any elderly or
disabled individuals ever again.
***
The sentence I have imposed - - I’m not maxing you out
because you did step forward and take responsibility and pled
to this offense.
{¶7} The record also reflects that the trial court filled out and journalized
sentencing-findings worksheets for these offenses. The trial court noted on the
worksheets that it had considered the seriousness and recidivism factors under R.C.
2929.12 and had made the findings for imposing consecutive sentences under R.C.
2929.14(C). The trial court also journalized two separate judgment entries imposing
the sentences of incarceration, imposing costs, ordering restitution, and notifying
Alexander of her postrelease-control obligations. These consolidated appeals
followed.
II. The Two-Step Review of Felony Sentences
{¶8} In two interrelated assignments of error, Alexander argues that the trial
court abused its discretion in ordering the sentences to be served consecutively, and that
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OHIO FIRST DISTRICT COURT OF APPEALS
the trial court’s sentence was contrary to law because the court had failed to apply
and consider the seriousness and recidivism factors of R.C. 2929.12. We disagree.
{¶9} The Ohio Supreme Court has identified a two-step process for appellate
review of felony sentences. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896
N.E.2d 124, ¶ 14; see also State v. Love, 194 Ohio App.3d 16, 2011-Ohio-2224, 954 N.E.2d
202, ¶ 13 (1st Dist.). First we must determine whether Alexander’s sentences of
imprisonment were contrary to law. Kalish at ¶ 14. Then, if the sentences were not
contrary to law, we must review them to determine whether the trial court abused its
discretion in selecting sentences within the range permitted by statute. Id. at ¶ 17.
A. The First Step—Has the Trial Court Adhered to the
Applicable Statutes?
{¶10} Under the first step of the Kalish inquiry, the reviewing “court must
ensure that the trial court has adhered to all applicable rules and statutes in imposing the
sentence.” Id. at ¶ 14. We conduct this inquiry to determine only whether the sentences
imposed were “clearly and convincingly contrary to law, [under] the standard found in
R.C. 2953.08(G).” Id. at ¶ 14.
{¶11} For example, R.C. 2929.14(A) imposes a statutory requirement that a trial
court must adhere to when imposing sentence: the term of imprisonment must be within
the range provided by statute. We have held that a trial court failed to adhere to the
applicable sentencing statute when it imposed an 18-month prison term for an offense for
which the maximum prison term was 12 months. State v. Andrew, 1st Dist. No. C-110141,
2012-Ohio-1731, ¶ 8, citing Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124,
at ¶ 15. Since that sentence was outside the permissible statutory range, it was clearly and
convincingly contrary to law. Id. And we vacated the sentence and remanded the matter
to the trial court for resentencing. Id. at ¶ 10.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶12} Alexander concedes that each prison term imposed was within the range
provided by statute. But she contests whether the trial court erred in ordering the
sentences to be served consecutively.
{¶13} Findings are required to impose consecutive sentences. The
enactment of Am.Sub.H.B. No. 86 has established an additional requirement that trial
courts must adhere to when imposing consecutive sentences. The General Assembly has
“revived the requirement that trial courts make findings before imposing consecutive
sentences in R.C. 2929.14(C).” State v. Jones, 1st Dist. No. C-110603, 2012-Ohio-2075, ¶
17; see also State v. Hites, 3rd Dist. No. 6-11-07, 2012-Ohio-1892, ¶ 11; State v. Bonner,
8th Dist. No. 97747, 2012-Ohio-2931, ¶ 5 (“The revisions * * * now require a trial court to
make specific findings when imposing consecutive sentences.”); State v. Sullivan, 10th
Dist. No. 11AP-414, 2012-Ohio-2737, ¶ 24.
{¶14} Our determination of whether a trial court has adhered to the
applicable requirements of R.C. 2929.14(C)(4) in imposing consecutive sentences is also
subject to review under the first prong of Kalish and under R.C. 2953.08(G)(2). See
Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, at ¶ 14. We do not apply the
abuse-of-discretion standard urged by Alexander. Rather, a reviewing court may vacate
consecutive sentences only if “it clearly and convincingly finds” either that the record does
not support the trial court’s R.C. 2929.14(C)(4) sentencing findings or that the sentence is
otherwise contrary to law. R.C. 2953.08(G)(2).
{¶15} R.C. 2929.14(C)(4) now requires that a trial court engage in a three-step
analysis in order to impose consecutive sentences. First, the trial court must “find”
that consecutive sentencing is necessary to protect the public from future crime or to
punish the offender. Next, 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. Finally, the trial court must “find” that at least one
of the following applies: (1) the offender committed one or more of the multiple
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OHIO FIRST DISTRICT COURT OF APPEALS
offenses while awaiting trial or sentencing, while under a sanction imposed pursuant
to R.C. 2929.16, R.C. 2929.17, or R.C. 2929.18, or while under postrelease control for
a prior offense; (2) 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 (3) the offender’s history of criminal conduct demonstrates
that consecutive sentences are necessary to protect the public from future crime by
the offender.
{¶16} In each step of this analysis, the statutory language directs that the
trial court must “find” the relevant sentencing factors before imposing consecutive
sentences. R.C. 2929.14(C)(4). A trial court is not required to use “talismanic words to
comply with the guidelines and factors for sentencing.” State v. Brewer, 1st Dist. No. C-
000148, 2000 Ohio App. LEXIS 5455 *10 (Nov. 24, 2000). But it must be clear from the
record that the trial court actually made the findings required by statute. See State v.
Pierson, 1st Dist. No. C-970935, 1998 Ohio App. LEXIS 3812 (Aug. 21, 1998). A trial
court satisfies this statutory requirement when the record reflects that the court has
engaged in the required analysis and has selected the appropriate statutory criteria. See
State v. Edmonson, 86 Ohio St.3d 324, 326, 715 N.E.2d 131 (1999); see also State v.
Brewer, 1st Dist. No. C-000148, 2000 Ohio App. LEXIS 5455 *11 (Nov. 24, 2000).
{¶17} Because a trial court speaks only through its journal, we have long
approved the use of a sentencing-findings worksheet to document that the trial court has
made the required findings. E.g., State v. Phillips, 1st Dist. No. C-960898, 1997 Ohio
App. LEXIS 2615 (June 18, 1997); see also State v. Meister, 76 Ohio App.3d 15, 19,
600 N.E.2d 1103 (1st Dist.1991). Use of the sentencing-findings worksheet ensures
that the trial court has adhered to the applicable statutory mandate. See R.C.
2929.14(C); see also Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, at ¶ 15.
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OHIO FIRST DISTRICT COURT OF APPEALS
And by documenting the findings in the court’s journal, the use of a worksheet also
ensures meaningful review of the trial court’s sentencing decisions.
{¶18} The consecutive-sentence findings required by R.C. 2929.14(C) are
not the same as those required by former R.C. 2929.19(B)(2), which provided that
the trial court “shall impose a sentence and shall make a finding that gives its
reasons for selecting the sentence * * * (c) If it imposes consecutive sentences.”
(Emphasis added.) See State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165, 793
N.E.2d 473, ¶ 14-16. In 2003, the Ohio Supreme Court held that the requirement
that a trial court give its reasons for selecting consecutive sentences was “separate
and distinct from the duty to make the findings,” and it imposed an obligation on
trial courts to articulate the reasons supporting their findings at the sentencing
hearing. Id. at ¶ 19-20. The trial court’s obligation to “give its reasons” is now gone
from the sentencing statutes. Gone with it, we hold, is the requirement that the trial
court articulate and justify its findings at the sentencing hearing. A trial court is free
to do so, of course. But where, as here, there is no statutory requirement that the
trial court articulate its reasons, it does not commit reversible error if it fails to do so,
as long as it has made the required findings. See Phillips, 1st Dist. No. C-960898,
1997 Ohio App. LEXIS 2615.
{¶19} Here, the trial court carefully and fully complied with the mandates of
R.C. 2929.14(C) to make sentencing findings. The trial court employed sentencing-
findings worksheets and journalized them on the date of the sentencing hearing. For
each case number, it selected the appropriate statutory criteria for imposing consecutive
sentences. In both cases, it noted on the face of the worksheets that consecutive
sentences were necessary to protect the public and to punish the offender, and that
they were not disproportionate to the seriousness of Alexander’s conduct and the
danger she posed to the public. Finally, the trial court found in both cases that
Alexander had committed one or more of the multiple offenses while awaiting trial,
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OHIO FIRST DISTRICT COURT OF APPEALS
and that the harm caused by them was so great or unusual that no single prison term
would adequately reflect the seriousness of her conduct.
{¶20} The record demonstrates that the trial court adhered to all applicable
rules and statutes in imposing consecutive sentences. See Kalish, 120 Ohio St.3d 23,
2008-Ohio-4912, 896 N.E.2d 124, at ¶ 14. And the record of Alexander’s misdeeds amply
supports the trial court’s R.C. 2929.14(C)(4) sentencing findings. See R.C. 2953.08(G)(2).
Alexander had used her position as the manager of a group home for elderly and
disabled adults to illegally obtain tens of thousands of dollars from multiple victims in
her care. While she was awaiting trial on these charges, Alexander was charged with and
ultimately pled guilty to Medicaid fraud. Alexander had forged documents and had lied
to her employer and to state agencies. With the victim’s retirement payments illegally
diverted to Alexander’s account, the group home, believing that the retirement payments
had ceased, had billed state and county agencies for over $25,000 to maintain the
victim’s care.
{¶21} We, therefore, conclude that the trial court complied with the dictates of
the newly amended R.C. 2929.14(C)(4) and made all the findings required to support
the imposition of consecutive sentences, and that those findings were supported in the
record.
{¶22} The trial court considered the seriousness and recidivism
factors. R.C. 2929.12 provides another statutory requirement that the trial court
must follow. Alexander next argues that the trial court failed to apply and consider
the seriousness and recidivism factors of that statute. Again, we disagree.
{¶23} R.C. 2929.12 states that in exercising its discretion to determine the
most effective way to comply with the purposes and principles of felony sentencing,
the trial court shall “consider” the factors relating to the seriousness of the offender’s
conduct and the factors relating to the likelihood of the offender’s recidivism. Along
with R.C. 2929.11, which lists the purposes and principles of felony sentencing, R.C.
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OHIO FIRST DISTRICT COURT OF APPEALS
2929.12 “serve[s] as an overarching guide for trial judges to consider in fashioning an
appropriate sentence.” Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, at
¶ 17.
{¶24} But as the Ohio Supreme Court has noted, R.C. 2929.11 and 2929.12
are “not fact-finding statutes like R.C. 2929.14.” Kalish, 120 Ohio St.3d 23, 2008-
Ohio-4912, 896 N.E.2d 124, at ¶ 17. R.C. 2929.12 requires only that a trial court
“consider” the factors. Unlike R.C. 2929.14(C), it does not require the trial court to
“use specific language or make specific findings on the record in order to evince the
requisite consideration of the applicable seriousness and recidivism factors.” State v.
Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000); see also State v. Luecke, 11th
Dist. Nos. 2011-P-0085 and 2011-P-0104, 2012-Ohio-3032, ¶ 10. Thus, we would
presume, even from a silent record, that the trial court had considered the R.C.
2929.12 factors, unless an appellant could demonstrate affirmatively that the court had
failed to do so. See State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381,
¶ 31; see also Love, 194 Ohio App.3d 16, 2011-Ohio-2224, 954 N.E.2d 202, at ¶ 14.
{¶25} Here, moreover, it is abundantly clear from the sentencing-findings
worksheets and from the trial court’s remarks at the sentencing hearing that the
court considered a number of factors relating to the seriousness of Alexander’s
conduct and to the likelihood of her offending in the future. The trial court noted at
sentencing that Alexander had preyed upon elderly and disabled victims. See R.C.
2929.12(B)(1) (injury suffered exacerbated by victim’s age or physical or mental
condition). The worksheets also reflect that the trial court considered the harm inflicted
on the victims. The trial court considered that Alexander’s position as a caretaker,
obligating her to prevent exactly these kinds of offenses, was used to facilitate the
offenses, as was Alexander’s relationship with the victims. See R.C. 2929.12(B)(1),
2929.12(B)(2), 2929.12(B)(4), 2929.12(B)(5), and 2929.12(B)(6). The court also
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OHIO FIRST DISTRICT COURT OF APPEALS
considered that Alexander had showed no genuine remorse for her crimes. See R.C.
2929.12(D)(5).
{¶26} Each of these factors is amply supported in the record. Alexander had
entered multiple pleas of guilty to charges of theft from elderly or disabled adults. See
R.C. 2913.02(A)(2). She had used her position as the manager of a group home for
elderly and disabled adults to illegally obtain funds from those in her care. And she had
entered a plea of guilty to generating fraudulent billing statements to state agencies
administering the Medicaid program. We, therefore, conclude that the trial court
adhered to the statutory requirements of R.C. 2929.12 in imposing sentence.
B. The Second Step—Did the Trial Court Abuse Its
Discretion in Selecting Sentences Within the Ranges
Permitted by Statute?
{¶27} Since we have determined that the sentences imposed were not contrary
to law, we now proceed to the second step of our sentencing analysis. We must
determine whether the trial court actually abused its discretion in imposing
sentences permitted by statute. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896
N.E.2d 124, at ¶ 17 and 19. Thus, we will not reverse the trial court’s sentencing
decisions unless the court exhibited an attitude that was “unreasonable, arbitrary or
unconscionable.” State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). In
applying this standard, a reviewing court “is not free to substitute its judgment for
that of the trial judge.” Berk v. Matthews, 53 Ohio St.3d 161, 169, 559 N.E.2d 1301(1990); see also State v. Morris, __ Ohio St.3d __, 2012-Ohio-2407, __ N.E.2d __,
¶ 14. Rather, if the trial court’s exercise of its discretion exhibited a “sound reasoning
process” that would support its decision, a reviewing court will not disturb that
determination. Morris at ¶ 14, quoting AAAA Ents., Inc. v. River Place Community
Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶28} The trial court was well acquainted with the facts surrounding these
crimes. It had reviewed the presentence investigation, the statements of
investigators, and the arguments of counsel. In light of the seriousness of Alexander’s
conduct, preying upon vulnerable and trusting victims for financial gain, we find that the
trial court exhibited a sound reasoning process in imposing consecutive prison terms
totaling 19½ years. The trial court did not abuse its discretion. The first and second
assignments of error are overruled.
{¶29} Therefore, the judgments of the trial court are affirmed.
Judgments affirmed.
HILDEBRANDT, P.J., and DINKELACKER, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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