State v. Lebron ( 2012 )


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  • [Cite as State v. Lebron, 
    2012-Ohio-4156
    .]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 97773
    STATE OF OHIO
    PLAINTIFF-APPELLEE
    vs.
    DANIEL D. LEBRON
    DEFENDANT-APPELLANT
    JUDGMENT:
    CONVICTION AFFIRMED;
    SENTENCE MODIFIED
    Criminal Appeal from the
    Cuyahoga County Common Pleas Court
    Case No. CR-549035
    BEFORE: Boyle, J., Blackmon, A.J., and Jones, J.
    RELEASED AND JOURNALIZED:                  September 13, 2012
    ATTORNEYS FOR APPELLANT
    Robert L. Tobik
    Cuyahoga County Public Defender
    John T. Martin
    Assistant Public Defender
    310 Lakeside Avenue
    Suite 200
    Cleveland, Ohio 44113
    ATTORNEYS FOR APPELLEE
    William D. Mason
    Cuyahoga County Prosecutor
    Andrew Rogalski
    Assistant County Prosecutor
    Justice Center, 9th Floor
    1200 Ontario Street
    Cleveland, Ohio 44113
    MARY J. BOYLE, J.:
    {¶1} Defendant-appellant, Daniel Lebron, appeals his sentence for menacing by
    stalking.   He raises two assignments of error for our review:
    Assignment of Error One
    The trial court erred by imposing consecutive sentences when it failed to
    make findings of fact, as required by R.C. 2929.14(E)(4).
    Assignment of Error Two
    Trial court improperly premised its sentence, in part, on an unsubstantiated
    belief that the defendant had been untruthful with the trial court.
    {¶2} Finding merit to his first assignment of error, we modify his sentence and
    remand for the trial court to issue a new judgment reflecting the modification.
    Procedural History
    {¶3} In April 2005, Lebron was indicted on four counts of menacing by
    stalking, in violation of R.C. 2903.211(A)(1), against two victims. He pleaded guilty to
    two of those counts, felonies of the fourth degree.
    {¶4} The trial court sentenced him to 14 months in prison on one of the counts
    and eight months on the other, and ordered that they be served consecutive to one
    another, for an aggregate sentence of 22 months in prison.        The trial court further
    advised Lebron that he may be subject to up to three years of discretionary postrelease
    control upon his release from prison. It is from this judgment that Lebron appeals.
    Standard of Review
    {¶5} An appellate court must conduct a meaningful review of the trial court’s
    sentencing decision.   State v. Johnson, 8th Dist. No. 97579, 
    2012-Ohio-2508
    , ¶ 6, citing
    State v. Hites, 3d Dist. No. 6-11-07, 
    2012-Ohio-1892
    , ¶ 7.             Specifically, R.C.
    2953.08(G)(2) provides that our review of consecutive sentences is not an abuse of
    discretion.   An appellate court must “review the record, including the findings
    underlying the sentence or modification given by the sentencing court.” 
    Id.
     If an
    appellate court clearly and convincingly finds either that (1) “the record does not support
    the sentencing court’s findings under [R.C. 2929.14(C)(4)]” or (2) “the sentence is
    otherwise contrary to law,” then “the appellate court may increase, reduce, or otherwise
    modify a sentence * * * or may vacate the sentence and remand the matter to the
    sentencing court for resentencing.” 
    Id.
    Consecutive Sentences
    {¶6} In his first assignment of error, Lebron contends that the trial court erred
    when it imposed consecutive sentences because it failed to make the necessary findings
    under R.C. 2929.14(C)(4).
    {¶7} H.B. 86 took effect on September 30, 2011. Lebron was sentenced on
    November 29, 2011. The General Assembly expressly provided in Section 4 of H.B.
    86: “The amendments * * * apply to a person who commits an offense specified or
    penalized under those sections on or after the effective date of this section[.]”
    Therefore, the trial court was required to sentence Lebron according to the revisions
    implemented in H.B. 86.
    {¶8} One of the noteworthy changes to the felony sentencing laws concerns the
    purposes of felony sentencing, as stated in R.C. 2929.11(A). The two primary purposes
    of felony sentencing remain “to protect the public from future crime by the offender and
    others and to punish the offender * * *.”   
    Id.
     These goals, however, are to be realized
    “using the minimum sanctions that the court determines accomplish those purposes
    without imposing an unnecessary burden on state or local government resources.” 
    Id.
    This mandate to utilize the minimum sanctions the court determines necessary is a new
    provision added by H.B. 86.
    {¶9} The provisions of Section 11 of H.B. 86 explain the General Assembly’s
    intent with regard to reviving findings a trial court must make before imposing
    consecutive sentences:
    In amending division (E)(4) of section 2929.14 and division (A) of
    section 2929.41 of the Revised Code in this act, it is the intent of the
    General Assembly to simultaneously repeal and revive the amended
    language in those divisions that was invalidated and severed by the Ohio
    Supreme Court’s decision in State v. Foster [
    109 Ohio St.3d 1
    ,
    
    2006-Ohio-856
    , 
    845 N.E.2d 470
    ]. The amended language in those
    divisions is subject to reenactment under the United States Supreme
    Court’s decision in Oregon v. Ice [
    555 U.S. 160
    , 
    129 S.Ct. 711
     (2009)],
    and the Ohio Supreme Court’s decision in State v. Hodge [
    128 Ohio St.3d 1
    , 
    2010-Ohio-6320
    , 
    941 N.E.2d 768
    ] and, although constitutional under
    Hodge, 
    supra,
     that language is not enforceable until deliberately revived by
    the General Assembly.
    {¶10} R.C. 2929.14(C)(4), as revived, 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 service is necessary to protect the public from future crime or to
    punish the offender.” 
    Id.
         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.”   
    Id.
       Finally, the trial court must find that at least one
    of the following applies: (1) 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; (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.   
    Id.
    {¶11} 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).    In making these findings, 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).
    {¶12} Notably, however, the General Assembly deleted R.C. 2929.19(B)(2)(c) in
    H.B. 86. This was the provision in S.B. 2 that had required sentencing courts to state
    their reasons for imposing consecutive sentences on the record.           Accordingly, a trial
    court is not required to 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.
    {¶13} In the present case, the trial court stated the following:
    Mr. Lebron, you have a prior criminal history. You have an
    attempted drug possession, misdemeanors of the first degree. 1995, you
    have a felony offense of burglary, which was reduced from felonious
    assault, for which you received a prison term of two to ten years.
    In this particular case, the police came to that location numerous
    times and repeatedly told you to stay away. You continually ignored their
    instructions. You harassed and stalked two different people.
    The purpose of sentencing is two-fold, protection of the public and
    punishment to the offender.
    In this case I’m also well aware of the fact of your inability to be
    truthful with the court.
    Based upon your prior record and your demonstrated resistance to
    authority, in particular your blatant disregard for what the police told you
    to stop doing, the court finds that you are not a good candidate for
    community control.
    {¶14} We agree with Lebron that the trial court failed to make the appropriate
    findings before imposing consecutive sentences.              The trial court explicitly stated the
    purpose of sentencing, but sentencing courts must consider the purpose of sentencing
    before imposing any sentence.           The trial court then indicated that Lebron was not
    truthful with the court (regarding whether he could speak and understand English), but
    this is not a finding that a court must make before imposing consecutive sentences.
    Further, the trial court found that Lebron was not amenable to community control
    sanctions, but again, this is not a required finding for imposing consecutive sentences.1
    {¶15} The trial court did not make an express finding under R.C. 2929.14(C)(4).
    It did discuss Lebron’s criminal history, which could equate to making two of the
    findings, namely, (1) that consecutive sentences are necessary to protect the public from
    future crime or to punish the offender, and (2) that the offender’s history of criminal
    conduct demonstrates that consecutive sentences are necessary to protect the public from
    future crime by the offender.        But the trial court failed to make the mandatory finding
    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).
    When sentencing an offender for a fourth or fifth degree felony, a trial court may sentence the
    1
    offender to prison if it finds, after considering the proper factors, that the offender is not amenable to
    community control sanctions. See R.C. 2929.13(B)(3)(a) (former R.C. 2929.13(B)(2)(a) under S.B.
    2).
    {¶16} And after reviewing the record we find that it does not clearly and
    convincingly support imposing consecutive sentences.     The record reflects that Lebron
    lived near the two victims, a male and a female.   The trial court stated that “the police
    were called to [the victims’] home * * * February 22nd, February 23nd, February 24th,
    February 25th, March 30th, April 4th. And then the date of the offense [April 4], it
    look like up to April 5th.”   According to a police report, the male victim in the home
    saw Lebron looking into his window.     The police had been called to the home several
    times because Lebron had trespassed onto the victims’ property attempting to see the
    female victim of the home and had made unspecified threats to them. And the police
    report further indicated that the victims had warned Lebron to stay away.
    {¶17} The state informed the trial court that with respect to “the seriousness
    factors,” that the male victim drove a truck for a living, and “because these crimes
    occurred in the middle of the night,” it caused him to lose sleep and he almost lost his
    job as a result.
    {¶18} Defense counsel explained to the court that Lebron had some cognitive
    disorders and some substance abuse issues. Lebron had been diagnosed with alcohol
    dependence, possible mild mental retardation, and some sort of psychotic disorder not
    otherwise specified, and received social security benefits.     Defense counsel further
    explained that because of Lebron’s cognitive issues, he believed that the female victim
    liked him. Defense counsel further suggested that Lebron got to know the female
    victim because she had taken advantage of his cognitive disabilities and had taken his
    social security money to purchase drugs.        Defense counsel introduced the female
    victim’s criminal record to the court; she had 29 prior cases in municipal court, many for
    “possession, loitering, things like that.”
    {¶19} After reviewing the record, we conclude that although the trial court found
    Lebron was not a good candidate for community control sanctions, it failed to make the
    required findings before imposing consecutive sentences.        We further find that the
    record does not clearly and convincingly support consecutive sentences.     Accordingly,
    as we are permitted to do under R.C. 2953.08(G)(2) (and because the trial court said at
    the sentencing hearing that it “stated all the reasons I have”), we modify Lebron’s
    sentence from consecutive prison terms to concurrent prison terms, for an aggregate
    sentence of 14 months in prison.
    {¶20} Lebron’s first assignment of error is sustained.
    Trial Court’s Alleged Discrimination Against Defendant
    {¶21} In his second assignment of error, Lebron contends that the trial court
    improperly penalized him for requesting an interpreter.         We find no merit to his
    argument.
    {¶22} The record reflects that the trial court appointed an interpreter for Lebron
    upon his request.    But at a plea hearing on October 24, 2011, the trial court asked
    Lebron why he needed an interpreter for court, but not to speak with his lawyer.
    Lebron answered that he understood English “a little bit.”          The trial court then
    proceeded to question Lebron about his level of understanding English and about the
    charges against him. Lebron was able to understand the trial court’s questions and
    answer them. The trial court informed Lebron that it had a “problem with the county
    paying for interpreters when they’re really not needed.”         But the trial court still
    appointed an interpreter for Lebron, “in an abundance of caution.”
    {¶23} Later, at sentencing, the trial court was discussing the facts with the state
    and defense counsel about how Lebron believed the female victim liked him.       The trial
    court questioned the female victim if she understood Spanish. The victim responded
    that she did not. The trial court stated, “well, that’s interesting to me, Mr. Lebron.
    How could you have all these conversations with somebody when you tell me you can’t
    speak English?”    The court then concluded that Lebron had “been less than truthful”
    with her regarding his ability to speak English.
    {¶24} After reviewing the record, we do not find that it supports Lebron’s
    argument that the trial court discriminated against him, or unfairly penalized him at
    sentencing. See State v. Collier, 9th Dist. No. 07CA009115, 
    2008-Ohio-826
    , ¶ 19
    (finding trial court did not abuse its discretion in sentencing defendant when it
    considered “based on its observation of the testimony and demeanor of Defendant, that
    he lied under oath”).
    {¶25} Lebron’s second assignment of error is overruled.
    {¶26} Conviction affirmed; sentence modified. Case remanded with instructions
    for the trial court to issue a new judgment reflecting Lebron’s concurrent prison terms as
    modified by this court.
    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. The defendant’s conviction having
    been affirmed, any bail pending appeal is terminated.    Case remanded to the trial court
    for execution of sentence.
    A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
    the Rules of Appellate Procedure.
    MARY J. BOYLE, JUDGE
    PATRICIA ANN BLACKMON, A.J., and
    LARRY A. JONES, SR., J., CONCUR