State v. Bonnell

[Cite as State v. Bonnell, 2012-Ohio-5150.]

COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Sheila G. Farmer, J.
-vs-
Case No. 12CAA030022
RANDALL L. BONNELL, JR.

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of
Common Pleas, Case No. 11-CR-I-10-0542

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: November 5, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CAROL HAMILTON O'BRIEN WILLIAM T. CRAMER
Delaware County Prosecuting Attorney 470 Olde Worthington Road, Suite 200
Westerville, Ohio 43082
ERIC C. PENKAL
Assistant Prosecuting Attorney
Delaware County Prosecutor’s Office
140 North Sandusky Street
Delaware, Ohio 43015
Delaware County, Case No. 12CAA030022 2

Gwin, P. J.,

{¶1} Defendant-appellant Randall L. Bonnell, Jr. [“Bonnell”] appeals his

sentence entered by the Delaware County Court of Common Pleas. Plaintiff-appellee is

the state of Ohio.

Procedural History1

{¶2} On December 6, 2011, Bonnell entered into a negotiated plea agreement

wherein he agreed to enter a plea of guilty to a fifth degree felony count of tampering

with coin machines and to three counts of burglary, all third degree felonies. The

tampering with coin machines charge carried a maximum penalty of twelve months

imprisonment, and each count of burglary carried a sentence of up to thirty-six months

in prison.

{¶3} On January 6, 2012, the trial court conducted a sentencing hearing. The

court, via Judgment Entry of January 10, 2012, sentenced Bonnell to eleven months in

prison for the tampering with coin machines. The court further found the three counts of

burglary did not merge with the tampering count, and sentenced Bonnell to thirty

months in prison for each count. The trial court ordered all four sentences to run

consecutively to one another. The trial court further ordered Bonnell pay restitution in

the amount of $2,837.00.

Assignment of Error

{¶4} Bonnell now appeals, assigning as error:

1
A recitation of the facts is unnecessary for our disposition of this appeal.
Delaware County, Case No. 12CAA030022 3

{¶5} “I. APPELLANT’S SENTENCE WAS CONTRARY TO LAW BECAUSE

THE TRIAL COURT FAILED TO MAKE THE FINDINGS REQUIRED BY R.C.

2929.14(C)(4) TO IMPOSE CONSECUTIVE SENTENCES.”

{¶6} 2011 Am.Sub.H.B. No. 86, which became effective on September 30,

2011, revived the language provided in former R.C. 2929.14(E) and moved it to R.C.

2929.14(C)(4). The revisions to the felony sentencing statutes under 2011 Am.Sub.H.B.

No. 86 now require a trial court to make specific findings when imposing consecutive

sentences. R.C. 2929.14(C)(4) provides, in relevant part:

(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 more of

the multiple offenses so committed was so great or unusual that no single
Delaware County, Case No. 12CAA030022 4

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.

(Emphasis added). In Section 11, the legislature explained that in amending former R.C.

2929.14(E)(4), it intended “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 (2006), 109 Ohio St.3d 1.” The General Assembly further

explained that the amended language in those divisions “is subject to reenactment

under the United States Supreme Court's decision in Oregon v. Ice (2009), 555 U.S.

160, and the Ohio Supreme Court's decision in State v. Hodge (2010), ––– Ohio St.3d –

–––, Slip Opinion No. 2010–Ohio–6320.” Thus, it is the legislature's intent that courts

interpret the language in R.C. 2929.14(C)(4) in the same manner as the courts did prior

to State v. Foster, 109 Ohio St.3d 1, 2006–Ohio–856, 845 N.E.2d 470.

{¶7} The First District Court of Appeals has observed,

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
Delaware County, Case No. 12CAA030022 5

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, 793 N.E.2d 473. 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, 1997 WL 330605.

State v. Alexander, 1st Dist. Nos. C-110828, C-110829, 2012-Ohio-3349, ¶ 18. Accord,

State v. Frasca, 11th Dist. 2011-T-0108, 2012-Ohio-3746, ¶ 57.

{¶8} The trial court is not required to recite any “magic” or “talismanic” words

when imposing consecutive sentences provided it is “clear from the record that the trial

court engaged in the appropriate analysis.” State v. Murrin, 8th Dist. No. 83714, 2004–

Ohio–3962, ¶ 12. Accord, State v. Jones, 1st Dist. No. C-110603, 2012-Ohio-2075, ¶

22. An appellate court may only sustain an assignment of error challenging the

imposition of consecutive sentences under R.C. 2929.14 if the appellant shows that the

judgment was clearly and convincingly contrary to law. R.C. 2953.08(G).

{¶9} In the case at bar the PSI reviewed by the trial court reveals numerous

theft related charges, many similar in nature to the conduct alleged in this case. The

prosecutor remarked,
Delaware County, Case No. 12CAA030022 6

As I review the PSI, it appears that since the defendant turned into

an adult he has received forty-four, either convictions or arrests in that

time since he was eighteen...

T. Jan. 6, 2012 at 9. Although some of the charges were dismissed or merged, the trial

court found that Bonnell has been to prison on five separate occasions dating back to

1994. (T., Jan. 6, 2012 at 9-10).The PSI has been made a part of the record on appeal.

The report further indicates that Bonnell has violated Post Release Controls and Judicial

Release in the past.

{¶10} The trial court remarked,

THE COURT: Going through all of the sentencing factors, I cannot

overlook the fact your record is atrocious, the courts have given you

opportunities.

***

THE COURT: On the PSI pages 4 through 16, it's pretty clear that

at this point in time you've shown very little respect for society and the

rules of society. The court feels that a sentence is appropriate.

***

The court is of the opinion that all three burglaries were separate

offenses, they do not merge.

T. Jan. 6, 2012 at 14-15.

{¶11} Such findings when coupled with the trial court’s acknowledgement that it

has read and considered the PSI are sufficient to satisfy the factual findings requirement

under R.C. 2929.19(C)(4). Cf. State v. Jones, supra, 2012–Ohio–2075 ¶ 23 (where the
Delaware County, Case No. 12CAA030022 7

trial court stated during the sentencing hearing that it was ordering the prison terms to

be served consecutively because the defendant had an extensive criminal history and

the victims had been seriously injured, these statements were sufficient to show that the

trial court's imposition of consecutive sentences was appropriate and complied with

R.C. 2929 .14(C)(4)); State v. Johnson, 8th Dist. No. 97579, 2012–Ohio–2508 ¶ 12

(when the court made findings related to the appellant's specific conduct in the case and

his repeated engagement in criminal activity, it properly found that the sentence was not

disproportionate to his conduct and threat he posed to society).

{¶12} Although the trial court in the present matter may not have used the exact

wording of the statute in reaching these findings, courts have found that, in making

findings regarding consecutive sentencing, “a verbatim recitation of the statutory

language is not required by the trial court.” State v. Green, 11th Dist. No. 2003–A–0089,

2005–Ohio–3268 ¶ 26, citing State v. Grissom, 11th Dist. No. 2001–L–107, 2002–Ohio–

5154 ¶ 21. State v. Frasca, supra, 2012-Ohio-3746, ¶ 60.

{¶13} The entire record adequately reflects consecutive sentences were

necessary to protect the public and to punish Bonnell, and that they were not

disproportionate to the seriousness of his conduct and the danger he posed to the

public. In addition, Bonnell’s history of criminal conduct demonstrated that consecutive

sentences were necessary to protect the public from future crime.

{¶14} We overrule Bonnell’s sole assignment of error.
Delaware County, Case No. 12CAA030022 8

{¶15} For the reasons set forth above, the judgment of the Delaware County

Court of Common Pleas is affirmed.

By: Gwin, P. J., and

Farmer, J. concur;

Hoffman J. dissents

___________________________________
HON. W.SCOTT GWIN

___________________________________
HON. WILLIAM B. HOFFMAN

___________________________________
HON. SHEILA G. FARMER

WSG:clw 1018
Delaware County, Case No. 12CAA030022 9

Hoffman, J., dissenting

{¶16} I respectfully dissent from the majority opinion. H.B. 86 revised the

statutory language of R.C. 2929.14 to require the trial court to make certain statutorily

enumerated factors prior to imposing consecutive sentences. H.B. 86 revives the

factors previously recognized as being required by the Ohio Supreme Court in State v.

Comer 99 Ohio St.3d 463, 2003-Ohio-4165. The revised statute however does not

require the trial court to give its reasons for selecting the sentence imposed.

{¶17} At the sentencing hearing in this case, the trial court stated on the record,

{¶18} “The Court: On the PSI pages 4 through 16, it’s pretty clear that at this

point in time you’ve shown very little respect for society and the rules of society. The

court feels that a sentence is appropriate.

{¶19} “As to count two, the tampering with coin machines, a felony of the fifth

degree, in violation of section 2911.32(A), it will be the sentence of this court that you

will serve eleven months in prison; to pay the costs of prosecution for which execution is

awarded.

{¶20} “The court is of the opinion that all three burglaries were separate

offenses, they do not merge. Therefore the court is going to give you a sentence on all

three of those. As to count four, burglary, in violation of 2911.12(A)(3), a felony of the

third degree, under house bill 86, I am limited as to what I can give you, it will be the

sentence of this court that you shall serve thirty months in CRC; pay the costs of

prosecution for which execution is awarded; said sentence will be served consecutive to

the sentence the court imposed on count two.”

{¶21} Tr. at 14-15.
Delaware County, Case No. 12CAA030022 10

{¶22} The trial court continued stating the sentences shall be served

consecutive to the other sentences imposed.

{¶23} The January 10, 2012 Judgment Entry of sentence states, in pertinent

part,

{¶24} "Having considered the factual background of this case, the negotiations

conducted in this case, the Pre-Sentence Investigation report prepared by Adult Court

Services, the Defendant's counsel's statement, the Assistant Prosecuting Attorney's

statement, the Defendant's statement, and, having considered the two overriding

purposes of felony sentencing set forth in Section 2929.11 of the Ohio Revised Code,

and having considered the seriousness and recidivism factors set forth in Section

2929.12 of the Ohio Revised Code, which the Court considers to be advisory only, the

Court makes the following FINDINGS:

{¶25} "1. The Defendant's lengthy prison record.

{¶26} "2. A prison sentence is appropriate."

{¶27} The Judgment Entry continues in memorializing the sentence imposed by

the trial court at the sentencing hearing, including the imposition of consecutive

sentences.

{¶28} Although the trial court stated its findings with regard to the sentencing

principles of R.C. 2929.11 and the seriousness and recidivism factors, I find this is not

sufficient judicial fact-finding under the H.B. No. 86 amendments to support the

imposition of consecutive sentences. Accordingly, I would vacate Appellant's sentence
Delaware County, Case No. 12CAA030022 11

and remand the matter for the limited purpose of resentencing under H.B. No. 86.

________________________________
HON. WILLIAM B. HOFFMAN
Delaware County, Case No. 12CAA030022 12

IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
RANDALL L. BONNELL, JR. :
:
Defendant-Appellant : Case No. 12CAA030022

For the reason stated in our accompanying Opinion, the judgment of the

Delaware County Court of Common Pleas is affirmed. Costs to Appellant.

___________________________________
HON. W. SCOTT GWIN

___________________________________
HON. WILLIAM B. HOFFMAN

___________________________________
HON. SHEILA G. FARMER