[Cite as State v. Farnsworth, 2013-Ohio-1275.]
STATE OF OHIO, COLUMBIANA COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 12 CO 10
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
GEORGE W. FARNSWORTH, JR. )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Columbiana County,
Ohio
Case No. 11 CR 25
JUDGMENT: Sentence Vacated.
Reversed and Remanded.
APPEARANCES:
For Plaintiff-Appellee: Atty. Robert Herron
Columbiana County Prosecutor
Atty. Timothy J. McNicol
Assistant Prosecuting Attorney
105 South Market Street
Lisbon, Ohio 44432
For Defendant-Appellant: Atty. Bryan H. Felmet
1100 Jackson Place
Steubenville, Ohio 43952
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Dated: March 20, 2013
[Cite as State v. Farnsworth, 2013-Ohio-1275.]
WAITE, J.
{¶1} Appellant George W. Farnsworth, Jr., appeals the consecutive
sentences imposed after he pleaded guilty to two counts of rape and one count of
gross sexual imposition. Appellant contends that the trial judge did not make all the
findings required by R.C. 2929.14(C)(4) in order to impose consecutive sentences.
Appellant is correct, and the case is remanded for resentencing.
{¶2} Appellant was indicted on February 24, 2011, on five counts: count
one, rape with a force specification, R.C. 2907.02(A)(1)(b); count two, rape, R.C.
2907.02(A)(2); count three, gross sexual imposition, R.C. 2907.03(A)(5); count four,
gross sexual imposition, R.C. 2907.03(A)(4); and count five, felonious sexual
penetration with a force specification, R.C. 2907.12 (A)(1)(b). The assaults giving
rise to these offenses began in 1994 and continued until May of 2003. There were
two victims of the offenses, and both are the biological daughters of Appellant. Both
victims were minors when the crimes occurred. One of the sexual assaults resulted
in one of the victims becoming pregnant and giving birth at age 14. Appellant admits
to the paternity of this baby.
{¶3} On December 12, 2011, Appellant pleaded guilty to counts one, two
and four of the indictment. Counts one and two were first degree felonies, and count
four was a third degree felony. The other charges were dismissed. At sentencing,
the state recommended a sentence of ten years in prison each for counts one and
two, to be served consecutively, and two years for count four, to be served
concurrently. The court imposed ten years in prison for count one, ten years for
count two, and two years for count four, all to run consecutively. The court filed its
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judgment entry of sentence on February 24, 2012, and this timely appeal followed.
Appellant presents an appeal as a matter of right that the sentence is contrary to law
pursuant to R.C. 2953.08(A)(4).
ASSIGNMENT OF ERROR
THE TRIAL COURT FAILED TO MAKE THE NECESSARY FINDINGS
REQUIRED UNDER R.C. 2929.14(C) FOR THE IMPOSITION OF
CONSECUTIVE SENTENCES.
{¶4} Appellant argues that a sentencing judge is required to make certain
findings before imposing consecutive sentences. These findings are required by
R.C. 2929.14(C)(4), which was passed as part of 2011 Am.Sub.H.B. No. 86 (“H.B.
86”), effective September 30, 2011. Section 11 of H.B. No. 86 acknowledges that the
Ohio Supreme Court had declared such findings to violate the Sixth Amendment right
to trial by jury in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.
Foster held that the statutory requirement for judicial fact-finding at sentencing
violated the Sixth Amendment right to trial by jury, because the result of judicial fact-
finding was that a penalty could be imposed that was more severe than the penalty
allowed by the jury verdict standing by itself. H.B. 86 also notes that the Ohio
Supreme Court later concluded in State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-
6320, 941 N.E.2d 768, that its decision in Foster was incorrect with respect to
consecutive sentences in light of the United States Supreme Court decision in
Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009).
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{¶5} In Hodge, the Ohio Supreme Court held that “[t]he jury-trial guarantee
of the Sixth Amendment to the United States Constitution does not preclude states
from requiring trial court judges to engage in judicial fact-finding prior to imposing
consecutive sentences.” Hodge at paragraph one of the syllabus. The Court further
held that “[t]he United States Supreme Court's decision in Oregon v. Ice * * * d[id] not
revive Ohio's former consecutive-sentencing statutory provisions, R.C. 2929.14(E)(4)
and 2929.41(A), which were held unconstitutional in State v. Foster[.]” Id. at
paragraph two of the syllabus. Thus, the Hodge Court concluded that “[t]rial court
judges are not obligated to engage in judicial fact-finding prior to imposing
consecutive sentences unless the General Assembly enacts new legislation requiring
that findings be made.” Id. at paragraph three of the syllabus.
{¶6} In H.B. No. 86 the state legislature did just that, by first repealing the
former consecutive sentencing statute, R.C. 2929.14(E)(4), and then reviving the
requirement that the trial judge make certain findings prior to imposing consecutive
sentences in R.C. 2929.14(C)(4). See Sections 2, 11, and 12 of H.B. No. 86.
{¶7} R.C. 2929.14(C)(4) now provides:
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
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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 the two or 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.
{¶8} Based on the statute, the trial court is required to make three findings
before imposing consecutive sentences: 1) that consecutive sentences are
necessary to protect the public from the future crime or to punish the offender; 2) 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 3) that one of the
subsections (a), (b), or (c) apply. The court is not required to give reasons explaining
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these findings. State v. Frasca, 11th Dist. No. 2011-T-0108, 2012-Ohio-3746, ¶57.
Neither is the court required to recite any “magic” or “talismanic” words when
imposing consecutive sentences. State v. Murrin, 8th Dist. No. 83714, 2004–Ohio–
3962, ¶12. Nevertheless, the record must actually reflect that the court made the
findings required by the statute. For example, in State v. Bradley, the Fifth District
Court of Appeals held that the following statement by the trial court did not meet the
statutory requirements for imposing consecutive sentences:
As has been indicated, based on your record which is as indicated to
give—to not give consecutive sentences would demean the
seriousness of the offenses and not adequately protect the public from
further criminal behavior. Because of the nature of the offenses the
Court finds that consecutive sentences are in fact warranted, and, and
pursuant to the statute for consecutive sentences the conditions have
been met. Accordingly, I'm sentencing you to 12 months with regard to
each of the felony fours to be served consecutively one after the other
for a total incarceration of 24 months giving you credit for all time
served to date.
State v. Bradley, 5th Dist. No. 2012CA00011, 2012-Ohio-4787, ¶43.
{¶9} In Bradley, the trial court found that the consecutive sentences were
necessary to protect the public from future crime, which is the first of the three
findings required by R.C. 2929.14(C)(4). The court failed to specifically mention
whether the sentence was disproportionate, or whether one of the findings described
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in subsection (a), (b) or (c) had been met. The court did try to justify consecutive
sentences by stating: “to not give consecutive sentences would demean the
seriousness of the offenses * * *.” This language is not found in R.C. 2929.14(C)(4).
The phrase “demean the seriousness of the offense” is associated with the court's
decision to impose community control sanctions instead of a prison term, or in
administering judicial release. It is not a factor in the decision to impose consecutive
sentences. R.C. 2929.13(D)(2)(b), 2929.20(J)(1)(b). The phrase was also
associated with a prior required finding dealing with imposing more than the minimum
sentence, but this finding was determined to be unconstitutional in Foster and is not
part of the current sentencing laws. See former R.C. 2929.14(B)(2). In the Bradley
case, the trial court's addition of “demean the seriousness of the offense” language
was clearly not considered to be a substitute for the findings required by R.C.
2929.14(C)(4).
{¶10} Similar to Bradley, the trial court in the instant case failed to make all
the findings required by R.C. 2929.14(C)(4). The court made the first two findings
required when it stated that consecutive sentences were necessary to punish
Appellant, and that consecutive sentences were not disproportionate to the
seriousness of the conduct and the danger that Appellant posed. (2/24/12 Tr., pp.
15-16.) However, the finding required by R.C. 2929.14(C)(4)(a)-(c) is absent from
this record. The court may have been attempting to allude to the third required
finding when it stated:
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Of significance to the Court is that the Defendant's daughters were the
victims of these offenses. In her statement, R.F. indicates that the
sexual assaults occurred too many times for her to remember, starting
when she was 9 or 10 years old. R.F. eventually became pregnant at
age 14 with the Defendant's child. The Court finds, therefore, that
anything less than a significant prison sentence would demean the
serious nature of these offenses.
(2/24/12 J.E., p. 2.)
{¶11} Even though the court noted it did not want to “demean the serious
nature of the offenses,” R.C. 2929.14(C)(4)(b) requires more than a statement of the
serious nature of the crime. State v. Wilson, 8th Dist. No. 97827, 2012-Ohio-4159,
¶12. As discussed, the phrase “demean the serious nature of these offenses” is not
associated with the consecutive sentencing statute and may not be used as a
substitute for the findings required by the consecutive sentencing statute. R.C.
2929.14(C)(4)(b) requires the trial court to connect the seriousness of the offense
with the decision to impose consecutive sentences. The court must find that “the
harm caused by the two or more of the multiple offenses so committed was so great
or unusual that no single prison term * * * adequately reflects the seriousness of the
offender's conduct.” R.C. 2929.14(C)(4)(b). It appears that the trial court would be
well within its province in making such a finding given the facts of this case, but a
reviewing court may not imply a statutorily required finding that does not appear in
the record simply because the facts of the case are particularly appalling. There are
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many ways that the court could have expressed its finding that the seriousness of this
offense requires consecutive sentences, and the trial judge does not have to recite
the exact words of the statute, but the record does have to clearly reflect that the
finding was actually made. For this reason, Appellant's assignment of error is
sustained.
{¶12} In conclusion, the trial court erred when it did not make all the required
findings stated in R.C. 2929.14(C)(4) that are prerequisites to imposing consecutive
sentences. Appellant’s sentence is hereby vacated and the case is remanded for
resentencing.
Donofrio, J., concurs.
Vukovich, J., concurs.
State v. Farnsworth
Combined Opinion