State v. Frost

[Cite as State v. Frost, 2013-Ohio-2910.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 99116

STATE OF OHIO
PLAINTIFF-APPELLEE

vs.

TERRY FROST
DEFENDANT-APPELLANT

JUDGMENT:
SENTENCE AFFIRMED IN PART AND REVERSED IN PART;
REMANDED FOR RESENTENCING

Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-527425 and CR-529266

BEFORE: McCormack, J., Celebrezze, P.J., and Kilbane, J.

RELEASED AND JOURNALIZED: July 3, 2013
ATTORNEY FOR APPELLANT

Thomas A. Rein
Leader Building, Suite 940
526 Superior Avenue
Cleveland, OH 44114

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: T. Allan Regas
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:

{¶1} Defendant-appellant, Terry Frost (“Frost”), appeals his sentence in the

consolidated Cuyahoga C.P. Nos. CR-527425 and CR-529266, in which the trial court

sentenced Frost to two 18-month sentences to be served consecutively, in addition to two

10-month sentences to be served concurrently. Finding merit to the appeal, we affirm in

part and reverse in part.

Substantive Facts and Procedural History

{¶2} On August 19, 2009, Frost was indicted on two counts of kidnapping with

sexual motivation specifications, two counts of gross sexual imposition, and one count of

attempted rape in Cuyahoga C.P. No. CR-527425. On October 14, 2009, Frost was

indicted on two counts of theft in Cuyahoga C.P. No. CR-529266.

{¶3} On March 4, 2010, pursuant to a plea bargain agreement, Frost pleaded

guilty in CR-527425 to attempted abduction as amended in Counts 1 and 3 of the

indictment and gross sexual imposition in Counts 2 and 4 of the indictment. The state

dismissed the remaining Count 5 of attempted rape. In CR-529266, Frost pleaded guilty

to two counts of theft.

{¶4} During the plea hearing, the trial court explained the potential sentences to

Frost for the offenses to which he pleaded guilty:

[For] the theft offenses, you could get a prison sentence of 6 months, 7
months all the way to 12 months in Lorain Correctional * * * [on] the
attempted abduction and the gross sexual imposition your prison stint is 6
months, 7 months all the way up to 18 months in Lorain Correctional.
The court also explained the supervision of the parole board:

Post-release control is a part of the sentence. It’s mandatory 5 years
supervision by the Parole Board because of the gross sexual imposition
charges in [Case No. CR-527425], so for the attempted abduction it’s an
optional post-release control up to 3 years. Same for the theft offenses in
the other case.

But for the two GSI’s it’s a mandatory 5-year supervision by the Parole
Board, which means that across these two cases if you were sent to prison
on all the charges in both cases, that 5-year mandatory supervision would
trump everything else. So that’s what you would be left with is mandatory
supervision by the Parole Board for a 5-year period.

The court continued to explain to Frost what would happen should he not

follow the mandates of the parole board:

During the Parole Board supervision you have to do what they say. If you
don’t, they could extend supervision in time, change terms and conditions
or return you to prison. * * * Your return to prison time is up to one-half the
original sentence. So if you got sent to prison for 6 months then you’d
have a five-year supervision, but your return to prison time would be
limited to up to one-half of the 6 months.

{¶5} At this time, the trial court advised Frost that community control is a

permissible sentence for his crimes, as well as possible fines and restitution to the victims

in the theft case. Frost then entered his plea of guilty to the charges as amended in the

plea bargain agreement.

{¶6} Following Frost’s plea, on April 5, 2010, the trial court ordered a

presentence investigation and report and continued the sentencing to May 3, 2010. At

the sentencing hearing, the court advised Frost that it reviewed the presentence report.

The court also advised Frost that due to the gross sexual imposition, he is a Tier I sex

offender and is required to register annually his address with the sheriff’s department.
 {¶7} Prior to sentencing Frost, the trial court reviewed Frost’s extensive criminal

record for theft, distribution of cocaine, carrying concealed weapons, receiving stolen

property, and assault. The court also noted that Frost violated a prior supervised release,

he has a substance abuse problem, and he is a high-risk offender according to the Ohio

Offender Risk Assessment, stating that “despite your age and your health and your

circumstances, you have continued to be arrested and be charged in the criminal justice

system with serious offenses.” The trial court then addressed the recidivism factors and

the seriousness factors:

When we look at recidivism factors, we look at the long criminal record and
the fact that he has violated supervision in the past as being two of several
factors we could list which would indicated he’s gonna’ commit crime in
the future. There are no factors indicating he won’t.

His relationship with his victim in the sex offense case facilitated the
offense since he was given access to this child by her mother. That, and
the fact the victim was only 14 years of age, gives us in that case number
two seriousness factors which are pertinent. There’s certainly no factors
making it less serious.

{¶8} Thereafter, the trial court sentenced Frost to community control for three

years in each case, along with the requirement that he “report to the Probation Department

as they order you to report for these two cases.” The court further advised Frost that he

must abide by the law and he is prohibited from involving himself in any automobile

transaction excepting his own, as “a condition of supervision and staying out of prison.”

As a further condition of “basic supervision,” the court ordered Frost to abstain from

alcohol, and it prohibited him from entering the victim’s neighborhood. In concluding

the hearing, the trial court stated:
 If you violate the terms of my supervision in the 527 case number, then your
sentence would be six years in the Lorain Correctional Institution, and it
would be a concurrent term of two years in the 529266 case number.

You’re gonna have to pay supervision fees of $200 and court costs and, of
course, the restitution of $250 through the Probation Department * * *.

{¶9} After Frost’s initial sentencing, Frost was found to be in violation of his

community control on three separate occasions. On March 22, 2011, Frost tested

positive for cocaine. The trial court continued his community control, reminding Frost

that

any future violation on any one of your terms the court can extend your
supervision, * * * change the terms and conditions of your supervision, * *
* [or] send you to prison for one year consecutive on each of your two fifth
degree felonies in the 529 case number and send you to prison on 18
months concurrent on each of counts 1 and 3 of the 527 case number and a
consecutive term of 18 months which would come from giving you two
concurrent terms of 18 months on each of counts 2 and 4 of the 527 case
number.

The court noted that it is “officially threatening [Frost] with prison * * * for a total of five

years.”

{¶10} Frost failed to appear at his second community control violation hearing on

April 10, 2012, and an arrest warrant was issued. The court later recalled the capias

because it learned that Frost had obtained a bed in a drug treatment facility.

{¶11} On October 9, 2012, the court held another violation hearing, due to Frost’s

testing positive for cocaine and PCP. During the hearing, the trial court expressed its

concerns with Frost’s attempts at obtaining treatment:

No, you’re not trying. We have had an untold number of violations.
You’re the guy that says you want to stay out of prison. I haven’t seen
 anything from you that says you’re nothing but a drug-addled sex offender.
And to stand here and say, Oh, I want to stay here for my children, well,
your children are of no concern to me, sir. You got a drug problem and
you’re a sex offender, you want to stay out of prison, and you’ve just been
horsing this Court around * * *.

You’re out there committing suicide with these drugs. I’m supposed to just

sit by and let that happen? You get high on cocaine, you molest another

child, I’m supposed to sit here and let that happen? I don’t think so. You

have been under supervision since 2010, it’s been two years, and you

haven’t improved at all.

{¶12} The court then found Frost in violation and sentenced him to 18 months

concurrent on Counts 1 and 3, 18 months concurrent on Counts 2 and 4, and both of the

concurrent sentences to be served consecutively. In sentencing Frost, the court found as

follows:

You’re not doing your best. You’re not doing your best at all. So I am
going to find you in violation and send you to prison today * * *.

Now, the basis to have you serve consecutive sentences is that you represent
an extreme danger to the community. You not only have a history of sex
offenses on defenseless children, but you also have an untreated,
unrespected abiding drug problem in dangerous drugs. You obviously
have far more interest in drugs than you do in drug treatment.

So I have looked at 2929.14 and all of your requirements for consecutive
sentences are met in this case, given your felonious history and the fact that
I have given you all of these attempts to bring your behavior to law abiding
and you have not done so.

The court further advised Frost of the imposition of postrelease control:

Let me remind you that in the 527 case number, part of your felony prison
sentence is five years mandatory supervision by the parole board. Your
 parole board supervision postrelease control in the 529 case number would
be up to three years optional, but that’s going to merge into the — that’s
going to merge into the five years mandatory supervision.

During that supervision, you have to do what your supervising parole

officer tells you to do. If you do not do what you’re told to do, they can

extend supervision, change terms, or return you to prison for 90 days.

Over the life of supervision, the maximum term of prison time cannot

exceed more than one half your original sentence you got from the trial

judge.

Assignments of Error

I. Appellant is entitled to a de novo hearing as the trial court failed to
impose a period of postrelease control at the original sentencing hearing or
at the previous community control sanction hearing.

II. The trial court erred by ordering Appellant to serve a consecutive
sentence without making the appropriate findings required by R.C. 2929.14
and HB 86.

Postrelease Control

{¶13} Frost contends that the trial court failed to impose a period of postrelease

control at Frost’s original sentencing hearing or at the previous community control

sanction hearing and, therefore, he is entitled to a de novo hearing. We find no merit to

Frost’s argument and affirm the trial court.

{¶14} Postrelease control is a period of supervision by the adult parole authority

that begins after a prisoner is released from prison. Woods v. Telb, 89 Ohio St.3d 504,

509, 2000-Ohio-171, 733 N.E.2d 1103; R.C. 2967.01(N). Under R.C. 2967.28(B),
postrelease control is mandatory. The Ohio Supreme Court has held that the trial court

must inform the defendant at his sentencing hearing or at the plea hearing that postrelease

control is a part of his sentence. Woods at 513. In a subsequent case, the Supreme

Court determined that the trial court’s duty under R.C. 2967.28(B) and (C) is to “notify

the offender at the sentencing hearing and to incorporate the postrelease control into its

sentencing entry.” State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d

864, ¶ 22 (superseded, in part, by R.C. 2929.191, which provides a statutory procedure for

correcting notification errors. See State v. Singleton, 124 Ohio St.3d 173,

2009-Ohio-6434, 920 N.E.2d 958, ¶ 23, 24).

{¶15} Therefore, a sentence that does not include the statutorily mandated

postrelease control is void and must be set aside. State v. Fischer, 128 Ohio St.3d 92,

2010-Ohio-6238, 942 N.E.2d 332, ¶ 26. The new sentencing hearing to which the

defendant would be entitled, however, is limited to the proper imposition of postrelease

control. Id. at paragraph one of the syllabus.

{¶16} In this case, the record demonstrates that the trial court informed Frost of the

terms and conditions of his postrelease control at his plea hearing as well as his

sentencing. As previously noted in this opinion, the trial court advised Frost during the

plea hearing that postrelease control was part of his sentence:

It’s mandatory 5 years supervision by the Parole Board because of the gross
sexual imposition charges * * *. Same for the theft offenses in the other
case.

But for the two GSI’s it’s a mandatory 5-year supervision by the Parole
Board, which means that across these two cases if you were sent to prison
 on all the charges in both cases, that 5-year mandatory supervision would
trump everything else.

{¶17} The court further explained to Frost that if he does not do what the parole

board advises, the board can return Frost to prison for “up to one half the original

sentence.”

{¶18} On March 22, 2011, the court found Frost to be in violation of his

community control and “threatened” Frost with prison “for a total of five years.” In

continuing community control at that time, the court reminded Frost that in the event of

any future violations, the court can extend supervision, change the terms of his

supervision, or send him to prison

for one year consecutive on each of your two fifth degree felonies in the

529 case number and send you to prison on 18 months concurrent on each

of counts 1 and 3 of the 527 case number and a consecutive term of 18

months which would come from giving you two concurrent terms of 18

months on each of counts 2 and 4 of the 527 case number.

{¶19} On October 9, 2012, the trial court found Frost in violation again and

sentenced Frost to two consecutive 18-month sentences. In so doing, the court again

explained the terms and conditions of postrelease control by stating:

Let me remind you that in the 527 case number, part of your felony prison
sentence is five years mandatory supervision by the parole board. Your
parole board supervision postrelease control in the 529 case number would
be up to three years optional, but that’s going to merge into the – that’s
going to merge into the five years mandatory supervision.
 During that supervision, you have to do what your supervising parole

officer tells you to do. If you do not do what you’re told to do, they can

extend supervision, change terms, or return you to prison for 90 days.

Over the life of supervision, the maximum term of prison time cannot

exceed more than one half your original sentence you got from the trial

judge.

The court, thereafter, noted the terms of postrelease control in its journal entry of the

same date.

{¶20} Accordingly, we find that the trial court complied with the statutorily

mandated notification requirements regarding postrelease control. Frost’s first

assignment of error is overruled.

Consecutive Sentence

{¶21} Frost contends that the trial court erred by imposing a consecutive sentence

without making the appropriate findings required by R.C. 2929.14 and H.B. 86. For the

reasons that follow, we agree.

{¶22} This court recently addressed the standard of review appellate courts must

use in reviewing challenges to the imposition of consecutive sentences. State v. Venes,

8th Dist. No. 98682, 2013-Ohio-1891. In Venes, we held that the standard of review set

forth by the Ohio Supreme Court in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912,

896 N.E.2d 124, is no longer valid in light of the enactment of H.B. 86 and the “revival”

of statutory findings necessary for imposing consecutive sentences:
In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, the
supreme court considered the relevant standard of review in the post-Foster
era in which the findings necessary to impose consecutive sentences under
former R.C. 2929.14(E)(4) had been declared unconstitutional. A plurality
of the court held that R.C. 2953.08(G)(2) was inapplicable because it
expressly related to “findings” that had been abrogated as unconstitutional.
Instead, the plurality set forth the following method of reviewing criminal
sentences: (1) is the sentence contrary to law and (2) if not, was it an abuse
of discretion. Id. at ¶ 14-19.

Kalish, as is any plurality opinion, is of “questionable precedential value.”
See Kraly v. Vannewkirk, 69 Ohio St.3d 627, 633, 635 N.E.2d 323 (1994).
Nevertheless, panels of this court have found it persuasive, at least insofar
as it was applied to sentencing in the post-Foster era. See, e.g., State v.
Martinez, 8th Dist. No. 96222, 2011-Ohio-5832, ¶ 6, fn. 1.
 The post-Foster era ended with the enactment of H.B. 86 and the revival of

statutory findings necessary for imposing consecutive sentences under R.C.

2929.14(C)(4). By reviving the requirement for findings as a predicate for

imposing consecutives, the ground offered by Kalish for rejecting the

standard of review set forth in former R.C. 2953.08 — that it could not

stand as a standard of review for a statute that improperly required findings

of fact before imposing consecutive sentences — was nullified. With the

basis for the decision in Kalish no longer valid, and given that Kalish had

questionable precedential value in any event, we see no viable reasoning for

continuing to apply the standard of review used in that case. Henceforth,

we review consecutive sentences using the standard of review set forth in

R.C. 2953.08.

Venes at ¶ 8-10.

{¶23} Therefore, in light of the holding in Venes, we apply the standard of review

outlined in R.C. 2953.08 to the trial court’s imposition of consecutive sentences in this

case.

{¶24} R.C. 2953.08(G)(2) provides two grounds for an appellate court to overturn

the imposition of consecutive sentences: (1) the sentence is “otherwise contrary to law”;

or (2) the appellate court, upon its review, clearly and convincingly finds that “the record

does not support the sentencing court’s findings” under R.C. 2929.14(C)(4). Venes at ¶

11; R.C. 2953.08(G)(2). Specifically, the statute states as follows:
 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.

R.C. 2953.08(G)(2).

{¶25} As noted above, H.B. 86, which became effective on September 30, 2011,

revived the requirement that trial courts make findings before imposing consecutive

sentences under R.C. 2929.14(C). The statute, as revised by H.B. 86, codifies this

requirement. State v. Graves, 8th Dist. No. 98559, 2013-Ohio-2197, ¶ 11, citing State v.

Bonner, 8th Dist. No. 97747, 2012-Ohio-2931, ¶ 5.

{¶26} Under current R.C. 2929.14(C)(4), when imposing consecutive sentences,

the trial court must first find the sentence 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 one of the

following factors applies:
 (a) The offender committed one or more of the multiple offenses while the
offender was awaiting trial or sentencing, was under a sanction * * *, or
was 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
multiple offenses so committed was so great or unusual that no single
prison term * * * 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.

R.C. 2929.14(C).

{¶27} Compliance with this statute “requires separate and distinct findings in

addition to any findings relating to purposes and goals of criminal sentencing.” Venes,

8th Dist. No. 98682, 2013-Ohio-1891, at ¶ 17, citing State v. Jones, 93 Ohio St.3d 391,

399, 2001-Ohio-1341, 754 N.E.2d 1252. The failure to make these findings is “contrary

to law.” Id. at ¶ 12.

{¶28} This court previously provided the analysis in which we must engage when

reviewing a consecutive sentence in light of the statutory requirement set forth in 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. 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, 1999 Ohio 110, 715 N.E.2d

131 (1999).

(Emphasis added.) State v. Matthews, 8th Dist. No. 97916, 2012-Ohio-5174, ¶ 48; see

also State v. Doss, 8th Dist. No. 98229, 2012-Ohio-5751,¶ 20.

{¶29} In applying the requirements outlined above to this case, we find that the

trial court did not make the statutorily mandated findings before imposing consecutive

sentences.

{¶30} The record demonstrates that the trial court expressly found that Frost’s

consecutive sentence is “necessary to protect the public from future crime or to punish the

offender,” and Frost’s criminal history “demonstrates that consecutive sentences are

necessary to protect the public from future crime” by Frost, thus satisfying the first and

third prongs of R.C. 2929.14(C). As stated previously, the trial court repeatedly

admonished Frost for neglecting his substance abuse problem. It expressed concern that

Frost was not able or not willing to seek treatment and, as such, the court found he was a

danger to himself and “an extreme danger to the community,” stating that Frost has a

“history of sex offenses on defenseless children, * * * [and] an untreated, unrespected

abiding drug problem in dangerous drugs.” The court also found that Frost has “far more
interest in drugs than * * * treatment.” The court further stated that it reviewed R.C.

2929.14 and found “all of your requirements for consecutive sentences are met, given

your felonious history and the fact that I have given you all of these attempts to bring your

behavior to law abiding and you have not done so.” The trial court determined that Frost

was “not doing [his] best at all.” The court’s discussion of Frost’s criminal history can

support its findings for both the first and third prongs. See State v. Shepherd, 8th Dist.

No. 97962, 2012-Ohio-5415, ¶ 82.

{¶31} The trial court did not, however, make specific findings with respect to the

second prong of the statute. Despite its pronouncement that it reviewed R.C. 2929.14

and found “all of your requirements for consecutive sentences are met,” the trial court’s

reasons for consecutive sentences did not include the finding that the consecutive

sentences are not disproportionate to the seriousness of Frost’s conduct and to the danger

Frost poses to the public. We, therefore, find that the consecutive sentence the trial

court imposed is clearly and convincingly contrary to law. Accordingly, we sustain

Frost’s second assignment of error and remand to the trial court for resentencing

consistent with R.C. 2929.14(C).

{¶32} This cause is affirmed in part, reversed in part and remanded to the lower

court for further proceedings consistent with this opinion.

It is ordered that appellant and appellee share the 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.

______________________________________________
TIM McCORMACK, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
MARY EILEEN KILBANE, J., CONCUR