[Cite as State v. Havergne, 2012-Ohio-810.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96951
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
TYRELL HAVERGNE
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-523541
BEFORE: Celebrezze, J., Boyle, P.J., and Jones, J.
RELEASED AND JOURNALIZED: March 1, 2012
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Cuyahoga County Public Defender
BY: John T. Martin
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Mary Court Weston
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:
{¶1} Appellant, Tyrell Havergne, appeals his sentence imposed after remand from
this court for merger of allied offenses. Appellant claims that the United States Supreme
Court’s decision in Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009),
requires the trial court to make certain findings to order consecutive sentences. This
court disagrees.
I. Facts and Procedural History
{¶2} In 2010, appellant was convicted of one count of aggravated robbery with
one- and three-year gun specifications, kidnapping, and a felony count of receiving stolen
property. 1 Appellant received a total prison sentence of nine years — six years for
aggravated robbery and kidnapping, and 11 months for receiving stolen property, to be
served concurrently to each other, but consecutively to a three-year sentence for the
firearm specification, and consecutively to the sentence imposed in another case (Case
No. CR-519476).
{¶3} Appellant successfully argued before this court that his convictions for
aggravated robbery and kidnapping were allied offenses and that the state failed to adduce
1A more detailed recitation of the facts underlying this case can be found in
State v. Havergne, 8th Dist. No. 95090, 2011-Ohio-935, 2011 WL 743217, ¶ 4-13
(“Havergne I”).
sufficient evidence of the value of the stolen property necessary to sustain a felony
charge. Havergne I.
{¶4} On remand for resentencing, on May 17, 2011, the trial court merged the
aggravated robbery and kidnapping counts, and the state elected to proceed with
sentencing on the aggravated robbery charge. The court imposed the same aggregate
nine-year sentence by eliminating the concurrent six-year term of incarceration for
kidnapping and reducing the sentence for receiving stolen property from 11 months to six,
to be served concurrently to each other, but consecutively to the three-year firearm
specification as required by R.C. 2929.14 and 2941.145. The trial court still ordered the
sentence to be served consecutively to that imposed in CR-519476. Appellant objected
to the consecutive sentences without findings by the trial court pursuant to R.C. 2929.14
and 2929.19 in light of the Ice decision. The trial court overruled the objection, and
appellant filed the instant appeal.
II. Law and Analysis
A. Specific Findings are not Required
in Order to Impose Consecutive Sentences
{¶5} The recently intractable history of imposing consecutive sentences began with
the Ohio Supreme Court’s decision striking provisions of Ohio’s criminal sentencing
statutes embodied in R.C. 2929.14. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856,
845 N.E.2d 470. This decision was based on the interpretation of the Supreme Court
cases, Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000),
and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). In
Apprendi, the Court held that, “[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490.
{¶6} Blakely took that holding even further where Washington’s sentencing laws
allowed for enhanced sentences based on factors other than those that were used in
computing the standard range sentence for the offense. Id. at 304. It held that the
statutory maximum was that which a “judge may impose solely on the basis of the facts
reflected in the jury verdict or admitted by the defendant.” (Emphasis sic.) Id.
Anything further would improperly usurp the role of a jury as factfinder and
unconstitutionally inhibit a defendant’s Sixth Amendment rights.
{¶7} The Ohio Supreme Court determined that Ohio’s statutorily required findings
necessary to impose consecutive sentences impinged upon a defendant’s Sixth
Amendment right to a trial by jury. Foster at paragraph one of the syllabus. However,
after Foster was decided, the Supreme Court determined that a state could require its
judiciary to make specific findings necessary to impose consecutive rather than
concurrent sentences without impinging on a jury’s role as factfinder. Ice, 555 U.S. at
163-164, 129 S.Ct. 711, 172 L.Ed.2d 517.
{¶8} To rectify this apparent contradiction, the Ohio Supreme Court decided that
Foster still validly excised those sections requiring findings before imposing maximum or
consecutive sentences. State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d
768. It, however, held that the state legislature could enact similar legislation. Id. at
paragraph three of the syllabus. This pragmatic approach culminated in an overhaul of
Ohio’s sentencing provisions, including some similar requirements to those in existence
prior to Foster.2
{¶9} At the time of appellant’s resentencing, Hodge had been decided, but the new
sentencing guidelines had not been enacted by the legislature. Therefore, the trial court
was not required to make findings in order to impose a sentence consecutive to that
imposed in Case No. CR-519476. Hodge at paragraph three of the syllabus; State v.
Nimmer, 8th Dist. No. 95471, 2011-Ohio-1807, 2011 WL 1419751, ¶ 6-8; State v.
Walker, 8th Dist. No. 96076, 2011-Ohio-4505, 2011 WL 3941265, ¶ 4-5; State v. Weaver,
8th Dist. No. 96505, 2011-Ohio-6163, 2011 WL 5999005.
{¶10} Accordingly, appellant’s sole assignment of error is overruled.
{¶11} Judgment affirmed.
It is ordered that appellee recover from appellant 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. 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.
2 The trial court must now make certain findings in order to impose
consecutive sentences according to the revised sentencing provisions found in 2011
H.B. 86, effective September 30, 2011.
FRANK D. CELEBREZZE, JR., JUDGE
MARY J. BOYLE, P.J., and
LARRY A. JONES, SR., J., CONCUR