State v. Berkenstock

[Cite as State v. Berkenstock, 2013-Ohio-4576.]

STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )

STATE OF OHIO C.A. Nos. 26721
26815
Appellee

v. APPEAL FROM JUDGMENT
ENTERED IN THE
DOUGLAS E. BERKENSTOCK COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE Nos. CR 12 08 2444
CR 09 05 1446

DECISION AND JOURNAL ENTRY

Dated: October 16, 2013

BELFANCE, Presiding Judge.

{¶1} Defendant-Appellant Douglas Berkenstock appeals from his sentencing entries

issued in the Summit County Court of Common Pleas. For the reasons set forth below, we

affirm.

I.

{¶2} After having pleaded guilty, on July 14, 2009, Mr. Berkenstock was sentenced to

12 months in prison for violating R.C. 2917.21(A)(3)/(A)(4), the statute prohibiting

telecommunications harassment, a felony of the fifth degree, and 18 months in prison for

violating R.C. 2903.211(A)(1), the statute prohibiting menacing by stalking, a felony of the

fourth degree. The sentences were to run consecutively but were suspended on the condition that

Mr. Berkenstock successfully complete two years of community control.

{¶3} In 2011, Mr. Berkenstock pleaded guilty to violating community control, but the

trial court ordered that Mr. Berkenstock be allowed to remain on community control. In August
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2012, in an unrelated case involving a different victim, Mr. Berkenstock was indicted for one

count of telecommunications harassment in violation of R.C. 2917.21(A)(3), a fifth-degree

felony, and one count of menacing in violation of R.C. 2903.22, a fourth-degree misdemeanor.

In September 2012, Mr. Berkenstock again appeared in court for another alleged community

control violation involving the 2009 case. In October 2012, Mr. Berkenstock pleaded guilty to

the charges in the 2012 case. In light of his guilty plea to those charges, Mr. Berkenstock also

pleaded guilty to the community control violation stemming from the 2009 charges. Sentencing

was continued pending a pre-sentence investigation report.

{¶4} At the November 2012 sentencing hearing, the trial court imposed the previously

suspended sentence for Mr. Berkenstock’s community control violation. Thus, Mr. Berkenstock

received a 12-month prison term for the fifth-degree felony telecommunications harassment

offense and an 18-month prison term for the fourth-degree menacing felony. In addition, Mr.

Berkenstock was sentenced to 12 months in prison for telecommunications harassment and 30

days in jail for menacing based upon the charges in the 2012 indictment. The sentences in the

2012 case were to be served concurrently to each other but consecutively to the sentences in the

2009 case. Thus, between the two cases, Mr. Berkenstock was sentenced to a total of 42 months

in prison.

{¶5} Mr. Berkenstock initially appealed only from the sentencing entry involving the

2012 case. Subsequently, however, Mr. Berkenstock filed a motion for a delayed appeal from

the sentencing entry resolving the 2009 case, and his motion was granted. The two appeals were

then consolidated. Mr. Berkenstock raises two assignments of error for our review.
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II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
IMPOSING CONSECUTIVE SENTENCES CONTRARY TO THE NEW
SENTENCING STATUTES.

{¶6} Mr. Berkenstock asserts in his first assignment of error that the trial court erred in

imposing consecutive sentences. We do not agree.

{¶7} This Court reviews sentences pursuant to the two-step approach set forth in State

v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912.

First, [we] must examine the sentencing court’s compliance with all applicable
rules and statutes in imposing the sentence to determine whether the sentence is
clearly and convincingly contrary to law. If this first prong is satisfied, the trial
court’s decision in imposing the term of imprisonment is reviewed under the
abuse-of-discretion standard.

Id. at ¶ 26.

{¶8} R.C. 2929.14(C)(4) states that:

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 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.
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{¶9} “Thus, it is clear that trial courts must make certain findings prior to imposing

consecutive sentences.” State v. Brooks, 9th Dist. Summit Nos. 26437, 26352, 2013-Ohio-2169,

¶ 12. “However, while the General Assembly reenacted the portion of R.C. 2929.14 related to

making factual findings prior to imposing consecutive sentences, the General Assembly did not

reenact 2929.19(B)(2)(c) which required trial courts to give reasons for imposing consecutive

sentences.” Id. Thus, while trial courts are not required to explain their reasoning on the record,

they are required to make the findings specified in R.C. 2929.14(C)(4) at the sentencing hearing

on the record prior to imposing consecutive sentences. See id. at ¶ 13. “Ideally, those findings

would also then be memorialized in the sentencing entry.” Id.

{¶10} In the instant matter, the trial court made the requisite findings at the sentencing

hearing. It stated:

[B]ecause some of the offenses that occurred in this case occurred while you were
on court supervision, and because it is going to be necessary to protect the public
from future crime, and to punish you appropriately, and because the Court
concludes that consecutive sentences are not disproportionate to the seriousness of
your conduct or to the danger you * * * pose to the public, * * * the Court also
concludes that consecutive sentences will be necessary in this matter.

In addition, similar findings were made in the sentencing entry. Thus, the trial court complied

with the statutory requirements found in R.C. 2929.14(C)(4).

{¶11} Mr. Berkenstock does not appear to disagree with this conclusion; instead, he

appears to argue that the trial court had to explain its factual findings and/or tie the findings to

facts in the record. As noted above, under the current statutory scheme, trial courts are not

required to provide the reasoning process behind their findings. See Brooks, 2013-Ohio-2169, at

¶ 13. To the extent Mr. Berkenstock is asserting that the record does not support the trial court’s

findings, we note that the PSI report that was completed and utilized at sentencing was not made

a part of the record on appeal. See State v. Watson, 9th Dist. Medina No. 12CA0082-M, 2013-
 5

Ohio-3392, ¶ 7 (reaffirming that “it is the duty of the appellant to ensure that the record on

appeal is complete[]”) (Internal quotations and citation omitted.). Accordingly, because the trial

court complied with R.C. 2929.14(C)(4) and we are unable to evaluate the merits of Mr.

Berkenstock’s remaining argument due to the incomplete record on appeal, we overrule his first

assignment of error.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED CONTRARY TO LAW AND ABUSED ITS
DISCRETION WHEN IT IMPOSED A MAXIMUM PRISON TERM FOR A
FIFTH DEGREE, NON-VIOLENT FELONY.

{¶12} Mr. Berkenstock argues in his second assignment of error that the trial court erred

in imposing a maximum prison term for his convictions for fifth-degree felony

telecommunications harassment in violation of R.C. 2917.21. However, the focus of Mr.

Berkenstock’s argument appears to be that, because he was sentenced on fifth-degree felonies

that were not offenses of violence, the trial court was required to impose only community control

pursuant to former R.C. 2929.13(B), the statute in effect when he was sentenced. Secondarily,

Mr. Berkenstock asserts that, if it was appropriate to sentence him to prison, maximum sentences

were unwarranted. It is unclear from his brief whether Mr. Berkenstock is challenging the

sentence imposed for both fifth-degree felonies or only one of the fifth-degree felonies. Mr.

Berkenstock does not appear to challenge the prison term imposed for the fourth-degree felony

conviction.

{¶13} Even assuming that violations of R.C. 2917.21(A)(3) do not constitute offenses of

violence1, as asserted by Mr. Berkenstock, we cannot say, based upon the record before us, that

1
We point out that in light of the broad definition of “offense of violence” contained
within R.C. 2901.01(A)(9)(a)-(c), there is at least an argument to be made that a violation of R.C.
2917.21(A)(3) is an offense of violence.
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Mr. Berkenstock has demonstrated that the trial court was required to impose community control

as opposed to prison or that the actual sentence imposed was an abuse of discretion.

2009 Fifth-Degree Felony

{¶14} First, with respect to the sentence imposed for Mr. Berkenstock’s violation of his

community control sanctions, R.C. 2929.15(B)(1) authorized the trial court to sentence Mr.

Berkenstock to prison. See also former R.C. 2929.13(B)(1)(d) (“A sentencing court may impose

an additional penalty under division (B) of section 2929.15 of the Revised Code upon an

offender sentenced to a community control sanction under division (B)(1)(a) of this section if the

offender violates the conditions of the community control sanction, violates a law, or leaves the

state without the permission of the court or the offender’s probation officer.”). Moreover,

absent the PSI report, this Court cannot evaluate whether sentencing Mr. Berkenstock to the

maximum prison term for the violation of community control was an abuse of discretion. See

Watson, 2013-Ohio-3392, at ¶ 7; see also Brooks, 2013-Ohio-2169, at ¶ 4 (noting trial courts

have discretion in sentencing within the statutory range but still must consider R.C. 2929.11 and

2929.12 in fashioning a sentence). Thus, other than examining whether the term imposed upon

Mr. Berkenstock was within the legally permissible statutory range for the offense, we are unable

to evaluate Mr. Berkenstock’s contention that the trial court nonetheless committed reversible

error. Watson at ¶ 7.

2012 Fifth-Degree Felony

{¶15} With respect to Mr. Berkenstock’s 2012 conviction for telecommunications

harassment, due to the absence of the PSI report in the record, we again conclude we are unable

to fully review the merits of Mr. Berkenstock’s arguments. See Watson at ¶ 7. R.C.

2951.03(A)(1) states that,
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[i]f a court orders the preparation of a presentence investigation report pursuant to
this section, section 2947.06 of the Revised Code, or Criminal Rule 32.2, the
officer making the report shall inquire into the circumstances of the offense and
the criminal record, social history, and present condition of the defendant, all
information available regarding any prior adjudications of the defendant as a
delinquent child and regarding the dispositions made relative to those
adjudications, and any other matters specified in Criminal Rule 32.2. Whenever
the officer considers it advisable, the officer’s investigation may include a
physical and mental examination of the defendant. A physical examination of the
defendant may include a drug test consisting of a chemical analysis of a blood or
urine specimen of the defendant to determine whether the defendant ingested or
was injected with a drug of abuse. If, pursuant to section 2930.13 of the Revised
Code, the victim of the offense of which the defendant has been convicted wishes
to make a statement regarding the impact of the offense for the officer’s use in
preparing the presentence investigation report, the officer shall comply with the
requirements of that section.

See also State v. Weems, 9th Dist. Summit No. 26532, 2013-Ohio-2673, ¶ 12.

{¶16} Thus, the PSI report provides the trial court with valuable information to be

considered in determining the type and duration of sentence to impose. In this assignment of

error, Mr. Berkenstock has not asserted that the trial court failed to make any necessary findings.

Instead, Mr. Berkenstock asserts that the sentence does not comport with former R.C. 2929.13.

We note that former R.C. 2929.13 is a lengthy section that involves many fact-based

considerations. For example, to know whether former R.C. 2929.13(B)(1)(a) applies, this Court

would have to know Mr. Berkenstock’s criminal record. See former R.C. 2929.13(B)(1)(a)(i)

(“Except as provided in division (B)(1)(b) of this section, if an offender is convicted of or pleads

guilty to a felony of the fourth or fifth degree that is not an offense of violence, the court shall

sentence the offender to a community control sanction of at least one year’s duration if all of the

following apply: (i) The offender previously has not been convicted of or pleaded guilty to a

felony offense or to an offense of violence that is a misdemeanor and that the offender

committed within two years prior to the offense for which sentence is being imposed. * * *.”).

In the absence of the PSI report, this Court does not have before it the entirety of Mr.
 8

Berkenstock’s criminal record. Accordingly, absent a complete record, we are unable to evaluate

if the trial court’s sentence was in compliance with former R.C. 2929.13. Additionally, as noted

above, absent the PSI report, we likewise cannot evaluate whether imposing the maximum

sentence for the 2012 conviction for telecommunications harassment was an abuse of discretion.

See Watson at ¶ 7. Thus, we overrule Mr. Berkenstock’s second assignment of error.

III.

{¶17} In light of the foregoing, we overrule Mr. Berkenstock’s assignments of error and

affirm the judgments of the Summit County Court of Common Pleas.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

EVE V. BELFANCE
FOR THE COURT
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CARR, J.
HENSAL, J.
CONCUR.

APPEARANCES:

JOHN C. RAGNER, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.