State v. Fench

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[Cite as State v. Fench, 2015-Ohio-4058.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


State of Ohio                                    Court of Appeals No. L-14-1232

        Appellee                                 Trial Court No. CR0201401951

v.

Maurice Fench                                    DECISION AND JUDGMENT

        Appellant                                Decided: September 30, 2015

                                            *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

        Lawrence A. Gold, for appellant.

                                            *****

        PIETRYKOWSKI, J.

        {¶ 1} Appellant Maurice Fench appeals the October 3, 2014 judgment of the

Lucas County Court of Common Pleas which, following a jury trial convicting him of

retaliation, sentenced appellant to 18 months of imprisonment. A nunc pro tunc
judgment entry was filed on March 11, 2015, reflecting that the sentence was to be served

consecutive to appellant’s sentence in a prior action.

       {¶ 2} Appellant raises one assignment of error for our review:

              The trial court erred to the prejudice of appellant by not making the

       required judicial findings before imposing consecutive sentences.

       {¶ 3} In his sole assignment of error, appellant contends that the court failed to

make the findings under R.C. 2929.14(C)(4) prior to imposing a consecutive prison

sentence. The state concedes the error.

       {¶ 4} R.C. 2929.14(C)(4) provides:

              (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.




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              (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. (Emphasis added.)

       {¶ 5} At the October 1, 2014 sentencing hearing, the court found that “based on

the fact that you were in custody at the time and due to your criminal history at the time

of the conviction, a consecutive sentence is warranted on this matter.” In its March 11,

2015 nunc pro tunc judgment entry, the court stated: “The sentence is ordered to be

served consecutively to the sentence in CR09-1756.”

       {¶ 6} Citing a case from this court, the parties agree that the court’s imposition of

consecutive sentences was contrary to law, R.C. 2953.08(G), where the court failed to

find that a consecutive sentence was necessary to protect the public or to punish the

offender. State v. Jude, 6th Dist. Wood No. WD-13-055, 2014-Ohio-2437, ¶ 10-11.

Accordingly, appellant’s assignment of error is well-taken.

       {¶ 7} On consideration whereof, we find that appellant was prejudiced and

prevented from having a fair proceeding, and the judgment of the Lucas County Court of

Common Pleas is reversed and the sentence is vacated. The matter is remanded to the




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trial court for resentencing and for the court to make a determination if any of the

findings under R.C. 2929.14(C)(4) apply. Pursuant to App.R. 24, the state is ordered to

pay the costs of this appeal.


                                                                        Judgment reversed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                        _______________________________
                                                            JUDGE
Thomas J. Osowik, J.
                                                _______________________________
Stephen A. Yarbrough, P.J.                                  JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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