State v. Pierce

[Cite as State v. Pierce, 2018-Ohio-4458.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
PICKAWAY COUNTY

STATE OF OHIO, : Case No. 18CA4
:
Plaintiff-Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
ORLANDO J. PIERCE, :
AKA; JESSE PIERCE, :
:
Defendant-Appellant. : Released: 10/29/18
_____________________________________________________________
APPEARANCES:

Matthew L. O'Leary, Circleville, Ohio, for Appellant.

Judy C. Wolford, Pickaway County Prosecutor, and Heather MJ Carter,
Assistant Pickaway County Prosecutor, Circleville, Ohio, for Appellee.
_____________________________________________________________

McFarland, J.

{¶1} This is an appeal from a Pickaway County Court of Common

Pleas judgment entry convicting Appellant, Orlando Pierce, of four counts of

nonsupport or contributing to nonsupport of dependents, all fifth degree

felonies in violation of R.C. 2919.21(B). On appeal, Appellant contends that

the trial court's imposition of consecutive sentences rendered his sentence

contrary to law. Because we have found no error with respect to the trial

court's imposition of non-minimum and consecutive sentences, Appellant's

sole assignment of error is overruled and we affirm that portion of the
Pickaway App. No. 18CA4 2

judgment of the trial court. However, because we have determined the trial

court failed to provide the proper post-release control notifications to

Appellant at his sentencing hearing, the post-release control portion of

Appellant's sentence is void and contrary to law. Accordingly, the purported

imposition of post-release control contained in the sentencing entry is

vacated, and this matter is remanded to the trial court for the proper

imposition of post-release control.

FACTS

{¶2} As the parties agree on the following facts and procedural history

pertinent to this appeal, we set them forth, verbatim, as follows:

"On March 7th, 2014, Defendant-Appellant, Orlando Pierce,
was indicted by the Pickaway County, Ohio Grand Jury on four
counts of Non-Support of Dependents, in violation of Ohio
Revised Code Section 2919.21(B) felonies of the fifth degree,
[sic] Mr. Pierce pleaded not guilty to the charges. A pretrial
hearing was conducted on November 17, 2017. Thereafter, a
plea hearing was set for January 3rd, 2018. Pursuant to
negotiations with the Pickaway County Prosecutor, Mr. Pierce
entered into guilty pleas on all counts and a pre-sentence
investigation was ordered. On January 31st, 2018 at the
sentencing hearing Mr. Pierce's attorney and the Pickaway
County Prosecutor jointly recommended a community control
sanction. After a brief colloquy with Mr. Pierce, the trial court
imposed nine (9) month prison terms for each count which were
run consecutively to one another for an aggregate thirty-six (36)
month prison term. Shortly thereafter, Mr. Pierce filed motions
for sentence modification and this appeal.
***
The basis for Mr. Pierce's Non-support of Dependents charges
stem from his failure to pay his support obligation for his minor
Pickaway App. No. 18CA4 3

children from a period dating January 1st, 2011 through
December 31st, 2012. During a portion of this period of time,
Appellant was incarcerated in the Pickaway Correctional
Institution. (Defendant's Motion for Sentence Modification, 1).
Appellant asserted that the required payments were being
deducted from his state maintained prison account. (Id.)[.]
Appellant ultimately decided to waive raising this argument in
his defense and enter pleas of guilty to all counts."

{¶3} Further, and pertinent to this appeal, the record reveals the trial

court issued an "ENTRY OF SENTENCE AND ADVISEMENT OF

DISCRETIONARY POST RELEASE CONTROL" on February 2, 2018

sentencing Appellant to nine-month prison terms on each count, to be served

consecutively for an aggregate term of thirty-six months. The entry also

stated that Appellant had been "notified * * * that he may be subject to a

DISCRETIONARY period of post release control of THREE (3) YEARS, if

determined necessary by the Parole Board after his release from

imprisonment, as well as the consequences for violating conditions of post

release control imposed by the Parole Board under ORC Section 2967.28."

The trial court further notified Appellant as follows, with regard to its

imposition of post-release control:

"In the event that a prison sentence is imposed herein, the
Parole Board may impose a more restrictive sanction, a prison
term not to exceed nine (9) months, for each violation, or a
maximum cumulative prison term for all violations not to
exceed one-half of the stated prison originally imposed. If the
violation is a new felony, Defendant may receive a prison of the
greater of one year, OR the time remaining on post release
Pickaway App. No. 18CA4 4

control which shall be served consecutively to any other prison
term imposed for the new offense."

{¶4} Appellant now appeals his convictions and sentences, raising one

assignment of error for our review.

ASSIGNMENT OF ERROR

"I. APPELLANT'S SENTENCE WAS CLEARLY AND
CONVINCINGLY CONTRARY TO LAW."

{¶5} In his sole assignment of error, Appellant contends his sentence

was clearly and convincingly contrary to law. Appellant argues that

although the requisite language appears in the trial court's sentencing entry,

the record here does not support the imposition of a thirty-six month prison

term, and that the prison term imposed "does not punish the offender using

the minimum sanctions that the court determines accomplish those purposes

[of felony sentencing] without imposing an unnecessary burden on the state

or local government * * *." Appellant further argues that the trial court did

not adequately consider R.C. 2929.11 and 2929.12 when imposing sentence,

and that it placed "undue emphasis upon previous convictions in Appellant's

background and the need to make an example out of the Appellant for others

in the community." Thus, Appellant challenges the trial court's imposition

of non-minimum and consecutive sentences, based upon the record before it.
Pickaway App. No. 18CA4 5

{¶6} R.C. 2953.08(G)(2) defines appellate review of felony sentences

and provides, in relevant part, as follows:

“The court hearing an appeal under division (A), (B), or (C) of
this section shall review the record, including the findings
underlying the sentence or modification given by the sentencing
court.

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.”

{¶7} “[A]n appellate court may vacate or modify a felony sentence on

appeal only if it determines by clear and convincing evidence that the record

does not support the trial court's findings under relevant statutes or that the

sentence is otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d

516, 2016–Ohio–1002, 59 N.E.3d 1231, ¶ 1. This is a deferential standard.

Id. at ¶ 23. Furthermore, “appellate courts may not apply the abuse-of-

discretion standard in sentencing-term challenges.” Id. at ¶ 10. Additionally,

although R.C. 2953.08(G) does not mention R.C. 2929.11 or 2929.12, the

Supreme Court of Ohio has determined that the same standard of review
Pickaway App. No. 18CA4 6

applies to findings made under those statutes. Id. at ¶ 23 (stating that “it is

fully consistent for appellate courts to review those sentences that are

imposed solely after consideration of the factors in R.C. 2929.11 and

2929.12 under a standard that is equally deferential to the sentencing court,”

meaning that “an appellate court may vacate or modify any sentence that is

not clearly and convincingly contrary to law only if the appellate court finds

by clear and convincing evidence that the record does not support the

sentence”).

“Clear and convincing evidence is that measure or degree of
proof which is more than a mere ‘preponderance of the
evidence,’ but not to the extent of such certainty as is required
‘beyond a reasonable doubt’ in criminal cases, and which will
produce in the mind of the trier of facts a firm belief or
conviction as to the facts sought to be established.’ ” Cross v.
Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph
three of the syllabus; Id. at ¶ 22.

{¶8} Further, as noted by the Eighth District Court of Appeals:

“It is important to understand that the ‘clear and convincing’
standard applied in R.C. 2953.08(G)(2) is not discretionary. In
fact, R.C. 2953.08(G)(2) makes it clear that ‘[t]he appellate
court's standard for review is not whether the sentencing court
abused its discretion.’ As a practical consideration, this means
that appellate courts are prohibited from substituting their
judgment for that of the trial judge.

It is also important to understand that the clear and convincing
standard used by R.C. 2953.08(G)(2) is written in the negative.
It does not say that the trial judge must have clear and
convincing evidence to support its findings. Instead, it is the
court of appeals that must clearly and convincingly find that the
Pickaway App. No. 18CA4 7

record does not support the court's findings. In other words, the
restriction is on the appellate court, not the trial judge. This is
an extremely deferential standard of review.” State v. Venes, 8th
Dist. Cuyahoga No. 98682, 2013–Ohio–1891, 992 N.E.2d 453,
¶ 20-21.

{¶9} Here, it appears the sentences Appellant received on each count,

while non-minimum, were within the statutory range for each offense. Thus,

it cannot be said that the length of any of the individual sentences is contrary

to law. Further, “a sentence is generally not contrary to law if the trial court

considered the R.C. 2929.11 purposes and principles of sentencing as well as

the R.C. 2929.12 seriousness and recidivism factors, properly applied post-

release control, and imposed a sentence within the statutory range.” State v.

Brewer, 2014–Ohio–1903, 11 N.E.3d 317, ¶ 38 (4th Dist.). “The sentence

must also comply with any specific statutory requirements that apply, e.g. a

mandatory term for a firearm specification, certain driver's license

suspensions, etc.” Id.

{¶10} And, the trial court expressly stated in its sentencing entry that

it considered the principles and purposes of sentencing under R.C. 2929.11

and balanced the seriousness and recidivism factors under R.C. 2929.12.

Although the trial court did not make specific findings concerning the

various factors in these statutes, it had no obligation to do so. State v.

Robinson, 4th Dist. Lawrence No. 13CA18, 2015–Ohio–2635, ¶ 38 (“[T]he
Pickaway App. No. 18CA4 8

trial court was not required to make findings or give reasons for imposing

more than the minimum sentence.”). Further, Appellant concedes the trial

court referenced the requisite language and considerations under R.C.

2929.11 and 2929.12 when it imposed the sentences. Accordingly, we

conclude Appellant's non-minimum prison sentences were not clearly and

convincingly contrary to law.

{¶11} Additionally, with respect to the trial court's decision to order

the sentences be served consecutively, under the tripartite procedure set forth

in R.C. 2929.14(C)(4) for imposing consecutive sentences, the trial court

had to find that (1) consecutive sentences are necessary to protect the public

from future crime or to punish the offender; (2) 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 three

circumstances specified in the statute applies. See generally State v. Baker,

4th Dist. Athens No. 13CA18, 2014–Ohio–1967, ¶ 35–36. The three

circumstances are as follows:

“(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
Pickaway App. No. 18CA4 9

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.”

The trial court is required to make these findings at the sentencing hearing

and to incorporate its findings in its sentencing entry. State v. Bonnell, 140

Ohio St.3d 209, 2014–Ohio–3177, 16 N.E.3d 659, syllabus. “The trial court

need not use talismanic words to comply with R.C. 2929.14(C)(4), but it

must be clear from the record that the trial court actually made the required

findings.” State v. Campbell, 4th Dist. Adams No. 13CA969, 2014–Ohio–

3860, at ¶ 25.

{¶12} Although the trial court must make the required findings before

imposing consecutive sentences, the court is under no obligation to make

specific findings under the various factors in these statutes. See State v.

Kulchar, 4th Dist. Athens No. 10CA6, 2015–Ohio–3703, ¶ 47. Nor did the

trial court have any obligation under R.C. 2929.14(C)(4) to state reasons to

support its findings to impose consecutive sentences. Bonnell at syllabus

(“In order to impose consecutive terms of imprisonment, a trial court is

required to make the findings mandated by R.C. 2929.14(C)(4) at the
Pickaway App. No. 18CA4 10

sentencing hearing and incorporate its findings into its sentencing entry, but

it has no obligation to state reasons to support its findings”).

{¶13} We reject Appellant's assertion that consecutive sentences are

contrary to law and unsupported by the record. Here, the trial court's

judgment entry stated that it had considered the principles and purposes of

sentencing under R.C. 2929.11 and 2929.12, as well as the record, oral

statements, any victim impact statements and a pre-sentence report. The

trial court's sentencing entry further expressly stated it had balanced and

weighed the seriousness and recidivism factors. The trial court further

expressly stated in the sentencing entry as follows:

"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 that 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. The offender's history of
criminal conduct demonstrates that the consecutive sentences
are necessary to protect the public from future crime by the
offender."

Thus, the required findings were made by the trial court before imposing

consecutive sentences and further, the trial court was under no obligation to

state its reasons for making its findings.
Pickaway App. No. 18CA4 11

{¶14} In State v. Campbell, 4th Dist. Adams No. 15CA1012, 2016–

Ohio–415, ¶ 15, we recently noted that courts have upheld the imposition of

consecutive sentences that even included a life sentence as long as the trial

court makes the required findings. Citing State v. Peak, 8th Dist. Cuyahoga

No. 102850, 2015–Ohio–4702, ¶ 8–14 (affirming the imposition of two

consecutive life sentences with the possibility of parole after ten years on

each of the two counts for rape of a victim less than thirteen years old.). In

light of that reasoning, we concluded Campbell had “failed to establish that

the trial court clearly and convincingly imposed a sentence that was either

not supported by the record or otherwise contrary to law.” Id. at ¶ 16. The

same reasoning applies herein and leads to the same result.

{¶15} Here, Appellant pleaded guilty to not one, but four counts of

felony nonsupport of his dependents. Further, it appears that Appellant may

have been incarcerated for part of the period of time he is alleged to have

failed to support his children. This fact weighed heavily with the trial court.

In fact, the trial court stated as follows, on the record, with respect to

Appellant's prior criminal history:

"Mr. Pierce, you're going to have to do an awful good job of
convincing me why I shouldn't send you to prison, because
you've got one of the worst records I've ever seen. Yeah. I've
done this about twenty-three years. You did nothing of
redeeming value that I can find, and I've read it and searched
it."
Pickaway App. No. 18CA4 12

The trial court further noted that Appellant had "five prior prison inmate

numbers, plus the one in Kentucky, wanted in Kentucky and Tennessee."

And in response to Appellant's statement that he needed help, not

incarceration, the trial court responded as follows:

"Well, get it. I'm not going to help you. I'm going to help you,
I'm going to help the people of this community and state to
make an example of what not to do. Because you're 49 years of
age, in my opinion, you're beyond help. That's just my
opinion."

{¶16} Finally, with regard to Appellant's argument that the trial court

placed undue emphasis on Appellant's criminal history, consideration of

prior criminal history is expressly permitted under the sentencing statutes, as

is imposing sentences that deter similar conduct by others. There is no error

in this regard. In light of the foregoing, we cannot say that the record before

us fails to support the imposition of non-minimum and consecutive

sentences or that the imposition of these sentences was contrary to law.

{¶17} Unfortunately, however, our review does not end here.

Although the trial court included a discretionary three-year term of post-

release control, along with the required, attendant notifications regarding the

consequences for violating post-release control in the sentencing entry, the

trial court did not notify Appellant he was subject to a discretionary term of

post-release control during the sentencing hearing. In fact, the transcript
Pickaway App. No. 18CA4 13

from the sentencing hearing is silent as to post-release control. “ ‘When

sentencing a felony offender to a term of imprisonment, a trial court is

required to notify the offender at the sentencing hearing about post-release

control and is further required to incorporate that notice into its journal entry

imposing sentence.’ ” State v. Ferris, 4th Dist. Lawrence No. 16CA27,

2017-Ohio-5664, ¶ 7; quoting State v. Gannon, 4th Dist. Lawrence No.

15CA16, 2016–Ohio–1007, ¶ 26; quoting State v. Jordan, 104 Ohio St.3d

21, 2004–Ohio–6085, 817 N.E.2d 864, paragraph one of the syllabus.

{¶18} "Under R.C. 2929.19(B)(2)(c) and (e), a trial court must notify

certain felony offenders at the sentencing hearing that: 1) the offender is

subject to statutorily mandated post-release control; and 2) the parole board

may impose a prison term of up to one-half of the offender's originally-

imposed prison term if the offender violates the post-release control

conditions." State v. Filous, 2017-Ohio-7203, 95 N.E.3d 573, ¶ 22. Not only

is the trial court required to notify the offender about post-release control at

the sentencing hearing, it is also required to incorporate that notice into the

sentencing entry. Id. Regardless, however, the main focus of the post-

release control sentencing statutes is on the notification itself and not on the

sentencing entry. Id.; citing State v. Adkins, 4th Dist. Lawrence No.

13CA17, 2014-Ohio-3389, ¶ 36. “When a trial court fails to provide the
Pickaway App. No. 18CA4 14

required notification at either the sentencing hearing or in the sentencing

entry, that part of the sentence is void and must be set aside.” (Emphasis

sic.) Adkins at ¶ 37; citing State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-

6238, 942 N.E.2d 332, ¶ 27-29; see also State v. Adams, 4th Dist. Lawrence

No. 15CA2, 2016-Ohio-7772, ¶ 87. “ ‘[I]n most cases, the prison sanction is

not void and therefore “only the offending portion of the sentence is subject

to review and correction.” ’ ” Id.; quoting State v. Holdcroft, 137 Ohio St.3d

526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 7; quoting Fischer at ¶ 27.

{¶19} Failure to address and properly impose post-release control

during the sentencing hearing constitutes a notification error and that portion

of Appellant's sentence is void, must be set aside, and the matter must be

remanded to the trial court for a resentencing hearing in accordance with

R.C. 2929.191. Ferris at ¶ 10; citing State v. Adams, supra, at ¶ 87. Further,

as set forth above, a sentence is considered contrary to law when the trial

court fails to properly impose post-release control. State v. Brewer, supra, at

¶ 38. Accordingly, although we have found no merit to the sole assignment

of error raised by Appellant, because we have determined, sua sponte, that

the trial court failed to properly impose post release control, and that the

error resulted in the post release control portion of Appellant's sentence
Pickaway App. No. 18CA4 15

being void, Appellant's sentence is affirmed in part, vacated in part, and

remanded to the trial court for the proper imposition of post release control.

JUDGMENT AFFIRMED IN
PART, VACATED IN PART AND
REMANDED.
Pickaway App. No. 18CA4 16

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED IN PART,
VACATED IN PART, AND REMANDED. Costs shall be divided equally
between Appellant and Appellee.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing
the Pickaway County Common Pleas Court to carry this judgment into
execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Hoover, P.J.: Concurs in Judgment and Opinion.
Abele, J.: Concurs in Judgment Only.

For the Court,

BY: ______________________________
Matthew W. McFarland, Judge

NOTICE TO COUNSEL: Pursuant to Local Rule No. 14, this document
constitutes a final judgment entry and the time period for further
appeal commences from the date of filing with the clerk.