State v. Briggs

[Cite as State v. Briggs, 2020-Ohio-4652.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, : No. 18AP-679
(C.P.C. No. 17CR-1732)
Plaintiff-Appellee, : No. 18AP-680
(C.P.C. No. 17CR-3824)
v. : No. 18AP-681
(C.P.C. No. 17CR-6236)
Antoine T. Briggs, :
(REGULAR CALENDAR)
Defendant-Appellant. :

D E C I S I O N

Rendered on September 29, 2020

On brief: Ron O'Brien, Prosecuting Attorney, and Michael P.
Walton, for appellee. Argued: Michael P. Walton.

On brief: Yeura R. Venters, Public Defender, and Robert D.
Essex, for appellant. Argued: Robert D. Essex.

APPEALS from the Franklin County Court of Common Pleas

BEATTY BLUNT, J.

{¶ 1} Defendant-appellant, Antoine T. Briggs appeals the August 30, 2018

judgments of the Franklin County Court of Common Pleas following his pleas of guilty and

sentencing him in these three cases to an aggregate prison term of 15 years. Briggs asserts

three assignments of error. Because we conclude that the trial court's decision to order

Briggs to be removed from the courtroom was an abuse of the trial court's discretion, we

sustain Briggs' second assignment of error and remand all three cases to the trial court for

further proceedings.

{¶ 2} On July 2, 2018 and according to a plea agreement, Briggs pled guilty to

aggravated vehicular homicide in Franklin C.P. No. 17CR-1732, possession of cocaine in
Nos. 18AP-679, 18AP-680, and 18AP-681 2

Franklin C.P. No. 17CR-3824, and burglary in Franklin C.P. No. 17CR-6236. On August 30,

2018, the trial court held a combined sentencing hearing for the three cases and a

community control revocation hearing for Franklin C.P. No. 16CR-5268. Briggs stipulated

that there was probable cause for revocation of his probation , and the court proceeded to

hear mitigation presentations regarding all four of the cases, and from the victim's wife in

the aggravated vehicular homicide case. Through an interpreter, she testified that her

husband had been a good man, that she, his children, and his family back in Africa had all

relied on him as a breadwinner, and asked the court to impose more than the maximum

sentence of 11 years for the aggravated vehicular homicide. The last person to present was

Briggs, who indicated that he wanted to accept responsibility for having taken someone's

life through his bad decisions.

{¶ 3} After expressing its sympathy to the victim's family, the trial court addressed

Briggs:

THE COURT: Let me say to you, Mr. Briggs, there are very few
times when I am supremely irritated with and disgusted by the
choices of the defendant, and I am both of those things today. I
am irritated with and I am disgusted by your choices. And I will
tell you why I am disgusted by your choices. I am disgusted
because as I read your presentence investigation report, while
you say you do not remember what happened, what you told
law enforcement on that night is I don't know, I don't even
know who was driving, but it was not me.

You had the presence of mind, even though you don't
remember the specifics of this accident, to assign the blame and
the responsibility to someone else. And I am irritated by that.
What?

THE DEFENDANT: I didn't know what was going on. I was
found in the passenger seat, Your Honor.

THE COURT: You had the presence of mind to say I don't know
who was driving, but it wasn't me. I don't care where they found
you, but that was the statement that you made. And you know
Nos. 18AP-679, 18AP-680, and 18AP-681 3

that when you were in the vehicle, were you riding with
someone? Or you don't know, that is something else. You don't
know, you just know that it wasn't you. I am bothered by that.

I am bothered by the fact that you framed this as an accident.
That is something, an accident is something you don't mean to
do intentionally. But when you consume alcohol or when you
consume illegal drugs and you get behind the wheel of a vehicle,
that is an intentional choice that you make to take a chance with
your life and with the lives of others. That is not an accident.
And I am bothered that you frame it in that way.

Your choice to engage in this behavior has consequences that
spread across not only the victim's family, but your family.
What are your children supposed to do now? Did you think
about that when you were making this choice? Did you? I am
asking you.

THE DEFENDANT: No, ma'am.

THE COURT: You didn't think about your children. You didn't
think about anybody but yourself. And I am equally bothered
by the fact that in your presentence investigation report, you
encourage me to consider - - let me find it specifically, because
I was amazed that you would even make this statement. "I want
the judge to see the pattern. All my criminal activity is because
of drugs and alcohol."

I have no responsibility to see the pattern. If you understand
that you have that challenge, then it is your responsibility to
manage it. What I do here is not a professional baby-sitting
service. You know that you make terrible decisions when you
drink and use drugs. So why wouldn't it be your responsibility
to find a program or to find an alternative so that you are not
engaging in criminal activity? Why is that my responsibility to
see the pattern? Do you see the pattern?

THE DEFENDANT: Yes, ma'am.

THE COURT: What have you done to address it?

THE DEFENDANT: Nothing.

THE COURT: So then why would I need to address it? I am
asking you. Why should I address it if you have taken no
responsibility to address it?

THE DEFENDANT: I don't know.
Nos. 18AP-679, 18AP-680, and 18AP-681 4

THE COURT: I will answer. I have no responsibility to address
it. If it is not important to you, then why should it be important
to me?

You seem to have this pattern of assigning blame for your
choices to other people and to other circumstances, and that
stops today.

Tr. at 46-49.

{¶ 4} The trial court then addressed the sentencing factors set forth in R.C. 2929.12

related to the vehicular homicide case, and found because the victim suffered serious

physical, psychological, or economic harm that Briggs' behavior was more serious than

conduct normally constituting the offense. The court also found several factors indicating

that Briggs was likely to reoffend, and concluded that Briggs' conduct was "the most serious

form of the crime" and that he was not amenable to a community control sanction. Id. at

56 . The court revoked Briggs' community control release and imposed 11 months with 330

days of jail-time credit for a sentence of time served in Briggs' prior case, and on his 3 plea

cases, the court imposed maximum and consecutive sentences, for an aggregate sentence

of 15 years in prison:

THE COURT: So that is a total of 15 years of incarceration with
the Department of Rehabilitation and Correction. There are
418 days of credit in case 1732, and then there will be zero days
in 3824.

THE DEFENDANT: Wow.

THE COURT: So I am also going to immediately find that Mr.
Briggs is an obstreperous defendant. I am not going to be
disrespected when you have caused complete chaos and
confusion across a wide spectrum of lives.

Deputy, he can be removed, since I have imposed the sentence,
and I will conclude this without his presence.

THE DEFENDANT: God bless you.

THE COURT: Bless you.
Nos. 18AP-679, 18AP-680, and 18AP-681 5

Id. at 58.

{¶ 5} The court completed its sentencing after Briggs was removed from the

courtroom, at which point it waived fines and costs but imposed post-release control and a

lifetime driver's license suspension. Id. at 59-60. After a brief recess, the court reconvened

and stated the following:

THE COURT: We're back on the record in State of Ohio versus
Antoine Briggs. There were, again, four cases, 17CR-1732,
17CR-3824, 17CR-6236, 16CR-5268.

The court concluded its sentencing in all four cases. The court
actually asked the personnel of the Franklin County [S]heriff's
[O]ffice to remove Mr. Briggs from the courtroom as it
concluded its final phases of sentencing. Mr. Briggs had
become an obstreperous defendant. The law does not require
that I maintain his physical presence if he becomes
obstreperous. So I had him removed. We are currently on the
record, and Mr. Briggs is currently not present in court.

Id. at 61.

{¶ 6} Briggs now appeals, and asserts three alleged errors for review:

[I.] The trial court committed plain error by imposing
consecutive sentences without engaging in the correct analysis
required by R.C. 2929.14(C)(4) and R.C. 2929.41(A), and
mandated by the Ohio Supreme Court in State v. Bonnell.

[II.] The trial court erred when it ordered the defendant to be
removed from the courtroom during his sentencing when the
defendant had not engaged in any disruptive conduct and had
not been warned that he could be removed for disruptive
conduct.

[III.] The trial court committed error in not personally
informing the appellant of post-release control which requires
this matter be remanded for a hearing pursuant to R.C.
2929.191.

{¶ 7} Because it is dispositive of this appeal, we begin by analyzing Briggs' second

assignment of error. The sentencing hearing transcript reveals that the trial judge ordered

that Briggs be removed from the courtroom before imposition of his sentence was
Nos. 18AP-679, 18AP-680, and 18AP-681 6

completed. The trial court ordered mandatory postrelease control for two of Briggs'

offenses and discretionary postrelease control for a third offense, as well as a lifetime

driver's license suspension, but imposed these penalties outside of Briggs' presence, after it

had ordered him removed from the courtroom. Tr. at 58-59. Compare State v. Fischer, 128

Ohio St.3d 92, 2010-Ohio-6238, ¶ 23 ("[A] judge must conform to the General Assembly's

mandate in imposing postrelease-control sanctions as part of a criminal sentence") and

State v. Harris, 132 Ohio St.3d 318, 2012-Ohio-1908, paragraph one of the syllabus

("[w]hen a trial court fails to include a mandatory driver's license suspension as part of an

offender's sentence, that part of the sentence is void* * * .")

{¶ 8} A defendant "must be physically present at every stage of the criminal

proceeding and trial, including * * * the imposition of sentence * * *." Crim.R. 43(A). See

also Ohio Constitution, Article 1 Section 10 and United States Constitution, Amendment

VI. While a defendant can lose the right to be present based on disruptive behavior, see

Crim.R. 43(B), prior to ordering removal of a defendant the judge must give the defendant

a warning that if the disruption continues it will result in removal. See Illinois v. Allen, 397

U.S. 337, 343 (1970) ("[A] defendant can lose his right to be present at trial if, after he has

been warned by the judge that he will be removed if he continues his disruptive behavior,

he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and

disrespectful of the court that his trial cannot be carried on with him in the courtroom"),

cited in State v. Dixon, 10th Dist. No. 17AP-884, 2018-Ohio-3759, ¶ 16.

{¶ 9} Briggs' hearing transcript clearly demonstrates that the trial court did not

give him any such warning prior to ordering his removal. Further, the hearing transcript

does not demonstrate any pattern of disruptive behavior prior to the trial court's decision

to order his removal. The state argues that we should infer that Briggs was behaving badly
Nos. 18AP-679, 18AP-680, and 18AP-681 7

in some way not reflected in the transcript. But the transcript does not support the state's

contention that Briggs acted inappropriately or that the sentencing as a whole had a

combative atmosphere. And although the transcript does not capture tone or body

language, our review of the transcript in its totality shows that Briggs at no time said

anything inappropriate. When Briggs expressed surprise at the length of his sentence,

instead of warning him that his behavior was not appropriate, the trial judge took it

personally; she immediately stated that she was "not going to be disrespected" and ejected

him from the courtroom. Tr. at 58. Being "supremely irritated" and "disgusted" by Briggs'

criminal behavior, and feeling "disrespected" by him, without more, does not justify the

violation of his right to be present at a critical stage of his criminal proceedings.

{¶ 10} Briggs' second assignment of error is sustained. And because this ruling

requires a remand for a new sentencing hearing, Briggs' remaining assignments of error

addressing other potential irregularities in the original sentencing hearing are rendered

moot. For these reasons, we reverse and remand the judgments of the Franklin County

Court of Common Pleas.

Judgments reversed and remanded.

Nelson, J. concurs; Brunner, J. concurring separately.

BRUNNER, J., concurring separately.
{¶ 11} I respectfully write separately to ensure that in this decision we address other
issues of importance for the sake of legal, conceptual clarity and to avoid future problems,
all associated with felony sentencing.
I. INTRODUCTION
{¶ 12} The majority has determined to sustain Briggs' second assignment of error
and, based on the need for resentencing, find the other assignments of error to be moot. I
Nos. 18AP-679, 18AP-680, and 18AP-681 8

concur in the majority's judgment regarding the second assignment of error and the
majority's conclusion that the necessity of a resentencing renders the other assignments of
error moot. However, I write separately because, in my view, the first assignment of error
presents a significant issue that merits review and resolution. Once resolved, it would
render the second and third assignments of error moot.
II. DISCUSSION
{¶ 13} In the first assignment of error, Briggs alleges, "[t]he trial court committed
plain error by imposing consecutive sentences without engaging in the correct analysis
required by R.C. 2929.14(C)(4) and R.C. 2929.41(A), and mandated by the Ohio Supreme
Court in State v. Bonnell." I agree.
{¶ 14} Generally there is a presumption that sentences imposed "shall be served
concurrently with any other prison term, jail term, or sentence of imprisonment imposed
by a court of this state, another state, or the United States." R.C. 2929.41(A). However, that
presumption of concurrent terms may be overcome if the trial court finds that the offender
meets the criteria set forth in R.C. 2929.14(C)(4):

(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.

(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.
Nos. 18AP-679, 18AP-680, and 18AP-681 9

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

{¶ 15} The trial court must make R.C. 2929.14(C)(4) findings at sentencing and
incorporate its findings into its sentencing entry, but it has no obligation to state reasons to
support its findings nor must it recite certain talismanic words or phrases in order to be
considered to have complied. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177,
syllabus; State v. Howze, 10th Dist. No. 13AP-386, 2013-Ohio-4800, ¶ 18. We have
repeatedly held that, "sentencing consecutively without first overcoming the presumption
that sentences are to be imposed concurrently 'is contrary to law and constitutes plain
error.' " State v. Greene, 10th Dist. No. 17AP-667, 2018-Ohio-3135, ¶ 15, quoting State v.
Jones, 10th Dist. No. 14AP-80, 2014-Ohio-3740, ¶ 18, citing State v. Boynton, 10th Dist.
No. 12AP-975, 2013-Ohio-3794, ¶ 12; State v. Wilson, 10th Dist. No. 12AP-551, 2013-Ohio-
1520, ¶ 18; see also State v. Marcum, 10th Dist. No. 18AP-249, 2019-Ohio-1019, ¶ 14.
{¶ 16} In this case, all three of the judgment entries (for aggravated vehicular
homicide, cocaine possession, and burglary) in the record included boilerplate findings
tracking the statutory language of R.C. 2929.14(C)(4), and Briggs has not contended that
the judgment entries are defective. (Aug. 30, 2018 Jgmt. Entry 17CR-1732 at 2; Aug. 30,
2018 Jgmt. Entry 17CR-3824 at 2; Aug. 30, 2018 Jgmt. Entry 17CR-6236 at 2.) Instead,
Briggs challenges whether what the trial court said at sentencing sufficiently indicated that
it genuinely made the proportionality finding required by R.C. 2929.14(C)(4) to overcome
the presumption for concurrent sentences. (Briggs' Brief at 5-20.)
{¶ 17} Nowhere in the transcript does the trial court find or paraphrase the finding,
"that consecutive sentences are not disproportionate to the seriousness of the offender's
conduct and to the danger the offender poses to the public." R.C. 2929.14(C)(4); see also
Plea & Sentencing Tr. at 46-58. To counter this observation, the State has asserted that the
trial court made clear that it was swayed by the seriousness of Briggs' conduct. (State's Brief
at 5-8.) The State has argued that the trial court's statements of outrage are sufficient to
infer that the trial court made the necessary proportionality finding. Id. Precedent instructs
otherwise.
{¶ 18} In State v. Beasley, the State argued that the Supreme Court of Ohio should
"discern" the trial court's views on proportionality from statements about the fact that the
Nos. 18AP-679, 18AP-680, and 18AP-681 10

defendant had committed murders with weapons that he was not supposed to have had and
that "consecutive sentences [we]re necessary to protect the public." 153 Ohio St.3d 497,
2018-Ohio-493, ¶ 257-59. However, the state's high court declined to make this leap,
noting that the trial judge's statement "reveal[ed] nothing about the court's proportionality
analysis with respect to the [other crimes Beasley committed], and the sentences for those
convictions were also ordered to be served consecutively." Id. at ¶ 258. The Supreme Court
found that the trial court had not made the required finding on proportionality, and
reversed and remanded the case for a resentencing hearing. Id. at ¶ 260-62.
{¶ 19} Viewing the record on appeal, I see no evidence that the trial court made the
necessary legal findings to impose maximum consecutive sentences in Briggs' three cases.
See R.C. 2929.14(C)(4); R.C. 2929.12. The trial judge very adequately analyzed the
vehicular homicide case, finding no mitigating factors and finding one factor (that the
victim suffered serious physical, psychological, or economic harm) that indicated Briggs'
behavior in relation to the aggravated vehicular homicide was more serious than conduct
normally constituting the offense. (Plea & Sentencing Tr. at 49-56.) However, contrary to
the requirement of Beasley, there is no indication in the record that the trial court
developed or considered the statutorily required findings in the other two cases to support
imposing maximum consecutive sentences for all three of these cases. Id. at 57-58. The
only mention of the facts underlying the cocaine possession offense was during the plea
hearing at which the prosecutor indicated that 0.179 grams of cocaine were found on Briggs'
person when he was searched incident to an arrest on a warrant in September 2016. Id. at
22. The trial court did not explain at sentencing why it imposed a maximum consecutive
sentence for the cocaine possession, other than a bare statement, without factual support
for finding it was "the most serious form of the offense." Id. at 57. With respect to the
burglary, the prosecution reported that the case involved a burglary of a residence at which
a television, computers, sunglasses, and cellular telephones were stolen. Id. at 22-23. The
trial court cited the presentence investigation report as evidence that an unknown person
(whom the trial court seemed to infer was Briggs) had sent a threatening letter to the victim.
Id. at 57-58. However, again, the trial court did not enunciate any statutory supportive
language for concluding at sentencing that this burglary offense merited a maximum
sentence and should be imposed consecutively to the other two sentences. Id.
Nos. 18AP-679, 18AP-680, and 18AP-681 11

{¶ 20} In short, while the trial judge did spend substantial time discussing the
severity of the conduct in the aggravated vehicular homicide case, the trial judge did not
make the necessary findings to justify maximum consecutive sentences in all three cases.
To quote Beasley, the trial judge's comments in this case "reveal[ed] nothing about the
court's proportionality analysis with respect to the [other crimes Briggs committed], and
[yet,] the sentences for those convictions were also ordered to be served consecutively."
Beasley at ¶ 258. The trial court's words reflecting her personal views about Briggs and
that he had disrespected her are inadequate to meet the statutory requirements for
consecutive sentencing. Nor are those in-court statements a substitute for consideration,
review, and some form of discussion of the statutory factors that would justify imposing
maximum consecutive sentences. (Plea & Sentencing Tr. at 46, 58.)
{¶ 21} The State asserts that there is a "nearly [] identical situation" that results in a
different outcome in State v. Dixon, 10th Dist. No. 17AP-884, 2018-Ohio-3759. (State's
Brief at 7.) While there are certain similarities between this case and Dixon (involving the
same trial judge and an abrupt exclusion of a defendant from the courtroom), there is one
vital distinction from the issue raised by the first assignment of error here: The defendant
in Dixon was being sentenced in just one case involving two counts that were both part of
a single incident of domestic violence. Dixon at ¶ 2-3. Specifically, in Dixon, the trial court
stated, "Dixon assaulted the victim when she came to pick up their children and then
pursued her when she was able to get away from him. He rear-ended her vehicle and forced
her to pull over. Dixon proceeded to beat her a second time. All of this was done in the
presence of their three young sons." Id. at ¶ 12. Because the trial judge discussed the
severity of the single incident, we decided the trial court had adequately indicated that it
tacitly found that consecutive sentencing for the offenses arising from the incident would
not be disproportionate to the severity of the offender's conduct. Id. at ¶ 10; R.C.
2929.14(C)(4). Here, however, Briggs was being sentenced on three cases (four, counting
probation revocation). (Plea & Sentencing Tr. at 28.) The trial court was quite clear about
how outraged it was about one of the cases. Id. at 45-56. But, it essentially did not express
sufficient statutorily required similar support for consecutive sentencing relating to the
other two cases, despite imposing maximum consecutive sentences for all of them. Id. at
Nos. 18AP-679, 18AP-680, and 18AP-681 12

57-58. Under Beasley, this is error and distinguishes this case from Dixon. Beasley at
¶ 258.
III. CONCLUSION
{¶ 22} Rather than avoid the first assignment of error in favor of resolving the case
on the second assignment of error, I would squarely address what I view to be an error of
greater concern, the first assignment of error. Although I concur in the majority's analysis
of the second assignment of error, because I would have resolved the case on the first
assignment of error, I write separately to express my differing viewpoint.
_____________