[Cite as State v. Roberts, 2017-Ohio-9014.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104474
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DOUGLAS ROBERTS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED; REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-12-561797-A, CR-13-578409-A, CR-14-584010-A,
CR-14-584791-A, and CR-14-586073-A
BEFORE: S. Gallagher, J., McCormack, P.J., and Boyle, J.
RELEASED AND JOURNALIZED: December 14, 2017
ATTORNEY FOR APPELLANT
Erin R. Flanagan
Erin R. Flanagan, Esq., Ltd.
75 Public Square, Suite 920
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Anthony Thomas Miranda
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:
{¶1} Douglas Roberts, also known as Franklin Jenkins, appeals the imposition of
consecutive sentences following a limited remand in State v. Jenkins, 8th Dist. Cuyahoga
No. 101899, 2015-Ohio-2762. Roberts claims that the record does not support the R.C.
2929.14(C)(4) finding that consecutive service of his multiple sentences is proportionate
to the seriousness of the offender’s conduct and the danger the offender poses to the
public. The parties also agree that there is a typographical error in the final sentencing
entry. We affirm the conviction but remand for the limited purpose of issuing a nunc
pro tunc entry to correct the clerical error.
{¶2} In Jenkins, the imposition of consecutive sentences, culminating in the
aggregate prison term of 18 years and 11 months, was reversed under the authority of
State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, because the trial
court had not made the second finding under R.C. 2929.14(C)(4) — that the consecutive
sentences would not be “disproportionate to the seriousness of the offender’s conduct and
the danger the offender poses to the public.” Upon remand, the trial court made the
omitted finding and reimposed the original, aggregate term.
{¶3} Roberts appeals once again, and accordingly, we adopt the facts as stated
from Jenkins:
The sentence resulted after [Roberts’s] guilty pleas in five separate cases,
and included consecutive terms.
In the first case, Cuyahoga C.P. No. CR-[12]-561797-A, [Roberts]
pled to robbery. He was originally sentenced to community control
sanctions and ordered to participate in a community-based treatment
program. The trial court informed him that he would be sentenced to a
four-year prison term if he violated his community control sanctions.
[Roberts’s] second case was Cuyahoga C.P. No. CR-[13]-578409-A,
in which he pled to breaking and entering. The trial court sentenced him to
an 11-month prison term, but suspended the sentence so that he could
continue to participate in the treatment program. The court continued his
community control sanctions for 18 months, to run consecutive to the first
case.
Several months later, [Roberts] entered guilty pleas in three other
separate cases. In Cuyahoga C.P. No. CR-14-584010-A, he pled to escape;
in Cuyahoga C.P. No. CR-14-586073-A, he pled to two counts of burglary;
and in Cuyahoga C.P. No. CR-14-584791-A, he pled to burglary with a
notice of prior conviction specification.
In August 2014, the trial court held a sentencing hearing. The court
terminated [Roberts’s] community control sanctions in Case Nos.
CR-[12]-561797-A and CR-[13]-578409-A, and sentenced him to four
years and 11 months, respectively, on those cases. In Case No.
CR-14-584010-A, [Roberts] was sentenced to six months; in Case No.
CR-14-586073-A, he was sentenced to seven years on each of the two
burglary counts, to be served concurrent to each other; and in Case No.
CR-14-584791-A, he was sentenced to seven years. With the exception of
the six-month sentence in Case No. CR-14-584010-A and the concurrent
terms on the two burglary charges in Case No. CR-14-586073-A, the trial
court ordered all the other terms to be served consecutively, for an
aggregate sentence of 18 years and 11 months.
Jenkins at ¶ 2-6. Thus, the 18-year, 11-month aggregate prison sentence was not the
maximum aggregate term at the trial court’s disposal.
{¶4} In his second, third, and fourth assignments of error, Roberts challenges the
validity of the underlying sentences, claiming (1) the prior conviction specification was
contrary to law because the trial court did not rule on or reference the qualifying
conviction at the resentencing hearing; (2) the trial court erred in imposing costs in the
resentencing entry although the costs were properly imposed in the original sentencing;
and (3) the trial court erred in ordering restitution in the resentencing hearing without first
establishing the amounts due through evidence introduced at the resentencing hearing.
{¶5} We cannot address those three assigned errors, all of which challenge aspects
of the underlying sentence that were not part of the limited remand. Jenkins, 8th Dist.
Cuyahoga No. 101899, 2015-Ohio-2762, at ¶ 12. “It is well recognized that the doctrine
of res judicata bars claims that were raised or could have been raised on direct appeal.”
State v. Fountain, 8th Dist. Cuyahoga Nos. 92772 and 92874, 2010-Ohio-1202, ¶ 9, citing
State v. Davis, 119 Ohio St.3d 422, 2008-Ohio-4608, 894 N.E.2d 1221. The trial court
was without authority to address anything but the consecutive sentencing findings. State
v. Ferrell, 8th Dist. Cuyahoga No. 100659, 2014-Ohio-4377, ¶ 47; State v. Nia,
2014-Ohio-2527, 15 N.E.3d 892, ¶ 22 (8th Dist.) (“the trial court is limited on remand to
only the question raised regarding the required findings pursuant to R.C. 2929.14(C)(4) to
justify consecutive sentences”). Jenkins remanded the matter solely for “the trial court
to consider whether consecutive sentences are appropriate under R.C. 2929.14(C)(4), and,
if so, to make the required findings on the record.” Jenkins at ¶ 12, citing Nia at ¶ 22;
State v. Frost, 8th Dist. Cuyahoga No. 100498, 2014-Ohio-2645, ¶ 10; State v. Dennison,
10th Dist. Franklin No. 15AP-592, 2016-Ohio-8361, ¶ 67.
{¶6} Having said that, the parties agree that there appears to be a typographical
error in the final sentencing entry in Cuyahoga C.P. No. CR-14-586073-A. The trial
court imposed restitution in the amount of $10,280.60 payable to one of the victims.
The state and Roberts believe that amount should have been $1,028.60 as established at
the original sentencing hearing. A trial court retains continuing jurisdiction to correct
clerical errors in a judgment by nunc pro tunc entry to reflect that which actually was
decided. State ex rel. Womack v. Marsh, 128 Ohio St.3d 303, 2011-Ohio-229, 943
N.E.2d 1010, ¶ 13, citing State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353,
2006-Ohio-5795, 856 N.E.2d 263, ¶ 18-19, and Crim.R. 36 (“[c]lerical mistakes in
judgments, orders, or other parts of the record, and errors in the record arising from
oversight or omission, may be corrected by the court at any time”). Although Roberts
failed to address this issue in Jenkins, in light of the state’s concession, we remand for the
limited purpose of issuing a nunc pro tunc sentencing entry to correct the restitution
amount to reflect the restitution demonstrated at the original sentencing hearing. See
State v. McGee, 8th Dist. Cuyahoga No. 104566, 2017-Ohio-1363, ¶ 10.
{¶7} In his first assignment of error, Roberts claims that the consecutive
sentencing findings are not supported by the record. R.C. 2929.14(C)(4) authorizes the
trial court to order consecutive sentences if, as is pertinent to this case, consecutive
service (1) is necessary to protect the public from future crime or to punish the offender;
(2) is not disproportionate to the seriousness of the offender’s conduct and to the danger
the offender poses to the public; and additionally, (3) if the offender committed the
offense while awaiting trial or sentencing, under community control monitoring, or under
postrelease control for a prior offense. State v. Jones, 8th Dist. Cuyahoga No. 104152,
2016-Ohio-8145, ¶ 5, citing State v. Smeznik, 8th Dist. Cuyahoga Nos. 103196 and
103197, 2016-Ohio-709, ¶ 6.
{¶8} The trial court made all the required findings, and Roberts is not challenging
that aspect of his sentences. Instead, Roberts claims that the record does not support the
second 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 because the trial
court referred to his criminal history collectively as eight “aggravated burglaries.”
Further, Roberts claims that the trial court was required to find that the harm caused by
the offenses was so great or unusual that no single prison term adequately reflected the
seriousness of the offender’s conduct under R.C. 2929.14(C)(4)(b).
{¶9} In this case, Roberts contends that the consecutive sentences were
disproportionate to his conduct and the danger he poses to the public because the trial
court could not conclude that the multiple offenses he committed while serving
community control sanctions, were “so great and unusual that no single prison term for
any of the offenses committed as part of any of the course of conduct adequately reflects
the seriousness of the offender’s conduct” under R.C. 2929.14(C)(4)(b). This
conclusion, however, inappropriately combines the proportionality finding with another,
independent finding, one that the trial court was not required to make in this particular
case because it is undisputed that Roberts committed the new crimes while serving
community control sanctions, under R.C. 2929.14(C)(4)(a). Only one of the subdivision
(a)-(c) findings is necessary to support consecutive service of prison terms.
{¶10} Further, the off-the-cuff generalization of Roberts’s history of criminal
conduct is a minor distinction that does not undermine the trial court’s ultimate
conclusion when the totality of the sentencing hearing is considered. If the court made
the required findings in order to impose consecutive sentences, we must affirm those
sentences unless we “clearly and convincingly” find that the record does not support the
court’s findings. R.C. 2953.08(G)(2); State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453,
¶ 19 (8th Dist.). The statute is written in the negative; that is, an appellate court does not
need to clearly and convincingly find that the record supports the findings in order to
affirm, but instead must clearly and convincingly find that the record does not support the
findings in order to reverse or modify a sentence. Venes; State v. Higginbotham, 10th
Dist. Franklin Nos. 17AP-147 and 17AP-150, 2017-Ohio-7618, ¶ 11, citing State v.
Moore, 11th Dist. Geauga No. 2014-G-3183, 2014-Ohio-5182, ¶ 29, and State v. Hale,
5th Dist. Perry No. 14-CA-00014, 2014-Ohio-5028; State v. Timpe, 12th Dist. Clermont
No. CA2015-04-034, 2015-Ohio-5033, ¶ 9; State v. Thompson, 9th Dist. Wayne No.
15AP0016, 2016-Ohio-4689, ¶ 45; State v. Creech, 4th Dist. Scioto No. 16CA3730,
2017-Ohio-6951, ¶ 11; State v. Cochran, 2d Dist. Clark No. 2016-CA-33,
2017-Ohio-217, ¶ 7. This is a deferential standard of appellate review. State v. Rahab,
150 Ohio St.3d 152, 2017-Ohio-1401, 80 N.E.3d 431, ¶ 10.
{¶11} The record amply reflects that consecutive sentences are not
disproportionate to Roberts’s conduct or the danger he poses to the public. Roberts
committed numerous burglaries, aggravated burglaries, robberies, receiving stolen
property, and breaking and entering crimes against numerous victims over the span of his
criminal career dating back to the mid-1980s. Most of that time was spent in prison.
Tr. 10:21-24. To put this in perspective, at the end of 2004, Roberts pleaded guilty to
burglary and was sentenced to two years in prison. In 2006, Roberts reoffended and
almost a year later was sentenced to five years in prison for two burglaries. In 2012,
Roberts pleaded guilty to robbery and was sentenced to community control. In 2013,
Roberts pleaded guilty to breaking and entering and was sentenced to an additional term
of community control. That led to the 2014 cases, which were the result of three more
burglaries.
{¶12} That the trial court, in an aside, generalized Roberts’s past convictions as
aggravated burglaries does not undermine the proportionality finding because the trial
court was expressly looking at the past offenses as being in the “same genre of conduct”
as the current offenses. The trial court was not focused on the aggravated nature of the
crimes. The record supports the trial court’s finding. More than ten of Roberts’s
convictions involved some form of burglary or theft offense. As the trial court
explained to Roberts,
You break into people’s homes. You deprive them of their safety, deprive
them of their goods, and you continue to engage in the same conduct
despite the fact you’ve been down to prison before, despite the fact that I
gave you the opportunity to address that behavior through community
sanctions. I don’t believe it’s disproportionate given the fact that you now
have — I think it’s eight aggravated burglaries. You’ve got an escape. You
know, there’s no changing your behavior.
In context, the trial court’s generalization does not amount to the proportionality finding
not being supported by the record. There must be more. See, e.g., State v. Spencer, 8th
Dist. Cuyahoga No. 101131, 2014-Ohio-5430, ¶ 12 (criminal nonsupport is not an
inherently violent crime, and when that fact is coupled with several misstated facts
recounting the offender’s criminal history and the lack of any criminal behavior for 24
years, it was clearly and convincingly found that the record did not support the finding
that consecutive sentences imposed for three counts of criminal nonsupport were not
disproportionate to the danger the offender posed to the public).
{¶13} In this case, we cannot conclude — much less by clear and convincing
evidence find — that the record does not support the second finding that consecutive
sentences are not disproportionate to Roberts’s conduct and the danger he poses to the
public. Roberts’s history of criminal conduct demonstrates the need to prevent Roberts
from harming the public through a lengthy incarceration. When Roberts is not
incarcerated, he is burglarizing people’s homes. The purpose of R.C. 2929.14(C)(4) is
to prevent this type of career criminal from perpetuating a cycle of criminality upon the
public. Moreover, R.C. 2929.12 provides that the sentencing court “has discretion to
determine the most effective way to comply with the purposes and principles of
sentencing set forth in section 2929.11 of the Revised Code[,]” including the minimum
sanction necessary to accomplish protecting the public from Roberts and others. In
exercising that discretion, the trial court expressly considered the need to incapacitate
Roberts as a serial burglar and the need to protect the public from being victimized by
Roberts.
{¶14} In a similar case, a panel from this court affirmed a longer aggregate
sentence for an offender who committed a similar number of burglaries while serving
community control sanctions. State v. Aniton, 8th Dist. Cuyahoga No. 102440,
2015-Ohio-4080, ¶ 4. Importantly, Aniton rejected the offender’s argument that
consecutive sentences should be reserved only for the worst offenders who commit
offenses that actually injure the public. Id. at ¶ 15-16. The defendant had an extensive
criminal history and one of drug dependency, but no violent offenses. Id. at ¶ 7-8. The
victim of the home invasion, however, was traumatized and psychologically harmed. Id.
at ¶ 16. The trial court expressed its disappointment in first granting leniency to the
offender, who then committed several crimes while serving community control. Id. at ¶
8. On these facts, it was easily concluded that not only did the defendant fail to
demonstrate that the record did not support the findings with respect to his 21-year
aggregate sentence, but that the trial court’s consecutive sentence findings actually were
“clearly and convincingly supported by the record.” (Emphasis added.) Id. at ¶ 16.
{¶15} Similar to Aniton, Roberts has an extensive history of criminal conduct,
Roberts traumatized his victims as a result of the home invasions, and the trial court noted
its failed attempt to rehabilitate Roberts by imposing community control sanctions on the
earlier offenses. More importantly, Roberts could have received a longer aggregate
sentence, but the trial court imposed a shorter, aggregate term than the one affirmed in
Aniton. Accordingly, we cannot clearly and convincingly find that the aggregate
sentence is disproportionate to Roberts’s criminal conduct in general and the danger he
poses to the public by continually burglarizing homes and robbing victims. Roberts’s
first assignment of error is overruled.
{¶16} The dissent maintains that we should modify the consecutively imposed
sentences to concurrent ones because the crimes committed were not inherently egregious
or violent.1 We must caution against this mind-set. Consecutive sentences are not
imposed upon a consideration limited to the offender’s conduct as it relates to the
convictions. In fact, even within the individual sentencing structure, the trial court may
look beyond the offender’s conduct as it relates to the charged crimes. State v. Steele,
8th Dist. Cuyahoga No. 105085, 2017-Ohio-7605, ¶ 10.
{¶17} For the purpose of consecutive sentencing review, this concept is more
pronounced. “Conduct” under R.C. 2929.14(C)(4) is “understood ‘to encompass more
than just the facts supporting conviction on a particular offense.’” Dennison, 10th Dist.
Franklin No. 15AP-592, 2016-Ohio-8361, at ¶ 61, quoting State v. Diaz, 8th Dist.
Cuyahoga No. 102582, 2015-Ohio-4382, ¶ 9. The cumulative length of an offender’s
incarceration is “attributable to the number of offenses he committed.” (Emphasis sic.)
1
The dissent’s approach to reviewing consecutive sentences exemplifies the need for a more
defined appellate review process. Nothing distinguishes Roberts’s sentence from that affirmed in
Aniton. The dissent’s review, however, somehow draws a distinction that Roberts is more deserving
of leniency than the defendant in Aniton despite the similarities between the offenders, their conduct,
and the trial court’s conclusions. This instills inconsistency within sentencing. Until the legislature
or the Supreme Court of Ohio steps in with a more definitive review process that ensures consistency,
we should continue to adhere to the unambiguous language of R.C. 2953.08(G). As the dissent
notes, although there may have been an intent under Am.Sub.S.B. No. 2 to create a more expansive
appellate review process, this recognition is decades late and in contravention of R.C. 2929.12 that
affords discretion to the sentencing court to consider R.C. 2929.11. As the Supreme Court of Ohio
has definitively established, appellate courts must defer to the sentencing court based on the
unambiguous language of R.C. 2953.08(G) and R.C. 2929.12. Rahab, 150 Ohio St.3d 152,
2017-Ohio-1401, 80 N.E.3d 431, at ¶ 10. Whatever was the intent of the drafters, we are bound by
the law that has developed. If the legislature took issue with the court’s interpretation of R.C.
2953.08 over the years, the statute could have been amended.
State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073, ¶ 16. Thus,
appellate courts must broadly review the entirety of the offender’s criminal conduct in
reviewing consecutive sentence findings. State v. Moore, 2014-Ohio-5135, 24 N.E.3d
1197, ¶ 33 (8th Dist.). Indeed, R.C. 2929.14(C)(4) provides in part that consecutive
service may be imposed if the trial court finds “that consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to the danger the
offender poses to the public.” (Emphasis added.) Id. “Had the legislature intended to
limit appellate review to whether consecutive sentences are not disproportionate to the
seriousness of the crime itself (as opposed to the offender’s conduct and the danger the
offender poses to the public) it could have done so.” Moore.
{¶18} Roberts was not sentenced to more than 18 years in prison for stealing a
bottle of Pepsi or for any other trivialized characterization of his individual crimes.
Roberts’s sentences on each of the individual offenses were less than the maximum ones
authorized by law for each offense. Some of those individual terms were imposed to be
served consecutively, meaning the aggregate term was imposed based on the number of
offenses committed and Roberts’s history of criminal behavior. The fact that the newest
crimes may have been less severe than the ones he committed in the past is not dispositive
— it merely is a factor for consideration. See, e.g., Spencer, 8th Dist. Cuyahoga No.
101131, 2014-Ohio-5430, at ¶ 12.
{¶19} “Meaningful review” of a sentence does not mean an appellate court
reverses every sentence it disagrees with; it means the appellate panel considers the
arguments advanced as applied through the lens of the law. On that point, we defer to
the trial court’s discretion unless this court can clearly and convincingly find that the
record does not support the consecutive sentencing findings. R.C. 2953.08(G)(2);
Rahab, 150 Ohio St.3d 152, 2017-Ohio-1401, 80 N.E.3d 431, at ¶ 10, citing Wasman v.
United States, 468 U.S. 559, 563-564, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984), and
Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949).
{¶20} Within our standard of review under R.C. 2953.08(G), we must consider the
trial court’s discretion to sentence offenders. “[T]he sentencing statute [R.C. 2953.08]
and case law reflect this deference.” Rahab at ¶ 10; Hairston, 118 Ohio St.3d 289,
2008-Ohio-2338, 888 N.E.2d 1073, at ¶ 16; State v. Marcum, 146 Ohio St.3d 516,
2016-Ohio-1002, 59 N.E.3d 1231. Under R.C. 2953.08(G), we can reverse a sentence
only if we clearly and convincingly find that the record does not support the findings.
The trial court made the required findings and concluded that a lengthy incarceration was
necessary and proportionate based on Roberts’s extensive history of criminal conduct, the
harm he caused to the public, and his inability to refrain from reoffending upon release
from prison or while serving community control sanctions — among other considerations.
The record supports the findings under R.C. 2929.14(C)(4), and the conviction is,
therefore, affirmed. We affirm the conviction but remand for the limited purpose of
issuing a nunc pro tunc entry to correct the clerical error.
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. The defendant's conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for correction and execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
TIM McCORMACK, P.J., CONCURS;
MARY J. BOYLE, J., CONCURS IN PART AND DISSENTS IN PART WITH
SEPARATE OPINION
MARY J. BOYLE, J., CONCURRING IN PART AND DISSENTING IN PART:
{¶21} I respectfully concur in part and dissent in part. I dissent on the first
assignment of error, but concur with the remaining opinion. It is my view that Roberts’s
sentence of almost 19 years in prison is not supported by the record and completely fails
to consider the legislative intent of Ohio’s comprehensive sentencing statutes.
A. Standard of Review
{¶22} Although the Ohio Supreme Court made clear in State v. Marcum, 146 Ohio
St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, that our review of felony sentences is not an
abuse of discretion, questions still remain as to what the actual scope of our review
should be. I believe that there is a troubling trend occurring throughout appellate courts
in this state that will, if not reigned in by the Ohio Supreme Court, essentially eliminate
meaningful review of felony sentences. As one appellate judge stated, “‘appellate
review of sentencing is under assault.’” State v. Beverly, 2d Dist. Clark No. 2015-CA-71,
2016-Ohio-8078, ¶ 42 (Donovan, J., dissenting), quoting More Than a Formality: The
Case for Meaningful Substantive Reasonable Review, 127 Harv.L.Rev. 951, 951 (2014).
I could not agree more with the dissenting judge in Beverly that “[t]his assault is
unjustified and contrary to legislative intent when we look at the legislative history of
S.B. 2 and H.B. 86.” Id.
{¶23} While the majority acknowledges that “there may have been an intent under
Am.Sub.S.B. No. 2 to create a more expansive appellate review process,” it states that
any intent by S.B. 2 has essentially been obliterated by case law that has developed “over
the years.” The majority claims that if the legislature “took issue with the courts’
interpretation of R.C. 2953.08,” it could have done something about it. It is my view
that the legislature has done something about it, and yet, courts continue to eradicate
meaningful appellate review of felony sentences. A review of the Ohio’s
comprehensive sentencing scheme is necessary.
{¶24} Before Am.Sub.S.B. No. 2 (“S.B. 2”) was enacted in 1996, courts had wide
discretion to sentence an offender within the statutory sentencing provisions. State v.
Johnson, 40 Ohio St.3d 130, 133-134, 532 N.E.2d 1295 (1988). Because of that,
“sentencing decisions were generally subjected to an abuse of discretion standard, and
appellate courts rarely disturbed a sentence imposed within statutory limits.” State v.
Shryock, 1st Dist. Hamilton No. C-961111, 1997 Ohio App. LEXIS 3494, 5-6 (Aug. 1,
1997). A trial court’s sentencing discretion, however, was “limited and circumscribed
by the parameters imposed by the legislature.” State v. Bowman, 3d Dist. Hancock No.
5-90-11, 1990 Ohio App. LEXIS 3591, 4 (Aug. 6, 1990).
{¶25} For example, under these limited parameters, appellate courts would find an
abuse of discretion and reverse a sentence if the trial court considered improper factors
when sentencing a defendant. See State v. Smith, 8th Dist. Cuyahoga No. 50145, 1986
Ohio App. LEXIS 5680 (Feb. 20, 1986) (defendant’s sentence reversed because the trial
court considered a conviction that had been previously vacated by the court of appeals).
Appellate courts would also find that a trial court abused its discretion if the trial court
failed to follow a mandatory duty prescribed by the legislature. See State v. Ragland, 17
Ohio App.3d 221, 478 N.E.2d 1014 (2d Dist.1984) (sentence reversed because the trial
court failed to follow a statutory sentencing mandate to give the defendant a choice if he
wanted to be sentenced to the law in effect at the time of sentencing or at the time he
committed the offense). Finally, appellate courts would reverse consecutive sentences if
the trial court failed to impose them according to the relevant statute at that time. See
Hamilton v. Adkins, 10 Ohio App.3d 217, 461 N.E.2d 319 (12th Dist.1983) (consecutive
sentences reversed because trial court did not specify that the sentences be served
consecutively, as required by former R.C. 2929.41); Bowman (sentence reversed when the
trial court ordered that a sentence for a misdemeanor be served consecutively to a felony
in violation of former R.C. 2929.41(A)).
{¶26} S.B. 2 was the first major crime reform bill in Ohio since 1974. Griffin &
Katz, Ohio Felony Sentencing Law 1 (2002) (“Griffin & Katz”). This comprehensive
bill changed the definitions of crimes and the sentencing scheme and provided “precise
guidance for criminal sentencing within clearly defined constraints.” State v. Comer, 99
Ohio St.3d 463, 2003-Ohio-4165, 793 N.E.2d 473, ¶ 10, citing Painter, Appellate Review
Under the New Felony Sentencing Guidelines: Where Do We Stand?, 47 Cleve.St.L.Rev.
533, 537-538 (1999) (“Painter”).
{¶27} S.B. 2 was enacted in part as a result of the growing concerns about prison
overcrowding. Painter at 537. But also, “there was a notion that offenders received
disparate sentences for the same crime in different sections of the state.” Id., citing
Griffin and Katz, Ohio Felony Sentencing Law 1 (1998). Because of this, the Ohio
Criminal Sentencing Commission was created to develop a sentencing policy “designed
to enhance public safety by achieving certainty in sentencing, deterrence, and a
reasonable use of correctional facilities, programs, services,” and to “achieve fairness in
sentencing.” Id.
{¶28} A “hallmark” of S.B. 2 was appellate review of sentences. Under S.B. 2,
“the law accords meaningful review of * * * sentencing decisions by the appellate
courts.” Comer at ¶ 10. Appellate review was “intended to ensure that offenders
[were] sentenced consistently.” Painter at 538. The legislature enacted R.C. 2953.08
to accomplish consistent sentencing through “meaningful appellate review.” Comer at ¶
10 (“‘Meaningful review’ means that an appellate court hearing an appeal of a felony
sentence may modify or vacate the sentence and remand the matter to the trial court for
resentencing if the court clearly and convincingly finds that the record does not support
the sentence or that the sentence is otherwise contrary to law.”). Indeed, the most
significant aspect of the new sentencing law was that trial courts no longer had unfettered
discretion when sentencing offenders. Painter at 537-38.
{¶29} When the General Assembly first enacted R.C. 2953.08, however, it did not
specify, as it does now, that “[t]he appellate court’s standard for review is not whether the
sentencing court abused its discretion.” See former R.C. 2953.08. The legislature
initially provided little guidance, and because of this, appellate courts initially struggled
with the degree of review that they needed to give to sentences. Painter at 540. The
debate centered around whether appellate courts should apply a “deferential
abuse-of-discretion standard” or “whether the courts should apply a more stringent
standard.” Id. at 540-541. “[A]t one time or another, appeals courts from every district
suggested that there was an abuse-of-discretion standard.” Id. at 541.
{¶30} The legislature finally “settled” the matter, effective October 10, 2000, when
it amended R.C. 2953.08(G)(2) to add: “[t]he appellate court’s standard for review is not
whether the sentencing court abused its discretion.” In his article, Appellate Review
Under the New Felony Sentencing Guidelines, Painter, then a judge at the First Appellate
District, explained that this amendment was “a key step to ending the inconsistent
treatment that defendants were receiving in appellate districts throughout the state.” Id.
But Painter went on to “predict that appellate courts will continue to take differing
approaches to sentencing review.” I wonder if Painter now knows how clairvoyant he
actually was back in 1999.
{¶31} Although S.B. 2 “limited judicial discretion in imposing consecutive
sentences [and other provisions not relevant here] and established a presumption in favor
of concurrent sentences in former R.C. 2929.41(A),” the Ohio Supreme Court, in 2006,
severed the consecutive sentence statute, struck the presumption in favor of concurrent
sentences provided in R.C. 2929.41(A), and held that judges no longer had to make
findings or give reasons for imposing consecutive sentences. State v. Foster, 109 Ohio
St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 97. It did so after recognizing that requiring
trial judges to engage in judicial fact-finding prior to imposing consecutive sentences
violated the Sixth Amendment right to trial by jury as construed by the United States
Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d
435 (2000); Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); and
Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
{¶32} But the Ohio Supreme Court later held that Ohio’s consecutive sentencing
statutes under S.B. 2 were not unconstitutional in light of a new United States Supreme
Court case. State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768, ¶
19-20, citing Oregon v. Ice, 555 U.S. 160, 168, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009).
Less than a year after Hodge, the General Assembly enacted Am.Sub.H.B. No. 86 (“H.B.
86”), effective September 30, 2011, “with a legislative purpose to reduce the state’s
prison population and to save the associated costs of incarceration by diverting certain
offenders from prison and by shortening the terms of other offenders sentenced to
prison.” State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 20,
citing Ohio Legislative Service Commission, Fiscal Note & Local Impact Statement to
Am.Sub.H.B. 86. This new legislation revived Ohio’s statutory presumption in favor of
concurrent sentences and further directed courts to make statutorily enumerated findings
prior to imposing consecutive sentences. See id.
{¶33} After H.B. 86 became effective, appellate courts again struggled with what
standard of review to apply when reviewing sentences and whether courts should apply an
abuse of discretion standard. But as I stated at the outset, the Ohio Supreme Court
settled that matter in Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231.
In the last couple of years, however, beginning with what appears to be a case from this
district (before Marcum), State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453 (8th Dist.),
courts have begun interpreting R.C. 2953.08 as “an extremely deferential standard of
review.” Venes at ¶ 21. This is highly alarming and somewhat puzzling, considering
the history and purpose behind S.B. 2 and H.B. 86.
{¶34} There is no question that “‘abuse of discretion’ is the most deferential
standard of review — next to no review at all.” In re D.T., 212 Ill.2d 347, 356
(Ill.2004). The General Assembly and the Ohio Supreme Court have made it abundantly
clear that we do not review felony sentences for abuse of discretion. Rather, when
reviewing a felony sentence, an appellate court must conduct a “meaningful review” of
the trial court’s sentencing decision. Comer, 99 Ohio St.3d 463, 2003-Ohio-463, 793
N.E.2d 473, at ¶ 10; State v. Daughenbaugh, 3d Dist. Wyandot No. 16-07-07,
2007-Ohio-5774, ¶ 8, citing State v. Carter, 11th Dist. Portage No. 2003-P-0007,
2004-Ohio-1181.
{¶35} “Meaningful review” means that we must review the entire record, including
“[a]ny presentence, psychiatric, or other investigative report that was submitted to the
court in writing before the sentence was imposed,” the trial record, and any oral or written
statements made to or by the court at the sentencing hearing. R.C. 2953.08(F)(1)-(3).
And after reviewing the entire record, if we clearly and convincingly determine that “the
record does not support the trial court’s findings under relevant statutes or that the
sentence is otherwise contrary to law,” then we have the power to “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.” R.C.
2953.08(G)(2); Comer at ¶ 10; Marcum at ¶ 1.
{¶36} In Venes, 2013-Ohio-1891, 992 N.E.2d 453, this court stated at ¶ 20:
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.
{¶37} Considering the legislative history and purpose behind S.B. 2 and the
enactment of R.C. 2953.08(G)(2), as well as H.B. 86 reviving R.C. 2929.14(C)(4) and
2953.08(G)(2), this court could not have been more wrong in Venes. It is the abuse of
discretion standard that prohibits appellate courts from substituting their judgment for that
of the trial judge — a standard explicitly rejected by the legislature and the Ohio Supreme
Court when reviewing felony sentences. See Pons v. Ohio State Med. Bd., 66 Ohio
St.3d 619, 621, 614 N.E.2d 748 (1993) (“Absent an abuse of discretion on the part of the
trial court, a court of appeals may not substitute its judgment for those of the * * * trial
court.”); Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, at ¶ 1.
{¶38} In the next paragraph of Venes, we then stated at ¶ 21:
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 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.
{¶39} This paragraph further interpreting R.C. 2953.08 is just as baffling and
troubling as paragraph 20, if not more so. There is no “restriction” on appellate courts.
Saying that, however, does not mean that there is a “restriction” on the trial court. Of
course the “restriction” is not on the trial court — it is the standard of review for appellate
courts. “Restrictions” on trial courts are set forth in R.C. 2929.11, 2929.12,
2929.14(C)(4) and all of the other sentencing provisions. But the statute is not written in
the “negative” — and even if it is (simply because it contains the word “not”), it certainly
does not mean what Venes (and unfortunately, the many cases following Venes on this
point2) says it means. If an appellate court clearly and convincingly finds that the record
See State v. Thompson, 9th Dist. Wayne No. 15AP0016, 2016-Ohio-4689, ¶ 45; State v.
2
Brandon, 2d Dist. Clark Nos. 2014-CA-143, 2014-CA-144, and 2014-CA-145, 2016-Ohio-227, ¶ 12;
State v. Mason, 12th Dist. Butler No. CA2014-10-217, 2015-Ohio-1931, ¶ 8; State v. Bass, 4th Dist.
does not support the trial court’s findings, we may increase, reduce, modify, or otherwise
reverse a sentence. That is the same as saying that the record must clearly and
convincingly support the trial court’s findings. But most importantly, this is not an
“extremely deferential review.”
{¶40} In Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, decided
in March 2016, the Ohio Supreme Court, well aware of Venes and the many cases
following Venes on this point, did not place these “restrictions” or limitations on appellate
courts as Venes claims. Nor did the Supreme Court say anything about R.C. 2953.08
being “extremely deferential.” Marcum explicitly construed R.C. 2953.08 without those
limitations and, thus, it is my view that Marcum effectively overruled paragraphs 20 and
21 of Venes. In construing R.C. 2953.08, the Supreme Court stated in Marcum:
In the final analysis, we hold that R.C. 2953.08(G)(2)(a) compels
appellate courts to modify or vacate sentences if they find by clear and
convincing evidence that the record does not support any relevant 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.”
See State v. Belew, 140 Ohio St.3d 221, 2014-Ohio-2964, 17 N.E.3d 515,
¶ 12 (Lanzinger, J., dissenting from the decision to dismiss the appeal as
having been improvidently accepted) (“R.C. 2953.08(G)(2) repudiates the
abuse-of-discretion standard in favor of appellate review that upholds a
sentence unless the court of appeals clearly and convincingly finds that the
record does not support the trial court's findings”).
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,
Washington No. 16CA32, 2017-Ohio-7059, ¶ 6; and State v. St. John, 11th Dist. Lake No.
2015-L-133, ¶ 32.
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.
We note that some sentences do not require the findings that R.C.
2953.08(G) specifically addresses. Nevertheless, 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. That is, 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.
Marcum at ¶ 22-23.
{¶41} There is nothing in the Supreme Court’s interpretation of R.C.
2953.08(G)(2) to indicate that this is “an extremely deferential review.” Clear and
convincing does not rise to the level of “beyond a reasonable doubt.” Maybe if appellate
courts had to find that the record does not support the trial court’s findings “beyond a
reasonable doubt,” I could agree that we could call it “extremely deferential.” But we do
not. Under R.C. 2953.08, appellate courts may not modify or reverse a sentence at their
whim or fancy. And there is no question that trial courts have wide discretion to fashion
a sentence within the statutory framework. That does not mean, however, that appellate
courts should not fulfill their duty to actively review a record to determine if it supports
the trial court’s sentence — to provide meaningful appellate review of a felony sentence.
{¶42} Painter concluded his article, Appellate Review Under the New Felony
Sentencing Guidelines, by asking “what’s next?” He stated:
With the recent amendment to the sentencing guidelines that an
“appellate court’s standard for review is not whether the sentencing court
abused its discretion,” the debate is over regarding whether abuse of
discretion remains the standard of review. The legislature has clearly
indicated that appeals courts must actively review sentences, not merely
defer to the determinations of trial judges. Because a primary purpose of
Senate Bill 2 is to eliminate disparate sentencing for similar offenses, it
seems only logical that appellate courts must take a more active role in
reviewing sentences than that allowed under the deferential
abuse-of-discretion standard. A more active review process is the only
effective way to ensure that trial judges are properly and consistently
applying the guidelines. Otherwise, Senate Bill 2, which was intended to
overhaul felony sentencing with appellate courts playing an active role in
ensuring consistency, would be meaningless.
But the debate is not necessarily over. Although it is clear that
abuse-of-discretion is no longer the standard of review, an issue still
remains regarding how intense the standard of review should be — will it
be on the deferential end of the continuum, or will it be on the other end,
such as a de novo review?
Id. at 545-546.
{¶43} Since Painter wrote his article — nearly 20 years ago — the pendulum has
swung considerably on the “deferential end of the continuum,” so much so that it is
effectively back to pre-S.B. 2 levels. As one court expressed in reversing a defendant’s
20-year aggregate sentence because the record did not clearly and convincingly support
the trial court’s consecutive sentence findings and did not demonstrate that it was the
minimum sanction to accomplish the purposes of sentencing without imposing an
unnecessary burden on the state:
“Formalism” has been described as scrupulous or excessive adherence to
outward form at the expense of inner reality or content. We are concerned
that our sentencing jurisprudence has become a rubber stamp for rhetorical
formalism. It appears that consecutive sentences will be upheld on
appellate review as long as the aggregate sentence is within the arithmetic
long-addition established by the statutes and the trial judge and the entry
state that this calculation is (1) necessary to protect the public from future
crime or to punish the offender, (2) not disproportionate to the seriousness
of the offender’s conduct and to the danger the offender poses to the public,
and (3) one or more of the offenses was committed while awaiting trial or
sentencing.
State v. Adams, 2d Dist. Clark No. 2014-CA-13, 2015-Ohio-1160, ¶ 30.
{¶44} The “hallmark” of S.B. 2 was sentencing reform that involved a system of
“legislative guidance coupled with strong appellate review” to “achieve consistency in
sentencing, control costs, and incorporate new knowledge about human behavior and
sentencing alternatives in a manner that is less political and more open to an objective
balancing of societal needs.” (Emphasis added.) Griffin and Katz, Sentencing
Consistency: Basic Principles Instead of Numerical Grids: The Ohio Plan, 53 Case
W.Res.L.Rev. 1, 2 (2002) (“Ohio Plan”). Indeed, “[t]he capstone of the Ohio Plan [was]
appellate review.” Id. at 3.
{¶45} Again, when the General Assembly enacted H.B. 86, reviving R.C.
2929.14(C)(4) and 2953.08(G)(2), the purpose, in part, was “to reduce the state’s prison
population and to save the associated costs of incarceration by diverting certain offenders
from prison and by shortening the terms of other offenders sentenced to prison.”
Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at ¶ 20; see also State v.
Limoli, 140 Ohio St.3d 188, 2014-Ohio-3072, 16 N.E.3d 641, ¶ 10; State v. Taylor, 138
Ohio St.3d 194, 2014-Ohio-460, 5 N.E.3d 612, ¶ 17. This is because, as of February 22,
2011, Ohio prisons held 50,461 inmates — 31 percent over capacity or 12,500 more
inmates than our prisons were expected to hold. David J. Diroll, Prison Crowding: The
Long View, With Suggestions, 4 (Mar. 2011).
{¶46} With this context in mind, R.C. 2929.11(A) now states:
A court that sentences an offender for a felony shall be guided by the
overriding purposes of felony sentencing. The overriding purposes of
felony sentencing are to protect the public from future crime by the offender
and others and to punish the offender using the minimum sanctions that the
court determines accomplish those purposes without imposing an
unnecessary burden on state or local government resources. To achieve
those purposes, the sentencing court shall consider the need for
incapacitating the offender, deterring the offender and others from future
crime, rehabilitating the offender, and making restitution to the victim of
the offense, the public, or both.
(Emphasis added.)
{¶47} In H.B. 86, the General Assembly added the language, “using the minimum
sanctions that the court determines accomplish those purposes without imposing an
unnecessary burden on state or local government resources” to the original language of
R.C. 2929.11(A). (Emphasis added.) Regarding former R.C. 2929.11(A), Griffin and
Katz had explained that it “operate[d] to impose real control over judicial
decision-making.” Ohio Plan at 6. Thus, R.C. 2929.11(A), as amended by H.B. 86,
arguably imposes even more control over judicial decision-making than it did under S.B.
2.
{¶48} And under R.C. 2929.11(B), a felony sentence “shall be reasonably
calculated to achieve the two overriding purposes of felony sentencing” and be
“commensurate with and not demeaning to the seriousness of the offender’s conduct and
its impact upon the victim, and consistent with sentences imposed for similar crimes
committed by similar offenders.” With respect to this provision under S.B. 2, Griffin
and Katz explained:
The effect under the new law of establishing “public protection” and
“punishment” as overriding purposes of sentencing but not limiting them to
“considerations” is that every sentence must now be assessed by whether, as
set forth in R.C. 2929.11(B), it is “reasonably calculated to achieve” those
overriding purposes. Failure of a sentence to do so causes it to be
appealable on the ground that the sentence is “contrary to law.”
Ohio Plan at 6.
{¶49} Under Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231,
appellate courts are “compelled” to “modify or vacate sentences if they find by clear and
convincing evidence that the record does not support any relevant findings under” R.C.
2929.14(C)(4) (and other findings not relevant to this appeal) or are otherwise contrary to
law. Id. at ¶ 22; R.C. 2953.08(G)(2). A sentence is contrary to law if the trial court
fails to impose a sentence that is proportionate and fair and does not overburden state
prisons or state and local budgets. Thus, in reviewing a sentence, we must perform our
duty to determine if the trial court has complied with the applicable statutes and imposed
a sentence that is “reasonably calculated to achieve” the overriding purposes of felony
sentencing” and is “commensurate with and not demeaning to the seriousness of the
offender’s conduct and its impact on the victim.” R.C. 2929.11(B). We must also
ensure that the sentence is “consistent with sentences imposed for similar crimes
committed by similar offenders.” Id. And we must make certain that the trial court, in
exercising its discretion, imposed a sentence that achieves the overriding purposes of
felony sentencing — protecting the public and punishing the offender — “using the
minimum sanctions that the court determines accomplish those purposes without
imposing an unnecessary burden on state or local government resources.” R.C.
2929.11(A).
B. Consecutive Sentences under R.C. 2929.14(C)(4)
{¶50} The majority asserts that “[t]he purpose of R.C. 2929.14(C)(4) is to prevent
this type of career criminal [discussing Roberts] from perpetuating a cycle of criminality
upon the public.” While I agree the majority’s stated purpose for imposing consecutive
sentences is at least one reason to do so, I disagree that is the purpose behind R.C.
2929.14(C)(4). If that were the case, there would not be a presumption for concurrent
sentences in Ohio, nor would there be any reason to require the trial court to make
findings before imposing consecutive sentences. We could simply go back to pre-S.B. 2
days — when trial courts were free to sentence an offender to consecutive sentences by
simply stating so. A brief review of the history of consecutive sentences is instructive.
{¶51} The presumption under R.C. 2929.41(A) — that prison sentences for
multiple offenses be served concurrently — was not always the case. Indeed, it was the
exact opposite. See State v. Lett, 161 Ohio App.3d 274, 2005-Ohio-2665, 829 N.E.2d
1281 (8th Dist.), quoting King v. Maxwell, 173 Ohio St. 536, 538, 184 N.E.2d 380 (1962)
(“‘Concurrent sentences, however, require a positive act by the trial court, and in the
absence of a declaration thereof by the trial court, it is presumed such sentences will run
consecutively.’”); see also Stewart v. Maxwell, 174 Ohio St. 180, 181, 187 N.E.2d 888
(1963) (characterizing the imposition of concurrent sentences as a “reward” because it
meant that the offender had been relieved of “paying a part of the penalty for his crimes”).
{¶52} As we explained in Lett, the General Assembly “ended the long-standing
presumption that sentences for multiple convictions be served consecutively” in 1974
when it adopted the “approach taken by the American Law Institute’s Model Penal Code”
in enacting former R.C. 2929.41(A), which was in effect until S.B. 2.3 This provision
stated then, as it does now, that aside from an exception set forth in the subsection (B), “a
sentence of imprisonment shall be served concurrently with any other sentence of
imprisonment.” Lett at ¶ 35, citing former R.C. 2929.41(A). We referred to this
“change in presumption from consecutive sentences to concurrent sentences” as a “sea
change in the law.” Id. at ¶ 39. Despite this “sea change in the law,” however, R.C.
2929.41(A) only required that a trial court state that it was imposing consecutive
sentences to make it so.
{¶53} In Lett, we surmised that the change in presumption in 1974 occurred for
several reasons: “a backlash against prosecutorial overindictment, disparity in the manner
in which consecutive sentences were imposed, frustration with the virtually unreviewable
Former R.C. 2929.41 stated:
3
(A) Except as provided in division (B) of this section, a sentence of imprisonment
shall be served concurrently with any other sentence of imprisonment. In any case, a
sentence of imprisonment for misdemeanor shall be served concurrently with a
sentence of imprisonment for felony served in a state penal or reformatory institution.
(B) A sentence of imprisonment shall be served consecutively to any other sentence of
imprisonment, in the following cases:
(1) When the trial court specifies that it is to be served consecutively.
nature of consecutive sentencing, and economic considerations relating to the long-term
housing of prisoners.” Id. Unfortunately, these reasons sound all too familiar.
Because despite the changes made in 1974, as well as S.B. 2 over 20 years later and most
recently H.B. 86, we, as a state, still grapple with these same issues today. Part of the
reason that we still do is because trial courts continue to impose harsh sentences far too
often for nonviolent crimes, and appellate courts continue to refuse to perform their duty
to provide meaningful appellate review.
{¶54} After review of the sentence imposed in this case, I agree with Roberts that
consecutive sentences are disproportionate to the seriousness of his conduct and the
danger he poses to the public. This is especially so in light of the principles and
purposes of felony sentencing set forth in R.C. 2929.11, which states that a sentencing
court “shall be guided by the overriding purposes of felony sentencing” — to protect the
public and punish the offender — using “the minimum sanctions that the court determines
accomplish those purposes without imposing an unnecessary burden on state or local
government resources.” R.C. 2929.11(A). Additionally, a sentence must be
“reasonably calculated to achieve the two overriding purposes of felony sentencing” and
be “commensurate with and not demeaning to the seriousness of the offender’s conduct
and its impact upon the victim[.]” R.C. 2929.11(B). I agree with Roberts that the
sentence imposed by the trial court does not meet any of these requirements.
{¶55} The trial court sentenced Roberts to nearly 19 years in prison — for stealing
a bottle of Pepsi and pushing a store security guard, stealing $250 of fishing equipment
from someone’s garage, failing to report for supervision, and breaking and entering (or
attempting to enter) the homes of three victims and stealing less than $2,000 worth of
property. These were not violent crimes. No one was hurt. Yet, Roberts received 18
years and 11 months in prison. Without minimizing the emotional distress the burglary
offenses undoubtedly caused the victims, Roberts’s offenses do not reflect such
seriousness and danger to the public that almost 19 years in prison is necessary to protect
the public from him.
{¶56} Indeed, such a lengthy sentence may demean the seriousness of other crimes
and the harm to other victims. For example, an offender who murders someone could
get out of prison in less time; the sentence for murder is 15 years to life. R.C.
2929.02(B)(1). Rape has a maximum sentence of 11 years in prison. R.C. 2907.02(B).
Offenders who repeatedly beat their significant others or spouses do not get that much
time — even when the offender has multiple domestic violence convictions. See State v.
Russell, 12th Dist. Butler No. CA2012-03-066, 2013-Ohio-1381 (defendant who was
convicted of abduction and domestic violence for beating his girlfriend was sentenced to
36 months in prison; it was his third domestic violence conviction). Those are serious
crimes of violence.
{¶57} At the time of these offenses here, Roberts was approximately 50 years old.
According to his presentence investigation report, he was found to be barely functioning
within a borderline intellectual level. He was also addicted to heroin and a lesser form
of heroin. Consecutive sentences are reserved for the worst offenses and offenders.
State v. Ladson, 8th Dist. Cuyahoga No. 83209, 2004-Ohio-2973, ¶ 23, citing State v.
Boland, 147 Ohio App.3d 151, 162, 2002-Ohio-1163, 768 N.E.2d 1250 (7th Dist.).
There is simply nothing in the record before us to indicate that Roberts’s crimes were so
great or unusual that no single prison term would adequately reflect the seriousness of his
conduct.
{¶58} The majority compares the facts of this case to the facts in State v. Aniton,
8th Dist. Cuyahoga No. 102440, 2015-Ohio-4080, where this court upheld a 21-year
sentence for multiple crimes. But in Aniton, one of the defendant’s convictions was
unlawful sexual conduct with a minor, and in another, he committed some of the burglary
offenses with a firearm. Plus, unlike Roberts, the defendant’s prior criminal history in
Aniton included an offense of violence.
{¶59} In summary, although the court made the findings necessary to order
Roberts to serve his sentences consecutively, I would clearly and convincingly find that
the record does not support the trial court’s finding that consecutive sentences — totaling
nearly 19 years in prison — are necessary to protect the public or punish Roberts and are
not disproportionate to the seriousness of Roberts’s conduct and to the danger he poses to
the public. While I certainly understand the trial court’s frustration with Roberts, the
record does not demonstrate that an 18-year and 11-month prison sentence was
“reasonably calculated to achieve” the purposes of felony sentencing using the
minimum sanctions without imposing an unnecessary burden on the state.
C. Sentence Modification
{¶60} In this case, the trial court sentenced Roberts to six months for escape in
Cuyahoga C.P. No. CR-14-584010-A. The court sentenced Roberts to seven years on
each of the two burglary counts in Cuyahoga C.P. No. CR-14-586073-A, to be served
concurrent to each other. And in Cuyahoga C.P. No. CR-14-584791-A, the court
sentenced Roberts to seven years for burglary. With the exception of the six-month
sentence for escape and the concurrent terms on the two burglary charges in Cuyahoga
C.P. No. CR-14-586073-A, the trial court ordered that all the other prison terms,
including the sentences in Cuyahoga C.P. Nos. CR-12-561797-A and CR-13-578409-A,
be served consecutively, which amounted to a total sentence of 18 years and 11 months in
prison. I would sustain Roberts’s first assignment of error, vacate the consecutive
portion of his sentence, and modify the sentence to concurrent terms, for an aggregate
sentence of seven years in prison.