State v. Bruce

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[Cite as State v. Bruce, 2003-Ohio-4081.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 02CA51 : vs. : : JANET L. BRUCE, : DECISION AND JUDGMENT ENTRY : Defendant-Appellant. : : Released 7/28/03 ___________________________________________________________ APPEARANCES: David H. Bodiker, Ohio Public Defender, and Molly J. McAnespie, Assistant State Public Defender, Columbus, Ohio, for Appellant. Alison L. Cauthorn, Assistant Prosecuting Attorney, Marietta, Ohio, for Appellee. ___________________________________________________________ Harsha, J. Janet {¶1} judgment, L. arguing Bruce that appeals the court the failed trial to court s follow the statutory procedure for imposing consecutive sentences, and that the imposition of consecutive sentences is not supported by the record. Bruce also argues that her trial counsel in was ineffective failing imposition of an improper sentence. to object to the We conclude that the record does not support the trial court s finding that the victims of Bruce s crimes suffered great or unusual harm. We also conclude that the trial court applied an improper standard for determining the contents of Bruce's "criminal history" when it found that it could not consider criminal acts that formed the basis of the dismissed under the plea agreement. indictment but were Thus, we reverse and remand this matter to the trial court for re-sentencing. {¶2} In June 2000, a grand jury indicted Bruce on fifteen counts of theft and burglary as a result of her actions during a one-week period in July 1999. Subsequently, Bruce pled guilty to one count of burglary, in violation of R.C. 2911.12(A)(3), a felony of the third degree, and two counts of burglary, in violation of R.C. 2911.12(A)(2), both felonies of the second degree. The State dismissed the remaining charges against Bruce under a plea agreement. The following facts relate to the three burglaries to which Bruce pled guilty. {¶3} On July 10, 1999, Bruce and a co-defendant went to the home of Robert Burton while Mr. Burton was at his wife s funeral. Mr. Burton s house was unlocked at the time so visitors could bring food and flowers during his absence. Bruce and her co-defendant stole Mr. Burton s black nylon wallet other miscellaneous containing cards and his his VISA card driver s as well license, as a bottle of Valium, Mrs. Burton s wallet containing $150.00 in cash and miscellaneous credit cards, and some checks. During the next few days, several checks were written on Mr. Burton s account and various items were charged on the credit cards. {¶4} On July 14, 1999, Bruce stopped at the house of Wilbur and Ann Louis Spindler, an elderly couple, asking for directions and to use the bathroom. Spindlers home, Bruce stole some Once inside the prescription medicine, Darvocet. {¶5} On July 15, 1999, Bruce and a co-defendant went to the home of Virginia and Terry Perry. Mr. and Mrs. Perry were not at home but their two minor daughters were. Bruce and the co-defendant knocked on the door and asked to use the bathroom. bottles of Once inside the home, Bruce stole two prescription medication, Claritin and Hydroxyquin. {¶6} Washington On October County 2, Court 2000, of Bruce Common appeared Pleas for before the sentencing. The trial court sentenced Bruce to three years in prison on each count of burglary, all counts to run consecutively, for a total aggregate sentence of nine years imprisonment. {¶7} Bruce appealed her sentence to this Court, arguing that the trial court erred in imposing a prison sentence in lieu of community-control sanctions and that the trial court erred in imposing consecutive sentences because it failed to make the findings required by R.C. 2929.14(E) and to state its reasons for imposing consecutive sentences as required by R.C. 2929.19(B). In State v. Bruce, Washington App. No. 00CA48, 2002-Ohio-6136, we held that the trial court did not err in imposing a prison sentence on Bruce rather than community-control sanctions but that the trial court s decision to impose consecutive sentences was contrary to law as the court failed to make the requisite statutory findings and did not explain its reasons for imposing consecutive sentences. remanded solely on the case the to issue the of served consecutively. consider whether trial whether court the We for re-sentencing sentences should be In the initial appeal, we did not the record supported the imposition of consecutive sentences. {¶8} In July of 2002, Bruce appeared before the trial court for re-sentencing. After hearing arguments from both sides and a statement from Bruce, the court re-imposed the original burglary sentence, count, to three run years imprisonment consecutively, total of nine years imprisonment. for an on each aggregate The court issued its journal entry imposing sentence and Bruce timely filed this appeal. She asserts the following assignments of error: "ASSIGNMENT OF ERROR NO. I - The trial court erred in sentencing Janet Bruce to three consecutive terms in prison thereby Fifth denying and her due Fourteenth Constitution Constitution. and process Amendments Article I, as provided to the Section [Citations omitted.] 16 for by United of the States the Ohio ASSIGNMENT OF ERROR NO. II - Janet Bruce was denied her constitutional right to effective assistance of counsel under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution when her attorney failed to object to the trial court's improper sentence. [Citations omitted.]" {¶9} R.C. 2953.08(A)(4) provides for an appeal if a sentence is contrary to law. If we find, by clear and convincing evidence, that the record does not support the sentence or that the sentence is contrary to law, we may increase, reduce, 2953.08(G)(1). modify or vacate the sentence. R.C. In this context, we do not substitute our judgment for that of the trial court nor do we simply defer to its discretion. State v. Keerps, Washington App. No. 02CA2, 2002-Ohio-4806. Rather, we will look to the record to determine whether the sentencing court: (1) considered the statutory factors; (2) made the required findings; (3) relied on substantial evidence in the record to support those findings; guidelines. App. No. and (4) properly applied the statutory See State v. Dunwoody (Aug. 5, 1998), Meigs 97CA11, citing Griffin & Katz, Ohio Felony Ohio must impose Sentencing Law (1998 Ed.), Section 9.16. {¶10} Generally, trial courts concurrent prison sentences. in R.C. 2929.41(A). However, a trial court may impose consecutive prison sentences under R.C. 2929.14(E)(4) when: "*** 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 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 postrelease control for a prior offense. (b) The harm caused by the multiple offenses was so great or unusual that no single prison term for any of the offenses committed as part of a single course 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 inquiry 2929.14(E)(4) is a tripartite procedure. Washington App. No. 00CA18, under R.C. State v. Haugh, 2001-Ohio-2426. First, the sentencing court must find that consecutive sentences are necessary to protect the public or to punish the offender ; second, the court must find that the consecutive sentences are not disproportionate to the seriousness of the offender s conduct and the danger she poses; and finally, the court must find the existence of one of the enumerated circumstances in R.C. 2929.14(E)(4)(a) through (c). Id. The verb finds, as used in R.C. 2929.14(E)(4), means that the court must note that it engaged in the analysis required by the statute. See State v. Edmonson (1999), 86 Ohio St.3d 324, 326, 1999-Ohio-110, 715 N.E.2d 131; State v. Brice (Mar. 29, 2000), Lawrence App. No. 99CA21. {¶11} Additionally, the court must comply with R.C. 2929.19(B)(2)(c) which requires that the sentencing court make a finding that gives its reasons for selecting the sentences imposed * * * if it imposes consecutive sentences under section 2929.14 of the Revised Code. The requirement that a court give its reasons for selecting consecutive sentences is separate and distinct from the duty to make the findings required by R.C. 2929.14(E)(4). Brice, supra. Thus, after a sentencing court has made the required findings under R.C. 2929.14(E)(4), it must then justify those supporting the findings by imposition identifying of specific consecutive reasons prison terms. Id.; see, also, State v. Blair (Dec. 27, 1999), Scioto App. Nos. 98CA2588 and 98CA2589. {¶12} In its sentencing entry of August 1, 2002, the court are specifically necessary in found this that: case (1) to consecutive protect the sentences public from future crime by this defendant and to punish the offender; (2) consecutive sentences are not disproportionate to the seriousness of the offender s conduct and are not disproportionate to the danger the offender poses to the public; and (3) the harm caused by the multiple offenses was so great or unusual that no single prison term for any of the offenses adequately reflects the seriousness of the offender s conduct and the three separate crimes represent a history of criminal conduct that demonstrates that consecutive sentences are necessary to protect the public from future crime by Bruce. Moreover, the court made these findings during the re-sentencing hearing. 20.) (Tr. at pp. 19- Therefore, we conclude that the court complied with R.C. 2929.14(E)(4). {¶13} However, Bruce argues that the court erred in failing to comply with the mandate of R.C. 2929.19(B) that requires the court to state the reasons for the findings it made under R.C. 2929.14. erred in failing to Bruce contends that the court explain its reasons as to why consecutive service is necessary to protect the public from future crime or to punish Bruce, and failed to state why the consecutive sentences imposed are not disproportionate to the seriousness of her conduct and to the danger she poses to the public. Apparently, Bruce does not dispute that the court stated its reasons for finding that the harm caused by Bruce's conduct was so great or unusual that no single prison adequately term for any of the reflects the seriousness offenses of the committed offender's conduct. {¶14} In its sentencing entry of August 1, 2002, after finding that all three prongs of R.C. 2929.14(E)(4) were present, the trial court stated that the harm in each case [of burglary committed by Bruce] was great, unusual, and unique, in that, {¶15} [1] as to Mr. Burton, he was attending his wife s funeral, and should be free from unwanted trespass at that special time of grieving, especially when his house was purposely left open so family and friends could bring their expressions of condolence at his time of grief; and, [2] as to the Spindlers, they were an elderly couple, living on fixed incomes, in need of the medication they had ordered in large quantities by mail, to save money, and in their advanced years they need to feel safe in their home, but instead were duped by the conduct of this defendant, and were deprived of needed medications by her conduct, and [3], as to the Perry home, innocent juveniles, left at home by their parents, were duped by this defendant and her cohort, the harm there being great because impressionable youngsters may now be suspicious of all persons, even those who are really in need of help, and/or the parents may now feel compelled to always take their children with them when they leave the home." {¶16} "The Court agrees with counsel for Defendant and disagrees with counsel for the State that it can consider all of the other conduct of Defendant in the other counts of the Indictment which were dismissed as part of a plea agreement, and the Court specifically does not consider those dismissed indictment counts in making its decision as to whether to impose the sentences consecutively. "The Court, however does consider that the three crimes to which distinct defendant crimes, entered committed guilty on pleas, different were days, separate, against different victims, and each presents the court with a unique set of facts creating great harm to the particular victim or victims, and, thus the three separate crimes do represent a history of criminal conduct that does demonstrate to this Court that consecutive sentences are necessary to protect the public from future crime by this offender." {¶17} A review of the transcript of the hearing reveals further reasons why the court believed the imposition of consecutive sentences was appropriate. While we continue to believe it is preferable for the sentencing entry to specifically address the reasons that support the court s finding under R.C. 2929.14(E)(4), if the reasons are discernable from the record, the court has complied with R.C. 2929.19(B)(2)(c).1 See State v. Blair (Dec. 27, 1999), Scioto App. Nos. 98CA2588 and 98CA2589. the court noted that Bruce had a At the hearing, pattern of drug and alcohol abuse, committed these crimes in order to obtain drugs, 1 caused psychological and economic harm to her Bruce argues that R.C. 2929.19(B) requires that the court state its reasons for imposing consecutive sentences at the sentencing hearing. However, in State v. Littlefield, Washington App. No. 02CA19, 2003Ohio-863, we specifically rejected this argument, holding that because a court speaks through its journal entry, we will not require a trial court that articulates its findings and reasons for consecutive sentences in the journal entry to do so at the sentencing hearing also. This issue is currently pending before the Supreme Court of Ohio in State v. Comer, Lucas App. No. L-99-1296, 2002-Ohio-233. See State v. Comer, 95 Ohio St.3d 1473, 2002-Ohio-2444, 768 N.E.2d 1182 (Table). victims, acted in concert with at least one other defendant, that the occupants of the homes Bruce entered were elderly people and children, that Bruce has some criminal history though not serious convictions, and that these burglaries had occurred on three separate dates. When considered in toto, we believe that the trial court's statements at the sentencing hearing and in its judgment entry sufficiently consecutive state sentences and, its reasons therefore, the for imposing court complied trial court s with R.C. 2929.19(B)(2)(c). {¶18} Next, Bruce argues that the imposition of consecutive sentences is not supported by the record and, consequently, this Court should modify Bruce s sentence to concurrent terms of imprisonment or vacate Bruce s sentence and order a new sentencing hearing. {¶19} As noted previously, our function in reviewing Bruce's sentence is not to substitute our judgment for that of the trial court, but rather to determine if there is substantial evidence in the record to support the trial court's imposition of consecutive sentences. Keerps, supra. In order to uphold the imposition of consecutive sentences here, the record must demonstrate that both of the first two prongs of R.C. 2929.14(E)(4) and one of the three criteria delineated in R.C. 2929.14(E)(a)-(c) are applicable. As to the third prong of R.C. 2929.14(E)(4), the trial court found both subsection (b) that the harm caused by the multiple offenses was so great or unusual that no single prison term adequately reflects the seriousness of the offender's conduct and subsection (c) that the offender's demonstrates that protect public apply the in the history consecutive from instant criminal sentences future case. of crime Our are by necessary the review conduct of offender the to record reveals that there is not sufficient support to justify the court's findings as to subsection (b) and that the court failed to consider certain relevant evidence as to subsection (c), the absence of which renders the court's findings as to that section unsupported.2 {¶20} Although the court found that the victims of Bruce's crimes suffered "great or unusual" harm pursuant to R.C. 2929.14(E)(4)(b), finding. the record does not support this Despite the court's statements in its sentencing entry that the Spindlers lived on fixed incomes, were in need of the medication that had been stolen, and were deprived of needed medication, there is no support for any of these findings in the record. court 2 surmised that these victims As to the Perrys, the suffered great harm Subsection (a) of R.C. 2929.14(E)(4) is clearly inapplicable and, because their children may now be suspicious of all persons and/or the parents may now feel compelled to always take their children with them when they leave home. The court did not specifically find that Mr. Burton suffered great harm but merely found that, given the fact that he was at his wife s funeral, he should be free from unwanted trespass. {¶21} While we cannot disagree that the three burglaries created the potential for great or unusual harm, there is simply no evidence in the record that great or unusual harm actually resulted from these burglaries. In his statement to the Washington County Victim s Advocate, Mr. Burton did not attempt to quantify the harm he suffered but simply stated, I leave it up to the Judge to give punishment that they deserve. restitution from the items stolen. I do not want any I do wish to get my cards back but I understand that they are long gone. are old enough they should know better. They Likewise, there is no indication that either the Perrys or the Spindlers suffered great or unusual harm and a victim statement was not submitted by either family. impact Therefore, we must conclude that the trial court erred in finding that R.C. 2929.14(E)(4)(b) is applicable in the instant action. therefore, we do not address this provision. {¶22} The trial court also found that Bruce's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by Bruce. for Bruce s prior criminal history included convictions only minor offenses failure to file income tax, contempt of court due to non-payment of a fine, no seat belt, expired registration registration, and littering failure which the to sentencing identified as not being serious convictions. 20.) Nonetheless, 2929.14(E)(4)(c) the trial applicable based transfer (Tr. at p. court solely court found R.C. the three on burglary convictions for which Bruce was being sentenced. {¶23} In reaching 2929.14(E)(4)(c) its applies to conclusion Bruce, the that R.C. trial court specifically declined to consider the twelve counts that were dismissed under Bruce's plea agreement with the State. In its "agrees sentencing with entry, counsel for the trial Defendant court and noted that disagrees it with counsel for the State that it can consider all of the other conduct of Defendant in the other counts of the Indictment which were dismissed as part of a plea agreement, and the Court specifically does not consider those dismissed indictment counts in making its decision as to whether to impose the sentences consecutively." (Journal Entry of Aug. 1, 2002 at p. 5.) The court's finding in this regard is erroneous. {¶24} R.C. 2929.14(E)(4)(c) "permits the court to consider the offender's total criminal history all of the crimes of conviction juvenile." Griffin and & all Katz, (2002 Ed.), Section 7.17. past Ohio offenses, Felony adult and Sentencing Law Additionally, alleged offenses dismissed pursuant to a plea agreement can be considered by the trial court when it imposes the sentence. State v. Williams, Montgomery App. No. 19026, 2002-Ohio-2908; State v. Carty, Cuyahoga App. No. 79213, 2002-Ohio-502. Therefore, the trial court could have properly considered not only the offenses for which Bruce was being sentenced, but also the twelve counts which were dismissed by the State in determining Bruce's "history of criminal conduct." {¶25} The focus of R.C. 2929.14(E)(4)(c) is not the seriousness of the offender's conduct an issue considered under R.C. 2929.14(E)(4)(a) and (b) - but the likelihood that the offender Griffin, supra. will crime. Katz & Id. {¶26} Considering pled future "It is the necessity of public protection from the offender." Bruce commit guilty, only as the the three trial burglaries court did, to we which cannot conclude that the record supports a finding that Bruce's criminal history recidivism sentences such demonstrates that the criminal necessary. abuser alcohol is whose a imposition Bruce addiction activity. strong However, is a likelihood of consecutive long-time caused drug to and engage her her despite of in many previous years of drug and alcohol abuse and the obvious fact that she was a addiction, danger there to is herself no throughout evidence turned to a life of crime. that this Bruce period of previously Nonetheless, the trial court apparently surmised that, based solely on the fact that she committed three burglaries within a short period of time, she is likely to offend again. We simply cannot conclude that there is substantial evidence in the record to support the court's finding that based on these three burglaries, two of which were the product of deceptions by Bruce rather than entries without permission, Bruce has a strong likelihood of recidivism. {¶27} Nonetheless, when these three burglaries are considered in conjunction with the other twelve counts of theft and burglary which were dismissed, it is possible that a different conclusion may be reached. While we recognize that it is within our authority as an appellate court to "increase, reduce, [or] modify" Bruce's sentence under R.C. 2953.08(G)(1), we conclude that the better practice is to allow the trial court to make sentencing decisions. Therefore, we remand this matter to the trial court for reconsideration as to whether the imposition of consecutive sentences standard of law. is appropriate under the correct Appellant's first assignment of error is sustained. {¶28} In her second assignment of error, Bruce alleges that her trial counsel was ineffective in that he failed to object to the imposition of an improper sentence. Our ruling as to Bruce s first assignment of error renders this issue moot argument. and, therefore, we will not address this App.R. 12(A)(1)(c). {¶29} Having sustained Bruce's first assignment of error, we reverse and remand this matter to the trial court for further proceedings consistent with this opinion. JUDGMENT REVERSED AND CAUSE REMANDED. JUDGMENT ENTRY It is ordered that the JUDGMENT BE REVERSED AND CAUSE REMANDED and that the Appellant recover of Appellee 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 Washington 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 Ohio Supreme Court 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 Ohio Supreme Court in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court 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. Exceptions. Abele, J. & Kline, J.: Concur in Judgment and Opinion. For the Court BY: _______________________ William H. Harsha, 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.

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