State v. Scott, Unpublished Decision (5-9-2002)
State v. Scott, Unpublished Decision (5-9-2002)
Opinion of the Court
OPINION
Defendant, Thomas B. Scott, appeals from a judgment of the Franklin County Court of Common Pleas sentencing him to consecutive sentences on his multiple convictions for burglary.During a two-week period in November 2000, defendant burglarized five homes in Reynoldsburg, Ohio, to support his drug addiction. Four of the five burglaries occurred at night, while the victims, including children, were at home. Some of the property stolen from the victims' homes was discovered in defendant's residence. Prior to the commission of these crimes, defendant had compiled a lengthy criminal history, including burglary, theft, carrying a concealed weapon, resisting arrest, and assault.
In December 2000, defendant was indicted on five counts of burglary in violation of R.C.
[1.] An accused's due process rights are violated under Section
10 , ArticleI of the Ohio Constitution and theFifth andFourteenth Amendments to the United States Constitution, when the trial court abuses its discretion in giving Appellant consecutive sentences without properly considering the factors set forth in Ohio Revised Code §§2929.12 and2929.14 .[2.] The trial court committed reversible error by sentencing Appellant to consecutive sentences in violation of R.C. §
2953.08 (C).
Both of defendant's assignments of error present challenges to the trial court's imposition of consecutive sentences. In his first assignment of error, defendant contends that the trial court failed to give proper consideration to the sentencing factors set forth in R.C.
We note initially that a trial court has broad discretion when sentencing within the statutory limits provided. State v. Haines (1998), Franklin App. No. 98AP-195. A reviewing court may not disturb a sentence imposed by a trial court unless it finds by clear and convincing evidence that the sentence is not supported by the record or is contrary to law. Id.
Pursuant to R.C.
(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 , or2929.18 of the Revised Code, or was under post-release 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.
Further, when a trial court imposes consecutive sentences under R.C.
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.
In the instant case, the trial court's judgment entry contains only the formulaic recitation that the trial court considered the purposes and principles of sentencing set forth in R.C.
The transcript of the sentencing hearing also fails to demonstrate that the trial court made the statutorily required findings for imposing consecutive sentences. At the sentencing hearing, the trial court stated on the record:
* * * Under the seriousness factors I have to weigh * * * I'm finding that the victims suffered economic harm. Under the any other factors category * * * the legislature changed the crime of burglary years ago to do away with burglary in the night season, but nevertheless, it is one of those things that invades the psyche a little bit. It makes people feel more vulnerable as a result of the invasion into their home. And it is no less real to the victim, it seems to me, that they don't know why you are there. They don't have any idea why you are in their home. All they know is that somebody has broken into their home. * * *
Under the seriousness factors, I'm placing the most weight on the more serious category.
With respect to recidivism, you were on parole at the time you committed these offenses. You've got prior adjudications. You have been to the joint previously.
As a result of committing these new acts, you failed to respond favorably to parole, as you admittedly have committed these crimes as a result of your drug and alcohol addiction. You appear today to be genuinely remorseful. I'm placing the most weight on the likely to re-offend category.
* * *
* * * Under [R.C.] 2929.14(E)(3), the court is going to run [the sentences] consecutive to each other. I'm finding your criminal history shows that consecutive terms are needed to protect the public. That the crimes were committed while you were under parole. [June 14, 2001 Tr. at 30-31.]
As evidenced by the foregoing, the trial court, in imposing consecutive sentences, expressly found under the unlettered provisions of R.C.
Because the trial court did not make the requisite findings under the unlettered provisions of R.C.
Defendant contends in his second assignment of error that the imposition of consecutive sentences was improper under R.C.
R.C.
2953.08 (C) gives a defendant a right to appeal consecutive sentences if he was sentenced under R.C.2929.14 (E)(3) or (4), and if the total consecutive sentence exceeds the maximum prison term allowed under R.C.2929.14 (A). However, this basis or condition of appeal, which is designed to limit the number of appeals which can be brought under R.C.2953.08 (C), does not in itself provide a ground for appeal. (Citation omitted.)
* * *
* * * [T]he right to appeal a sentence under R.C.
2953.08 (C) does not mean that consecutive sentences for multiple convictions may not exceed the maximum sentence allowed for the most serious conviction. To so construe the statute would demean the sentencing process to the point that it would permit one person to receive a maximum sentence for committing one felony while allowing another person to receive only the same maximum sentence for committing one hundred similar felonies. While the right to appeal may be granted if the conditions of R.C.2953.08 (C) are met, such right to appeal does not limit the court's ability to impose consecutive sentences.R.C.
2929.14 (E)(5) states that when "consecutive prison terms are imposed pursuant to division (E)(1), (2), (3) or (4) of this section, the term to be served is the aggregate of all the terms so imposed." The statutory authority to impose consecutive sentences "does not in any way restrict or limit the aggregate term of incarceration that a trial court can impose." R.C.2953.08 (C) provides "no basis to limit the aggregate term of consecutively-imposed criminal sentences. [Id., citing State v. Albert (1997), Cuyahoga App. No. 72677.]
Thus, we find no merit in defendant's contention that the trial court violated R.C.
For the foregoing reasons, defendant's first assignment of error is sustained and the second assignment of error is moot. Accordingly, the judgment of the Franklin County Court of Common Pleas is reversed, and this cause is remanded for resentencing in accordance with law and consistent with this opinion.
Judgment reversed and cause remanded.
BRYANT and LAZARUS, JJ., concur.
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