State v. Accord, Unpublished Decision (3-8-2004)
State v. Accord, Unpublished Decision (3-8-2004)
Opinion of the Court
{¶ 2} On May 14, 2003, Acord was indicted by the grand jury of Wyandot County. The indictment contained four counts: two counts of tampering with coin machines in violation of R.C.
{¶ 3} Acord initially pled not guilty to all four counts but later entered into a plea agreement with the State of Ohio. Pursuant to this agreement, Acord changed his pleas of not guilty to guilty as to the counts of tampering with coin machines. In exchange, the State dismissed the two counts of possessing criminal tools. In addition, the State agreed to stand silent as to sentencing but would recommend that Acord be ordered to make restitution to the victims. A pre-sentence investigation report ("PSI") was ordered, and upon completion, a sentencing hearing was held. At the conclusion of the hearing, the trial court sentenced Acord to nine months of imprisonment on each count to be served consecutively to one another. This appeal followed, and Acord now asserts two assignments of error.
The trial court erred in sentencing Appellant to consecutiveprison terms. Appellant's sentence was contrary to law.
As these assignments of error are interrelated, they will be discussed together.
{¶ 4} Initially, this Court notes that in reviewing the sentencing decision of a trial court, an appellate court must "review the factual findings of the trial court under R.C.
{¶ 5} In determining what sentence to impose upon a defendant, a trial court is "granted broad discretion in determining the most effective way to uphold" the two overriding purposes of felony sentencing: "to protect the public from future crime and to punish the offender." State v. Avery (1998),
{¶ 6} When sentencing an offender for a fifth degree felony, as were charged in this case, the Revised Code requires the court to determine whether certain factors regarding the seriousness of the offense apply. R.C.
{¶ 7} In the case sub judice, the trial court found that two of the enumerated factors in R.C.
{¶ 8} The trial court also considered the seriousness and recidivism factors enumerated in R.C.
{¶ 9} In addition, the court noted that Acord failed to cooperate with the Adult Parole Authority in the preparation of the PSI, despite being warned by the court that he was to cooperate, and that he failed to conform his behavior to what was "expected or court ordered." The court further noted that with his cases in Indiana, Acord failed to appear in court, violated his supervision, absconded from that supervision, and currently had a warrant for a violation of his probation in Indiana. Thus, the trial court found that a prison term was consistent with the purposes and principles of sentencing of protecting the public from future harm and punishing the offender and that Acord was not amenable to community control sanctions.
{¶ 10} Given the reasons and findings of the trial court, which were supported by the record and undisputed by Acord, the trial court was required to impose a prison term on him and did not err in so doing. See R.C.
{¶ 11} Acord further contends that the trial court erred in imposing consecutive sentences upon him. The Revised Code permits a trial court to order that multiple prison terms for convictions of multiple offenses be served consecutively. R.C.
{¶ 12} Our review of the sentencing hearing reveals that although the trial court made all of the requisite findings to impose consecutive sentences, not all of these findings were supported by the record nor were all the reasons for these findings. The trial court found that consecutive service was necessary to protect the public from future crime as evidenced by Acord's high likelihood of recidivism. Based upon this same rationale, the court found that Acord's history of criminal conduct demonstrated that consecutive sentences were necessary to protect the public from future crime by him in accordance with R.C.
{¶ 13} However, the court's determination that consecutive sentences were not disproportionate to the seriousness of Acord's conduct and to the danger he posed to the public was not supported by the record. We first note that the trial court did not provide its reasons in support of this finding or otherwise provide any type of explanation for this determination as required. See Comer,
{¶ 14} Acord used an item that appeared to be a metal bar to pry open two drink machines. The limited evidence in the record disclosed that the machines remained functional with the exception of some scratches and that Acord took a total ofapproximately $52, an amount not quite clear from the record. Moreover, he committed these crimes at night with no one present, so no physical harm came to any person, and these offenses were committed against businesses with which Acord was not affiliated in any way. In short, by ordering these terms to be served consecutively, the court imposed eighteen months of imprisonment for breaking into two drink machines for small sums of money.
{¶ 15} The Ohio Supreme Court has stated that "[c]onsecutive sentences are reserved for the worst offenses and offenders." Id. at ¶ 21, citing State v. Boland (2002),
[w]hile consecutive sentences are permissible under the law, a trial court must clearly align each rationale with the specific finding to support its decision to impose consecutive sentences. These findings and reasons must be articulated by the trial court so an appellate court can conduct a meaningful review of the sentencing decision.
Comer, at ¶ 21 (citation omitted).
{¶ 16} Although we do not condone such criminal behavior on the part of Acord, the record and findings of the trial court in this case do not warrant a determination that consecutive sentences were proportionate to the seriousness of Acord's conduct, especially in light of the trial court's failure to articulate its reasons to support such a finding. Thus, the trial court erred in ordering that the sentences be served consecutive to one another. Accordingly, the assignments of error are sustained in regards to the consecutive nature of the sentences but overruled as to the imposition of a prison term.
{¶ 17} For these reasons, the judgment of the Common Pleas Court is affirmed in part, reversed in part, and the cause remanded for further proceedings in accordance with this opinion.
Judgment affirmed in part, reversed in part and cause remanded.
Cupp and Bryant, JJ., concur.
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