State v. Townsend, Unpublished Decision (6-24-2005)
State v. Townsend, Unpublished Decision (6-24-2005)
Opinion of the Court
{¶ 2} Appellant, Harvey Townsend, was convicted on August 31, 2001, of three counts of drug trafficking, violations of R.C.
{¶ 3} This court upheld appellant's convictions in State v. Townsend
(Apr. 12, 2002), 6th Dist. L-00-1290; however, we reversed the trial court's sentence and remanded for resentencing. In vacating appellant's sentence, we held that the trial court failed to make the necessary findings, pursuant to R.C.
{¶ 4} Upon remand, the trial court held an additional sentencing hearing and, on June 28, 2002, ordered appellant to serve a term of four years in prison, as to each count. The trafficking and possession convictions were ordered to be served concurrently to each other; whereas, the felonious assault conviction was to be served consecutively to the trafficking and possession convictions. As such, appellant was sentenced to a total of eight years in prison, four of which, the trial court held, was a mandatory term pursuant to R.C.
{¶ 5} In imposing a sentence greater than the minimum, in accordance with R.C.
{¶ 6} [would] demean the seriousness of the offender's conduct and [would] not adequately protect the public." Additionally, with respect to the imposition of consecutive sentences, the trial court found that such was "necessary to fulfill the purposes of R.C.
{¶ 7} Following resentencing, this court upheld the trial court's order in State v. Townsend, 6th Dist. No. L-02-1232, 2003-Ohio-2913. In affirming, we held that the trial court made the necessary findings, as required by R.C.
{¶ 8} Subsequent to this court's decision, the Ohio Supreme Court, allowing appellant's discretionary appeal, reversed and remanded the case to the trial court in accordance with State v. Comer,
{¶ 9} On May 14, 2004, the Lucas County Court of Common Pleas held a third sentencing hearing and ordered appellant to serve a term of three years in prison as to the three counts of drug trafficking and one count of possession and a term of four years as to the count of felonious assault. The trial court ordered the trafficking and possession convictions to be served concurrently as to each other, while the felonious assault conviction to be served consecutively to the trafficking and possession convictions.
{¶ 10} In imposing a sentence greater than the minimum the trial court found, pursuant to Comer and R.C.
{¶ 11} Appellant timely appealed his sentence and sets forth the following assignments of error:
{¶ 12} "I. The record does not contain facts or evidence to support not sentencing appellant to the shortest term as to Count 6 (felonious assault)."
{¶ 13} "II. The lower court failed to give the required notice and adequate reasons prior to imposing consecutive sentences."
{¶ 14} In his first assignment of error, appellant asserts that the record does not contain facts or evidence to support not sentencing appellant to the shortest possible term. Appellant was sentenced to four years imprisonment for felonious assault, a first-degree felony. R.C.
{¶ 15} Pursuant to State v. Comer, supra, when imposing sentence, a trial court must first consider the factors set forth in R.C.
{¶ 16} Additionally, R.C.
{¶ 17} 1) The offender was serving a prison term at the time of the offense, or the offender previously had served a prison term.
{¶ 18} 2) The court finds on the record that the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public from future crime by the offender or others.
{¶ 19} The Supreme Court of Ohio held that, "pursuant to R.C.
{¶ 20} In this case, as set forth above, the trial court stated at the sentencing hearing that it considered the principles and purposes of sentencing and balanced them against the seriousness and recidivism factors. Thereafter, the court found, both on the record and in its sentencing judgment entry, pursuant to R.C.
{¶ 21} Upon consideration of the foregoing, we find the trial court did not err by sentencing appellant to more than the minimum allowable term for the offense. Appellant's first assignment of error is not well-taken.
{¶ 22} In his second assignment of error appellant contends that the trial court failed to make the necessary findings when imposing consecutive sentences. The state concedes this matter, setting forth in its notice of intention not to file a response brief that "the trial court did not expressly find that its imposition of consecutive sentences was `necessary to protect the public from future crime or to punish the offender'" as necessitated by Comer, supra.
{¶ 23} Because strict technical compliance with R.C.
{¶ 24} R.C.
{¶ 25} Accordingly, we find appellant's second assignment of error well-taken. Upon consideration whereof, the judgment of the Lucas County Court of Common Pleas is affirmed, in part, and reversed, in part. This matter is remanded to said court for resentencing in conformity with this decision. Appellee is ordered to pay the costs of this appeal for which sum judgment is rendered against appellee on behalf of Lucas County, and for which execution is awarded. See App.R. 24.
Judgment affirmed in part and reversed in part.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4, amended 1/1/98.
Handwork, J., Pietrykowski, J., Singer, P.J. concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.