[Cite as State v. Fauntleroy,

.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. Julie A. Edwards, J. : -vs- : : Case No. CT2012-0001 WAYNE FAUNTLEROY : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Muskingum County Court of Common Pleas, Case No. CR2011-0002

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: October 24, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RONALD L. WELCH ROBERT D. ESSEX Assistant Prosecuting Attorney 604 East Rich Street 27 North Fifth Street Columbus, OH 43215 Zanesville, OH 43701 [Cite as State v. Fauntleroy,

.]

Gwin, P.J.

{¶1} Defendant-appellant Wayne Fauntleroy [“Fauntleroy”] appeals his

sentence entered by the Muskingum County Court of Common Pleas. Plaintiff-appellee

is the State of Ohio.

PROCEDURAL HISTORY

{¶2} Fauntleroy was indicted on one count of burglary in violation of R.C.

2911.12(A)(2), a felony of the third degree; one count of theft of firearms, in violation of

R.C. 2913.02(A)(1), a felony of the fourth degree; one count of theft, a felony of the fifth

degree; one count of receiving stolen property, a felony of the fourth degree; and one

count of having weapons under disability, a felony of the third degree. On October 31,

2011, Fauntleroy entered a plea of guilty to the burglary, one of the theft counts and

receiving stolen property charges. The prosecutor agreed at the time of the plea the

burglary and theft counts should merge.

{¶3} On December 5, 2011, a sentencing hearing was held. The trial court

sentenced Fauntleroy to thirty-six months on the burglary count and eighteen months

on the receiving stolen property count, ordering the terms to run consecutively for a

total term of fifty-four months. Fauntleroy now appeals, assigning as error:

{¶4} “I. PURSUANT TO OHIO REVISED CODE 2953.08, THE TRIAL

COURT’S SENTENCE WAS CLEARLY AND CONVINCINGLY CONTRARY TO LAW,

WAS AN ABUSE OF DISCRETION, AND VIOLATED THE PROPORTIONALITY

REQUIREMENT OF OHIO SENTENCING LAWS.” Muskingum County, Case No. CT2012-0001 3

ANALYSIS

{¶5} 2011 Am.Sub.H.B. No. 86, which became effective on September 30,

2011, revived the language provided in former R.C. 2929.14(E) and moved it to R.C.

2929.14(C)(4). The revisions to the felony sentencing statutes under 2011

Am.Sub.H.B. No. 86 now require a trial court to make specific findings when imposing

consecutive sentences. R.C. 2929.14(C)(4) provides, in relevant part:

(4) If multiple prison terms are imposed on an offender for

convictions of multiple offenses the court may require the offender to

serve the prison terms consecutively if 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 one or more of 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 post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of

one or more courses of conduct, and the harm caused by two or more of

the multiple offenses so committed was so great or unusual that no single

prison term for any of the offenses committed as part of any of the courses

of conduct adequately reflects the seriousness of the offender's conduct. Muskingum County, Case No. CT2012-0001 4

(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future

crime by the offender.

(Emphasis added). In Section 11, the legislature explained that in amending former R.C.

2929.14(E)(4), it intended “to simultaneously repeal and revive the amended language

in those divisions that was invalidated and severed by the Ohio Supreme Court's

decision in State v. Foster (2006),

.” The General Assembly further

explained that the amended language in those divisions “is subject to reenactment

under the United States Supreme Court's decision in Oregon v. Ice (2009),

, and the Ohio Supreme Court's decision in State v. Hodge (2010), ––– Ohio St.3d –

–––, Slip Opinion No.2010–Ohio–6320.” Thus, it is the legislature's intent that courts

interpret the language in R.C. 2929.14(C)(4) in the same manner as the courts did prior

to State v. Foster,

, 2006–Ohio–856,

.

{¶6} The First District Court of Appeals has observed,

The consecutive-sentence findings required by R.C. 2929.14(C) are

not the same as those required by former R.C. 2929.19(B)(2), which

provided that the trial court “shall impose a sentence and shall make a

finding that gives its reasons for selecting the sentence * * * (c) If it

imposes consecutive sentences .” (Emphasis added.) See State v. Comer,

, 2003–Ohio–4165,

, ¶ 14–16. In 2003,

the Ohio Supreme Court held that the requirement that a trial court give its

reasons for selecting consecutive sentences was “separate and distinct

from the duty to make the findings,” and it imposed an obligation on trial Muskingum County, Case No. CT2012-0001 5

courts to articulate the reasons supporting their findings at the sentencing

hearing.

at ¶ 19–20,

. The trial court's obligation to “give

its reasons” is now gone from the sentencing statutes. Gone with it, we

hold, is the requirement that the trial court articulate and justify its findings

at the sentencing hearing. A trial court is free to do so, of course. But

where, as here, there is no statutory requirement that the trial court

articulate its reasons, it does not commit reversible error if it fails to do so,

as long as it has made the required findings. See Phillips, 1st Dist. No. C–

960898,

,

.

State v. Alexander, 1st Dist. Nos. C-110828, C-110829,

. Accord,

State v. Frasca, 11th Dist. 2011-T-0108,

, ¶ 57.

{¶7} The trial court is not required to recite any “magic” or “talismanic” words

when imposing consecutive sentences provided it is “clear from the record that the trial

court engaged in the appropriate analysis.” State v. Murrin, 8th Dist. No. 83714, 2004–

Ohio–3962, ¶ 12. Accord, State v. Jones, 1st Dist. No. C-110603,

; An appellate court may only sustain an assignment of error challenging the

imposition of consecutive sentences under R.C. 2929.14 if the appellant shows that the

judgment was clearly and convincingly contrary to law. R.C. 2953.08(G).

{¶8} In the case at bar, the trial court found that in 2000, Fauntleroy was

convicted of committing 16 burglaries, nine counts of theft of firearms and 12 counts of

felony theft for which he was sentenced to prison for seven years. (Sent. T. at 12-13).

Fauntleroy was again convicted of breaking and entering in 2009 for which he was

sentenced to one year in prison. (Id. at 13). Fauntleroy was 19 years old when he was Muskingum County, Case No. CT2012-0001 6

first sentenced to prison in 2000. (Id. at 14). He was last released from prison in

September 2010. (Id. at 14). The trial court recognized that at age 32, Fauntleroy was

still committing burglaries. (Id. at 15). The trial court found that Fauntleroy served

seven years in prison and upon release went right back to burglarizing homes. (Id. at

15-16). The trial court remarked,

You know, there’s one thing that being a citizen and an American

provides us, and that’s the right to own property and have a sanctuary in

our home. It’s off limits to everyone that we don’t want there. Our homes

are off limits, and you abused that, right?

***

On numerous occasions. That’s our sanctuary is our home. Off

limits. We want to feel safe, secure, exclude everyone in the world out of

our home if we want to.

Sent. T. at 16.

{¶9} Such findings have been found sufficient to satisfy the factual findings

requirement under R.C. 2929.19(C)(4). State v.

2012–Ohio–2075 ¶ 23

(where the trial court stated during the sentencing hearing that it was ordering the

prison terms to be served consecutively because the defendant had an extensive

criminal history and the victims had been seriously injured, these statements were

sufficient to show that the trial court's imposition of consecutive sentences was

appropriate and complied with R.C. 2929 .14(C)(4)); State v. Johnson, 8th Dist. No.

97579, 2012–Ohio–2508 ¶ 12 (when the court made findings related to the appellant's

specific conduct in the case and his repeated engagement in criminal activity, it Muskingum County, Case No. CT2012-0001 7

properly found that the sentence was not disproportionate to his conduct and threat he

posed to society).

{¶10} Although the trial court in the present matter may not have used the exact

wording of the statute in reaching the findings to support the imposition of consecutive

sentences, courts have found that, in making findings regarding consecutive

sentencing, “a verbatim recitation of the statutory language is not required by the trial

court.” State v. Green, 11th Dist. No. 2003–A–0089, 2005–Ohio–3268 ¶ 26, citing State

v. Grissom, 11th Dist. No. 2001–L–107, 2002–Ohio–5154 ¶ 21. State v. Frasca, supra,

, ¶ 60.

{¶11} We find that the record adequately reflect consecutive sentences were

necessary to protect the public and to punish Fauntleroy, and that they were not

disproportionate to the seriousness of his conduct and the danger he posed to the

public. In addition, Fauntleroy’s history of criminal conduct demonstrated that

consecutive sentences were necessary to protect the public from future crime.

{¶12} We overrule Fauntleroy’s sole assignment of error. Muskingum County, Case No. CT2012-0001 8

{¶13} For the reasons set forth above, Fauntleroy’s the judgment of the

Muskingum County Court of Common Pleas is affirmed.

By Gwin, P.J., and

Edwards, J., concur;

Hoffman, J., dissents

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. WILLIAM B. HOFFMAN

_________________________________ HON. JULIE A. EDWARDS

WSG:clw 1002 Muskingum County, Case No. CT2012-0001 9

Hoffman, J., dissenting

{¶14} I respectfully dissent from the majority opinion. H.B. 86 revised the

statutory language to require the trial court to make certain statutorily enumerated

findings prior to imposing consecutive sentences. I find the record does not

demonstrate the trial court made those findings herein. The majority cites the facts of

the case and the trial court's remarks "our homes are off limits" and "our sanctuary is

our home" as sufficient “findings”. I disagree, and would remand the matter to the trial

court for the limited purpose of resentencing in accordance with the law as revised by

H.B. 86.

________________________________ HON. WILLIAM B. HOFFMAN [Cite as State v. Fauntleroy,

.]

IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : WAYNE FAUNTLEROY : : : Defendant-Appellant : CASE NO. CT2011-0001

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Muskingum County Court of Common Pleas is affirmed.

Costs to appellant.

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. WILLIAM B. HOFFMAN

_________________________________ HON. JULIE A. EDWARDS