Opinion
CASE NO. 15 BE 0066 CASE NO. 15 BE 0067
12-30-2016
STATE OF OHIO, PLAINTIFF-APPELLEE, v. CHRISTOPHER DANIEL WALISIAK, DEFENDANT-APPELLANT.
APPEARANCES: For Plaintiff-Appellee: Atty. Helen Yonak Assistant Prosecutor Belmont County Prosecutor's Office 147-A West Main Street St. Clairsville, Ohio 43950 For Defendant-Appellant: Atty. Dennis McNamara McNamara Law Office 88 East Broad Street, Suite 1350 Columbus, Ohio 43215
OPINION CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common Pleas of Belmont County, Ohio Case No. 14-CR-123 JUDGMENT: Reversed and Remanded. APPEARANCES: For Plaintiff-Appellee: Atty. Helen Yonak
Assistant Prosecutor
Belmont County Prosecutor's Office
147-A West Main Street
St. Clairsville, Ohio 43950 For Defendant-Appellant: Atty. Dennis McNamara
McNamara Law Office
88 East Broad Street, Suite 1350
Columbus, Ohio 43215 JUDGES: Hon. Carol Ann Robb
Hon. Gene Donofrio
Hon. Cheryl L. Waite ROBB, J.
{¶1} Defendant-Appellant Christopher Walisiak appeals the sentence entered by the Belmont County Common Pleas Court. He contends the sentencing court was not permitted to consider his violations of the terms of intervention in lieu of conviction. This argument lacks merit. Appellant also argues the court failed to make the second statutory finding required in order to impose consecutive sentences under R.C. 2929.14(C)(4). As this court is unable to discern whether the trial court evaluated the second statutory factor, remand for resentencing is required. Upon such remand, the trial court should be advised of two clerical errors outlined below.
STATEMENT OF THE CASE
{¶2} Appellant was indicted for theft of a dangerous drug, resulting in case number 14CR27. This theft of seven hydrocodone pills was a fourth degree felony. See R.C. 2913.02(B)(6). While out on bond, he tested positive for drugs. He also committed new offenses. A bill of information was filed in 14CR123, charging Appellant with uttering or possessing with intent to utter a forged writing (four checks) in violation of R.C. 2913.31(A)(3); forgery (of a court docket) in violation of R.C. 2913.31(A)(2); and prohibited acts involving certificates of a motor vehicle title in violation of R.C. 4505.19(A)(3). These three offenses were felonies of the fifth degree.
{¶3} On July 21, 2014, Appellant pled guilty as charged in both cases, and the court granted his motion for intervention in lieu of conviction under R.C. 2951.041. Appellant acknowledged he would be released under the control and supervision of the probation department as if he were on community control. During intervention status checks, Appellant was found to be non-compliant with drug screens and sanctioned as follows: twenty-five hours of community service in October 2014; ten days in jail in December 2014; fifteen days in jail in January 2015; and jail in February 2015 transferring to Eastern Ohio Correction Center ("EOCC") in March 2015. He was also non-compliant by committing a misdemeanor offense.
{¶4} Appellant was released from EOCC in July 2015. In August 2015, Appellant was again found to be non-compliant with the terms of his intervention; he self-terminated from the intervention program, and the case was set for sentencing. (Sep. 2, 2015 J.E.) At sentencing, defense counsel and Appellant both pointed out Appellant was not successful in completing the drug court program but urged he benefitted from the experience. (Tr. 2-3.) It was agreed that Appellant was "his own worst enemy." (Tr. 6.) Counsel noted he was not asking for community control but was arguing against consecutive sentences, expressing twelve months should be sufficient to "get his attention." (Tr. 3, 6.)
{¶5} In 14CR27, the court imposed a maximum sentence of eighteen months in prison for the theft offense to run consecutive to the sentence in 14CR123. In the latter case, the court sentenced Appellant to the maximum of twelve months in prison on each of the three offenses to run concurrent to each other. Appellant filed a timely appeal in each criminal case, and the cases were consolidated on appeal. He sets forth the following assignment of error:
"THE TRIAL COURT ERRED WHEN IT IMPOSED SENTENCES OF TWELVE AND EIGHTEEN MONTHS AND ORDERED THOSE SENTENCES TO BE SERVED CONSECUTIVELY."
{¶6} An appellate court can only modify or vacate a felony sentence if it determines by clear and convincing evidence that the record does not support the trial court's findings under the relevant statutes or the sentence is otherwise contrary to law. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1 (the standard is not abuse of discretion), applying R.C. 2953.08(G)(2). This is the standard applied to a challenge to consecutive sentences under R.C. 2929.14(C)(4) or under the sentencing statutes of R.C. 2929.11 and 2929.12. Id. at ¶ 22-23.
{¶7} Appellant presents two distinct issues under this assignment of error. We shall divide our analysis accordingly.
NON-COMPLIANCE WITH TERMS OF DRUG COURT
{¶8} The first issue presented by Appellant asks:
"Does a trial court act contrary to law when subsequent to determining a defendant violated the terms of his intervention, the court considers the facts surrounding that violation in determining the appropriate sentence?"
{¶9} The court's sentencing entry recited Appellant voluntarily terminated from the program for intervention in lieu of conviction due to numerous substance abuse violations and being charged with a new misdemeanor. In discussing the factors in R.C. 2929.12, the court's entry listed Appellant's history of criminal convictions, found he had not responded to sanctions previously imposed, said he had an established pattern of criminal and drug abuse activity without "good faith" treatment efforts or an effort to change his lifestyle, and concluded the population was endangered by his conduct.
{¶10} Appellant believes the court's oral statements at the sentencing hearing improperly emphasized his failure to comply with the terms of intervention, citing pages four through six of the sentencing transcript. Within those pages, the trial court pointed to the efforts made to help Appellant, noting the progressive punishments imposed for his failures to comply with the terms of intervention. (Tr. 4-5). The court explained the function of the sentence would be not only for punishment and protection of the public but also to protect the individual defendant and provide him with a "wake up" call. (Tr. 4). The court said Appellant had a serious issue in his life that needed to be figured out. (Tr. 5-6). Appellant concludes the court was prohibited from considering Appellant's behavior pending sentence because this behavior occurred while he was in the drug court program attempting intervention in lieu of conviction.
{¶11} Appellant cites no cases on point. Instead, he believes the situation is analogous to a remand for resentencing where events occurring after the initial sentence are not relevant, relying on State v. Davis, 63 Ohio St.3d 44, 584 N.E.2d 1192 (1992) and State v. Chinn, 85 Ohio St.3d 548, 709 N.E.2d 1166 (1999). In Davis, the Supreme Court held a death sentence need not be vacated where the resentencing court excluded mitigation evidence on post-trial matters. Davis, 63 Ohio St.3d at 46. In Chinn, the Supreme Court rejected a capital defendant's argument that he had the right to present new mitigating evidence at his resentencing hearing. Chinn, 85 Ohio St.3d at 564 (involving evidence the defendant could have presented at the original mitigation hearing, noting Davis involved post-trial accomplishments).
{¶12} Cases involving what a trial court was required to consider on remand for resentencing are not analogous to a case involving what a court may consider in originally sentencing a defendant. Most notably, the occurrences Appellant believes the trial court emphasized happened prior to sentencing. Behavior occurring pending sentencing is a well-established sentencing consideration.
{¶13} The fact pre-sentence behavior occurred during an attempted intervention in lieu of conviction does not make it unavailable for consideration during sentencing. See, e.g., State v. Burke, 3d Dist. No. 14-13-09, 2013-Ohio-4318, ¶ 12 ("The record also demonstrates that Burke * * * has not actively participated in addressing his addiction issues despite being given intervention in lieu of conviction."); State v. Coffee, 2d Dist. No. 19258, 2002-Ohio-6077, ¶ 10 ("The court further concluded that, if Coffee was unable to abide by the terms of intervention, he would also be unable to abide by the law."). See also State v. Kelley, 5th Dist. No. 13 CAA 04 0028, 2014-Ohio-464, ¶ 41 (citing to repeated violations of the terms of intervention in lieu of conviction).
{¶14} One of the recidivism factors for a sentencing court to consider is: "The offender has demonstrated a pattern of drug or alcohol abuse that is related to the offense, and the offender refuses to acknowledge that the offender has demonstrated that pattern, or the offender refuses treatment for the drug or alcohol abuse." R.C. 2929.12(D)(4). This express statutory factor contains no exception where this factor becomes apparent during an attempted intervention. Another consideration is whether the offense was committed under circumstances not likely to recur. R.C. 2929.12(E)(4). If the crimes at issue were committed as a result of drug dependence and a person's drug behavior continues, then engaging in yet another crime due to drug dependence is more likely to recur. These matters are also relevant to certain consecutive sentence findings such as protection of the public and danger posed to the public which is involved in appellant's next discussion as to whether the consecutive sentence findings were sufficiently made.
{¶15} This court concludes a sentence is not clearly and convincingly contrary to law merely because the trial court mentions non-compliance with (and progressive sanctions imposed during) intervention in lieu of conviction during the sentencing hearing on the offenses for which the intervention failed.
ORAL CONSECUTIVE SENTENCING FINDINGS
{¶16} The second issue presented by Appellant queries:
"Does a trial court act contrary to law when it imposes consecutive sentences without making all of the required statutory findings pursuant to R.C. 2929.14(C)?"
{¶17} In most cases, sentences are to be served concurrently unless the court imposes them consecutively under R.C. 2929.14(C). R.C. 2929.41(A). Pursuant to R.C. 2929.14(C)(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 [1] that the consecutive service is necessary to protect the public from future crime or to punish the offender and [2] 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 [3] 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.
(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.R.C. 2929.14(C)(4) (bracketed numbers added to the three findings to correspond to Appellant's argument).
{¶18} These consecutive sentencing findings must be made in open court at the sentencing hearing and in the sentencing entry. State v. Bonnell, 140 Ohio St.3d 209, 16 N.E.3d 659, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 29, 37. The court need not provide reasons in support of the required findings. Id. at syllabus.
{¶19} Appellant takes issue with the sufficiency of the trial court's oral findings made at the sentencing hearing. He does not contest the sentencing entry. Appellant concludes the trial court's oral pronouncements did not encompass the second required finding: "that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public." See R.C. 2929.14(C)(4). He does not take issue with the court's pronouncements as to the first and third consecutive sentence findings.
{¶20} We review the trial court's pronouncements at the sentencing hearing to evaluate whether we can "glean from the record that the trial court found consecutive sentences were not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public." Bonnell, 140 Ohio St.3d 209 at ¶ 36. "As long as the reviewing court can discern that the trial court engaged in the correct analysis" the case should not be remanded for insufficient findings. Id. at ¶ 29. "[W]e may liberally review the entirety of the sentencing transcript to discern the findings." State v. Elmore, 7th Dist. No. 14 JE 0021, 2016-Ohio-890, ¶ 51. Thus, we are not constrained to only page 8 of the transcript as suggested by Appellant's brief.
{¶21} In responding to defense counsel's argument that consecutive sentences were not necessary, the court said "everything humanly possible" was tried for Appellant, noting the progressive sanctions imposed for violating the terms of intervention. The court referred to the goal of punishment and protection, including the protection of Appellant from himself. The court mentioned prison as a way of "slapping you in the face; waking you up * * *." It was said Appellant was his own worst enemy. (Tr. 4).
{¶22} The court opined Appellant thought he knew more than everyone else and had a handle on everything. (Tr. 4-5). The court agreed the counts in the forgery case would run concurrent but said the theft case was a separate matter. The court expressed that concurrent sentences would not "adequately reflect the seriousness. I think we have a very serious issue here; * * * This is his life. And it hasn't yet sunk in, for whatever reason, and I can't figure it out." The court noted a psychiatric examination had previously been ordered because the court believed Appellant had more than a drug issue. The court was "positive" Appellant would commit a crime within the week if he were released "because something ain't clicking." (Tr. 5).
{¶23} Defense counsel said a twelve-month prison term would get Appellant's attention just as well as a sixteen-month prison term would get his attention. (Tr. 6-7). The court responded: "But if it's not going to be had, then I want him put away as long as possible to protect the public from him and to protect him from him." The court then noted its review of the sentencing criteria in R.C. 2929.11 and 2929.12, the file, and the pre-sentence investigation. The court recited Appellant's prior criminal history. (Tr. 7). After imposing sentence, the court pronounced:
I believe the harm is so great and unusual, a single term does not adequately reflect the seriousness of the conduct. The conduct over this period of time has been incredible. The offender's criminal history shows that consecutive terms are needed to protect the public. This Court is absolutely convinced that when he gets out, unless it's resolved, the public is in jeopardy regarding this individual.(Tr. 8). It was reiterated that Appellant had been warned this was where he was heading. (Tr. 10). After adding an order for drug and psychiatric treatment while in prison, the court repeated its belief Appellant had more than a drug problem. The court concluded by saying "letting him out of prison and now or whatever is not going to help him; it's probably going to hurt him." (Tr. 12).
{¶24} As to the contested statutory finding, the trial court did not explicitly state on the record: "consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public." See R.C. 2929.14(C)(4). The court made reference to seriousness and protection of the public. Nevertheless, protection of the public is relevant to the first and one of the third findings as well, and seriousness is also relevant to one of the third findings. The trial court did not mention proportionality or danger.
{¶25} The court need not provide "a talismanic incantation" of the statutory words. Bonnell, 140 Ohio St.3d 209 at ¶ 37. Still, we must be able to "discern that the trial court engaged in the correct analysis." Bonnell, 140 Ohio St.3d 209 at ¶ 29.
{¶26} In Bonnell, a trial court's reference to the defendant's lack of respect for society and its rules was held to evince consideration of the first finding (regarding a need to protect the public from future crime and to punish the defendant). However, the Supreme Court did not find a connection to the second finding: proportionality of consecutive sentences to the seriousness of Bonnell's conduct or even to the danger he posed to the public. See id. at ¶ 33. Protection from future crime is distinct from danger to the public.
{¶27} As Appellant points out, this court reversed in the post-Bonnell case of Elmore due to an inability to discern whether the court made the second finding. We stated:
These words were used with intent by the General Assembly. Inherent in the proportionality finding is that a trial court engage in a weighing process, comparing or balancing these two factors, which it stands in the best position to do. An appellate court on review could scour the record for findings which satisfy this requirement, but if the record fails to demonstrate that the trial court actually weighed these factors, then reversal is required.Elmore, 7th Dist. No. 14 JE 0021 at ¶ 58.
{¶28} In conclusion, we must be able to "glean from the record that the trial court found consecutive sentences were not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public." Bonnell, 140 Ohio St.3d 209 at ¶ 36. As the court's evaluation of the second finding appears unclear here, we must remand for resentencing.
CLERICAL ERRORS
{¶29} The trial court should be advised of two clerical errors. First, the citation to theft statute is incorrect two times on page 1 of the entry in 14CR27: Appellant pled guilty to theft in violation of R.C. 2913.02(A)(2); and the statute cited by the trial court is irrelevant to this case. Second, although the entry in 14CR27 states the theft sentence is consecutive to the sentence in 14CR123, the entry in 14CR123 states the sentence is to run consecutive to 14CR123 (itself), instead of stating it is consecutive to 14CR27.
{¶30} For all of the foregoing reasons, Appellant's sentence is reversed, and the case is remanded for resentencing to make consecutive sentence findings under R.C. 2929.14(C)(4) and Bonnell. Donofrio, P.J., concurs. Waite, J., concurs.