Opinion
No. 104200
11-10-2016
STATE OF OHIO PLAINTIFF-APPELLEE v. JAMES A. LYNCH DEFENDANT-APPELLANT
ATTORNEY FOR APPELLANT J. Philip Calabrese Porter Wright Morris & Arthur L.L.P. 950 Main Avenue, Suite 500 Cleveland, Ohio 44113 ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor By: Jillian Eckart Eben McNair Assistant Prosecuting Attorneys Justice Center - 9th Floor 1200 Ontario Street Cleveland, Ohio 44113
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED IN PART, VACATED IN PART, REMANDED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-15-592943-A and CR-15-601167-A BEFORE: S. Gallagher, J., Jones, A.J., and E.T. Gallagher, J.
ATTORNEY FOR APPELLANT
J. Philip Calabrese
Porter Wright Morris & Arthur L.L.P.
950 Main Avenue, Suite 500
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Jillian Eckart
Eben McNair
Assistant Prosecuting Attorneys
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113 SEAN C. GALLAGHER, J.:
{¶1} Appellant James Lynch filed a notice of appeal from two criminal cases, Cuyahoga C.P. Nos. CR-15-592943-A and CR-15-601167-A. In CR-15-592943-A, because the trial court improperly imposed a single term of community control for multiple convictions, we vacate the original sentence imposed, as well as the judgment terminating community control and imposing a prison sentence, and remand the case for de novo resentencing on each count. In CR-15-601167-A, we affirm the conviction and sentence; however, we remand the case to the trial court for a calculation of jail-time credit.
{¶2} In CR-15-592943-A, in April 2015, appellant pled guilty to one misdemeanor count and four felony counts of an amended indictment. The trial court sentenced appellant to a blanket three years of community control on the four felony counts and included a reserved sentence for each of those counts. The trial court also imposed a fine on each count, for a total sum of $1,250.
In CR-15-592943-A, appellant pled guilty to Count 1, trafficking, a fourth-degree felony, with forfeiture specifications and a juvenile specification; an amended Count 5, attempted failure to comply with order, signal of police officer, a fourth-degree felony; Count 7, resisting arrest, a first-degree misdemeanor; an amended Count 10, trafficking, a fifth-degree felony; Count 14, drug possession, a fourth-degree felony. The remaining counts were nolled.
{¶3} In CR-15-601167-A, in February 2016, appellant pled guilty to two felony counts and one misdemeanor count of an amended indictment. The trial court sentenced appellant to a total prison term of seven years, which included concurrent terms of seven years on Count 1 and 11 months on Count 3. The trial court also imposed a fine on each count, for a total sum of $8,000. Appellant was advised of postrelease control. The trial court also found appellant was in violation of his community control sanctions in three other cases, Cuyahoga C.P. Nos. CR-15-592943-A, CR-13-575898-A, and CR-14-581772-B. The court ordered those sentences into execution, concurrent to each other, but consecutive to the sentence imposed in CR-15-601167-A.
In CR-15-601167-A, appellant pled guilty to an amended Count 1, attempted trafficking, a second-degree felony, with forfeiture specifications; Count 3, possessing criminal tools, a fifth-degree felony, with forfeiture specifications; and an amended Count 4, endangering children, a first-degree misdemeanor. The remaining counts were nolled.
{¶4} In CR-15-592943-A, the trial court issued a journal entry dated February 8, 2016, finding appellant in violation of his community control sanctions. The trial court sentenced appellant to a single term of incarceration of 18 months on the four felony counts. The sentence was ordered to be served concurrent with sentences in CR-13-575898-A and CR-14-581772-B, but consecutive to the sentence in CR-15-601167-A.
{¶5} Appellant filed this appeal. After the appellate briefs were filed, this court instructed the parties to file supplemental briefs regarding the judgment in CR-15-592943-A. Specifically, the parties were instructed to brief the following issue: "Whether the journal entry of April 21, 2015, sentencing appellant to community control sanctions is a valid judgment." Both parties filed supplemental briefs conceding that a valid judgment was not entered and that the sentence is void in accordance with this court's decision in State v. Blair, 8th Dist. Cuyahoga No. 102548, 2015-Ohio-5416. As found in Blair, a sentencing entry is contrary to law when the trial court imposes community control sanctions on multiple charges in a blanket sentence. Id. at ¶ 11. This is "[b]ecause Crim.R. 32(C) requires the court to impose a separate sentence on each count individually" and "[a] sentence that does not comply with statutorily mandated terms is void." Id., citing State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332.
{¶6} Because the original sentencing entry in CR-15-592943-A is a nullity, the trial court could not find appellant in violation of the community control sanctions. See Blair at ¶ 13. The remedy is to vacate the original sentence, as well as the judgment terminating community control and imposing a prison sentence, and to remand the case to the trial court for a de novo resentencing on each count individually. Blair at ¶ 13-14. We reject appellant's supplemental argument that fundamental fairness requires resentencing by a different trial judge or the opportunity to withdraw his plea.
We also note that following the violation hearing, the trial court imposed a single term of incarceration of 18 months and did not include a sentence with regard to each of the four felony counts. --------
{¶7} We shall proceed to the assignments of error raised in this appeal. Under his first assignment of error, appellant claims that his sentence in CR-15-601167-A is contrary to law because the trial court failed to consider the required sentencing principles and guidelines. More specifically, appellant argues that there is no indication in the sentencing hearing transcript that the trial court considered the purposes and principles of sentencing under R.C. 2929.11 and the sentencing factors set forth in R.C. 2929.12, and that the boilerplate notation in the journal entry does not meet the requirements of due process.
{¶8} This court has repeatedly recognized that a trial court is only required to "consider" the sentencing factors pursuant to R.C. 2929.11 and 2929.12, and that an appellate court lacks authority under R.C. 2953.08 to consider the weight given to respective sentencing factors because such discretion rests solely with the trial court. E.g., State v. Akins-Daniels, 8th Dist. Cuyahoga No. 103817, 2016-Ohio-7048, ¶ 7; State v. Ongert, 8th Dist. Cuyahoga No. 103208, 2016-Ohio-1543, ¶ 12. Furthermore, although a trial court must give consideration to R.C. 2929.11 and 2929.12, there is no requirement for the court to affirmatively state its consideration on the record. State v. Santos, 8th Dist. Cuyahoga No. 103964, 2016-Ohio-5845, ¶ 12. Rather, "[c]onsideration of the factors is presumed unless the defendant affirmatively shows otherwise." State v. Keith, 8th Dist. Cuyahoga Nos. 103413 and 103414, 2016-Ohio-5234, ¶ 11.
{¶9} The record reflects that appellant pled guilty to the respective charges, including an amended count of attempted drug trafficking; he had a history of prior drug cases; and his probation violations were acknowledged. Prior to imposing sentence, the trial court heard statements from appellant's girlfriend and his mother. The court also heard from appellant, who accepted responsibility for his actions, and defense counsel, who presented mitigating factors. The court's journal entry indicates that "the court considered all required factors of the law" and that "the court finds that prison is consistent with the purpose of R.C. 2929.11." Appellant has not affirmatively shown that the trial court failed to consider R.C. 2929.11 and 2929.12, and the record reflects otherwise.
{¶10} Appellant also claims that the trial court improperly considered facts regarding his financial condition, and inquired into the terms and conditions of defense counsel's retention. A review of the transcript reflects that in response to the statement of appellant's mother that appellant did not have any money, the trial court commented upon appellant having retained counsel and questioned the mother's contention that she was "helping out." Defense counsel then indicated that he was representing appellant pro bono, which the court noted was in conflict with the representation of appellant's mother. Counsel indicated that was in relation to a Lake County case. The trial court then acknowledged, "I don't have any right to inquire about what you received and I'm not going to violate that." The court further clarified that "when somebody says well, he doesn't have any money, and then he comes in with retained counsel, then certainly that raises some questions in the Court's mind." Defense counsel proceeded to highlight that this was not a drug trafficking case where the defendant is caught with thousands of dollars; but rather, this is a case where the appellant has drug dependency issues, and "where when you have no money * * * you sell it, you have enough left for yourself to get high."
{¶11} In reviewing felony sentences, appellate courts are required to adhere to the plain language of R.C. 2953.08(G)(2), which permits an appellate court to vacate or modify a felony sentence on appeal only if it determines by clear and convincing evidence that the record does not support the trial court's findings under relevant statutes or that the sentence is otherwise contrary to law. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1, 7. Appellant has not shown by clear and convincing evidence that the record does not support the sentence or that the sentence is otherwise contrary to law. His first assignment of error is overruled.
{¶12} Under his second assignment of error, appellant claims that the trial court failed to make the requisite findings for imposing consecutive sentences.
{¶13} The trial court sentenced appellant to a total prison term of seven years in CR-15-601167-A. Upon finding appellant was in violation of his community control sanctions in three other cases, Cuyahoga C.P. Nos. CR-15-592943-A, CR-13-575898-A, and CR-14-581772-B, the court ordered those sentences into execution, concurrent to each other, but consecutive to the sentence imposed in CR-15-601167-A. We have already determined that in CR-15-592943-A, both the original sentence imposing community control sanctions and the judgment terminating community control and imposing a prison sentence must be vacated. Thus, the assignment of error is moot with regard to the sentence in CR-15-592943-A. Any challenge in regard to the two other cases is not properly before us because those cases have not been appealed. See State v. Tate, 8th Dist. Cuyahoga Nos. 102776 and 102777, 2015-Ohio-5260, ¶ 2.
{¶14} Under his third assignment of error, appellant claims the trial court failed to discharge its duty to calculate the amount of jail-time credit to which he is entitled.
{¶15} The record reflects that the trial court made no determination of the jail-time credit to which appellant is entitled at the sentencing hearing, and no jail-time credit is referenced in the sentencing journal entry. Appellant did not raise the issue of jail-time credit during sentencing. The state concedes that appellant is entitled to jail-time credit, but disputes the amount of time to which appellant is entitled. The trial court's electronic docket reflects that after the filing of this appeal, a motion for jail-time credit was filed in the trial court.
{¶16} It is well established that criminal defendants have a right to jail-time credit. State v. Thompson, 8th Dist. Cuyahoga No. 102326, 2015-Ohio-3882, ¶ 21. Under R.C. 2929.19(B)(2)(g)(i), if the trial court determines at the sentencing hearing that a prison term is necessary or required, it is the duty of the trial court, at the time of sentencing, to
[d]etermine, notify the offender of, and include in the sentencing entry the number of days that the offender has been confined for any reason arising out of the offense for which the offender is being sentenced and by which the department of rehabilitation and correction must reduce the stated prison term under section 2967.191 of the Revised Code.R.C. 2929.19(B)(2)(g)(iii) further provides, in relevant part:
The sentencing court retains continuing jurisdiction to correct any error not previously raised at sentencing in making a determination under [R.C. 2929.19(B)(2)(g)(i)]. The offender may, at any time after sentencing, file a motion in the sentencing court to correct any error made in making a determination under [R.C. 2929.19(B)(2)(g)(i)], and the court may in its discretion grant or deny that motion. If the court changes the number of days in its determination or redetermination, the court shall cause the entry granting that change to be delivered to the department of rehabilitation and correction without delay.
{¶17} Because the trial court never discharged its duty of calculating jail-time credit and R.C. 2929.19(B)(2)(g)(iii) provides a mechanism for the trial court to correct the error, we remand the case to the trial court with instructions to determine the amount of jail-time credit appellant is entitled to receive.
{¶18} In conclusion, in CR-15-592943-A, we vacate the original sentence imposed, as well as the judgment terminating community control and imposing a prison sentence, and remand the case to the trial court for de novo resentencing on each count. In CR-15-601167-A, we affirm the conviction and sentence; however, we remand the case to the trial court for the calculation of jail-time credit.
{¶19} In Cuyahoga C.P. No. CR-15-601167-A, judgment affirmed, case remanded. In Cuyahoga C.P. No. CR-15-592943-A, sentence vacated, case remanded.
It is ordered that appellant and appellee share the costs herein taxed. The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. Case remanded to the trial court for resentencing.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SEAN C. GALLAGHER, JUDGE EILEEN T. GALLAGHER, J., CONCURS;
LARRY A. JONES, SR., A.J., CONCURS IN JUDGMENT ONLY