Opinion
2023-L-028
07-24-2023
IN THE MATTER OF: S.H., DELINQUENT CHILD
Charles E. Coulson, Lake County Prosecutor, and Kristi L. Winner, Assistant Prosecutor, Lake County Administration Building, (For Appellee, State of Ohio). Joseph K. Palazzo, (For Appellant, S.H.).
Criminal Appeal from the Court of Common Pleas, Juvenile Division Trial Court No. 2022 IN 01192
Charles E. Coulson, Lake County Prosecutor, and Kristi L. Winner, Assistant Prosecutor, Lake County Administration Building, (For Appellee, State of Ohio).
Joseph K. Palazzo, (For Appellant, S.H.).
OPINION
EUGENE A. LUCCI, J.
{¶1} Appellant, S.H., a juvenile, appeals the dispositional sentence of the Lake County Court of Common Pleas, Juvenile Division. As the state concedes error and we agree with both appellant's argument and the state's concession, we therefore reverse and remand the matter for further proceedings.
{¶2} An information was filed against appellant alleging one count of Aggravated Robbery, a felony of the first degree, in violation of R.C. 2911.01(A)(3); one count of Abduction, a felony of the third degree, in violation of R.C. 2905.02(A)(2); one count of Failure to Comply with Order or Signal of Police Officer, a felony of the third degree, in violation of R.C. 2921.331(B); and one count of Felonious Assault, a felony of the second degree, in violation of R.C. 2903.11(A)(2). A Serious Youthful Offender ("SYO") specification attached to each charge.
{¶3} On December 8, 2022, a plea hearing was held at which the parties agreed that appellant "is a serious youthful offender." Appellant pleaded guilty/true to all charges and signed a written plea of guilty. Appellant was found to be a delinquent child on all counts and classified as an SYO. The matter was set for a dispositional-sentencing hearing.
{¶4} After the dispositional-sentencing hearing, the trial court ordered appellant to serve a definite term of 11 years for Aggravated Robbery (count one); a term of three years for Abduction (count two), to be served concurrently with the Aggravated Robbery count; a term of three years on the Failure to Comply count (count three), to be served consecutively with the Aggravated Robbery count; and a term of eight years on the Felonious Assault count (count four), to be served consecutively with Aggravated Robbery (count one) and Abduction (count two) counts. When the order was journalized, however, there was discrepancy: to wit, the Felonious Assault count (count four) was ordered to be served consecutively with the Aggravated Robbery (count one) and the Failure to Comply (count three) counts.
{¶5} Appellant appeals assigning two errors. They provide:
{¶6} "[1.] The trial court's record does not support the journal entry.
{¶7} "[2.] The trial court issued a sentence that was contrary to law when it sentenced defendant-appellant to consecutive sentences without the requisite statutory findings which allow such."
{¶8} We shall address appellant's second assignment of error as it is dispositive of this appeal.
{¶9} Pursuant to R.C. 2929.14(C)(4), separate prison terms for multiple offenses may be ordered to be served consecutively if the court finds it is necessary to protect the public from future crime or to punish the offender; 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 factors in R.C. 2929.14(C)(4)(a)-(c) are present. Those factors include the following:
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.
{¶10} To impose consecutive terms of imprisonment "a trial court is required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing entry[.]" State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37.
{¶11} Moreover, R.C. 2152.13 governs SYO procedures. R.C. 2152.13(D)(1)(a) provides:
(D)(1) If a child is adjudicated a delinquent child for committing an act under circumstances that require the juvenile court to impose upon the child a serious youthful offender dispositional sentence under section 2152.11 of the Revised Code, all of the following apply:
(a) The juvenile court shall impose upon the child a sentence available for the violation, as if the child were an adult, under Chapter 2929. of the Revised Code, except that the juvenile court shall not impose on the child a sentence of death or life imprisonment without parole.
{¶12} Accordingly, the consecutive sentencing provisions of R.C. 2929.14(C)(4) apply to appellant, as she was designated an SYO.
{¶13} The trial court, at the dispositional sentencing hearing stated on record the following:
The court has considered the records, the oral statements, any victim impact statement in the actual words of the victim here today, the Ohio Youth Assessment submitted by the intake department, as well as the principles and purposes of sentencing under Ohio Revised Code 2929.11 and has balanced the seriousness and recidivism factors from Revised Code 2929.12.
{¶14} The court then proceeded to impose sentence for each count and advised appellant of the impact of the Reagan Tokes Act on the various sentences. The court, however, did not discuss the factors and findings required by R.C. 2929.14(C)(4). Further, no mention is made of these factors and findings in the court's judgment entry. As noted above, the state concedes these omissions amount to reversible error, and we agree.
{¶15} Because this error is dispositive of the instant appeal, appellant's first assignment of error is overruled as moot.
{¶16} Appellant's second assignment of error has merit.
{¶17} For the reasons discussed in this opinion, the judgment of the Lake County Court of Common Pleas, Juvenile Division, is reversed and remanded for further proceedings.
JOHN J. EKLUND, P.J., MATT LYNCH, J., concur.