Opinion
Court of Appeals No. S-18-051
06-28-2019
State of Ohio Appellee v. Houston Stubbs Appellant
Timothy Braun, Sandusky County Prosecuting Attorney, and Joseph H. Gerber, Assistant Prosecuting Attorney, for appellee. Karin L. Coble, for appellant.
Trial Court No. 18 CR 636 DECISION AND JUDGMENT Timothy Braun, Sandusky County Prosecuting Attorney, and Joseph H. Gerber, Assistant Prosecuting Attorney, for appellee. Karin L. Coble, for appellant. MAYLE, J.
I. Introduction
{¶ 1} In this accelerated appeal, defendant-appellant, Houston Stubbs, appeals the November 29, 2018 judgment of the Sandusky County Court of Common Pleas convicting him of three drug trafficking offenses and sentencing him to consecutive terms of imprisonment for an aggregate term of 48 months with costs. For the following reasons we affirm in part and reverse in part.
A. Facts and Procedural Background
{¶ 2} On June 18, 2018, Houston Stubbs was indicted for three offenses related to trafficking in cocaine: (1) a violation of R.C. 2925.03(A)(1) and (C)(4)(a), a felony of the fifth degree, (2) a violation of R.C. 2925.03(A)(1) and (C)(4)(c), a felony of the fourth degree, and (3) a violation of R.C. 2925.03(A)(1) and (C)(4)(d), a felony of the third degree. The charges were the result of three separate transactions whereupon Stubbs sold increasing amounts of cocaine to confidential informants between August 23, 2016, and February 23, 2017.
{¶ 3} On October 2, 2018, Stubbs entered a plea of guilty to all counts of the indictment with an agreement that there would be a presentence investigation. On November 28, 2018, subsequent to a presentence investigation report, the trial court sentenced Stubbs to 12 months imprisonment on Count 1, 12 months imprisonment on Count 2, and 36 months imprisonment on Count 3. The court ordered that Counts 1 and 2 be served concurrently to each other, and that together they be served consecutively to Count 3. The result was a sentence totaling 48 months in prison as well as an order to pay the costs of prosecution and the cost of his appointed counsel, all of which was journalized in a sentencing entry on November 29, 2018.
B. Assignments of Error
{¶ 4} On appeal Stubbs puts forth two assignments of error:
Assignment of Error One: The trial court erred in imposing a consecutive sentence without making statutorily required findings either at the sentencing hearing or in the judgment entry. Also, even if such findings were made, the findings are not supported by the record.
Assignment of Error Two: The trial court failed to impose costs at the sentencing hearing in violation of Crim.R. 43 and failed to find appellant had the ability to pay costs, rending [sic] the imposition of costs invalid.
{¶ 5} We will consider each of these assignments of error in turn.
II. Law and Analysis
A. Stubbs's Consecutive Sentences are Contrary to Law.
{¶ 6} We review felony sentences under R.C. 2953.08(G)(2). State v. Waxler, 6th Dist. Lucas No. L-16-1269, 2017-Ohio-7536, ¶ 9. Pursuant to that section, we may increase, reduce, modify, or otherwise vacate and remand a challenged sentence if we clearly and convincingly find "(a) [t]hat the record does not support the sentencing court's findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever if any, is relevant; or (b) [t]hat the sentence is otherwise contrary to law." R.C. 2953.08(G)(2). (Emphasis added.)
{¶ 7} Here, Stubbs argues that his consecutive sentences are contrary to law because the trial court failed to make the requisite findings under R.C. 2929.14(C)(4). Given that Stubbs failed to raise this objection in the trial court, he has waived all but plain error review. See State v. Ross, 2017-Ohio-675, 85 N.E.3d 398, ¶ 29 (6th Dist.). Ohio courts recognize, however, that "when the record demonstrates that the trial court failed to make the findings required by R.C. 2929.14(C)(4) before imposing consecutive sentences on multiple offenses, appellant's sentence is contrary to law and constitutes plain error." (Internal quotations and citations omitted.) State v. Adams, 10th Dist. Franklin No. 13AP-783, 2014-Ohio-1809, ¶ 7.
{¶ 8} R.C. 2929.14(C)(4) provides:
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 the 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.
(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶ 9} This statute requires the trial court to make three statutory findings before imposing consecutive sentences. State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 252; State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 26. It must find (1) that consecutive sentences are necessary to protect the public or to punish the offender; (2) that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger that the offender poses to the public; and (3) that R.C. 2929.14(C)(4)(a), (b), or (c) is applicable. Beasley at ¶ 252. A trial court must make the requisite findings at the sentencing hearing and in the sentencing entry, but "it has no obligation to state reasons to support its findings." Bonnell at ¶ 37. Nor is it required to maintain a "talismanic incantation of the words of the statute" so long as the necessary findings can be ascertained from the record and are included in the sentencing entry. Id. In addition, the record must contain evidence to support the trial court's findings. Id. at ¶ 29.
{¶ 10} Regarding the first finding that is required by R.C. 2929.14(C)—i.e., that consecutive sentences are necessary to protect the public and punish the offender—the trial court stated at the sentencing hearing that the county has a "terrible problem with drugs" with "people dropping dead weekly from overdoses." The court further stated that Stubbs's actions contributed to this problem and subsequently "need[ed] to be punished." These findings satisfy the first prong of the statute and they are supported by evidence in the record.
{¶ 11} Regarding the second finding that is required by R.C. 2929.14(C)—i.e., that consecutive sentences are not disproportionate to the offender's conduct and the danger the offender poses to the public—the trial court continuously noted the county's recurring drug problem, stating that Stubbs was "contributing to people's addictions," while highlighting that the court's approach to protecting the public was to "try to get the people who are selling this stuff off the street." The trial court also found that Stubbs was "mercenary" in his relationship with drugs. These findings satisfy the second prong of the statute and they are supported by evidence in the record.
{¶ 12} The third and last prong of the analysis requires a finding under R.C. 2929.14(C)(4)(a), (b), or (c). In this case, given that neither (a) nor (c) can apply, the trial court was required to find that
[a]t 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.R.C. 2929.14(C)(4)(b).
{¶ 13} The court noted that it found Stubbs's conduct was particularly "brazen" because he was convicted of "three separate instances [of trafficking in cocaine], upping the ante with each sale." But, although the court reiterated that the conduct in question was "not good" and bothersome, we cannot discern any finding that the harm resulting from Stubbs's conduct was so great or unusual as to validate consecutive sentences. Although we "may liberally review the entire sentencing transcript to discern whether the trial court made the requisite findings, * * * there are limits to that deference." State v. Stan, 7th Dist. Belmont No. 16 BE 0029, 2017-Ohio-7756, ¶ 26. Accordingly, we find that the trial court failed to make the full finding that is required by R.C. 2929.14(C)(4)(b).
{¶ 14} Finally, we note that the trial court's sentencing entry fails to include any of the required R.C. 2929.14(C) findings. "[T]he trial court must make the requisite findings both at the sentencing hearing and in the sentencing entry." (Emphasis in original.) Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, at ¶ 253, citing Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at ¶ 37. Although such an omission may be corrected through a nunc pro tunc entry in instances where the trial court "properly ma[de] those findings at the sentencing hearing," Bonnell at ¶ 30, the trial court in this case failed to make all of the required findings at the hearing. Accordingly, we must reverse the trial court judgment and remand for a new sentencing hearing. See id. at ¶ 30 ("[A] nunc pro tunc entry cannot cure the failure to make the required findings at the time of imposing sentence.").
{¶ 15} We find the first assignment of error is well-taken.
B. The Trial Court Properly Imposed Costs.
{¶ 16} In his second assignment of error, Stubbs claims that the trial court improperly imposed costs at the sentencing hearing and failed to properly find that he had the ability to pay such costs.
{¶ 17} At the sentencing hearing, the trial court ordered that Stubbs pay both the costs of prosecution and the cost of his appointed counsel. The court went on to state that he was "able to find employment prior to today," that he was "physically fit," and that he could "certainly find employment to meet these obligations upon [his] release."
{¶ 18} Under R.C. 2947.23(A)(1)(a) "[i]n all criminal cases, including violations of ordinances, the judge or magistrate shall include in the sentence the costs of prosecution * * *." Such prosecution costs are to be imposed without inquiring as to the defendant's ability to pay. State v. Woods, 6th Dist. Lucas No. L-15-1024, 2016-Ohio-545, ¶ 10. Therefore, we find that the court properly imposed costs of prosecution at both the sentencing hearing and in the judgment entry that followed.
{¶ 19} Unlike the costs of prosecution, the costs for appointed counsel are dependent on the defendant's ability to pay. Under R.C. 2941.51(D),
[t]he fees and expenses approved by the county under this section shall not be taxed as part of the costs and shall be paid by the county. However, if
the person represented has, or reasonably may be expected to have, the means to meet some part of the cost of the services rendered to the person, the person shall pay the county an amount that the person reasonably can be expected to pay.As such, the record must have some indication that the trial court considered the defendant's ability to pay, although it is not required to do so in a separate hearing on the matter. State v. Johnson, 6th Dist. Lucas No. L-16-1165, 2017-Ohio-8206, ¶ 24, citing State v. Maloy, 6th Dist. Lucas No. L-10-1350, 2011-Ohio-6919, ¶ 13.
{¶ 20} Here the trial court's determinations at the sentencing hearing regarding Stubbs's physical state and past employment opportunities satisfy the necessary finding that he have an ability to pay the cost of his appointed counsel. Therefore, there is no discrepancy between the sentencing hearing and the judgment entry, and we find that the trial court properly imposed the costs of appointed counsel. Accordingly, Stubbs's second assignment error is not well-taken.
III. Conclusion
{¶ 21} We find that the first assignment of error is well-taken because the trial court failed to make all of the findings required by R.C. 2929.14(C)(4) before imposing consecutive sentences. Moreover, the trial court failed to include any R.C. 2929.14(C)(4) findings in its sentencing entry.
{¶ 22} We find the second assignment of error is not well-taken because the trial court properly imposed the costs of prosecution and appointed counsel.
{¶ 23} We therefore affirm the November 29, 2018 judgment in part, and reverse in part. The portion of the judgment imposing costs is affirmed while the imposition of consecutive sentences is reversed and remanded for resentencing.
{¶ 24} Appellee is ordered to pay the costs of this appeal pursuant to 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.
Mark L. Pietrykowski, J.
Christine E. Mayle, P.J.
Gene A. Zmuda, J.
CONCUR. /s/_________
JUDGE /s/_________
JUDGE /s/_________
JUDGE