Opinion
Court of Appeals No. S-19-048
09-11-2020
State of Ohio Appellee v. Houston Stubbs Appellant
Beth A. Tischler, Sandusky County Prosecuting Attorney, and Alexis M. Hotz, Assistant Prosecuting Attorney, for appellee. Brett A. Klimkowsky, for appellant.
Trial Court No. 18 CR 636 DECISION AND JUDGMENT Beth A. Tischler, Sandusky County Prosecuting Attorney, and Alexis M. Hotz, Assistant Prosecuting Attorney, for appellee. Brett A. Klimkowsky, for appellant. MAYLE, J.
{¶ 1} Appellant, Houston Stubbs, appeals the January 2, 2020 judgment of the Sandusky County Court of Common Pleas, sentencing him to an aggregate prison term of 48 months. For the reasons that follow, we affirm the judgment of the trial court.
I. Background
{¶ 2} This is Stubbs's second appeal in this case. Briefly stated, between August 23, 2016 and February 23, 2017, Stubbs sold various amounts of cocaine to confidential informants. On October 2, 2018, Stubbs entered guilty pleas and was convicted of violating (1) R.C. 2925.03(A)(1) and (C)(4)(a), a felony of the fifth degree; (2) R.C. 2925.03(A)(1) and (C)(4)(c), a felony of the fourth degree; and (3) R.C. 2925.03(A)(1) and (C)(4)(d), a felony of the third degree. On November 28, 2018, Stubbs was sentenced to a prison term of 12 months on Count 1, 12 months on Count 2, and 36 months on Count 3. The trial court ordered the prison sentence for Counts 1 and 2 to be served concurrently, with both to be served consecutive to the prison sentence for Count 3, resulting in an aggregate prison term of 48 months. Stubbs appealed his sentence arguing the trial court failed to make the necessary findings under R.C. 2929.14(C)(4) to impose consecutive sentences.
For a full recitation of the underlying facts, see our decision in State v. Stubbs, 6th Dist. Sandusky No. S-18-051, 2019-Ohio-2645.
Stubbs also appealed the trial court's imposition of court costs. The trial court's judgment as to this issue was affirmed and is not before us in this appeal. --------
{¶ 3} On June 28, 2019, we reversed the trial court's imposition of consecutive sentences because it failed to find that at least two of Stubbs's offenses were part of one or more courses of conduct, and that such conduct was so great or unusual as to validate consecutive sentences as required by R.C. 2929.14(C)(4)(b). State v. Stubbs, 6th Dist. Sandusky No. S-18-051, 2019-Ohio-2645, ¶ 13. We remanded this matter to the trial court for resentencing. Id. at ¶ 23.
{¶ 4} Stubbs was resentenced on September 20, 2019. After hearing arguments from Stubbs and the state, the trial court again ordered Stubbs's sentence in Counts 1 and 2 to be served concurrently, with those concurrent terms to be served consecutive to the sentence imposed on Count 3, resulting in the same aggregate prison term of 48 months as was previously imposed. Appellant timely appealed the trial court's judgment and assigns the following errors for our review:
1. The Trial Court's sentence of Houston Stubbs ("Appellant") violates R.C. 2929.14(C)(4)—and is thus contrary to law—insofar as the Trial Court did not make appropriate findings of fact for Appellant to be sentenced in a consecutive manner.
2. The Trial Court's sentence of Appellant is excessive and contrary to Ohio law.
II. Law and Analysis
{¶ 5} We review felony sentences under R.C. 2953.08(G)(2). State v. Goings, 6th Dist. Lucas No. L-13-1103, 2014-Ohio-2322, ¶ 20. We may increase, modify, or vacate and remand a trial court's imposition of consecutive sentences only if we clearly and convincingly find that: (1) "the record does not support the sentencing court's findings under division * * * (C)(4) of section 2929.14, * * *" or (2) "the sentence is otherwise contrary to law." Id., citing R.C. 2953.08(G)(2).
a. The trial court satisfied R.C. 2929.14(C)(4) when it
sentenced Stubbs to consecutive sentences on remand.
{¶ 6} In his first assignment of error, Stubbs argues that the trial court's order to serve his 12-month sentences consecutive to his 36-month sentence is contrary to law because the trial court failed to make the necessary findings under R.C. 2929.14(C)(4) to impose consecutive sentences. 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 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.
{¶ 7} The 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. The court must find that (1) consecutive sentences are necessary to protect the public from future crime or to punish the offender; (2) 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) R.C. 2929.14(C)(4)(a), (b), or (c) is applicable. Beasley at ¶ 252. "[T]he trial court must make the requisite findings both at the sentencing hearing and in the sentencing entry." (Emphasis in original.) Id. at ¶ 253, citing Bonnell at ¶ 37. A trial court's failure to make the necessary findings under R.C. 2929.14(C)(4) renders the imposition of consecutive sentences contrary to law. See State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37; State v. Kubat, 6th Dist. Sandusky No. S-13-046, 2015-Ohio-4062, ¶ 35.
{¶ 8} Although a trial court must make the findings required by R.C. 2929.14(C)(4), it does not need to explicitly reference the precise language of the statute. "The focus should be on whether the trial court performed the required analysis and made appropriate conclusions, not on whether it can read the statute into the record." See State v. Gessell, 6th Dist. Williams No. WM-19-004, 2020-Ohio-403, ¶ 12, citing State v. Polhamus, 2d Dist. Miami No. 2013-CA-3, 2014-Ohio-145, ¶ 30. For that reason, "a word-for-word recitation of the language of the statute is not required." Bonnell at ¶ 29. Instead, we must be able to discern that the trial court engaged in the correct analysis and the record must contain evidence to support the trial court's findings. Id. Moreover, "[w]hile the sentencing court is required to make findings under R.C. 2929.14(C)(4) before imposing consecutive sentences, it is not required to give reasons explaining the findings." State v. Green, 6th Dist. Sandusky No. S-16-010, 2017-Ohio-45 ¶11.
{¶ 9} Stubbs argues that the trial court failed to follow R.C. 2929.14(C)(4) when it imposed consecutive sentences on remand. We disagree.
{¶ 10} At the resentencing hearing, the trial court recognized that Stubbs's successive sales of cocaine to the confidential informants increased in quantity and was "escalating in severity in harm to the public." The trial court also stated that Stubbs's conduct generally contributed to drug addiction in society as well as inciting those addicted to drugs to commit theft crimes to support their drug habits. These statements reflect that the trial court found that it was necessary to impose consecutive sentences to protect the public from future crimes, thereby satisfying the first prong of R.C. 2929.14(C)(4), and we find that this finding is supported by the record.
{¶ 11} The trial court also noted the ongoing concern regarding drug addiction in society and that Stubbs himself was "profiting from other people's addiction." The trial court also considered Stubbs's "brazenness" in selling increasing amounts of cocaine. As we held in Stubbs I, with regard to similar conclusions by the trial court, these findings satisfy the second prong of R.C. 2929.14(C)(4) and are supported by the record.
{¶ 12} Finally, reviewing the record as a whole, we conclude that the trial court satisfied the third prong of the analysis—i.e., the trial court found that Stubbs committed the offenses as part of one or more courses of conduct, and that the harm resulting from his conduct was so great or unusual that no single prison term adequately reflects the seriousness of his conduct.
{¶ 13} At the resentencing hearing, the trial court recognized that its original imposition of consecutive sentences was reversed because we concluded that it failed to make the findings required by R.C. 2929.14(C)(4)(b). Indeed, we previously found that the record was insufficient for us to discern any finding that Stubbs committed the offenses as part of one or more courses of conduct, and that he thereby caused harm that was so great or unusual that no single prison term would adequately reflect the seriousness of his conduct. Stubbs I at ¶ 13.
{¶ 14} The trial court rectified this problem by clarifying that certain findings should have "suggested for the record" that it had previously concluded that "this third prong of the analysis" was satisfied. The trial court also read the express language of R.C. 2929.14(C)(4)(b) into the record. The trial court then proceeded to explain why it had made this finding, stating that the amount of cocaine increased with each sale, and the trial court "[a]gain,* * *emphasize[d] that his brazenness, his conduct was escalating in severity in harm to the public."
{¶ 15} Given the trial court's clarification of the record, we conclude that the trial court made the finding required by R.C. 2929.14(C)(4)(b), thereby satisfying the third prong of the analysis. In addition, we conclude that this finding is supported by the record. We further note that although not required, the trial court recited the express language of the statute and, in addition, gave reasons for its findings.
{¶ 16} Accordingly, Stubbs's first assignment of error is not well-taken.
b. Stubbs's second assignment of error is not properly before us.
{¶ 17} In his second assignment of error, Stubbs argues that his sentence was excessive and therefore contrary to law. Specifically, he argues that the trial court failed to properly apply the purposes of felony sentencing established in R.C. 2929.11 and the seriousness and recidivism factors established in R.C. 2929.12 when determining his sentence. As explained below, this assignment of error is not properly before us.
{¶ 18} In Stubbs's first appeal, we reversed the trial court's imposition of consecutive sentences and ordered the trial court to resentence him. "A remand for new sentencing generally anticipates a de novo sentencing hearing." State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 10. However, "a number of discretionary and mandatory limitations may apply to narrow the scope of a particular resentencing hearing." Id. For example, when an appellate court finds error in the imposition of consecutive sentences and orders the trial court to resentence the offender, that resentencing is limited to the issue of consecutive sentences only. See State v. Nia, 2014-Ohio-2527, 15 N.E.3d 892, ¶ 21-22 (8th Dist.); State v. Martin-Williams, 5th Dist. Stark No. 2014CA00086, 2015-Ohio-780, ¶ 7.
{¶ 19} In Stubbs I, we held that "the imposition of consecutive sentences is reversed and remanded for resentencing." Stubbs I at ¶ 23. At Stubbs's resentencing hearing, the trial court referenced our prior decision and focused its analysis upon the imposition of consecutive sentences. Notably, the trial court's sentencing entry likewise limits Stubbs's resentencing to "correct the imposition of consecutive sentences."
{¶ 20} "The scope of an appeal from [a] new sentencing hearing is limited to issues that arise at the new sentencing hearing." State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 30, citing State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 40 (rev'd on other grounds). Here, the only issue before the trial court on resentencing was whether consecutive sentences were proper. Indeed, the trial court had already determined the length of Stubbs's prison sentence on each conviction at his original sentencing on November 28, 2018. Stubbs could have—but did not—challenge the trial court's application of R.C. 2929.11 and 2929.12 on his initial appeal. He is, therefore, barred from raising this issue in the present appeal, under the doctrine of res judicata, given that the resentencing was limited to the imposition of consecutive sentences under R.C. 2929.14(C)(4). See Wilson at ¶ 30.
{¶ 21} Accordingly, given that this appeal is limited to issues that arose at the new sentencing hearing—which was confined to the imposition of consecutive sentences—Stubbs's second assignment of error is not properly before us. It is, therefore, not well-taken.
III. Conclusion
{¶ 22} In sum, we find Stubbs's first and second assignments of error not well-taken. The scope of this appeal is limited to review of the trial court's imposition of consecutive sentences, and we find that the trial court made all of the findings required to impose consecutive sentences under R.C. 2929.14(C)(4).
{¶ 23} We, therefore, affirm the trial court's judgment. Stubbs is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
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.
Thomas J. Osowik, J.
Christine E. Mayle, J.
CONCUR. /s/_________
JUDGE /s/_________
JUDGE /s/_________
JUDGE