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Court of Appeals Remands Case for Resentencing Based on Judge’s Failure to Make Required Findings Supporting Consecutive Prison Terms

Under 2011 Legislation Reinstating Some Sentencing Requirements Severed by Ohio Supreme Court’s 2006 Decision in State v. Foster

The Eighth District Court of Appeals remanded a criminal case to the Cuyahoga County Court of Common Pleas for resentencing based on the trial court’s failure to make specific findings supporting the imposition of consecutive sentences.

The Eighth District Court of Appeals remanded a criminal case to the Cuyahoga County Court of Common Pleas for resentencing based on the trial court’s failure to make specific findings supporting the imposition of consecutive sentences.

The Eighth District Court of Appeals remanded a criminal case to the Cuyahoga County Court of Common Pleas for resentencing based on the trial court’s failure to make specific findings supporting the imposition of consecutive sentences.

The Eighth District Court of Appeals remanded a criminal case to the Cuyahoga County Court of Common Pleas for resentencing based on the trial court’s failure to make specific findings supporting the imposition of consecutive sentences.

The Eighth District Court of Appeals has ruled that a common pleas court committed reversible error when it sentenced a Cleveland man to consecutive prison sentences for two burglaries without first making specific findings supporting the imposition of consecutive sentences that are required under 2011 legislation that amended the state’s criminal sentencing laws.

The court’s 3-0 decision, announced October 4, partially upheld and partially vacated the sentence imposed by the Cuyahoga County Court of Common Pleas on Gary Blackburn for his convictions on two counts of burglary and one court of grand theft.  Those convictions arose from two separate incidents, one involving the theft of $6,000 worth of pots and pans from a Marriott hotel,  and the other involving the theft of jewelry and other personal property from the home of a woman Blackburn met online.

After the court granted Blackburn’s request for release on bond during a presentence investigation, he failed to appear for sentencing and the judge issued a warrant for his arrest.  He remained at large for more than six months, before being arrested and returned to the court for sentencing in December 2011.

Citing Blackburn’s prior history of criminal convictions and his failure to appear for sentencing, the trial court judge sentenced him to an aggregate four years in prison for the Marriott burglary and theft counts and four years for the home burglary count, and ordered that those terms be served consecutively for a total sentence of eight years.

Blackburn appealed, asserting among other claims that the imposition of consecutive sentences  for his offenses was contrary to law under H.B. 86, legislation amending the state’s criminal sentencing statutes that took effect September 30, 2011. 

In a decision written by Judge Mary J. Boyle, the Eighth District upheld the individual sentences imposed by the trial court for each of Blackburn’s convictions, but vacated the portion of the sentencing order requiring that those sentences be served consecutively and remanded the case to the trial court to conduct a new sentencing hearing consistent with the requirements of H.B. 86.

Judge Boyle explained that H.B. 86 reinstated former provisions of Ohio’s felony sentencing statutes that required judges to make certain specific findings before ordering that a defendant’s sentences must be served consecutively (one after the other) rather than concurrently (at the same time).

She wrote: “R.C. 2929.14(C)(4), as revived, now requires that a trial court engage in a three-step analysis in order to impose consecutive sentences. First, the trial court must find that ‘consecutive service is necessary to protect the public from future crime or to punish the offender.’ .... Next, the trial court must find that ‘consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public.’ ... Finally, the trial court must find that at least one of the following applies: (1) the offender committed one or more of the multiple offenses while awaiting trial or sentencing, while under a sanction, or while under postrelease control for a prior offense; (2) 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 offenses 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; or (3) the offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.”

“Here, the trial court failed to make any express findings as required under R.C. 2929.14(C)(4). The trial court did recite Blackburn’s prior criminal history, which could equate to making two of the findings, namely (1) that ’consecutive service is necessary to protect the public from future crime or to punish the offender,’ and (2) that the offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender. ... The trial court, however, failed to make the mandatory 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.’

Accordingly, ...  the portion of the trial court’s judgment in each case ordering that the two cases be served consecutive to one another is vacated. This case is remanded to the trial court to consider whether consecutive sentences are appropriate under H.B. 86, and if so, to enter the proper findings on the record.”

Judge Boyle’s opinion was joined by Judges Patricia Ann Blackmon and Melody J. Stewart.

State v. Blackburn, 2012-Ohio-4590
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/3/2012/2012-ohio-4590.pdf
Civil Appeal From: Cuyahoga County Court of Common Pleas
Judgment Appealed From Is:  Partially Affirmed, Partially Reversed and Remanded
Date of Judgment Entry on Appeal: October 4, 2012

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