APPEALS from the Franklin County Court of Common Pleas C.P.C. Nos. 12CR-05-2521, 12CR-06-2807
Ron O'Brien, Prosecuting Attorney, and Valerie Swanson, for appellee.
Carpenter Lipps & Leland LLP, Kort Gatterdam and Erik P. Henry, for appellant.
(¶ 1} Defendant-appellant, Trushaun D. Boynton, appeals the sentences imposed upon him by the Franklin County Court of Common Pleas following his convictions on multiple felonies. Because the trial court erred in sentencing appellant, we reverse the trial court's judgments and remand for a new sentencing hearing on both cases.
(¶ 2} On September 12, 2012, appellant entered guilty pleas in case No. 12CR-05-2521 to aggravated robbery with a three-year firearm specification, robbery with a one-year firearm specification, and having a weapon while under disability. These guilty pleas stemmed from the robberies of two separate victims in two separate incidents occurring on May 11, 2012. At the same hearing, appellant also pled guilty in case No. 12AP-06-2807 to one count of burglary arising from the break-in of a residence on May 6, 2012. The trial court accepted appellant's pleas, found him guilty, entered nolle prosequis on the remaining counts in the two charging indictments, and ordered a presentence investigation ("PSI"). The court then set the matters for sentencing.
(¶ 3} At the October 9, 2012 sentencing hearings, the court imposed the following sentence in case No. 12CR-05-2521: five years on the aggravated robbery count plus a mandatory consecutive three years of actual incarceration for the firearm specification, five years on the robbery count plus a mandatory consecutive one year of actual incarceration for the firearm specification, and three years on the weapon under disability count. The court ordered the aggravated robbery and robbery sentences to be served consecutively to each other and to a pending case in Clark County. The court ordered the sentence on the weapon under disability count to be served concurrently with the aggravated robbery and robbery counts. On the conviction for burglary in case No. 12AP-06-2807, the court imposed a four-year sentence to be served consecutively to the sentence in case No. 12CR-05-2521 and the pending Clark County case. In sum, the court imposed an 18-year term of imprisonment.
(¶ 4} After the time for filing an appeal expired, appellant filed a motion for delayed appeal, which this court granted. Appellant sets forth two assignments of error for our review:
[I.] THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES WITHOUT MAKING THE REQUIRED FINDINGS PURSUANT TO R.C. 2929.14(C)(4) DEPRIVING APPELLANT OF DUE PROCESS CONTRARY TO THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND CORRESPONDING RIGHTS UNDER THE OHIO CONSTITUTION.
[II.] THE TRIAL COURT'S SENTENCE WAS CLEARLY AND CONVINCINGLY CONTRARY TO LAW AND CONSTITUTED AN ABUSE OF DISCRETION DEPRIVING APPELLANT OF DUE PROCESS CONTRARY TO THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND CORRESPONDING RIGHTS UNDER THE OHIO CONSTITUTION.
(¶ 5} In his first assignment of error, appellant contends the trial court erred in imposing consecutive sentences without first making the findings mandated by R.C. 2929.14(C)(4). We agree.
(¶ 6} We note initially that appellant failed to object to the imposition of consecutive sentences at the sentencing hearing and thus has forfeited all but plain error. See Crim.R. 52(B); State v. Wilson, 10th Dist. No. 12AP-551, 2013-Ohio-1520, ¶ 8. Pursuant to Crim.R. 52(B), "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." "To constitute plain error, the error must be obvious on the record, palpable, and fundamental such that it should have been apparent to the trial court without objection." State v. Gullick, 10th Dist. No. 13AP-26, 2013-Ohio-3342, ¶ 3, citing State v. Tichon, 102 Ohio App.3d 758, 767 (9th Dist.1995). In addition, "plain error does not exist unless the appellant establishes that the outcome of the trial clearly would have been different but for the trial court's allegedly improper actions." Id., citing State v. Waddell, 75 Ohio St.3d 163, 166 (1996). A reviewing court notices plain error "with utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." Gullick at ¶ 3, citing State v. Phillips, 74 Ohio St.3d 72, 83 (1995).
(¶ 7} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, the Supreme Court of Ohio enunciated the standard to be applied by an appellate court when reviewing felony sentencing. The reviewing court must first "ensure that the trial court has adhered to all applicable rules and statutes in imposing the sentence. As a purely legal question, this is subject to review only to determine whether it is clearly and convincingly contrary to law, the standard found in R.C. 2953.08(G)." Id. at ¶ 14. If this first prong is satisfied, the appellate court then reviews whether the trial court abused its discretion in selecting sentences within the range permitted by the statute. Id. at ¶ 17.
(¶ 8} H.B. No. 86, effective September 30, 2011, revived the requirement that trial courts make specific findings on the record at the sentencing hearing before imposing consecutive sentences. R.C. 2929.14(C)(4) now requires that a trial court engage in a three-step analysis in order to impose consecutive sentences. The trial court must first find the sentence 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) "[t]he 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 postrelease control for a prior offense"; (2) "[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 ...