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State v. Collins

Court of Appeals of Ohio, Seventh District, Noble

March 27, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
CLIFTON D. COLLINS DEFENDANT-APPELLANT

         Criminal Appeal from the Court of Common Pleas of Noble County, Ohio Case No. 215-2041

          For Plaintiff-Appellee: Atty. Kelly A. Riddle Noble County Prosecutor

          For Defendant-Appellant: Atty. Robert Henry Law Office of Robert Henry, LLC

          JUDGES: Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Carol Ann Robb

          OPINION

          WAITE, J.

         {¶1} Appellant Clifton D. Collins appeals sentencing in the Noble County Common Pleas Court. The sole issue raised on appeal is whether the trial court erred in imposing consecutive sentences on Appellant. Based on a review of the record, the trial court's imposition of consecutive sentences without making the requisite statutory findings was contrary to law. Therefore, the trial court's decision is reversed and the matter is remanded for resentencing.

         Factual and Procedural Background

         {¶2} On May 27, 2015, Appellant was indicted on one count of burglary, in violation of R.C. 2911.12(D); one count of kidnapping, in violation of R.C. 2905.01(C); one count of assault, in violation of R.C. 2903.13(C)(1); one count of grand theft, in violation of R.C. 2913.02(B)(4); and one count of robbery, in violation of R.C. 2911.02(B). On September 11, 2015, Appellant pleaded guilty to burglary, kidnapping and assault. The remaining counts were dismissed. The sentencing hearing was held on September 11, 2015. The trial court sentenced Appellant to five years of imprisonment on the burglary charge, five years of imprisonment on the kidnapping charge, and imposed court costs for assault. The sentences were to run concurrently with each other but consecutive to a fifty-eight (58) month term of imprisonment Appellant was to serve from a conviction in Washington County. Appellant was sentenced pursuant to a plea agreement in Washington County for felonies committed prior to the instant case. Appellant pleaded guilty to two counts of burglary; two counts of breaking and entering; one count of possession of drugs; and one count of failure to register as a sex offender. The Washington County trial court sentenced Appellant to fifty-eight months of imprisonment.

         {¶3} Because the trial court in the case sub judice ordered the sentence to be served consecutively to the Washington County sentence, Appellant now brings this timely appeal.

ASSIGNMENT OF ERROR
The trial court's imposition of consecutive sentences upon Appellant is contrary to law.

         {¶4} Appellant contends that the trial court abused its discretion in ordering the sentence to be served consecutively to the Washington County matter. In response, the state admits error and concurs that the trial court's sentence is contrary to law.

         {¶5} This Court must review felony sentences under the standard set forth in R.C. 2953.08(G)(2). State v Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1. Under R.C. 2953.08(G)(2), an appellate court must "review the record, including the findings underlying the sentence * * * given by the sentencing court." An appellate court "may increase, reduce, or otherwise modify a sentence" or it may vacate a sentence and remand the matter to the trial court for resentencing if it "clearly and convincingly" finds either that: (1) "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 (2) "the sentence is otherwise contrary to law." R.C. 2953.08(G)(2); Marcum at ¶ 1. A sentence is contrary to law if the sentence falls outside the statutory range for the particular degree of offense or if the trial court fails to consider the purposes and principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors pursuant to R.C. 2929.12. When a sentence is imposed solely after consideration of the factors in R.C. 2929.11 and R.C. 2929.12, "an appellate court may vacate or modify any sentence that is not clearly and convincingly contrary to law only if the appellate court finds by clear and convincing evidence that the record does not support the sentence." Marcum at ¶ 23.

         {¶6} Appellant does not challenge the individual sentences he received for each offense. Instead, he appeals the trial court's determination that this sentence is to be served consecutive to a sentence he received on unrelated charges in another jurisdiction. A defendant can challenge a consecutive sentence on appeal by one of two means. First, by contending the sentence is contrary to law because the trial court failed to make the necessary findings required by R.C. 2929.14(C)(4). See R.C. 2953.08(G)(2)(b). Second, the defendant can argue the record does not support the findings made under R.C. ...


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