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State v. Hauser

Court of Appeals of Ohio, Eighth District, Cuyahoga

April 26, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
JOHN M. HAUSER DEFENDANT-APPELLANT

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-597360-A

          ATTORNEY FOR APPELLANT Eric M. Levy

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor Owen M. Patton Assistant County Prosecutor

          BEFORE: Kilbane, P.J., S. Gallagher, J., and Laster Mays, J.

          JOURNAL ENTRY AND OPINION

          MARY EILEEN KILBANE, PRESIDING JUDGE

         {¶1} Defendant-appellant, John Hauser ("Hauser"), appeals from his resentencing pursuant to our mandate in State v. Hauser, 8th Dist. Cuyahoga No. 103880, 2016-Ohio-7710 ("Hauser I "). For the reasons set forth below, we affirm. We also vacate from the January 3, 2017 journal entry any reference to Hauser owing costs, and we vacate the January 4, 2017 journal entry assessing Hauser $11, 472 in court costs.

         {¶2} In July 2015, Hauser was charged with one count each of aggravated robbery, kidnapping, and robbery. The case was tried to the bench, where Hauser was found guilty of all charges. The court merged the aggravated robbery and robbery charges, with the state electing that Hauser be sentenced on the aggravated robbery charge. The trial court sentenced Hauser to seven years in prison on the aggravated robbery offense, consecutive to eight years on the kidnapping offense, for a total prison sentence of 15 years. Additionally, the trial court ordered that Hauser pay a fine of $10, 000. Hauser then appealed to this court in Hauser I.[1] Approximately six months later, while his appeal was pending, Hauser filed a pro se motion to vacate payment of all costs, which the trial court granted in June 2016.

         {¶3} On appeal, he challenged his convictions and the trial court's imposition of consecutive sentences and the $10, 000 fine. In November 2016, we affirmed his convictions, but remanded the case regarding the trial court's imposition of the consecutive sentence and the $10, 000 fine. Id. at ¶ 39. We found that the trial "court committed plain error in failing to consider [Hauser's] present and future ability to pay his fines as required under R.C. 2929.19(B)(5), " and we vacated his sentence and remanded the case for resentencing for the trial court to "consider whether consecutive sentences are appropriate under R.C. 2929.14(C)(4) and, if so, to make the required findings on the record and incorporate those findings in the sentencing journal entry in accordance with [State v.] Bonnell [140 Ohio St.3d 209');">140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659]." Id. at ¶ 31, 38.

         {¶4} Following our remand, the trial court held a sentencing hearing in December 2016. At the hearing, the trial court stated that it abated "any fines, fees, or costs[.]" The trial court then made the statutory findings mandated for consecutive sentences and reimposed the consecutive fifteen-year prison term, with seven years for the aggravated robbery and eight years for the kidnapping.

         {¶5} In the corresponding sentencing entry, the trial court incorporated its consecutive sentence findings, stating that "[t]he court considered all required factors of law, " and found that "prison is consistent with the purposes of R.C. 2929.11." The sentencing entry also indicated that Hauser was guilty of each of the three counts. Lastly, the trial court entered "judgment against [Hauser] in an amount equal to the costs of this prosecution."

         {¶6} It is from this order that Hauser now appeals, raising the following three assignments of error for review:

Assignment of Error One
The trial court erred when it imposed judgment against [Hauser] for the costs of prosecution when it had previously vacated court costs via entry of June 20, 2016 and when it specifically abated costs at the resentencing hearing.
Assignment of Error Two The trial court erred when it failed to merge count three robbery into count one aggravated robbery at [Hauser's] resentencing.
Assignment of Error Three
The trial court erred when it imposed consecutive sentences where its findings under R.C. 2929.14(C)(4) are not supported ...

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