State v. Bonnell
| Decision Date | 24 July 2014 |
| Docket Number | No. 2013–0167.,2013–0167. |
| Citation | 16 N.E.3d 659,2014 Ohio 3177,140 Ohio St.3d 209 |
| Parties | The STATE of Ohio, Appellee, v. BONNELL, Appellant. |
| Court | Ohio Supreme Court |
Carol Hamilton O'Brien, Delaware County Prosecuting Attorney, and Eric C. Penkal, Assistant Prosecuting Attorney, for appellee.
Timothy Young, Ohio Public Defender, and Francisco E. Lüttecke, Assistant Public Defender, for appellant.
{¶ 1} This court has now come full circle on the question of whether a trial court must engage in judicial fact-finding prior to imposing consecutive sentences on an offender.
{¶ 2} In 1996, the General Assembly limited trial court discretion to impose consecutive sentences by directing courts to make statutorily enumerated findings and to give supporting reasons for doing so at the time of sentencing. Am.Sub.S.B. No. 2, 146 Ohio Laws, Part IV, 7136. However, in accordance with decisions from the United States Supreme Court, this court held in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, that requiring judicial fact-finding prior to imposing consecutive sentences violated the Sixth Amendment guarantee of trial by jury. We therefore severed the requirement of judicial fact-finding from the statute, struck the presumption in favor of concurrent sentences, and held that judges had discretion to impose consecutive sentences.
{¶ 3} Subsequent to our decision in Foster, however, the United States Supreme Court issued Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009), holding that a statutory requirement for judges in a jury trial to find certain facts before imposing consecutive sentences is constitutional. Accordingly, in State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768, we held that Ice did not automatically revive the consecutive-sentencing provisions held unconstitutional and severed from the statute in Foster, and as a result, we stated that judicial fact- finding would not be required prior to imposing consecutive sentences unless the General Assembly enacted new legislation requiring the court to make findings when imposing consecutive sentences.
{¶ 4} Subsequent to Hodge, the General Assembly enacted Am.Sub.H.B. No. 86, effective September 30, 2011, reviving some of the statutory language we severed in Foster . That legislation created a statutory presumption in favor of concurrent sentences and further directed courts to make statutorily enumerated findings prior to imposing consecutive sentences, but it did not require courts to give reasons in support of its findings.
{¶ 5} In this case, Randall L. Bonnell Jr. appeals from a judgment of the Fifth District Court of Appeals affirming the imposition of consecutive sentences aggregating 8 years and 5 months for convictions arising out of four instances in which he took $117 in change from vending machines. The trial court, however, made some, but not all, of the statutorily required findings before it imposed the consecutive sentences. We reverse the judgment of the appellate court, vacate the sentence, and remand the matter to the trial court for resentencing.
{¶ 6} On August 26, 2010, Bonnell and Raymond Bush attempted to break into a vending machine at the Red Roof Inn in Grove City. However, in the process, they ruptured a water line, causing the room to flood, and they fled without stealing any money.
{¶ 7} Thereafter, on November 22, 2010, March 23, 2011, and October 3, 2011, they broke into vending machines at a Best Western Hotel in Delaware County, stealing approximately $117 in change and damaging machines owned by the Scioto Vending Company. Police arrested them as they drove away from the hotel on October 3, 2011.
{¶ 8} A Delaware County grand jury indicted Bonnell for engaging in a pattern of corrupt activity, possessing criminal tools, obstructing official business, three counts of burglary, and four counts each of theft and tampering with coin machines. He subsequently pleaded guilty to three third-degree-felony counts of burglary and one fifth-degree-felony count of tampering with coin machines, and the remaining counts were dismissed.
{¶ 9} At the sentencing hearing, the trial court heard arguments from the parties, but no one addressed whether the sentences should be served concurrently or consecutively; notably, the state asserted only that Bonnell was not amenable to community control. The following colloquy occurred:
The court then sentenced Bonnell to 30 months in prison for each burglary and 11 months in prison for tampering with coin machines, imposing consecutive sentences to aggregate a term of eight years and five months in prison.
{¶ 10} In its journal entry imposing this sentence, the court wrote:
{¶ 11} Bonnell appealed to the Fifth District Court of Appeals, asserting that the imposition of consecutive sentences was contrary to law because the trial court failed to make the findings required by R.C. 2929.14(C)(4). 2012-Ohio-5150, 2012 WL 5398071, ¶ 5. The appellate court determined that the trial court's statements at the sentencing hearing "when coupled with the trial court's acknowledgement that it has read and considered the PSI are sufficient to satisfy the factual findings requirement under R.C. 2929.1[4](C)(4)." Id. at ¶ 11. The appellate court concluded:
The entire record adequately reflects consecutive sentences were necessary to protect the public and to punish Bonnell, and that they were not disproportionate to the seriousness of his conduct and the danger he posed to the public. In addition, Bonnell's history of criminal conduct demonstrated that consecutive sentences were necessary to protect the public from future crime.
{¶ 12} We accepted Bonnell's discretionary appeal on the following proposition of law: "A trial court must expressly make the findings required in R.C. 2929.14, give the reasons supporting those findings at the time of sentencing, and include said findings in its subsequent judgment entry."
{¶ 13} According to Bonnell, R.C. 2929.14(C)(4) and Crim.R. 32(A)(4) require the trial court to make express statutory findings and provide reasons in support of those findings when imposing consecutive sentences. He maintains that at a minimum, the trial court failed to make any finding that consecutive sentences were not disproportionate to the seriousness of the conduct and to the danger to the public, asserting that "it is difficult to imagine that analysis took place because Mr. Bonnell is serving the better part of a decade in prison for the nonviolent property crime of stealing change from vending machines." According to Bonnell, the trial court should state its findings and supporting reasons at the sentencing hearing to give the offender an opportunity to object and then restate those findings and reasons in the sentencing entry, based on the principle that a court speaks only through its journal.
{¶ 14} The state contends that "a trial court is not required to recite any ‘magic’ or ‘talismanic’ words when imposing consecutive sentences" and it urges against establishing "a formulaic rubric" for use at the sentencing hearing and in the judgment entry in order to satisfy the requirements of R.C. 2929.14(C)(4). Thus, the state argues, the trial court in this case made sufficient findings to satisfy the statute, because it referred to Bonnell's "atrocious" criminal record and the seriousness of his offenses. It also notes that the trial court had no duty to give reasons supporting its findings, because the General Assembly repealed prior legislation that had directed courts to give reasons justifying consecutive sentences. It further asserts that to the extent Crim.R. 32(A)(4) requires the court to provide reasons when the statute does not, it conflicts with a statute on a substantive matter and the statute controls. And in any case, the state maintains, even if the trial court fails to make express findings, an appellate court can perform an effective review by examining the entire record to determine whether the imposition of consecutive sentences is clearly and convincingly contrary to law.
{¶ 15} Accordingly, the issue presented is whether the trial court must make the required findings enumerated in R.C. 2929.14(C)(4) and give reasons supporting those findings when imposing consecutive sentences on an offender.
{¶ 16} In Am.Sub.S.B. No. 2, 146 Ohio Laws, Part IV, 7136, effective July 1, 1996 ("S.B. 2"), the General Assembly limited judicial discretion in imposing consecutive sentences and established a presumption in favor of concurrent sentences in former R.C. 2929.41(A), 146 Ohio Laws, Part IV, at 7502, which the trial court could overcome only by making the statutorily enumerated findings set forth in former R.C. 2919.14(E)(3), 146 Ohio Laws, Part IV, at 7469. In addition, former R.C. 2929.19(B)(2)(c) directed the sentencing court to ...
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...or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law. See, also, State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.2d 659, ¶28. {¶80} Clear and convincing evidence is that evidence "which will provide in the mind of the trier of facts a ......
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