State v. Littlefield

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[Cite as State v. Littlefield, 2003-Ohio-863.] ***This opinion amends an earlier release. 2003-Ohio-139.*** Please see IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY THE STATE OF OHIO, : : Plaintiff-Appellee, : : v. : Case No. 02CA19 : CHARLES E. LITTLEFIELD, JR., : AMENDED DECISION : AND JUDGMENT ENTRY Defendant-Appellant. : : Released 2/6/03 ___________________________________________________________ APPEARANCES: Barbara A. Farnbacher, Assistant State Public Defender, Columbus, Ohio, for appellant. Kevin A. Rings, Assistant Washington County Prosecuting Attorney, Marietta, Ohio, for appellee. ___________________________________________________________ Harsha, J. {¶1} Charles Littlefield, Jr., appeals a judgment of the Washington County Common Pleas Court sentencing him to maximum, consecutive terms of imprisonment for one count of burglary and one count of receiving stolen property. He also appeals the trial court s order requiring him to pay restitution on the receiving stolen property charge. {¶2} Littlefield argues that the trial court erred in not making the statutorily required findings and reasons for imposing maximum, consecutive sentences at the sentencing hearing. We conclude that when the sentencing entry required contains the findings and reasons for imposing maximum, consecutive sentences, those findings and reasons do not need to be stated at the sentencing hearing because a court speaks through its journal entry. He also argues that the trial court erred in relying upon his prior criminal record consecutive as sentences the sole were basis not for finding disproportionate that to the seriousness of his conduct and the danger he poses to the public. We agree because a proportionality analysis must focus upon the facts and circumstances of the case before the court. Finally, Littlefield contends that the court s restitution order is improper because it requires him to pay for damages resulting from the theft of the car when he was convicted because the of receiving statute limits stolen property. restitution to We the agree actual economic loss caused by the crime for which the offender was convicted. {¶3} On February 6, 2001, Ronald Smith reported his Ford Ranger pick-up truck stolen. The next day, Marietta Police officers observed a truck matching its description traveling at a high rate of speed. The officers stopped the truck and discovered two females inside. The officers then ran the license plates and confirmed that the truck was stolen. the Upon investigating, the officers learned that driver s boyfriend had purchased the truck from Littlefield. {¶4} In June 2001, Richard Miller reported his wife s Olds 98 automobile stolen. One week later, Officer Blasko of the Marietta Police Department responded to a call about a suspected stolen vehicle. After running the license plates, Officer Blasko learned that it was Mrs. Miller s vehicle. Upon investigating, Officer Blasko learned that a man who matched Littlefield's general description drove the vehicle there and parked it. had offered to neighborhood. sell the He also learned that the man car to some kids in the The Marietta Police Department processed the car and found fingerprints that matched Littlefield's. addition, Officer Blasko prepared included a photo of Littlefield. a photo lineup In that Two witnesses identified Littlefield as the man they had seen with the car. {¶5} In December 2001, the grand jury indicted Littlefield on two counts of receiving stolen property. On February 27, 2002, the state filed a Bill of Information against Littlefield charging him with burglary, which arose from an William police. incident and Katie On the where Littlefield Thompson day the in an state entered the attempt to filed the home of elude the Bill of Information, Littlefield consented to its service. That same day he pled guilty to one count of receiving stolen property and felonies.1 agreed one In to count exchange dismiss property. of the burglary, for his other both guilty count of fourth plea, degree the receiving state stolen The trial court accepted Littlefield s plea and ordered a presentence investigation report (PSI). {¶6} At sentencing, the trial court sentenced Littlefield to eighteen months on each charge, the maximum possible sentence, consecutively. In and ordered addition, the the sentences trial court to run ordered Littlefield to pay restitution to the Millers and their insurance company. Littlefield appeals raising the following assignments of error: ERROR NO.1 Littlefield to The trial maximum, court erred consecutive in this sentence, ASSIGNMENT OF sentencing sentences Mr. without making the necessary findings at the sentencing hearing, in contravention of Mr. Littlefield s right to due process of law, as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution, and Section 16, Article I of the Ohio Constitution. 1 ASSIGNMENT OF ERROR NO. 2 - In its sentencing entry, the trial court indicates that Littlefield pled guilty to Count 1 of receiving stolen property, i.e. the Smith vehicle. However, the transcript of the plea proceedings and the court s change of plea entry indicate that Littlefield pled guilty to The trial court failed to comply with R.C. 2929.14(E)(4) and R.C. 2929.19(B)(2)(c) when ordering Charles Littlefield to serve consecutive sentences, in violation of his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution and Section 16, Article I of the Ohio Constitution. ASSIGNMENT OF ERROR NO. 3 - The trial court erred in ordering Charles Littlefield to pay restitution for damages resulting from an offense for which Mr. Littlefield was not convicted. Littlefield of his right to This error deprived Mr. due process of law, as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution, and Section 16, Article I of the Ohio Constitution. {¶7} argues In his first assignment that the trial court consecutive required sentencing sentences findings hearing. of erred error, in without reasons on imposing making and He asserts the the that Littlefield statutorily record such maximum, at the findings and reasons must be made at the sentencing hearing, not just in the written journal entry.2 Count 2 of receiving stolen property, i.e. the Miller vehicle. For purposes of this appeal, this discrepancy has little impact. 2 This issue is currently pending before the Supreme Court of Ohio in State v. Comer, Lucas App. No. L-99-1296, 2002-Ohio-233. See State v. Comer, 95 Ohio St.3d 1473, 2002-Ohio-2444, 768 N.E.2d 1182 (Table). {¶8} R.C. 2929.14(C) sets forth the specific circumstances in which a trial court may impose the maximum prison term on an offender. One circumstance authorizing a maximum sentence is where the offender poses the greatest likelihood of committing future crimes. If the trial court imposes the maximum sentence, then it must make a finding that gives its reasons for doing so. See R.C. 2929.19(B)(2)(d). {¶9} Likewise, requirements for R.C. imposing 2929.14(E)(4) consecutive sets forth sentences. Under R.C. 2929.14(E)(4), the trial court may require an offender to serve consecutive prison terms if the court finds that the consecutive service is necessary to protect the public from future consecutive crime or sentences to punish are not the offender disproportionate and to that the seriousness of the offender s conduct and to the danger the offender poses to the public, and if the court finds any of the following: * * * (c) The offender s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender. As with maximum sentences, a trial court that imposes consecutive sentences is required to make a finding that gives its reasons for imposing consecutive sentences. See R.C. 2929.19(B)(2)(c). {¶10} The required trial findings court s along journal with contains the court s the entry reasons for imposing maximum, consecutive sentences. Before imposing maximum sentences, the trial court found that Littlefield posed the greatest likelihood of committing future crime. In giving its reasons, the trial court stated: the defendant s extensive prior criminal record makes it likely that he will commit further criminal acts. trial court found that the defendant s record justified consecutive sentences. court s findings entry, they sentencing and were reasons not hearing. are stated specifically Littlefield set argues Moreover, the prior criminal While the trial in the forth that journal at the the trial court is required to articulate its findings and reasons at the sentencing hearing. We disagree. {¶11} It is well settled that a court speaks through its journal entries. State v. King, 70 Ohio St.3d 158, 162, 1994-Ohio-412, 637 N.E.2d 903; In re Adoption of Gibson (1986), 23 Ohio St.3d 170, 173, 492 N.E.2d 146, fn. 3; Schenley v. Kauth (1953), 160 Ohio St. 109, 113 N.E.2d 625, paragraph one of the syllabus. Previously, we have looked to the transcript of the sentencing hearing when the journal entry does not contain all of the required findings and reasons. See State v. Haugh, Washington App. No. 00CA18, 2001-Ohio-2426; State v. Hiles, Hocking App. No. 99CA23, 2000-Ohio-1984. However, we have emphasized that the better practice is for the trial court to state its findings and reasons in the journal entry. Haugh; Hiles. Because a court speaks through its journal entry, we will not require a trial court that articulates its findings and reasons in the journal entry to do so at the sentencing hearing also. Accordingly, Littlefield s first assignment of error is overruled. {¶12} In argues his that consecutive record. second the trial sentences assignment court based of error, erred only on when Littlefield imposed prior his it criminal Littlefield contends that his prior criminal record alone does not support the second required finding under R.C. 2929.14(E)(4) that consecutive sentences are not disproportionate to the seriousness of his conduct and to the danger he poses to the public. He contends that in conducting the proportionality analysis, the trial court is restricted to the particular case contention, we seriousness before it. conclude that of the While a conduct we in reject proportionality the this analysis that looks solely to the defendant's criminal history is legally flawed. {¶13} We unless we sentence. will clearly not and overturn a trial convincingly court s find error sentence in that State v. Dunwoody (Aug. 5, 1998), Meigs App. No. 97CA11. When determining if there is error in the trial court s sentence, we engage in an analysis of the following four questions: proper factors? findings? to (1) Did the trial court consider the (2) Did the trial court make the required (3) Is there substantial evidence in the record support those findings? (4) Is ultimate conclusion clearly erroneous? {¶14} Generally, trial courts concurrent prison sentences. the trial court s Id. in Ohio must R.C. 2929.41(A). impose As noted above, a trial court may impose consecutive prison sentences by complying with R.C. 2929.14(E)(4). R.C. 2929.14(E)(4) 2001-Ohio-2426. is a tripartite The inquiry under procedure. Haugh, First, the sentencing court must find that consecutive sentences are necessary to protect the public or to punish the offender ; second, the court must find that the consecutive sentences are not disproportionate to the seriousness of the offender s conduct and to the danger he poses (Emphasis supplied.); and finally, the court must find the existence of one of the three enumerated circumstances in R.C. 2929.14(E)(4)(a) through (c). Id. {¶15} The trial court found that consecutive sentences were necessary Littlefield, to that protect the consecutive public and sentences to were punish not disproportionate to the seriousness of Littlefield s conduct and the danger he poses to the public, and that Littlefield s history of criminal conduct demonstrated that consecutive sentences were necessary to protect the public from future crime. Under each of these findings, the trial court listed Littlefield s prior record as the reason behind its finding. trial In addressing the second requirement, the court stated: disproportionate to Consecutive the sentences seriousness of are the not offender s conduct and to the danger the offender poses to the public. The defendant s prior record indicates that he poses the greatest risk to the public. Littlefield argues that his prior record alone cannot support the trial court s finding that consecutive sentences were not disproportionate to the seriousness of his conduct and the danger he poses to the public. We agree. {¶16} R.C. 2929.14(E)(4) sets forth three distinct findings that must be made before the sentencing court can impose consecutive sentences. The 2929.14(E)(4) first by R.C. purposes of felony 2929.11. The first finding, whether consecutive sentences as the findings required sentencing reflect two overriding articulated in R.C. are necessary to protect the public from future crime or to punish the offender, restates the overriding purposes of felony sentencing contained in R.C. 2929.11(A). finding sentence reflects be R.C. commensurate 2929.11(B) s with and The second directive not that demeaning to the the seriousness of the offender s conduct and its impact upon the victim, and consistent with sentences similar crimes committed by similar offenders. imposed for See Griffin & Katz, Ohio Felony Sentencing Law (2002 Ed.) 710 ( the disproportionality concept comes directly from R.C. 2929.11(B) s admonition that a sentence should be * * * ). Under the second finding, the court must address both the seriousness of the immediate conduct and the danger he poses to the public. The seriousness component requires consideration of the facts and circumstances surrounding the commission of the crimes before the court. In conducting this part of the proportionality analysis the court may look to other sections of the Revised Code for guidance. For instance R.C. 2929.12(B) (more serious factors) and R.C. 2929.12(C) (less serious factors) are relevant. R.C. 2929.13(B)(1) factors. Any insight into aggravating These sections do not provide an exclusive list. other factor provides Likewise relevant might be factor an may be economic considered. loss in light unavailability of restitution for the victim. One such of the Other factors include use of a firearm, personal injury, value of the property taken, and whether the defendant was a leader or facilitated the participation of others in the crime. {¶17} It Littlefield s was proper criminal for the history court in to rely assessing on his dangerousness to the public because a chronic offender may need a longer sentence to protect the public even though the sentence may seem "stiff" in light of the seriousness of the immediate crime. But criminal history alone is not sufficient to satisfy both prongs of the proportionality analysis. In determining whether consecutive sentences were disproportionate to the seriousness of Littlefield s conduct and the danger he poses to the public, the trial court was required to consider the facts and circumstances surrounding his receiving stolen property and burglary charges. The balance or relative weight the court gives to each of the two prongs, court's however, is discretion. left largely Therefore, we to the sentencing conclude that a proportionality analysis that uses only a defendant's prior record does not comport with the legal requirements of R.C. 2929.11 and R.C. 2929.14(E)(4). There must be some consideration of the seriousness of the specific conduct, its impact sentences upon for the victim, similar crimes. and consistency Because we with other clearly and convincingly find that the trial court did not consider the proper sentencing factors, we uphold Littlefield s second assignment of error. The cause is remanded for consideration of whether, given the facts and circumstances of this case, consecutive sentences are not disproportionate to the seriousness of Littlefield s conduct and the danger he poses to the public. We realize that we may be subject to criticism for being "overly technical." Unfortunately, as we have often noted before, we are asked to apply an overly technical statute. {¶18} In his third assignment of error, Littlefield argues that the trial court improperly ordered him to pay restitution. He contends that since he was not convicted of stealing the car, he cannot be ordered to pay restitution for the damage done during the theft. {¶19} R.C. 2929.18(A) permits a court that is imposing a sentence for a felony conviction to sentence the offender to any financial sanction or combination of financial sanctions authorized by law. Among the sanctions authorized by R.C. 2929.18(A) is restitution. R.C. 2929.18(A)(1) allows the sentencing court to order restitution by the offender to the victim of the offender s crime * * * in an amount based on the victim s economic loss. Economic loss is defined as any economic detriment suffered by a victim as a result of the commission of a felony * * *. R.C. 2929.01(M). Because we are asked to construe the legal meaning of this statute, we conduct a de novo review. {¶20} When ordering restitution, the trial court must limit its award to the actual economic loss caused by the crime for which the offender was convicted. State v. Hafer, 144 Ohio App.3d 345, 348, 2001-Ohio-2412, 760 N.E.2d 56; see also State v. Hooks (2000), 135 Ohio App.3d 746, 748, 735 N.E.2d 523. Thus, as a matter of law, an offender cannot be ordered to pay restitution for damage arising from a crime of which he was not convicted.3 {¶21} At the time the Miller s car Miller had the car keys in his pocket. 3 was stolen, Mr. When the Marietta We realize that in Hafer, we used an abuse of discretion standard of review. We conclude now that de novo review is more appropriate in light of the fact we are asked to construe the meaning of R.C. 2929.01(M) and R.C. 2929.18(A)(1). Police Department recovered the car, there was damage to the steering column and gearshift. The damage indicated that the car had been started without the use of the key. Both parties agree that the damage occurred during the theft of the vehicle. {¶22} The state argues that the court's restitution order is valid because the car was damaged during a theft offense and Littlefield was convicted of a theft offense related to the car. convicted of a While it is true that Littlefield was theft offense related to the car, i.e. receiving stolen property, he was not convicted of stealing the car. The state also points out that Littlefield's fingerprints were found in the precise area where the car had been damaged. If the state could have shown that Littlefield damaged the car while it was in his possession then, of course, the court's restitution order would be valid. However, the state does not dispute that the damage occurred during the theft of the car. Since the court did not convict Littlefield of the theft of the car, he cannot be ordered to pay restitution for damages caused by the theft. See Hafer, 144 Ohio App.3d at 348. While the dissent focuses on the "reasonable relationship" language in Hafer, we construe that language to relate to the amount of restitution that must be established by documentation. See State v. Williams (1986), 34 Ohio App.3d 33 at 34 cited in Hafer. In fact, Hafer holds that a defendant cannot be ordered to pay restitution for damages attributable to a crime for which he was charged, but not convicted. Thus, the trial court erred when it ordered Littlefield to pay restitution for the steering column and gearshift that were damaged when the car was stolen. Accordingly, Littlefield's third assignment of error is upheld. JUDGMENT REVERSED AND CAUSE REMANDED. Abele, P.J., Concurring in Judgment & Opinion as to Assignments of Error I & II; Dissenting with Attached Dissenting Opinion as to Assignment of Error III: {¶23} I concur with the principal opinion's disposition of appellant's first and, reluctantly, appellant's second assignment of error. I agree that the trial court's consecutive sentence analysis fell somewhat short of the analysis apparently required statutory provisions. by the felony sentencing I again note, however, that trial courts should not be faulted for their failure to comply with the confusing, complicated and changing sentencing requirements. {¶24} With respect to appellant's third assignment of error, I respectfully dissent. I believe that the restitution order bears a reasonable relationship to the actual loss suffered as a result of the offense for which appellant was convicted. State v. Hafer (2001), 144 Ohio App.3d 345, 760 N.E.2d 56, citing State v. Williams (1986), 34 Ohio App.3d 33, 516 N.E.2d 1270. Although appellant maintained that he did not "steal" the vehicle and that he only "possessed" the vehicle, thus resulting in his conviction for receiving stolen property, physical evidence links appellant to the vehicle's damage. Authorities located appellant's fingerprints on the vehicle's steering column and gear shift. While I concede that a possibility exists that some overlap may have occurred with respect to damage caused by appellant and the damage caused by the "unknown" thief, I do not believe that the damage was wholly unrelated to appellant's conduct and to the offense for which he was convicted. Thus, I would affirm the trial court's restitution order. JUDGMENT ENTRY It is ordered that the JUDGMENT BE REVERSED AND CAUSE REMANDED and that the Appellant recover of Appellee costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Washington County Common Pleas Court to carry this judgment into execution. IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Ohio Supreme Court an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Ohio Supreme Court in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. Evans, P.J.: Concurs in Judgment and Opinion. Abele, J.: Concurs in Judgment and Opinion as to Assignments of Error I & II; Dissents with Attached Dissenting Opinion as to Assignment of Error III. For the Court BY: _______________________ William H. Harsha, Judge NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.

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