State v. Steward

Annotate this Case

Download PDF

[Cite as State v. Steward, 2003-Ohio-4082.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 02CA43 : vs. : : TIMOTHY A. STEWARD, : DECISION AND JUDGMENT ENTRY : Defendant-Appellant. : : Released 7/29/03 ___________________________________________________________ APPEARANCES: David H. Bodiker, Ohio Santos, Assistant State for Appellant. Public Public Defender, and Luis Defender, Columbus, Delos Ohio, Alison L. Cauthorn, Assistant Prosecuting Attorney, Marietta, Ohio, for Appellee. ___________________________________________________________ Harsha, J. Timothy {¶1} judgment, convict A. arguing him of Steward that the receiving appeals court stolen the lacked trial jurisdiction property as juvenile at the time he committed the offense. plain language of R.C. 2913.51(A), the court's he was to a Because the receiving stolen property statute, provides that a violation occurs when a person retains property known to be obtained through the commission of a theft offense and Steward was convicted for possessing stolen property after his eighteenth birthday, we conclude that it is irrelevant when Steward first obtained the property. Thus, the court had jurisdiction to convict him and sentence for committing this crime. Steward also argues that the court erred in sentencing him to: 1) greater than the minimum, 2) the maximum, and 3) consecutive sentences. Because we conclude that the record supports the court's findings that the shortest prison term would demean the seriousness of Steward's conduct and not adequately protect the public from future crime, we hold that the court's imposition of longer than terms of incarceration is appropriate. the minimum Moreover, because the record supports the trial court's finding that Steward committed one of the worst forms of the offense of receiving stolen property in that he used a stolen firearm to commit an aggravated imposition of the robbery, maximum term we of the record does not support the imprisonment receiving stolen property conviction. that uphold court's for the However, we conclude the imposition of the maximum sentence for the aggravated robbery conviction or the imposition of consecutive sentences due to Steward's young age, lack of prior incarceration, lack of an adult or serious juvenile circumstances conviction. criminal surrounding record, the and the aggravated factual robbery Finally, we reverse the court's order that Steward pay the because costs Steward is associated indigent with and, his absent prosecution a change in financial status, indigent defendants cannot be ordered to pay costs. On December 17, 2001, less than a week after his {¶2} eighteenth birthday, Steward entered Schafer s Store in Ludlow Township, Washington County, and pointed a gun at Delbert Schafer, the owner of the store. Steward stated that he was holding up the store, opened the cash register, and took approximately $400.00. Mr. Schafer, who was ninety-one years old at the time, remained seated in his chair. Steward then exited the store, tearing the phone off the wall as he left. Approximately twenty minutes after the robbery, {¶3} the Washington County Sheriff s Department apprehended Steward, who was in a vehicle with his then-girlfriend, Heather Jung. Sheriff s Upon Department in a searching discovered black an unloaded under the vehicle, the Beretta 22- caliber gun seat. The Sheriff s Department also found approximately $400.00 in Jung s purse. holster Steward s driver s side A check of the firearm revealed that it had been stolen on November 28, 2001, along with numerous other items, from the home of Stephen and Melinda Haas. On {¶4} January 10, 2002, a grand jury indicted Steward on one count of aggravated robbery with a firearm specification and one count of receiving stolen property. Because Steward was a juvenile at the time of the Haas burglary, the State did not attempt to obtain a grand jury indictment on that charge but filed a complaint in juvenile court alleging Steward s involvement. pled guilty to aggravated property. In agreed eliminate to exchange robbery for the his gun Thereafter, Steward and receiving guilty plea, stolen the specification State from the investigation, the aggravated robbery charge. {¶5} Following a pre-sentence Washington County Court of Common Pleas sentenced Steward to a ten-year imprisonment term on the aggravated robbery conviction and an eighteen-month imprisonment term on the receiving stolen consecutively. property conviction, to be Both terms of imprisonment were the maximum allowed under law. The court issued its sentencing entry on July 22, 2002 and this timely appeal followed. assigns the following errors: Mr. Steward s sentence are jurisdiction receiving void to served entertain "FIRST ASSIGNMENT OF ERROR - stolen because the Steward property the trial charge, conviction court pursuant and lacked to R.C. 2151.23(A)(1), and violates the due process clause of the Fifth, and Fourteenth Constitution. Amendments to [Citations omitted.] the United States SECOND ASSIGNMENT OF ERROR - The trial court erred by imposing more than the minimum prison robbery and sentences receiving for stolen Mr. Steward s property aggravated convictions, in derogation of R.C. 2929.14(B), and in violation of his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution and Section Sixteen, Article One of the Ohio Constitution. [Citations omitted.] THIRD ASSIGNMENT OF ERROR - The trial court erroneously imposed maximum prison robbery and sentences receiving for stolen Mr. Steward s property aggravated convictions, in derogation of R.C. 2929.14(C) and in violation of his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution and Section Sixteen, Article One of the Ohio Constitution. ASSIGNMENT OF supporting the ERROR trial The [Citations omitted.] record court s is devoid imposition of of FOURTH evidence consecutive sentences, in contravention of R.C. 2929.14(E)(4), and in violation of Mr. Steward s due process rights under the Fifth and Fourteenth Amendments to the United States Constitution, and Section Sixteen, Article One of the Ohio Constitution. [Citations omitted.] FIFTH ASSIGNMENT OF ERROR - The trial court erred by imposing costs. [Citations omitted.]" I. In his first assignment of error, Steward asserts {¶6} that the Washington County Court of Common Pleas lacked jurisdiction to convict and sentence him on the receiving stolen property charge as he was a juvenile at the time he committed the offense. R.C. {¶7} 2913.51(A) provides: "No person shall receive, retain, or dispose of property of another knowing or having reasonable cause to believe that the property has been obtained through commission of a theft offense." State alleges 2913.51(A) that because Steward he is guilty retained of property, violating i.e. the The R.C. gun stolen from the Haas residence, which he knew was obtained through the commission of a burglary. Steward argues that the retain language in R.C. 2913.51(A) was inserted so as to permit the conviction of a person who receives property without knowing that it is stolen, later learns the status of the property and, despite that knowledge, decides to keep or drafters sell the of R.C. property.1 2913.51(A) Steward did not asserts intend that the to make receiving stolen property a continuing offense and, therefore, Steward violated this statute at the time he initially obtained the gun and knew it was stolen, i.e. on November 28, 2001, prior to his eighteenth birthday. {¶8} In his brief, Steward acknowledges that two Ohio courts have already held that an individual can be indicted in Common Pleas Court for receiving stolen property even when the item was stolen while the individual was under eighteen years of age. See State v. Stevens (1979), 65 Ohio Misc. 4, 5; State v. Homer (1992), 78 Ohio App.3d 477, 478. Nonetheless, jurisdictions, relying Steward on argues case that law this from Court other should decline to follow the existing Ohio case law. {¶9} Under Ohio law, it is a cardinal rule that a court must first look to the language of a statute itself to determine the legislative intent. In re Hayes (1997), 79 Ohio St.3d 46, 48, citing State v. S.R. (1992), 63 Ohio St.3d 590, 594-595. In interpreting a statute, words and phrases shall be read in context and construed according to the rules of grammar and common usage. Independent Ins. Agents of Ohio, Inc. v. Fabe (1992), 63 Ohio St.3d 310, 314; R.C. 1.42. 1 Courts do not have authority to ignore the Interestingly, Steward makes this argument based not on Ohio legislative history, but on a Nebraska case interpreting the Nebraska receiving stolen property statute. plain and unambiguous language of a statute under the guise of statutory interpretation, but must give effect to the words used. Wray v. Wymer (1991), 77 Ohio App.3d 122, 130. In other words, courts may not delete words used or insert words not used. Cline v. Ohio Bur. of Motor Vehicles (1991), 61 Ohio St.3d 93, 97. {¶10} R.C. 2913.51(A) explicitly prohibits a person from not only receiving stolen property, but from retaining it. As the court noted in Stevens, supra, retain is defined as [t]o continue to hold, have, use, recognize, etc., and to keep. Citing Black s Law Dictionary (5 Ed.). Clearly, Steward s act of continuing to have the stolen gun on December 2913.51(A) 17, 2001 regardless constituted of when a violation Steward of R.C. initially took possession of the gun. {¶11} For these reasons, we agree with the holdings of our colleagues in Homer and Stevens and overrule Steward s first assignment of error. II. {¶12} In assignments of error two through four, Steward challenges the trial court s decisions to impose more than the minimum prison sentences and to impose the maximum sentences for his aggravated robbery and receiving stolen property convictions, as well as the court s order that he serve the sentences for the two convictions consecutively. {¶13} When an appellate court reviews a trial court s sentencing decision, the reviewing court will not overturn the trial court s sentence unless the court clearly and convincingly finds that: (1) the sentence is not supported by the record; sentence (2) without the trial following court the imposed a appropriate prison statutory procedures; or (3) the sentence imposed was contrary to law. App. See R.C. 2953.08(G)(1); State v. McCain, Pickaway No. evidence 01CA22, is 2002-Ohio-5342. that measure or Clear degree of and proof convincing which will produce in the mind of the trier of fact a firm belief or conviction as to the facts sought to be established. See State v. Eppinger, 91 Ohio St.3d 158, 164, 2001-Ohio-247, 743 N.E.2d 881; State v. Schiebel (1990), 55 Ohio St.3d 71, 74, 564 N.E.2d 54. A. {¶14} Under shortest R.C. authorized 2929.14(B), prison term courts is presume appropriate if offender has not previously served a prison term. 2929.14(B). 324, 325, the the R.C. See, also, State v. Edmonson, 86 Ohio St.3d 1999-Ohio-110, 715 N.E.2d 131. However, the trial court may impose a longer sentence if it finds on the record that the seriousness shortest of adequately the protect prison offender s the public to give specific demean the will not or future crime. R.C. The trial court is not reasons for minimum prison term is inappropriate. syllabus. will conduct from 2929.14(B)(2); Edmonson, supra. required term finding that the Edmonson, supra, at However, the court must note on the record that it engaged in the analysis required under R.C. 2929.14(B) and that it varied from the minimum sentence for at least one of the two sanctioned reasons. {¶15} In its sentencing Id. at 326. entry, the trial court explicitly found that, as to both the aggravated robbery and receiving stolen property convictions, the shortest possible prison term would demean the seriousness of the offender s conduct and/or would not adequately protect the public from future crime by this (Entry of July 22, 2002 at p. 5.) that the 2929.14(B) court prior complied to with the offender or others. Therefore, we conclude requirements imposing greater Steward contends than the of R.C. minimum sentences on Steward. {¶16} Nonetheless, that the record does not support the trial court s decision to impose more than the minimum sentences. We disagree. While Steward has no other adult convictions, as the trial court noted, the defendant has several juvenile convictions including theft, domestic violence, and unauthorized use of a motor vehicle. not Moreover, Steward violated his juvenile probation once, but twice. While, as Steward states in his appellate brief, prison may have a greater deterrent effect on one who has not previously been incarcerated, Steward's prior brushes with the law obviously did not deter him from committing these crimes. Further, the circumstances of the crimes to which Steward pled guilty demonstrate that the shortest prison appropriate. sentences available would not be Steward entered a store with a stolen weapon, pointed it at a ninety-one year old man, and stole money. Therefore, the record supports the trial court s imposition of longer than the minimum sentences. {¶17} Steward also contends that the imposition of greater than the minimum sentences is improper because the court failed to consider imposing the minimum prior to imposing the maximum sentences. sentences Even assuming that the law supports Steward's argument, the record does not. Steward cites to the transcript in support of his position. However, a review of the transcript reveals that the court stated several reasons why it believed Steward's conduct was egregious, determined that the shortest prison terms were inappropriate, and then went on to consider whether maximum sentences should be imposed. (Tr. at pp. 67-70.) Steward s second assignment of error is overruled. B. {¶18} R.C. 2929.14(C) limits a trial court s authority to impose the 2929.14(C), maximum maximum prison sentences sentence. are Under R.C. for those reserved offenders who (1) have committed the worst forms of the offense; (2) pose the greatest likelihood of committing future crimes; (3) certain major drug offenders; and (4) certain repeat violent offenders. If the trial court imposes the maximum sentence, it must not only make one of the required findings but also give its reasons for doing so. R.C. 2929.19(B)(2)(d). {¶19} In its sentencing entry, the trial court found that by participating in the armed robbery of a 91 year old store business owner that he who has was innocently helped run operating all of his a family life, the defendant has committed the worst form of this offense, and due to his criminal history as a juvenile, which includes two offenses of violence, and includes two violations of probation, and given the crime spree that he was involved in here, he poses the greatest likelihood of recidivism * * *. (Entry further found of July that as 22, to 2002 the at pp. 5-6.) receiving stolen The court property conviction, this Defendant has committed the worst form of this offense, namely because the weapon, a .22 caliber pistol, which was one of the objects of this offense, was subsequently used in an Armed Robbery (Count One) by this defendant, and the Court also determines that given his criminal history as a juvenile, and the crime spree that he was involved in here, the likelihood of recidivism. 6.) offender poses the greatest (Entry of July 22, 2002 at p. We conclude that the trial court made the requisite findings under R.C. 2929.14(C) and stated the reasons for its findings as mandated by R.C. 2929.19(B)(2)(d). {¶20} However, Steward contends that the record does not support the court s conclusions as to either finding on both charges. As to the armed robbery sentence, Steward argues that neither the fact that Mr. Schafer is a lawabiding businessman nor Mr. Schafer s age makes this case the worst form of the offense as Mr. Schafer suffered no injuries and, despite the court s finding that Mr. Schafer suffered serious economic harm, there is no evidence that the taking of $400.00 constituted such harm. Moreover, he argues that the gun used during the robbery was unloaded. As to the receiving stolen property charge, Steward argues that the fact that the stolen gun was used to commit another felony is immaterial and the serious emotional harm caused to the Haas family by the burglary has no bearing on the receiving stolen property conviction. likelihood that of given maximum committing his future crimes, and lack sentences prison remorse of are unnecessary Concerning his Steward prison to contends experience, rehabilitate him. {¶21} First, we consider whether the record supports the trial court's finding that Steward committed the "worst form of the offense[s]." Notably, the statute itself provides that maximum sentences are reserved for those who commit the thus, admits constitute worst more the than worst form Katz, Ohio Felony & Section 7.6. on of of the Griffin impact forms the The the one of sentencing victim, offense. "The situation a court intent that particular Sentencing Law should of the language, might offense." (2002 Ed.), consider the offender, the offender's position of responsibility, whether the offense was an organized criminal activity, and the totality of the circumstances, including any mitigating circumstances, when making its determination. Id., citing State v. Edmonson (Sept. 25, 1998), Portage App. No. 97-P-0067, affirmed by 86 Ohio St.3d 324, 1999-Ohio-110, 715 N.E.2d 131. {¶22} Concerning the aggravated robbery conviction, the record demonstrates that Steward pointed an unloaded weapon at a ninety-one year old store owner, stole $400.00, ripped the telephone off the wall of the store and exited. There is no evidence in the record that the victim of the crime suffered physical or emotional harm as a result of this crime. In fact, the pre-sentence investigation report (PSI) reveals that the victim "thought this was a prank" when Steward initially pointed the gun at him. Moreover, while the prosecution argues that $400.00 is a substantial economic loss to a small store owner in Washington County, and this may be true, there is no evidence in the record to support such a finding. In any event, the PSI reveals that the money was recovered from Jung, forfeited by her to the State of Ohio and/or the Washington County Sheriff's Office, and used to repay Mr. Schafer for the loss that he suffered. {¶23} The record further reveals that Steward accepted responsibility for this crime and expressed remorse. Steward argued that he committed this crime because Jung informed him that she was pregnant and would have an abortion if he did not rob the store to obtain money for her, presumably to support the baby. The court was free to doubt Steward's expressions of remorse and his excuse for committing the crime. However, given the lack of serious economic or physical harm, we can only conclude that there is clear and convincing evidence that Steward did not commit one of the worst forms of aggravated robbery. {¶24} Next, we consider whether Steward committed one of the worst forms of receiving stolen property. was found in possession of a stolen firearm Steward which admittedly used to commit an aggravated robbery. he Steward argues that because the use of the weapon is not an element of the statutory offense of receiving stolen property, its use is immaterial. We disagree. Obviously, the possession and use of a stolen firearm is significantly worse than if law enforcement Steward's record simply one the of found a Therefore, possession. supports committed had we trial the court's worst forms stolen firearm conclude finding of that that receiving in the Steward stolen property such that the imposition of the maximum sentence was appropriate. {¶25} The trial court also found that the longest prison term was appropriate as to both convictions because Steward poses the greatest likelihood of committing future crime. In reaching this conclusion, the court noted that although Steward had no other adult convictions, he had prior juvenile convictions for theft, two counts of domestic violence, and unauthorized use of a motor vehicle, as well as two probation violations within six months. In finding the offenses for which Steward was being sentenced more serious, the court also noted that "the crime was a part of a series of criminal activity by this defendant and her [sic] co-defendant." (Entry of July 22, 2002 at p. 4.) Apparently, the court was referring to the fact that, in addition to being accused of burglarizing the Haas home and robbing Schaefer's Store, Steward and Jung were also accused of burglarizing Myers General Store and Schafer's Store on November 29, 2001. one count Washington of burglary County While the record reflects that was Juvenile pending against Steward in Court arising from his involvement in the Haas burglary, there is no evidence in the record that any charges were filed against Steward as to the other two burglaries. {¶26} In a sentencing hearing, the court may consider information which would have been inadmissible at trial. State v. Harris, Cuyahoga App. No. 78519, 2002-Ohio-1406, citing State v. Cassidy syllabus paragraph one. (1984), 21 Ohio App.3d 100, Evid.R. 101(C) excepts application of the Rules of Evidence, including the hearsay rule, from certain proceedings including sentencing hearings. State v. Cook (1998), 83 Ohio St.3d 404, 425, 70 N.E.2d 570. Therefore, information it is permissible concerning a for the defendant's court to consider previous criminal history including uncharged yet undisputed conduct. v. Hanson, Harris, Lucas supra. interview App. The with admitted Meyer's General Consequently, PSI the Steward No. reveals Washington that he court that 2002-Ohio-1522; during County his Sheriff's second Office, burglarized Schafer's and Store the L-01-1217, State Haas could the consider Store, residence. this information when determining the appropriate sentence for Steward. {¶27} Nonetheless, we still conclude that the record does not support the trial court's finding that Steward poses the greatest likelihood of committing future crime. The use of the term "greatest likelihood" requires the court to determine not simply that recidivism is "likely" or "highly likely." Griffin & Katz, supra, at Section 7.6. "It is a superlative applicable to a very limited number of offenders for whom hope of reformation seems extremely limited if not truly impossible, at least in the maximum time period of imprisonment available for the particular offense." to be the 2929.14(B) Id. Moreover, "[b]ecause prison is considered most effective requires that a deterrent person who and has because not R.C. been to prison should receive the minimum prison sentence unless the sentencing judge finds that the minimum would demean the seriousness of the offender's conduct or not adequately protect the public from future crime, there would seem to be strong guidance against imposing the maximum prison sentence on one who has not previously been imprisoned." Griffin & Katz, supra, at Section 7.7. {¶28} We criminal with history recidivism. the agree the trial demonstrates court that some Steward's likelihood of However, the record simply does not support court's finding that the greatest likelihood of recidivism is present. Steward was barely eighteen years old the when sentenced other he committed and was acts Moreover, a which while offenses juvenile when constitute the trial for he was committed all the criminal history. he his court which correctly noted that Steward has two violent offenses on his juvenile record, Steward's entire juvenile criminal history consists of offenses which would have been misdemeanors if committed by an adult. prison Further, given that Steward has never served a sentence, we cannot sentence is necessary. conclude that the maximum In fact, the imposition of such a lengthy sentence on such a youthful offender may encourage rather than discourage future criminal conduct by Steward, causing Steward to become a hardened career criminal rather than punishing chance to turn him for his life his crimes around. but We providing conclude him that a the record does not support the trial court's finding that Steward poses the greatest likelihood of recidivism such that the imposition of maximum sentences is appropriate. {¶29} Because we conclude that the court's finding that Steward committed one of the worst forms of the offense of receiving stolen property is supported by the record, we overrule relates appellant's to his third sentence assignment for this of error conviction. as it However, because we conclude that the record does not support the court's conclusion that Steward committed one of the worst forms of the offense of aggravated robbery or that he poses the greatest likelihood of committing future crime, we reverse the court's imposition of the maximum sentence as to this conviction. C. {¶30} Generally, trial courts concurrent prison sentences. in Ohio R.C. 2929.41(A). must impose However, a trial court may impose consecutive prison sentences under R.C. 2929.14(E)(4) when: "*** the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender s conduct and to the danger the offender poses to the public, and if the court also finds any of the following: (a) The offender committed 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. (b) The harm caused by the multiple offenses was so great or unusual that no single prison term for any of the offenses committed as part of a single course of conduct adequately reflects the seriousness of the offender s conduct. (c) The offender s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender." The inquiry 2929.14(E)(4) is a tripartite procedure. Washington App. No. 00CA18, under R.C. State v. Haugh, 2001-Ohio-2426. 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 the danger he poses; and finally, the court must find the existence of one of the enumerated circumstances in R.C. 2929.14(E)(4)(a) through (c). Id. The verb finds, as used in R.C. 2929.14(E)(4), means that the court must note that it engaged in the analysis required by the statute. See State v. Edmonson (1999), 86 Ohio St.3d 324, 326, 1999-Ohio-110, 715 N.E.2d 131; State v. Brice (Mar. 29, 2000), Lawrence App. No. 99CA21. {¶31} Additionally, the court must comply with R.C. 2929.19(B)(2)(c) which requires that the sentencing court make a finding that gives its reasons for selecting the sentences imposed * * * if it imposes consecutive sentences under section 2929.14 of the Revised Code. The requirement that a court give its reasons for selecting consecutive sentences is separate and distinct from the duty to make the findings required by R.C. 2929.14(E)(4). Brice, supra. Thus, after a sentencing court has made the required findings under R.C. 2929.14(E)(4), it must then justify those supporting findings the by imposition identifying of specific consecutive prison reasons terms. Id.; see, also, State v. Blair (Dec. 27, 1999), Scioto App. Nos. 98CA2588 and 98CA2589. {¶32} In its sentencing entry, the trial court found that the harm caused by the multiple offenses was so great or unusual offenses that no committed single as part prison of the term for any offender s of course the of criminal conduct reflect the seriousness of the offender s conduct. And, the court [found] that the offender s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by this offender. The Court also [found] that consecutive sentences are necessary to protect the public from future crime consecutive serousness or to sentences [sic] of punish are the not the offender, and disproportionate offender s conduct to to and the the danger the offender imposes [sic] to the public. of July 22, 2002 at p. 3.) to satisfy the said (Entry These findings are sufficient statutory requirements of R.C. court then 2929.14(E)(4). {¶33} After making these findings, the stated that it found certain factors present that make this offense more serious including the age of the victim of the aggravated robbery and the fact that the victim was working at his own store when he was threatened with a gun pointed in his face; the fact that during the robbery Steward was in possession of a .22 caliber pistol which was used to threaten the victim and facilitate the crime; the fact that the crime was part of a series of criminal activity by this defendant and his co-defendant; the serious economic harm caused to Delbert Schafer; and the serious emotional harm caused to the Haas family who learned that their property was used in the commission of an aggravated robbery. court also noted that the defendant s prior The juvenile convictions and probation violations likely to commit future crimes. make Steward more Based on a review of the entry, we conclude that the court cited these factors as its reasons for therefore, imposing complied consecutive with the sentences mandate and, of R.C. 2929.19(B)(2)(c). {¶34} Steward argues that the record does not support the imposition of consecutive sentences and we must agree. First, it is important to note that consecutive sentences is restrictions than imposition incarceration. the State v. Cuyahoga App. No. 77609. subject De of Amiches the imposition to even maximum greater terms (Mar. of 1, of 2001), As the Eighth District noted in De Amiches, "[w]hile R.C. 2929.14(C) essentially allows a maximum term upon a finding that either the punishment or public protection purposes of R.C. 2929.11 will be served thereby, the imposition of consecutive sentences must be analyzed with respect to both purposes. Although the judge can impose the sentence primarily for punishment purposes (by citing the gravity of the offenses) or for public protection purposes, he must also find that the sentences are not disproportionate with respect to both purposes. Moreover, the judge may not consider whether the sentences are disproportionate with respect to the risk of future crime by others; R.C. 2929.14(E)(4) requires a finding that the sentences are not disproportionate to the danger the offender poses to the public." {¶35} For the reasons stated in the previous assignment of error, there is insufficient evidence to support the trial court's finding that the harm caused by Steward's commission of both the aggravated robbery and the receiving stolen property charge were "so great or unusual" that no single prison term adequately reflects the seriousness of the offender's conduct. Moreover, implicit in our determination that the maximum sentence for the aggravated robbery conviction is unsupported because Steward did not commit the "worst form" of the offense is the conclusion that a single seriousness of 2929.14(E)(4)(b) supra, prison at term Steward's is Section adequately conduct inapplicable. 7.16 (stating reflects the that R.C. such See Griffin that if & the Katz, maximum sentence for the most serious offense is insufficient, then the court should consider the the imposition trial of consecutive sentences). {¶36} Likewise, Steward's history of criminal court's conduct finding that demonstrates that consecutive sentences are necessary to protect the public from future crime by Steward is unsupported. Again, "[i]mplicit in R.C. 2929.14(E)(4)(c) is that the court has considered serious imposing offense the has and maximum sentence determined inadequate to protect the public." at Section 7.17. that for the sentence most to be Griffin & Katz, supra, In the previous assignment of error, we concluded that the record demonstrates that the imposition of the maximum conviction is sentence unnecessary for to the aggravated protect the robbery public from Steward as a lesser term of imprisonment is sufficient to provide such protection. For the same reasons previously cited, that we must conclude consecutive sentences are likewise unnecessary for such public protection. {¶37} We sentences conclude is that unsupported the imposition by the of record consecutive and sustain error, Steward Steward's fourth assignment of error. III. {¶38} In contends his that the final court because he is indigent. assignment erred in of imposing costs on him The State concurs with Steward s position in this regard. {¶39} In State 2002-Ohio-6684, we v. Clark, held that Pickaway [c]osts App. No. should 02CA12, not be assessed against a defendant previously determined to be indigent unless the court determines that the defendant s financial status has changed. We reached this result based on a review of the statutory language of R.C. 2949.14 and the Eleventh District Court of Appeals holding in State v. Heil (Mar. 30, 2001), Geauga App. No. 2000-G-2268, vacated for lack of a final appealable order, 95 Ohio St.3d 531, 2002-Ohio-2841. {¶40} R.C. 2929.14 provides that [u]pon conviction of a nonindigent person for a felony, the clerk of the court of common pleas shall make and certify * * * a complete itemized bill of the costs made in such prosecution * * *. (Emphasis added.) In Heil, the court noted that [t]he use of the term nonindigent implies that indigent defendants cannot be assessed court costs in felony cases. in original.) intended burden to of (Emphasis The Heil court found that the legislature relieve court indigent costs, just felony as defendants they are from relieved the from having to pay for an attorney, pay for expert witnesses, pay for filing fees, or pay for transcripts. The court noted, however, a trial court always has the discretion to evaluate a defendant s affidavit of indigency and determine whether the remanded for assessed if defendant is resentencing, the trial truly ordering court defendant is not indigent. indigent. became that The costs satisfied court only that be the {¶41} In the instant action, the record demonstrates that Steward is indigent and the State does not dispute this fact. Therefore, we sustain Steward s fifth assignment of error. {¶42} For the reasons cited herein, we overrule Steward's first and second assignments of error and sustain Steward's third, fourth, and fifth assignments of error and remand this matter to the trial court for further action consistent with this opinion. JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CAUSE REMANDED. JUDGMENT ENTRY It is ordered that the JUDGMENT BE AFFIRMED IN PART, REVERSED IN PART, AND CAUSE REMANDED and that the Appellee and Appellant split 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. & Abele, J.: Concur in Judgment & Opinion. 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.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.