[Cite as State v. Elizondo,
2016-Ohio-774.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. John W. Wise, J.
-vs- :
:
DUSTIN ELIZONDO : Case No. 14-CA-20
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 13-CR-494
JUDGMENT: Sentence Vacated and Remanded
DATE OF JUDGMENT: February 29, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOSHUA S. HORACEK SARAH M. SCHREGARDUS
239 West Main Street 492 City Park Avenue
Suite 101 Columbus, OH 43215
Lancaster, OH 43130
Fairfield County, Case No. 14-CA-20 2
Farmer, P.J.
{¶1} Following a bench trial, appellant, Dustin Elizondo, was found guilty of three
counts of attempted murder in violation of R.C. 2903.02 and 2923.02, three counts of
felonious assault in violation of R.C. 2903.11, five counts of kidnapping in violation of R.C.
2905.01, one count of abduction in violation of R.C. 2905.02, three counts of domestic
violence in violation of R.C. 2912.25, and one count of assault in violation of R.C. 2903.13.
See, Entry of Verdict filed February 7, 2014. By judgment entry of sentence filed February
19, 2014, the trial court determined the three counts of attempted murder were not allied
offenses, determined the felonious assault counts, the kidnapping counts, the abduction
count, and two of the domestic violence counts merged with each other and with the
attempted murder counts, and merged the remaining domestic violence count and the
assault count, but did not merge them with the other counts. The state elected sentencing
on the three attempted murder counts and the merged domestic violence/assault count.
The trial court sentenced appellant to seven years on each of the attempted murder
counts, to be served consecutively, and one hundred thirty days in jail on the domestic
violence/assault count, to be served consecutively, for a total sentence of twenty-one
years in prison plus one hundred thirty days in jail.
{¶2} Appellant filed an appeal, claiming manifest weight of the evidence, and this
court affirmed the trial court's decision. State v. Elizondo, 5th Dist. Fairfield No. 14-CA-
20, 2015-Ohio-1109. The Supreme Court of Ohio declined jurisdiction. State v. Elizondo,
143 Ohio St.3d 1499,
2015-Ohio-4468.
{¶3} On June 15, 2015, appellant filed with this court an application to reopen
his appeal, claiming ineffective assistance of counsel for his appellate counsel's failure to
Fairfield County, Case No. 14-CA-20 3
assign as error the improper imposition of consecutive sentences. By judgment entry
filed August 28, 2015, this court granted the application, finding a colorable claim on the
issue of ineffective assistance of counsel, and reopened the appeal on the limited issue
set forth in his application, to wit: "appellate counsel was ineffective for failing to cite as
error the trial court's failure to make the requisite findings to impose consecutive
sentences under R.C. 2929.14(C)(4) at the sentencing hearing and trial counsel's failure
to object to the claimed error."
{¶4} This matter is now before this court for consideration. Assignments of error
are as follows:
I
"THE TRIAL COURT ERRED WHEN IT FAILED TO MAKE THE REQUISITE
FINDINGS TO IMPOSE CONSECUTIVE SENTENCES UNDER R.C. 2929.14(C)(4)."
II
"TRIAL COUNSEL WAS INEFFECTIVE WHEN HE FAILED TO OBJECT TO THE
IMPOSITION OF A SENTENCE THAT WAS CONTRARY TO LAW."
III
"APPELLANT WAS DEPRIVED [OF] THE EFFECTIVE ASSISTANCE OF
APPELLATE COUNSEL WHEN COUNSEL FAILED TO RAISE ASSIGNMENTS OF
ERROR I AND II."
I
{¶5} Appellant claims the trial court erred in failing to make the requisite findings
to impose consecutive sentences under R.C. 2929.14(C)(4) at the sentencing hearing.
We agree.
Fairfield County, Case No. 14-CA-20 4
{¶6} R.C. 2929.14(C)(4) states the following:
(4) If multiple prison terms are imposed on an offender for convictions
of multiple offenses, the court may require the offender to serve the prison
terms consecutively if 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 one or more of 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 post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more of
the multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
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.
Fairfield County, Case No. 14-CA-20 5
{¶7} In State v. Bonnell, 140 Ohio St.3d 209,
2014-Ohio-3177, syllabus, the
Supreme Court of Ohio held: "In order to impose consecutive terms of imprisonment, a
trial court is required to make the findings mandated by R.C. 2929.14(C)(4) at the
sentencing hearing and incorporate its findings into its sentencing entry, but it has no
obligation to state reasons to support its findings." (Emphasis added.)
{¶8} A review of the February 14, 2014 sentencing hearing transcript indicates
the trial court did not meet the requirements of R.C. 2929.14(C)(4) and Bonnell, and the
state concedes the issue. T. at 41-42; Appellee's Brief at 3, 5.
{¶9} Upon review, we vacate the sentence and remand the matter to the trial
court for rehearing on the issue of consecutive sentencing.
{¶10} Assignment of Error I is granted.
Fairfield County, Case No. 14-CA-20 6
II, III
{¶11} Based upon our decision in Assignment of Error I, these assignments are
moot.
By Farmer, P.J.
Hoffman, J. and
Wise, J. concur.
SGF/sg 218
