State v. White

[Cite as State v. White, 2023-Ohio-4391.]

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-230165

TRIAL NO. B-1806227

Plaintiff-Appellee, :

vs. : O P I N I O N.

HAROLD WHITE, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: December 6, 2023

Melissa A. Powers, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,

Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Krista Gieske, Assistant

Public Defender, for Defendant-Appellant.

OHIO FIRST DISTRICT COURT OF APPEALS

WINKLER, Judge.

{¶1} Following a remand for resentencing by this court, defendant-appellant

Harold White appeals the sentences imposed at the resentencing hearing. We find no

merit in his two assignments of error, and we affirm the trial court’s judgment.

Facts and Procedure

{¶2} After a jury trial, White was found guilty of two counts of rape, one count

of third-degree gross sexual imposition, two counts of fourth-degree gross sexual

imposition, and 17 counts of endangering children. The trial court sentenced him to

life imprisonment for each rape, 36 months for the third-degree-felony count of gross

sexual imposition, 18 months for each fourth-degree-felony count of gross sexual

imposition, and 36 months for each of the counts of endangering children. The court

ordered that all the sentences were to run consecutively to each other. It later entered

a nunc pro tunc order stating that the sentences for the rapes were 15 years to life.

{¶3} On direct appeal, this court upheld the jury’s guilty findings on all

counts. We rejected White’s argument that his sentences should have been concurrent

rather than consecutive because the court made the required findings set forth in

former R.C. 2929.14(C), and those findings were supported by the record. But we held

that the court improperly used a nunc pro tunc entry to amend the sentences on the

rape counts. Consequently, we vacated the sentences on the rape counts and

remanded the matter to the trial court to resentence White on those counts. We also

ordered the court to calculate jail-time credit and include it in the sentencing entry,

recalculate the aggregate sentence, include the proper parole statute governing rape

in the entry. State v. White, 1st Dist. Hamilton No. C-190589, 2021-Ohio-1644, ¶ 101-

111 (“White I”).

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OHIO FIRST DISTRICT COURT OF APPEALS

{¶4} On remand, the trial court held a sentencing hearing. Defense counsel

asked the court to “consider a complete resentencing in this case.” Counsel then

discussed mitigation, and the court permitted White to make a statement. The trial

court then stated that it had reviewed the case at length and had found “no basis for

reconsidering the Court’s sentence.” While the court disagreed with defense counsel’s

assertion that it could “revisit the entirety of the sentence,” it stated that even if it did

have that authority, it “would not exercise it in its discretion under the facts of this

case, and the Court would impose the same sentence.” The court journalized an entry

to that effect, and this appeal followed.

Scope of the Resentencing Hearing

{¶5} White presents two assignments of error for review. In his first

assignment of error, he contends that the trial court erred in resentencing him. He

argues that the trial court did not make the required findings to support consecutive

sentences in open court at the resentencing hearing. He also argues that the trial court

failed to impose prison terms on all counts except the rape counts. This assignment

of error is not well taken.

{¶6} In Ohio, there is a statutory presumption in favor of concurrent

sentences for most felony offenses. R.C. 2929.41(A); State v. Harris, 1st Dist.

Hamilton Nos. C-170266 and C-170267, 2018-Ohio-2850, ¶ 8. The trial court may

overcome that presumption by making the findings set forth in former

R.C. 2929.14(C). State v. Hutcherson, 1st Dist. Hamilton No. C-190627, 2020-Ohio-

5321, ¶ 10; State v. Palazzolo, 1st Dist. Hamilton No. C-150557, 2016-Ohio-7043, ¶ 13.

{¶7} When imposing consecutive sentences, a trial court must make the

required findings as part of the sentencing hearing and incorporate those findings in

the sentencing entry. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d

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OHIO FIRST DISTRICT COURT OF APPEALS

659, syllabus; State v. Walker, 1st Dist. Hamilton No. C-190193, 2020-Ohio-1581, ¶

68. The record must show that the court engaged in the requisite analysis and that the

evidence supports the findings. Walker at ¶ 68; State v. Cephas, 1st Dist. Hamilton

No. C-180105, 2019-Ohio-52, ¶ 43. But the trial court “has no obligation to state

reasons in support of its findings * * *.” Bonnell at syllabus; State v. Brown, 2019-

Ohio-1455, 129 N.E.3d 524, ¶ 28 (1st Dist.).

{¶8} The judgment entry in this case contains the required findings. At the

resentencing hearing, the court stated, “The prior sentencing proceeding made all the

appropriate findings to support consecutive sentences. This court reviewed those

findings, and I think it is appropriate in this case.” It added, “I adopted and

incorporated the original sentencing Court’s findings to support consecutive

sentences. I make the same findings based on my review of the record in this case.”

Thus, White argues that the court failed to make those findings as part of the

sentencing hearing.

{¶9} In State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381,

the Ohio Supreme Court discussed the scope of a resentencing hearing on remand. In

that case, the appellate court had held that the defendant was improperly sentenced

on two allied offenses. It vacated the defendant’s sentences and remanded the matter

for a new sentencing hearing at which the prosecutor would have the opportunity to

elect which of the allied offenses to pursue. It also held that the defendant’s arguments

that his sentence was inconsistent with the sentences imposed on his codefendants

and that the judge’s statements at the hearing showed judicial bias were moot.

{¶10} The state appealed to the Ohio Supreme Court, arguing that the scope

of the resentencing judge’s authority upon remand was limited to accepting the state’s

election among allied offenses. The court stated that when a cause is remanded to a

trial court to correct an allied-offense error, the court must hold a new sentencing

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OHIO FIRST DISTRICT COURT OF APPEALS

hearing for the offenses that remained after the state selects which allied offense to

pursue. Id. at paragraph one of the syllabus. As to the issue of the scope of the

resentencing hearing, it stated that while a remand for a new sentencing hearing

generally anticipates a de novo sentencing hearing, only the sentences for the offenses

that were affected by the appealed error are reviewed de novo. The sentences for any

offenses that were not affected by the appealed error are not vacated and are not

subject to review. Id. at ¶ 15.

{¶11} This court has followed Wilson in holding that while the sentences for

the offenses that were affected by the appealed error are reviewed de novo, the

sentences for any offenses that were not affected by error are not vacated and are not

subject to review. See State v. Ruff, 1st Dist. Hamilton Nos. C-160385 and C-160386,

2017-Ohio-1430, ¶ 9-12; State v. Temaj-Felix, 1st Dist. Hamilton No. C-140052, 2015-

Ohio-3966, ¶ 17.

{¶12} In our previous opinion, we remanded the cause to the trial court for it

to do four specific things: (1) impose a sentence for each rape offense consistent with

our opinion; (2) calculate jail-time credit and include it in the sentencing entry; (3)

recalculate the aggregate sentence; and (4) include the proper parole statute governing

rape. We affirmed the trial court’s judgment in all other respects, including the

imposition of consecutive sentences. White I, 1st Dist. Hamilton No. C-190589, 2021-

Ohio-1644, at ¶ 111.

{¶13} Therefore, the trial court was only required to conduct a de novo

hearing on the issues we remanded for the court to consider, which did not include

whether consecutive sentences were properly imposed. The trial court did not need to

make the required findings justifying the imposition of consecutive sentences at the

resentencing hearing, and therefore, it did not err in failing to state the findings for

consecutive sentences.

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OHIO FIRST DISTRICT COURT OF APPEALS

{¶14} White also argues that the trial court failed to impose prison terms on

counts three to 23 in open court. Because the scope of the resentencing hearing did

not include imposing sentences on any counts besides the rape counts, the trial court

was not required to reimpose those sentences. Therefore, we overrule White’s first

assignment of error.

Propriety of Consecutive Sentences

{¶15} In his second assignment of error, White contends that the trial court

erred in imposing consecutive sentences where the record did not adequately support

“levying an aggregate term that is tantamount to a death sentence.” He argues that

the trial court erred in summarily imposing consecutive terms without considering the

overall aggregate term to be imposed. He also argues that the record does not clearly

and convincingly support the imposition of consecutive sentences. This assignment

of error is not well taken.

{¶16} Before a reviewing court can modify or vacate a felony sentence, it must

clearly and convincingly find that the sentence is contrary to law or that the record

does not support the trial court’s findings. R.C. 2953.08(G)(2); State v. Marcum, 146

Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1; State v. White, 2013-Ohio-4225,

997 N.E.2d 629, ¶ 11 (1st Dist.).

{¶17} White relies on State v. Gwynne, Slip Opinion No. 2022-Ohio-4607,

which has had a complicated history. It has been appealed several times. We will refer

to it as “Gwynne IV.” In that case, the Ohio Supreme Court emphasized that appellate

courts review consecutive sentences under R.C. 2953.08(G)(2). It stated,

R.C. 2953.08(G)(2) gives some amount of deference to a trial court’s

decision concerning consecutive sentences. But this deference—unlike

types of deference that are more traditionally associated with appellate

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OHIO FIRST DISTRICT COURT OF APPEALS

review—does not stem from any obligation on the part of the appellate

court to defer to the trial court’s findings. Instead, it comes from the

legislature’s determination that an appellate court must use a higher

evidentiary standard—as opposed to the one the trial court uses when

making the findings—when it reviews the record and determines

whether to exercise its authority under R.C. 2953.08(G)(2) to reverse or

modify the trial court’s order of consecutive sentences.

Gwynne IV at ¶ 18.

{¶18} Its holding was two-fold. First, the consecutive-sentences findings are

not “simply threshold findings that, once made, permit any amount of consecutively

stacked individual sentences. Rather, these findings must be made in consideration

of the aggregate term to be imposed.” Id. at ¶ 1. Second, “appellate review of

consecutive sentences under R.C. 2953.08(G)(2) does not require appellate courts to

defer to the sentencing court’s findings in any manner. Instead, the plain language of

the statute requires appellate courts to review the record de novo and decide whether

the record clearly and convincingly does not support the consecutive sentence

findings.” Id.

{¶19} Subsequently, the state filed a motion for reconsideration. In State v.

Gwynne, Slip Opinion No. 2023-Ohio-3851 (“Gwynne V”), the Supreme Court

granted that motion and vacated its prior decision in Gwynne IV. In stating its reasons

for granting the motion, the court said that “the standard of review established by the

majority in Gwynne IV is contrary to the plain language of R.C. 2953.08(G)(2). The

majority announced a de novo standard of review, but the statute requires an appellate

court to defer to the trial court’s consecutive sentence findings.” Gwynne V at ¶ 4.

{¶20} After discussing the plain language of R.C. 2953.08(G)(2), the court

stated:

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OHIO FIRST DISTRICT COURT OF APPEALS

The language of R.C. 2953.08(G)(2) mandates that an appellate court

may increase, reduce, or otherwise modify consecutive sentences only if

the record does not “clearly and convincingly” support the trial court’s

R.C. 2929.14(C)(4) consecutive-sentence findings. The clear-and-

convincing standard for appellate review in R.C. 2953.08(G)(2) is

written in the negative.

Gwynne V at ¶ 13.

{¶21} The court also rejected the concept that in reviewing consecutive

sentences, the court must look at the aggregate sentence. R.C. 2929.14(C), which sets

forth the findings the trial court must make before it imposes consecutive sentences,

uses both the terms “consecutive sentences” and “consecutive service.” It stated that

both of those terms “have only one relevant meaning: the running of two or more

sentences one right after the other. * * * Neither of these terms is synonymous with

the term ‘aggregate sentence,’ which means ‘[t]he total sentence imposed for multiple

convictions. * * * .’ ” (Citations omitted.) Id. at ¶ 21.

{¶22} Applying the holding in Gwynne V, we defer to the trial court’s findings

unless the record clearly and convincingly does not support the trial court’s findings,

and we need not consider the aggregate sentence. White argues that the record does

not clearly and convincingly support the trial court’s findings justifying consecutive

sentences. We vehemently disagree. His argument relies on his version of the facts,

which the jury did not believe. The facts of this case are horrific, and the evidence of

sexual and physical abuse inflicted on the small children supports the trial court

findings, as we previously held in White I. White I, 1st Dist. Hamilton No. C-190589,

2021-Ohio-1644, at ¶ 102.

{¶23} White also argues that consecutive sentences are reserved for the worst

offenses and offenders. White’s offenses undoubtedly qualify as the worst. The

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OHIO FIRST DISTRICT COURT OF APPEALS

consecutive sentences originally imposed by the trial court were supported by the

record. Accordingly, we overrule White’s second assignment of error.

{¶24} In sum, we find no merit in White’s arguments. The sentences imposed

by the trial court on remand were proper, and therefore, we overrule both of his

assignments of error and affirm the trial court’s judgment.

Judgment affirmed.

BERGERON, P.J., and BOCK, J., concur.

Please note:

The court has recorded its own entry this date.

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