The Akron Legal News

Man convicted of attempted murder wins appeal for resentencing

ANNIE YAMSON
Special to the Legal News
Published: March 15, 2016

A man who was convicted of murder in 2014 in the Fairfield County Court of Common Pleas recently won his appeal after claiming sentencing errors.

The decision, handed down by a panel of three judges in the 5th District Court of Appeals, remanded the case of Dustin Elizondo back to the common pleas court for a resentencing hearing.

According to a verdict entry filed Feb. 7, 2014, Elizondo was found guilty of three counts of attempted murder, three counts of felonious assault, five counts of kidnapping, one count of abduction, three counts of domestic violence and one count of assault.

By judgment entry filed Feb. 19, 2014, the lower court determined that the three counts of attempted murder were not allied offenses.

It also found that the felonious assault, kidnapping, abduction and two of the domestic violence counts merged with each other and the attempted murder counts.

The remaining domestic violence count and the assault merged with each other but not with the other counts.

After the state elected to proceed to sentencing on the attempted murder counts and the merged domestic violence and assault, the trial court imposed an aggregate sentence of 21 years in prison plus 130 days in jail, ordering seven consecutive years for each attempted murder.

Elizondo lost his direct appeal and the state Supreme Court declined jurisdiction.

However, on Aug. 28, 2015, the 5th District court allowed Elizondo to reopen his appeal for his counsel’s failure to bring up the issue of improper imposition of consecutive sentences.

“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,” Presiding Judge Sheila Farmer wrote for the court of appeals. “We agree.”

According to the statute, if multiple prison terms are imposed on an offender for convictions on multiple offenses, the trial court must make certain findings, including that consecutive sentences are necessary to protect the public from future crime and that the sentences are not disproportionate to the offender’s conduct.

The court may also find one or more 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.”

In keeping with the Ohio Supreme Court’s holding in State v. Bonnell (2014-Ohio-3177), the appellate panel held that the trial court was 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.

“A review of the Feb. 14, 2014 sentencing hearing transcript indicates that the trial court did not meet the requirements of R.C. 2929.14(C)(4) and Bonnell, and the state concedes the issue,” Farmer wrote. “Upon review, we vacate the sentence and remand the matter to the trial court for rehearing on the issue of consecutive sentencing.”

Judges William Hoffman and John Wise joined Farmer to form the majority.

The case is cited State v. Elizondo, 2016-Ohio-774.

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