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Summit Cty. man who violated protection order to be resentenced
TRACEY BLAIR
Legal News Reporter
Published: July 28, 2021
The 9th District Court of Appeals has determined a Summit County trial court erred by imposing consecutive sentences in a case in which a defendant committed a new crime while out on bond.
Appellant Burton Finch-Ball was charged in 2019 with one count of violating a protection order. He incurred that charge after repeatedly contacting an ex-girlfriend from jail. Because he previously had been convicted of violating a protection order, Finch-Ball was charged with a fifth-degree felony.
Eight months later, while Finch-Ball was out on bond, he attacked his father at their shared home. The incident led to Finch-Ball being charged with one count of domestic violence, a fourth-degree felony, and multiple counts of violating a protection order.
The defendant’s two cases were never formally joined, but he agreed to plead guilty to one count of domestic violence and one count of violating a protection order.
At his sentencing hearing, Finch-Ball requested community control while the state asked the court to impose consecutive prison sentences. Finch-Ball was sentenced to six months in prison for violating a protection order and 12 months for committing domestic violence, to be served consecutively.
On appeal, he argued the record does not support a finding of consecutive sentences, and that the court failed to make the required statutory findings at sentencing. The appellate panel agreed.
The prosecutor noted Finch-Ball had not been rehabilitated after his prior convictions. Instead, he had incurred new charges, some of which happened while out on bond, and he had failed to show any remorse for his actions. The prosecutor argued Finch-Ball was manipulative and that his actions demonstrated a likelihood of recidivism.
The trial court indicated it was following the prosecutor’s sentencing recommendation “for all the reasons stated * * * in the prosecutor’s position statement * * *.” The trial court said Finch-Ball’s prison terms would run consecutively “because of the seriousness of the offense; also the fact that each event is separated in a period of time, in this case, by * * * about eight or nine months.” The trial court did not otherwise set forth any findings in support of consecutive sentences in open court.
In journalizing Mr. Finch-Ball’s sentence, the trial court issued two sentencing entries: one in Criminal Case No. 2019-05-1742 and one in Criminal Case No. 2020-02-0466. The two entries contained identical provisions on consecutive service. Specifically, both entries provided:
The court further finds, pursuant to R.C. 2929.14(C)(4), consecutive sentences are necessary to protect the public OR to punish the offender; consecutive sentences are not disproportionate to the seriousness of the offender’s conduct; to the danger the offender poses to the public; and the court further finds 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.
Finch-Ball noted he was only convicted of two crimes, that they occurred at least eight months apart, and that they involved entirely different victims.
“Upon review, this court concludes that Mr. Finch-Ball’s sentences must be vacated, and this matter must be remanded for resentencing,” Judge Callahan stated. “The trial court imposed consecutive prison terms upon Mr. Finch-Ball without addressing the findings required by R.C. 2929.14(C)(4) at his sentencing hearing. The court merely referenced the prosecutor’s argument, the seriousness of Mr. Finch-Ball’s offense, and the amount of time that separated his offenses. Although the court included R.C. 2929.14(C)(4) findings in its sentencing entry, it was also required to make those findings at the sentencing hearing.
“The record reflects and the state concedes that the trial court did not do so.”
The case was remanded for resentencing to allow the trial court to properly consider R.C. 2929.14(C)(4) and make the necessary findings. The court took no position on Finch-Ball’s additional argument that the trial court’s findings under R.C. 2929.14(C)(4)(b) are not supported by the record.
Appellate judges Donna Carr and Thomas Teodosio concurred. The case is cited State v. Finch-Ball, 2021-Ohio-2221.