Opinion
Case No. 2018CA00072
03-04-2019
STATE OF OHIO, Plaintiff - Appellee v. CHRISTOPHER P. FAHRNI, Defendant - Appellant
APPEARANCES: For Plaintiff-Appellee JOHN D. FERRERO Prosecuting Attorney By: RONALD MARK CALDWELL Assistant Prosecuting Attorney Appellate Section 110 Central Plaza South - Suite 510 Canton, Ohio 44702-1413 For Defendant-Appellant ARNOLD F. GLANTZ 3722 Wipple Ave. NW Canton, Ohio 44718
JUDGES: Hon. W. Scott Gwin, P.J. Hon. Craig R. Hon. Earle E. Wise, J.
OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2018-CR-221 JUDGMENT: Affirmed in part, Reversed in part APPEARANCES: For Plaintiff-Appellee JOHN D. FERRERO
Prosecuting Attorney By: RONALD MARK CALDWELL
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza South - Suite 510
Canton, Ohio 44702-1413 For Defendant-Appellant ARNOLD F. GLANTZ
3722 Wipple Ave. NW
Canton, Ohio 44718 Baldwin, J.
{¶1} Christopher Fahrni appeals the judgment of the Stark County Court of Common Pleas imposing a sentence for an aggregate of forty years for: Attempt to Commit Murder with a firearm specification (R.C. 2941.145) in violation of R.C. 2923.02(A) and 2903.02(A); Felonious Assault with a firearm specification a violation of R.C. 2903.11(A)(1) and (2); Aggravated Burglary with a firearm, a violation of R.C. 2911.11(A)(1) and (2); and four counts of Kidnapping, in violation of R.C. 2905.01(A)(l), (2), and (3) with a firearm specification. The Felonious Assault was a felony of the second degree; the remaining charges were felonies of the first degree.
STATEMENT OF FACTS AND THE CASE
{¶2} Appellant invaded his former girlfriend's home and held her and her three young children captive for several hours in the basement of the home. He was armed and threatened to kill the children and their mother. He attempted to force one of the children to restrain her mother with duct tape so she would be forced to watch him kill her children. The victim's current boyfriend appeared at the home and was shot by appellant.
{¶3} Appellant was arrested and charged with attempted murder, four counts of kidnapping, felonious assault, and aggravated burglary, all charges accompanied by fire arm specifications. Appellant changed his plea to guilty and sentencing was scheduled for May 25, 2018. The victim appeared at the sentencing hearing and provided testimony describing the horrific circumstances of the crime as well as the continued impact appellant's offenses have had on her and her children.
{¶4} The attempted murder and felonious assault counts were merged and he was sentenced to seven years for those offenses. He received a six year sentence for the aggravated burglary count, five years for two of the kidnapping counts and four years for the remaining two kidnapping counts. The court imposed mandatory three-year prison terms for the firearm specifications related to the attempted murder and kidnapping charges running them consecutively with each other and the aggregate prison term for the underlying offenses. Firearm specifications for the felonious assault and aggravated burglary charges were merged with a firearm specification related to the attempted murder charge. Appellant's aggregate prison term was forty years.
{¶5} At sentencing, the trial court reviewed the requirements of R.C. 2919.14(C) prior to imposing consecutive sentences. However, the trial court neglected to record those findings in its journal entry.
{¶6} Appellant filed his notice of appeal and submitted two assignments of error:
{¶7} "I. THE TRIAL COURT ERRED IN ORDERING MR. FAHRNI'S SENTENCES TO BE SERVED CONSECUTIVELY."
{¶8} "II. THE COURT'S SENTENCE VIOLATES MR. FAHRNI'S EIGHTH AMENDMENT RIGHT AGAINST CRUEL AND UNUSUAL PUNISHMENT."
STANDARD OF REVIEW
{¶9} We review felony sentences using the standard of review set forth in R.C. 2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22. Revised Code 2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence and remand for resentencing where we clearly and convincingly find that either the record does not support the sentencing court's findings under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law. See, also, State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.2d 659, ¶ 28. Accordingly, pursuant to Marcum this Court may vacate or modify a felony sentence on appeal only if it determines by clear and convincing evidence that: (1) the record does not support the trial court's findings under relevant statutes, or (2) the sentence is otherwise contrary to law. State v. Cox, 5th Dist. Licking No. 16-CA-80, 2017-Ohio-5550, ¶ 9.
{¶10} In his first assignment of error, appellant contends that the trial court erred by failing to comply with the dictates of R.C. 2929.14(C) and the holding of the Supreme Court of Ohio in the case of State v. Bonnell, supra, syllabus. Appellant concedes that the trial court announced findings that complied with the statute at the sentencing hearing, but contends that the trial court failed to incorporate those findings in its judgment entry.
{¶11} Appellee notes that the trial court made the necessary findings pursuant to R.C. 2929.14(C) during the sentencing hearing and directs us to the portions of the record containing the relevant language. We have reviewed the record and we hold that the trial court did complete the analysis required by the statute prior to imposing consecutive sentences. Appellee agrees that Bonnell, supra, obligates the trial court to incorporate that analysis in its journal entry. Appellant contends, appellee concedes, and we find that the trial court neglected to include that analysis in its entry. As noted by the Supreme Court of Ohio in Bonnell:
{¶12} A trial court's inadvertent failure to incorporate the statutory findings in the sentencing entry after properly making those findings at the sentencing hearing does not render the sentence contrary to law; rather, such a clerical mistake may be corrected by the court through a nunc pro tunc entry to reflect what actually occurred in open court. See State v.
Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 15 (where **667 notification of postrelease control was accurately given at the sentencing hearing, an inadvertent failure to incorporate that notice into the sentence may be corrected by a nunc pro tunc entry without a new sentencing hearing).Bonnell, supra, at ¶ 30.
{¶13} Appellant's first assignment of error has merit and is granted.
{¶14} In his second assignment of error, appellant contends that "his sentence was grossly disproportionate to the sentences given to other defendants in this jurisdiction and others." (Appellant's Brief p. 9). While appellant does cite to case law regarding cruel and unusual punishment, proportionality, and Eighth Amendment rights, he concedes that "[w]here none of the individual sentences imposed on an offender are grossly disproportionate to their respective offenses, an aggregate prison term resulting from consecutive imposition of those sentences does not constitute cruel and unusual punishment." State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073, ¶ 20.
{¶15} In support of his argument that the sentence was disproportionate, appellant cites to one Sixth District Court of Appeals decision that he describes as factually similar, where the defendant received only a twenty-three year sentence, not forty years as received by appellant. In Hairston, the Ohio Supreme Court held proportionality review of sentences should focus on individual sentences rather than on the cumulative impact of multiple sentences imposed consecutively. Hairston, supra, at ¶ 20. The sole issue before the court in Hairston concerned whether the aggregate, 134-year prison term imposed on Hairston constituted cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and Section 9, Article I of the Ohio Constitution. Hairston, Id. at ¶ 1. Because this aggregate term of incarceration resulted from Hairston's guilty pleas to four counts of aggravated robbery, four counts of kidnapping, three counts of aggravated burglary, all with firearm specifications, and three counts of having a weapon while under disability, and because none of his individual sentences were grossly disproportionate to their respective offenses, the Supreme Court concluded that his aggregate sentence was not unconstitutional. Hairston, Id, at ¶ 22-23. Given that the trial court is not obligated to refer to every factor listed in R.C. 2929.12 as part of its sentencing analysis, "the defendant has the burden to affirmatively show that the court did not consider the applicable sentencing criteria or that the sentence imposed is 'strikingly inconsistent' with the applicable sentencing factors." State v. Hull, 11th Dist. Lake No. 2016-L-035, 2017-Ohio-157, ¶ 8. Appellant has failed in this burden.
{¶16} The trial court considered the purposes and principles of sentencing as well as the factors that the court must consider when determining an appropriate sentence. R.C. 2929.11 and 2929.12. The trial court had no obligation to state reasons to support its findings, nor was it required to give a talismanic incantation of the words of the statute, provided that the necessary findings can be found in the record and are incorporated into the sentencing entry. Upon review, we find that the trial court's sentencing on the charges complies with applicable rules and sentencing statutes. The sentence was within the statutory sentencing range. We also find that the record in the case at bar supports the trial court's findings under R.C. 2929.14(C)(4). While appellant may disagree with the weight given to these factors by the trial judge, his sentence was within the applicable statutory range for the charges and therefore, we have no basis for concluding that it is contrary to law.
{¶17} Appellant has failed to clearly and convincingly show that the trial court failed to consider the principles of felony sentencing, or that the aggregate forty year sentence is otherwise contrary to law.
{¶18} Appellant's second assignment of error is denied.
{¶19} The decision of the Stark County Court of Common Pleas is affirmed in part and reversed in part. The sentence is vacated and the matter is remanded to said court for the limited purpose of issuing a nunc pro tunc sentencing entry in accordance with the law and this opinion. By: Baldwin, J. Gwin, P.J. and Wise, Earle, J. concur.