[Cite as State v. Williams, 2013-Ohio-3448.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                         Hon. William B. Hoffman, J.
                                                   Hon. Patricia A. Delaney, J.
-vs-
                                                   Case No. 2013CA00189
AGATHA WILLIAMS

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Stark County Court of
                                               Common Pleas, Case No. 2012CR0164


JUDGMENT:                                      Affirmed in part, Reversed in part, and
                                               Remanded


DATE OF JUDGMENT ENTRY:                         August 5, 2013


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


JOHN D. FERRERO,                               BENJAMIN A. TRACY
PROSECUTING ATTORNEY,                          TODD A. LONG
STARK COUNTY, OHIO                             JAMES D. OWEN
                                               The Owen Firm, LLC
By: RONALD MARK CALDWELL                       5354 North High Street
Assistant Prosecuting Attorney                 Columbus, Ohio 43214
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2013CA00189                                                     2

Hoffman, J.


       {¶1}   Defendant-appellant Agatha Williams appeals the October 15, 2012

Judgment Entry entered by the Stark County Court of Common Pleas. Plaintiff-appellee

is the state of Ohio.

                          STATEMENT OF THE FACTS AND CASE

       {¶2}   Appellant Agatha Williams was admitted to the practice of law in Ohio in

1991. She practiced law for approximately twenty years.

       {¶3}   On February 10, 2012, Appellant entered a plea of guilty to four counts of

grand theft, one count of theft and one count of forgery. The trial court sentenced

Appellant to five years of community control, one year of which was to be intensive

supervision probation. Appellant was fined $27,500.00 and ordered to pay restitution to

each of her clients for the amounts stolen. Appellant was informed at sentencing a

violation of her community control sanction would result in a maximum consecutive

prison sentence being imposed on each offense for a total prison term of 102 months.

       {¶4}   On    September   27,   2012,   the     Ohio   Supreme   Court   Board   of

Commissioners on Grievances and Discipline held proceedings to determine whether

Appellant should be permanently disbarred. Counsel for Relator called Appellant on

cross examination, inquiring as to when Appellant had last left the State of Ohio.

Appellant responded approximately a week prior to the hearing she had gone to

Pittsburgh, Pennsylvania to gamble. Appellant’s conduct in leaving the state to gamble

violated the terms and conditions of her probation.

       {¶5}   Based upon Appellant's testimony before the Board of Commissioners on

Grievances and Discipline, the state filed a motion to revoke Appellant's probation.
Stark County, Case No. 2013CA00189                                                      3


Appellant's counsel filed a motion in limine to suppress the testimony given at the

disciplinary hearing. On September 26, 2012, the trial court held a hearing on the

motion. Via Judgment Entry of September 27, 2012, the trial court denied the motion.

      {¶6}   Via Judgment Entry of October 15, 2012, the trial court revoked

Appellant's probation and sentenced her to consecutive prison terms for a total of 102

months in prison.

      {¶7}   Appellant now appeals, assigning as error:

      {¶8}   “I. THE TRIAL COURT ERRED WHEN IT SENTENCED WILLIAMS TO

CONSECUTIVE TERMS OF IMPRISONMENT WITHOUT FIRST MAKING THE

REQUIRED      FINDINGS     SET    FORTH     IN        OHIO   REVISED   CODE    SECTION

2929.14(C)(4).

      {¶9}   “II. THE TRIAL COURT ERRED WHEN IT REFUSED TO EXCLUDE

FROM EVIDENCE TESTIMONY COERCIVELY OBTAINED FROM WILLIAMS IN

VIOLATION OF THE FIFTH AMENDMENT AND, BASED SOLELY ON THAT

TESTIMONY, FOUND THAT SHE HAD VIOLATED HER PROBATION.”

                                                 I.

      {¶10} In the first assignment of error, Appellant maintains the trial court erred in

failing to make the necessary findings prior to imposing consecutive sentences under

R.C. 2929.14(C)(4). We agree.

      {¶11} Initially, Appellant questions when her sentence was actually imposed

whether at the initial sentencing hearing when the court imposed community control and

reserved imposition of the particular prison term upon revocation or whether at the

subsequent hearing upon revocation.
Stark County, Case No. 2013CA00189                                                         4

       {¶12} In State v. Nistelback, 10th Dist. No. 11AP 874, 2012-Ohio-1764, citing

State v. Brooks 103 Ohio St.3d 134, 2004-Ohio-4746, the Tenth District examined the

issue and held the prison term is not imposed until the subsequent revocation hearing.

The court stated,

       {¶13} "Both Brooks and R.C. 2929.19(B)(5) refer to 'the specific prison term that

may be imposed.' This choice of words implies that the prison term has not actually

been imposed yet, but will be imposed upon revocation of community control. If the

prison term has not been imposed yet, this is 'not already imposed' for purposes of R.C.

1.58(B).

       {¶14} "Because the prison term had not already been imposed at the time of

Nistelbeck's revocation hearing, he is entitled to the benefit of the legislature's reduction

of his potential sentence for abduction."

       {¶15} We agree with the Tenth District Court of Appeals. We find the sentence

herein was not imposed until the revocation of Appellant’s probation and the imposition

of consecutive sentences thereafter.

       {¶16} O.R.C. 2929.14(C) reads,

       {¶17} "(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:
Stark County, Case No. 2013CA00189                                                      5


      {¶18} "(a) The offender committed 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.

      {¶19} "(b) The harm caused by the multiple offenses was so great or unusual

that no single prison terms for any of the offenses committed as part of a single course

of conduct adequately reflects the seriousness of the offender's conduct.

      {¶20} "(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime by the

offender.

      {¶21} In 2003, the Ohio Supreme Court held in State v. Comer, 99 Ohio St.3d

463, 2003–Ohio–4165, a court may not impose consecutive sentences unless it “finds”

three statutory factors enumerated in then 2929.14(E)(4). The statutory factors were the

same as those now enumerated in the revised version of R.C. 2929.14(C)(4) following

enactment of H.B. 86. The revised version of the statute again requires the trial court to

“find” the factors enumerated.

      {¶22} The Court in Comer, supra, read R.C. 2929.14(E)(4), as it existed then, in

conjunction with then R.C. 2929.19(B), to reach its conclusion the trial court must also

state its reasons for the sentence imposed. Then R.C. 2929.19(B) stated the trial court

“shall impose a sentence and shall make a finding that gives its reasons for selecting

the sentence imposed in any of the following circumstances ... (c) if it imposes

consecutive sentences under R.C. 2929.14.”
Stark County, Case No. 2013CA00189                                                      6


      {¶23} 2011 Am.Sub.H.B. No. 86, which became effective on September 30,

2011, revived the language provided in former R.C. 2929.14(E) and moved it to R.C.

2929.14(C)(4). The revisions to the felony sentencing statutes under 2011 Am.Sub.H.B.

No. 86 now require a trial court to make specific findings when imposing consecutive

sentences.

      {¶24} The trial court must therefore make the required findings in compliance

with State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165. We have consistently stated

the record must clearly demonstrate consecutive sentences are not only appropriate,

but are also clearly supported by the record. See, State v. Fauntleroy, 5th Dist. No.

CT2012–0001, 2012–Ohio–4955; State v. Bonnell, 5th Dist. No. 12CAA3022, 2012–

Ohio–515.

      {¶25} In other words, in reviewing the record we must be convinced the trial

court imposed consecutive sentences because it had found consecutive sentences

were necessary to protect the public or to punish the offender, they are not

disproportionate to the seriousness of his conduct and the danger the offender poses to

the public. In addition, in reviewing the record we must be convinced that the trial court

found the offender's history of criminal conduct demonstrated consecutive sentences

were necessary to protect the public from future crime, or 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, or 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
Stark County, Case No. 2013CA00189                                                         7


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.

R.C. 2929.14(C)(4).

       {¶26} Here, the trial court stated on the record at the October 4, 2012

Sentencing Hearing:

       {¶27} “Particularly does not happen when you’re an attorney.         My job is to

fashion a sentence which will serve as a deterrent to this individual and to others, one

that will protect the other citizens of the State of Ohio and one that will not demean the

sentence of the offense which the person has pled guilty to or has been found guilty of.

       {¶28} “Ms. Williams, I do find that revocation is the appropriate remedy in this

case. In regard to each one of the felonies of the Fourth Degree, and there are five of

them, the penalty is six to 18 months in whole months. I am sentencing you to an 18-

month prison term on each one of those. Those will be run consecutively with each

other which is a 90 month prison term.

       {¶29} “In regards to the one F5 it would be punishable by a prison term of six to

twelve months, I find that the appropriate remedy is the 12 months and that will also be

run consecutively with the 90 months. And those together, that’s 102 months.

       {¶30} “You will be given credit for jail time served. You are required to pay the

cost of these proceedings. All the precious findings are exactly the same. Restitution,

$166,354.94, a fine of $27,500. Also I must advise you at the time that you complete

your prison term the Adult Parole Authority will have the option to place you on a period

of post-release control for up to three years.”

       {¶31} Tr. at 19-20
Stark County, Case No. 2013CA00189                                                     8


      {¶32} Based upon the above, we do not find the trial court made all of the

statutorily required findings necessary for the imposition of consecutive sentences.

      {¶33} Appellant's first assignment of error is sustained and Appellant’s sentence

is reversed, and the matter remanded to the trial court for the limited purpose of

resentencing.

                                               II.

      {¶34} In the second assignment of error, the State maintains the trial court erred

in considering Appellant's statements to the Board of Commissioners on Grievances

and Discipline in the revocation of Appellant's probation herein.

      {¶35} As set forth in the Statement of the Facts and Case, supra, Appellant

admitted in her disciplinary hearing to having left the State of Ohio to engage in

gambling in violation of the terms of her probation. The statement was offered at the

time in support of Appellant's argument she has a gambling addiction which should

mitigate against any disciplinary sanction imposed, including disbarment.

      {¶36} The state of Ohio filed a motion to revoke Appellant's probation based

upon Appellant's statement. Appellant cites the United States Supreme Court decision

in Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967) arguing

statements obtained under threat of job loss are unconstitutionally coerced and

inadmissible in subsequent criminal proceedings. Under Garrity, the employee claiming

coercion must have believed his or her statement was compelled on threat of job loss,

and this belief must have been objectively reasonable. State v. Graham, Slip Opinion

2013-Ohio-2114.
Stark County, Case No. 2013CA00189                                                       9


      {¶37} Here, Appellant did not make the statement under compulsion of job loss,

but rather, as a defense in mitigation of the possibility of job loss. The statement was

not compelled.    Appellant could have asserted her Fifth Amendment rights at the

disciplinary hearing and challenged the sanction, but failed to do so. Further, Appellant

had already been found guilty of criminal wrong doing, and the statements were made

as a defense why she had engaged in the wrongdoing. The statement itself did not

serve to incriminate Appellant because the conduct itself was not criminal but rather a

condition of probation. Accordingly, we find the trial court did not err in considering the

statements during the revocation proceedings herein.

      {¶38} The second assignment of error is overruled.

      {¶39} The October 15, 2012 Judgment Entry entered by the Stark County Court

of Common Pleas is affirmed in part, reversed in part, and the matter is remanded for

the limited purpose of resentencing.

By: Hoffman, J.

Gwin, P.J. and

Delaney, J. concur

                                             ___________________________________
                                             HON. WILLIAM B. HOFFMAN


                                             ___________________________________
                                             HON. W. SCOTT GWIN


                                             ___________________________________
                                             HON. PATRICIA A. DELANEY
Stark County, Case No. 2013CA00189                                                  10


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


STATE OF OHIO                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
AGATHA WILLIAMS                            :
                                           :
       Defendant-Appellant                 :         Case No. 2013CA00189


       For the reasons stated in our accompanying Opinion, the October 15, 2012

Judgment Entry entered by the Stark County Court of Common Pleas is affirmed in part,

reversed in part, and the matter is remanded for the limited purpose of resentencing in

accordance with our Opinion and the law. Costs split equally.




                                           ___________________________________
                                           HON. WILLIAM B. HOFFMAN


                                           ___________________________________
                                           HON. W. SCOTT GWIN


                                           ___________________________________
                                           HON. PATRICIA A. DELANEY
