[Cite as State v. Christian, 2020-Ohio-3816.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                       :
                                                     :
          Plaintiff-Appellee                         :  Appellate Case No. 27236
                                                     :
 v.                                                  :  Trial Court Case No. 2011-CR-563
                                                     :
 EVA CHRISTIAN                                       :  (Criminal Appeal from
                                                     :   Common Pleas Court)
          Defendant-Appellant                        :
                                                     :
                                                ...........

                                                OPINION

                              Rendered on the 24th day of July, 2020.

                                                ...........

MATHIAS H. HECK, JR., by HEATHER N. KETTER, Atty. Reg. No. 0084470, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
      Attorney for Plaintiff-Appellee

BROCK SCHOENLEIN, Atty. Reg. No. 0084707, 371 West First Street, Dayton, Ohio
45402
      Attorney for Defendant-Appellant

                                                ...........




DONOVAN, J.
                                                                                        -2-


       {¶ 1} This matter is before us on remand from the Ohio Supreme Court, which

recently reversed our decision in State v. Christian, 99 N.E.3d 887, 2017-Ohio-8249 (2d

Dist.) (hereinafter “Christian III”). The Supreme Court has directed us to now address

defendant-appellant Eva Christian’s sole assignment of error, which we had found to be

moot based upon our holding in Christian III. See State v. Christian, Ohio Slip Opinion

No. 2020-Ohio-828, __ N.E.3d __.

       {¶ 2} In 2009, Christian set in motion a plan for committing insurance fraud related

to policies on her home and a restaurant she owned. We set forth the history of the case

in State v. Christian, 2d Dist. Montgomery No. 25256, 2014-Ohio-2672 (“Christian I”) and

repeat it herein in pertinent part:

              In March 2011, Christian was indicted as follows: Count One,

       insurance fraud (related to her home), in an amount greater than or equal

       to $5,000 but less than $100,000; Count Two, insurance fraud (related to

       the restaurant), in an amount greater than $100,000; Count Three, making

       false alarm (related to the burglary at her home), resulting in economic harm

       of more than $5,000 but less than $100,000; and Count Four, making false

       alarm (related to the vandalism and fire at the restaurant), with economic

       harm of $500 or more but less than $5,000. In June 2011, an additional

       count of engaging in a pattern of corrupt activity (Count Five) was added by

       a separate indictment.         Christian filed a motion to suppress evidence,

       which was overruled following a hearing. The matter was tried to a jury

       over several days in May 2012. The jury found Christian guilty on all counts.

              The trial court sentenced Christian to 18 months and 36 months,
                                                                                         -3-


       respectively, on counts one and two of insurance fraud; it sentenced her to

       18 and 12 months, respectively, on counts three and four, making false

       alarms. The court sentenced Christian to nine years on the count of

       engaging in a pattern of corrupt activity. The court ordered that counts one

       through four were to be served consecutively to each other but concurrently

       with count five, for an aggregate term of nine years. The trial court ordered

       Christian to pay restitution as follows: $51,751.96 to Cincinnati Insurance,

       $21,485.29 to Erie Insurance; $8,647.33 to the Montgomery County

       Sheriff's Department; and $2,748.77 to the Miami Township Fire

       Department. The court also ordered Christian to pay court costs and to

       forfeit her house, due to its use in her offense of engaging in a pattern of

       corrupt activity. It informed Christian that she would be subject to post-

       release control for five years on Count Five and that she may be subject to

       post-release control for three years on all of the other offenses.

Id. at ¶ 21-22.

       {¶ 3} In Christian I, we reversed Christian's conviction for engaging in a pattern of

corrupt activity.   Additionally, we modified Christian's convictions for insurance fraud

(Count II) and making false alarms (Count III) to reflect lower degrees of the offenses

pursuant to 2011 Am. Sub. H.B. No. 86. Thereafter, we remanded the matter to the trial

court for resentencing on Counts II and III. The State appealed our decision to the Ohio

Supreme Court, which reversed and remanded on the basis of its decision in State v.

Beverly, 143 Ohio St.3d 258, 2015-Ohio-219, 37 N.E.3d 116. State v. Christian, 143 Ohio

St.3d 417, 2015-Ohio-3374, 38 N.E.3d 888.
                                                                                           -4-


       {¶ 4} On remand, in State v. Christian, 2016-Ohio-516, 56 N.E.3d 391 (2d Dist.) (

“Christian II”), we stated:

              In our prior Opinion [Christian I], we reversed Christian's conviction

       for engaging in a pattern of corrupt activity, finding that it was supported by

       insufficient evidence.    Specifically, we held that there was insufficient

       evidence that Christian had engaged in an “enterprise” with the two

       individuals who helped her stage the events that gave rise to her convictions

       for insurance fraud; the existence of such an “enterprise” is one element of

       the offense of engaging in a pattern of corrupt activity. We relied on our

       holding in State v. Beverly, 2d Dist. Clark No. 2011 CA 64, 2013-Ohio-1365,

       which held that, in order to establish the “enterprise,” there must be some

       evidence of “(1) an ongoing organization, formal or informal; (2) with

       associates that function as a continuing unit; and (3) with a structure

       separate and apart, or distinct, from the pattern of corrupt activity.” Christian

       at ¶ 74, quoting Beverly at ¶ 26. We found that the “structure” of the efforts

       of Christian and her associates did not go beyond Christian's efforts to stage

       crimes to defraud her insurance companies, and thus that the organization

       did not have “a structure separate and apart, or distinct, from the pattern of

       corrupt activity.” Christian at ¶ 76-79.

              The State appealed from our judgment reversing Christian's

       conviction for engaging in a pattern of corrupt activity. The State also

       asked us to certify a conflict between our holding and several holdings of

       other courts of appeals, and we did certify that Christian was in conflict with
                                                                                   -5-


one of those cases. State v. Christian, 2d Dist. Montgomery No. 25256,

Decision & Entry, August 24, 2014.

       The Supreme Court accepted the case on both the State's appeal

and the certified question. * * *

       Our case, State v. Beverly, which presented an identical legal

question about the evidence required to prove an “enterprise,” was also

pending before the Supreme Court at that time. Beverly, 2d Dist. Clark No.

2011 CA 64, 2013-Ohio-1365, accepted for review, 11/20/2013 Case

Announcements, 137 Ohio St.3d 1414, 2013-Ohio-5096, 998 N.E.2d 512.

The Court held Christian for its decision in Beverly.

       The Supreme Court decided Beverly in January 2015. State v.

Beverly, 143 Ohio St.3d 258, 2015-Ohio-219, 37 N.E.3d 116. It held that

“[n]othing in R.C. Chapter 2923 [which includes R.C. 2923.32, defining the

offense of engaging in a pattern of corrupt activity] implicitly or explicitly

states that an enterprise and a pattern of corrupt activity must be proven

with separate evidence.” Id. at ¶ 8. The court further stated that, with respect

to proof of the existence of an enterprise and of the associated pattern of

corrupt activity, one does not necessarily establish the other, but “logically,

evidence that proves one of the elements can sometimes prove the other,

even though it doesn't necessarily do so.” Id. at ¶ 10.

       In so holding, the Court rejected this court's holding in Beverly [2d

Dist. Clark No. 2011 CA 64, 2013-Ohio-1365] that there was insufficient

evidence that the defendants were involved in any type of ongoing
                                                                                         -6-


       organization, functioning as a continuing unit, with a structure separate and

       apart from the pattern of corrupt activity. The Supreme Court also, sua

       sponte, rejected any argument that the conviction was against the manifest

       weight of the evidence.

               Subsequently, the Supreme Court vacated our judgment in Christian

       [I] and remanded for us to “consider the evidence of an enterprise in light

       of” its decision in Beverly. State v. Christian, 143 Ohio St.3d 417, 2015-

       Ohio-3374, 38 N.E.3d 888, ¶ 1. * * *

Christian II at ¶ 2-8.

       {¶ 5} On remand, in light of the Ohio Supreme Court's interpretation of the statutory

definition of an “enterprise” for purposes of engaging in a pattern of corrupt activity, as

set forth in Beverly, 143 Ohio St.3d 258, 2015-Ohio-219, 37 N.E.3d 116, we held that

Christian's conviction for engaging in a pattern of corrupt activity was supported by

sufficient evidence and was not against the manifest weight of the evidence. Therefore,

we reinstated Christian's prior conviction of that offense, but we modified it from a felony

of the first degree to a felony of the second degree due to our prior judgment in Christian

I that the underlying offense was a felony of the fourth degree, rather than a felony of the

third degree. Finally, we remanded the matter to the trial court for resentencing on

Counts II, III, and V. Christian II at ¶ 36-37.

       {¶ 6} Thereafter, a hearing was held before the trial court on July 27, 2016, at

which Christian was resentenced as follows:

       Count I, Insurance Fraud (Fourth Degree Felony): 18 months;

       Count II, Insurance Fraud (Reduced to a Fourth Degree Felony): 12 months;
                                                                                       -7-


      Count III, Making False Alarms (Reduced to a Misdemeanor of the First

      Degree): 180 days;

      Count IV, Making False Alarms (Fifth Degree Felony): 12 months; and

      Count V: Engaging in a Pattern of Corrupt Activity (Reduced to a Second

      Degree Felony): 8 years.

The trial court ordered Count I to be served consecutively to Count IV, Count II to be

served consecutively to Count V, Count III to be served concurrently to Counts I, II, IV,

and V; and Counts II and V to be served concurrently with Counts I and IV, for an

aggregate sentence of nine years.       Significantly, nine years in prison is the same

sentence Christian received when she was originally sentenced on June 19, 2012.

      {¶ 7}   On July 27, 2016, the trial court issued a “Supplemental Termination Entry,”

which consisted of a form on which the court simply checked off its reasons for ordering

consecutive prison terms pursuant to R.C. 2929.14(C)(4). On August 5, 2016, the trial

court issued a judgment entry in which it outlined the terms of Christian's resentencing.

However, the judgment entry did not contain language pursuant to R.C. 2929.14(C)(4)

regarding its findings in support of the imposition of consecutive sentences.1

      {¶ 8} Christian appealed her resentencing, raising a single assignment of error:

that the trial court abused its discretion during resentencing when, without any new facts

having been presented, it made the R.C. 2929.14(C)(4) findings pertaining to the

imposition of consecutive sentences, which it had not made during Christian's original


1 We note that on September 29, 2016, well after Christian filed her notice of appeal with
this Court, the trial court apparently became aware of the omission and issued a nunc pro
tunc judgment entry wherein it included language pursuant to R.C. 2929.14(C)(4)
explaining it findings in support of consecutive sentences.
                                                                                          -8-


sentencing hearing. Specifically, Christian contended that the trial court erred when it

ordered Count II to run consecutively to Count V, because no new facts had been

presented at Christian's resentencing hearing that warranted the trial court’s divergence

from its initial order, which imposed Count II concurrently with Count V.2

       {¶ 9} Ultimately, we declined to address Christian's assignment of error and

instead reversed the trial court’s resentencing judgment based upon our holding that, by

the time that Christian was resentenced in 2016, she had already served the original

prison terms that had been imposed for Counts I through IV. Christian III, 99 N.E.3d 887,

2017-Ohio-8249, at ¶ 15, 28-30. Applying the Ohio Supreme Court’s holding in State v.

Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, and expressing double-

jeopardy concerns, we held that, because a trial court may not resentence a defendant

for an offense once that defendant has completed the sanction that had been attached to

that finding of guilt, Christian could not be resentenced on Count II, regardless of the fact

that she still had not completed her sentence for Count V. Id. at ¶ 15-16, 28. Accordingly,

we reversed and remanded the matter with an instruction for the trial court to resentence

Christian on Count II to reflect that it was served concurrently with Count V, and thus the

aggregate term was eight years.

       {¶ 10} The State appealed our decision in Christian III, and on March 10, 2020, the

Ohio Supreme Court overruled Christian III. State v. Christian, Ohio Slip Opinion No.

2020-Ohio-828, __ N.E.3d __.        The Supreme Court held that a defendant may be

resentenced “on a specific count after the sentence related to that count has been vacated


2 On August 1, 2017, we issued an order to the parties to be prepared to address at oral
argument (on Tuesday, August 22, 2017) the issue of whether Christian had completed
her sentence on Count II prior to her resentencing on July 27, 2016.
                                                                                         -9-


on direct appeal,” notwithstanding that the defendant has already “been confined for the

length of the original term that had been attached to that count.”        Id. at ¶ 1.   The

Supreme Court reasoned that, “because a defendant in these circumstances has no

expectation of finality in the original sentence once it has been vacated on direct appeal,

the trial court has the ability to resentence the defendant de novo.” Id. In Christian, the

individual sentences on several counts were vacated in the direct appeal. Id. at ¶ 1, 5;

see also Christian I. Because those sentences had been vacated, the Supreme Court

held that the trial court had the authority to resentence the defendant de novo on those

counts. Id. at ¶ 18, 29. Accordingly, it reversed our decision in Christian III and remanded

the matter to this court with instructions that we address Christian’s assignment of error,

which we had previously found to be moot.

       {¶ 11} Christian’s appeal is now properly before this Court.

       {¶ 12} Christian’s sole assignment of error is as follows:

       THE TRIAL COURT ABUSED ITS DISCRETION IN RESENTENCING

       CHRISTIAN WHEN IT MADE NEW FACTUAL FINDINGS UPON

       RESENTENCING THAT CONTRADICTED THOSE MADE AT THE

       ORIGINAL SENTENCING, AND WHEN NO NEW FACTS HAD BEEN

       PRESENTED.

       {¶ 13} In her assignment, Christian contends that the trial court abused its

discretion at her resentencing hearing by deciding to impose the sentence for Count II

consecutively to her sentence for Count V. Specifically, Christian argues that the trial

court improperly reconsidered its initial decision to run those sentences concurrently

without any new factual basis for doing so. Upon review, we conclude that the trial court
                                                                                            -10-


improperly recreated the sentence it previously imposed under the old, defunct law,

utilizing the same facts to justify the nine-year sentence as it did at the original sentencing.

       {¶ 14} As previously stated, the primary charge against Christian was engaging in

a pattern of corrupt activity in violation of R.C. 2923.32(A)(1), which was charged in Count

V of her indictment. Christian’s lower-level predicate offenses, charged in Counts I

through IV of her indictment, were two counts of insurance fraud in violation of R.C.

2913.47(B)(1) and two counts of making false alarms in violation of R.C. 2917.32(A)(3).

Pursuant to the law in effect at the time of Christian’s indictment — which was prior to the

legislature's enactment of H.B. 86, effective September 30, 2011 — Count V was a first-

degree felony, for which the trial court could impose a prison sentence of up to ten years.

See former R.C. 2929.14(A)(1) (providing for a maximum prison term of ten years for a

first-degree felony).   H.B. 86 went into effect prior to Christian's original sentencing

hearing. The new law had the effect of reducing the felony levels and resulting sanctions

for various offenses, including the offenses identified in Counts II, III, and V of Christian's

indictment. Significantly, Count V became a second-degree felony, which allowed for

the imposition of a prison sentence of no more than eight years. R.C. 2923.32(B)(1);

former R.C. 2929.14(A)(2).

       {¶ 15} As stated above, in Christian I, we reversed Christian's conviction for

engaging in a pattern of corrupt activity. Additionally, we modified Christian's convictions

for insurance fraud (Count II) and making false alarms (Count III) to reflect lower degrees

of the offenses pursuant to H.B. 86. Thereafter, we remanded the matter to the trial court

for resentencing on Counts II and III. The State appealed our decision to the Ohio

Supreme Court, which reversed and remanded on the basis of its decision in State v.
                                                                                    -11-


Beverly, 143 Ohio St.3d 258, 2015-Ohio-219, 37 N.E.3d 116. Christian, 143 Ohio St.3d

417, 2015-Ohio-3374, 38 N.E.3d 888.

      {¶ 16} At the resentencing hearing held on July 27, 2016, the following exchange

occurred:

            Defense Counsel: Very briefly, Your Honor. I have only one

      argument to make for purposes of Ms. Christian’s resentencing and that’s

      this. The Court found in Round one of sentencing that the public would be

      adequately protected by the concurrent running of Ms. Christian’s sentence

      on her RICO conviction (Count II) to that of the underlying four predicate

      crimes. And so if the Court were now say, to have a mind to impose the

      same nine-year sentence, it would now have to find that consecutive

      sentences were necessary to protect the public with respect to the RICO

      count and the four predicate crimes. The problem with that in our view, of

      course, is that the facts haven’t changed. The facts of [sic] are the same

      as they always have been.

            So I would simply ask the Court to adhere to its initial finding that

      concurrent sentences were adequate to protect the public with respect to

      the RICO count and the underlying four predicate crimes.

            ***

            Christian: I would like to apologize to the Court and the community.

      I’m sorry for the time and pain my situation has caused. And also many

      that are dear to me, my friends, my family, my friends and my former

      employees I also considered family. I realize that I will probably never be
                                                                                        -12-


      able to repair the damage completely.

             Four years ago, I didn’t realize what a traumatic impact my situation

      had.   It disturbs me how deeply how many people were affected and

      suffered. It has consumed me and is haunting me every day.

             ***

             Currently, I have a secure and safe place to stay and financial help.

      Over time, that may change. Therefore, I’m asking the Court to please give

      me a chance to become a productive and law-abiding citizen so I can start

      paying off my fines and restitution and so that I can be there for my son and

      my 86-year-old mother and try to repair some of the harm to try to turn some

      of this tragedy into something positive.

             Your Honor, Your Honor, I implore you to please give me that

      chance. I’m grateful for your consideration.

             Trial Court: Okay.   [Defense counsel], you mentioned something

      about when I sentenced Ms. Christian approximately four years ago, finding

      concurrent sentences were appropriate.       Actually, what I decided four

      years ago, what I determined four years ago, is that nine years was an

      appropriate sentence under the facts of this case.

             And in looking at it again and calling back memories of the case, I

      believe nine years is the appropriate number and it’s a number I can come

      to within the ranges of what is before me.

(Emphasis added.) Resentencing Hearing, p. 2-4.

      {¶ 17} The trial court went on to question the credibility of Christian’s claims that
                                                                                           -13-


she had bettered herself in the four years since the original sentencing. The trial court

then identified the same factors that led to the trial court’s original sentence of nine years,

stating “[t]hat’s why I gave you the nine-year sentence then. You had no regard for other

people’s lives or well-being. That’s why I’m giving you the nine-year sentence again.”

(Emphasis added.) Id. at p. 6.

       {¶ 18} Despite being faced with identical facts and providing an identical analysis,

the trial court changed its previous decision to impose less than the maximum sentence

for Count V and found that Christian should receive the maximum possible punishment

allowable under former R.C. 2929.14(A)(2) of eight years in prison.3 The trial court also

decided that concurrent sentences were no longer appropriate for Counts II and V, and

instead imposed those sentences consecutively to each other, resulting in an aggregate

sentence of nine years.

       {¶ 19} Significantly, the trial court failed to identify any unfavorable conduct by

Christian in the intervening four years since the original nine-year sentence was imposed

to support its decision to essentially reinstate the identical prison sentence. In a de novo

resentencing hearing, a trial court should certainly be able to reconsider the concurrent

and/or consecutive natures of a defendant's sentences based upon any new factual

circumstances that have developed since the prior sentencing hearing. On this record,

however, the only change that was pertinent to Christian's prison terms was the fact that

the legislature had decided that lesser prison terms should apply to her offenses.

       {¶ 20} In order to justify the trial court’s conclusion that Christian's convictions for



3
  We note that Christian’s original sentence for Count V was nine years, one year less
than the maximum sentence of ten years at the time her original sentence was imposed.
                                                                                       -14-


Counts II and V required consecutive rather than concurrent sentences pursuant to R.C.

2929.14(C)(4), there needed to be something more than the legislature's choice to assign

a lesser sanction to those offenses. However, the only new evidence at the resentencing

hearing was Christian's explanation of her efforts to better herself and her expression of

remorse. Notably, the trial court doubted Christian's credibility and found her claims of

remorse to have no mitigating effect, which was well within the trial court's discretion.

More importantly, however, the trial court concluded that nothing in Christian's factual

circumstances had changed.

      {¶ 21} “It has long been recognized in this state that the General Assembly has the

plenary power to prescribe crimes and fix penalties.” State v. Morris, 55 Ohio St.2d 101,

112, 378 N.E.2d 708 (1978). A trial court has no inherent power to sentence, and instead

must impose penalties that the legislature has provided. State v. Anderson, 143 Ohio

St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512, ¶ 10.         It is well within the legislature's

purview to exercise its power by reducing felony levels and prison terms. Morris at 112.

Here, the legislature’s decision to change the penalties with respect to the charged

offenses did not constitute a change in circumstance that supported the trial court’s

decision to impose consecutive sentences, when the trial court clearly acknowledged that

that nothing in Christian's factual circumstances had changed since the original sentence

was imposed.

      {¶ 22} If the “record does not support the sentencing court's findings under * * *

division (B)(2)(e) or (C)(4) of section 2929.14 * * * of the Revised Code,” R.C.

2953.08(G)(2)(a), then an appellate court must take corrective action by either modifying

or vacating and remanding the matter for resentencing. R.C. 2953.08(G)(2). With an
                                                                                              -15-


admission by the trial court that there were no new facts to support its decision to impose

the sentence from Count II consecutively with the sentence from Count V under R.C.

2929.14(C)(4), the court's findings were unsupported by the record.

       {¶ 23} Christian’s assignment of error is sustained.

       {¶ 24} Christian’s assignment of error having been sustained, the trial court’s

judgment is reversed, and this matter is remanded for proceedings consistent with this

opinion.



FROELICH, J., concurs.

TUCKER, P.J., dissents:

       {¶ 25} Since a de novo resentencing allows a trial court to resentence with a “clean

slate,” I respectfully dissent.

       {¶ 26} On remand for resentencing, a trial court must conduct a de novo

resentencing hearing on the relevant counts in accordance with R.C. 2929.19. State v.

Wilson, 124 Ohio St.3d 214, 2011-Ohio-2669, 95 N.E.2d 381, ¶ 15. “During a de novo

resentencing * * * ‘the trial court is free to impose the identical sentence that was originally

imposed, or a greater or lesser sentence within its discretion * * *. ’ ” State v. Jackson,

8th Dist. Cuyahoga No. 92365, 2009-Ohio-4995, ¶ 9, quoting State v. Cook, 8th Dist.

Cuyahoga No. 91487, 2008-Ohio-4246, ¶ 10.

       {¶ 27} In a similar vein, it is “recogniz[ed] that a trial court has the discretion, within

the statutory framework, to impose a consecutive sentence as part of a resentencing

hearing even if it imposed a concurrent sentence previously.” State v. D.H., 2019-Ohio-

1017, 133 N.E.3d 922, ¶ 28 (10th Dist.), citing State v. Busby, 10th Dist. Franklin No.
                                                                                         -16-


09AP-1119, 2010-Ohio-4516, ¶ 6; State v. O’Neill, 6th Dist. Wood No. WD-12-002, 2013-

Ohio-50, ¶ 13-16; State v. Mockbee, 2014-Ohio-4493, 20 N.E.3d 1127, ¶ 28 (4th Dist.),

superseded on other grounds by State v. Mockbee, 4th Dist. Scioto No. 14CA3601,

2015-Ohio-3469; State v. Wells, 11th Dist. Ashtabula No. 2013-A-14, 2013-Ohio-5821,

¶ 33-36; State v. Huber, 8th Dist. Cuyahoga No. 98206, 2012-Ohio-6139, ¶ 24,

superseded by statute on other grounds as stated in State v. Davis, 8th Dist. Cuyahoga

No. 104574, 2018-Ohio-1147; State v. Mitchell, 2d Dist. Montgomery No. 21020, 2006-

Ohio-1602, ¶ 11.4

       {¶ 28} State v. D.H. is instructive to the present analysis. D.H. was convicted by

a jury on two counts of rape. The trial court sentenced D.H. to a ten-year prison term on

the rape in Count 2 and to a four-year prison term on the rape in Count 3; these sentences

were ordered to be served concurrently. On appeal, the Tenth District determined that

the evidence was not sufficient to support the Count 2 rape conviction, but that the

evidence was sufficient to support a conviction for gross sexual imposition. Accordingly,

Count 2 was modified to a gross sexual imposition conviction, and the matter was

remanded for resentencing on Count 2. The trial court sentenced D.H. to 60 months on

Count 2 and ordered that this sentence be served consecutively to Count 3, for an

aggregate sentence of nine years.



4
  Our decision in State v. Mitchell, which remanded a sentencing decision based upon
State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, abrogated by Oregon
v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009), is not directly relevant to the
current analysis. In Mitchell, the trial court had previously imposed a consecutive
sentence, but we noted, based upon the Foster decision, that “while Mitchell may argue
for concurrent sentences on remand, nothing prevents the trial court from imposing
consecutive sentences with a lesser, the same, or a greater aggregate sentence.”
Mitchell at ¶ 11.
                                                                                        -17-


      {¶ 29} On appeal, the appellate court first rejected D.H.’s contention that the

consecutive sentence was contrary to law because it constituted prohibited sentencing

packaging. The court concluded its sentence packaging discussion as follows:

             To be clear, on remand for de novo resentencing, the trial court is

      limited by the statutory scheme, which requires that the court make certain

      explicit findings before imposing a consecutive sentence, and prohibitions

      from acting vindictively or otherwise contrary to law. The trial court is not,

      however, limited by its original sentencing decision. To suggest that there

      is an inference that a trial court acts improperly if it varies from what it

      imposed originally would nullify the requirement to conduct a de novo

      resentencing hearing and undermine the court's responsibility to engage in

      a full analysis pursuant to the sentencing statutes.

             Plainly, there is no clear and convincing evidence here that the trial

      court acted contrary to law by employing the sentencing package doctrine

      when it resentenced appellant. On remand, the trial court was required to

      hold a de novo hearing to resentence appellant on Count 2 of the

      indictment, which included making a de novo determination about whether

      the sentence on Count 2 of the indictment should run concurrently or

      consecutively to the sentence previously imposed on Count 3 of the

      indictment.

D.H. at ¶ 29-30.

      {¶ 30} The Tenth District then engaged in an analysis of the consecutive sentence

noting that the trial court made the required R.C. 2929.14(C)(4) findings; it then affirmed
                                                                                          -18-


the consecutive sentence based upon the trial court’s “appropriate [R.C. 2929.14(C)(4)]

analysis * * *. ” Id. at ¶ 36. Notably, there is nothing in D.H. to suggest that the trial

court’s imposition of the consecutive sentence was based upon anything that had

occurred since the original imposition of the concurrent sentence. To the contrary, it is

clear that the Tenth District appropriately concluded that a de novo resentencing allows

a trial court to take a new, fresh look at the sentencing landscape and then to resentence

accordingly.

       {¶ 31} In short, I disagree with the majority opinion’s conclusion that “in a de novo

resentencing hearing, a trial court should certainly be able to reconsider the concurrent

and consecutive nature of a defendant’s sentence based upon any new factual

circumstances that have developed since the prior sentencing hearing.” (Emphasis sic.)

This approach, I suggest, is not consistent with de novo resentencing and runs contrary

to the case law. Upon this basis, I dissent.5



Copies sent to:

Mathias H. Heck, Jr.
Heather N. Ketter
Brock A. Schoenlein
Hon. Barbara P. Gorman



5
  Christian does not argue that the trial court’s R.C. 2929.14(C)(4) consecutive sentence
findings are clearly and convincingly not supported by the record. See State v. Gwynne,
158 Ohio St.3d 279, 2019-Ohio-4761, 141 N.E.3d 169; R.C. 2953.08(G)(2)(a). But she
does suggest, at least implicitly, that the trial court engaged in improper sentence
packaging.      If so, the consecutive sentence would be contrary to law.                R.C.
2953.08(G)(2)(b). Based upon the trial court’s comments set forth in the majority
opinion, there is an argument that we could clearly and convincingly find that the trial court
engaged in sentence packaging. But since we have not asked the parties to brief this
issue, I will not further comment.
