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Court orders resentencing for man who went on a crime spree

ANNIE YAMSON
Special to the Legal News

Published: August 20, 2014

The judgment of the Hamilton County Court of Common Pleas was recently reversed by the 1st District Court of Appeals due to several sentencing errors made by the lower court.

The defendant, Kendall Jay Jones, was convicted of 14 counts of felony breaking and entering and sentenced to prison for each of the offenses with some of the terms to run consecutively and others to run concurrently.

The 1st District’s three-judge appellate panel ruled that since only some of Jones’ offenses allowed a prison sentence, the trial court failed to make the necessary findings before imposing consecutive sentences and failed to properly inform Jones about postrelease control.

“We therefore vacate the sentences and remand the case,” wrote Judge Patrick DeWine on behalf of the court of appeals.

A brief case summary provided in Judge DeWine’s opinion states that, for two and a half months, Jones constituted a one-man crime wave in the city of Springdale in southern Ohio.

He entered several business by breaking their windows and then proceeded to steal money and property.

In a couple of instances, there was proof that he used a gun to shoot out the windows. In other cases, he used a hammer.

Jones’ indictment charged him with 14 counts of felony breaking and entering and two misdemeanor counts of attempted breaking and entering.

The final two felony counts included firearm specifications.

Jones entered Alford pleas to the charges and, in exchange, the state dismissed the firearm specification attached to count 14.

The trial court subsequently imposed an aggregate prison term of three years.

The sentence included concurrent one-year sentences for 13 felony counts, a consecutive one-year sentence for the felony that still included a firearm specification and one year to be served consecutively for that specification.

On appeal, Jones argued that the trial court should not have imposed prison sentences for the felony offenses and that the trial court erred when it ordered the sentences to run consecutive to each other without making the necessary findings. The court of appeals agreed.

“In 2011, the legislature enacted H.B. 86,” wrote Judge DeWine. “The measure sharply limited the circumstances under which a court could sentence first-time-felony offenders to prison when the offender’s most serious offense was a fourth or fifth-degree felony.”

Judge DeWine cited R.C. 2929.13(B)(1)(a), which provides that, for a nonviolent fifth-degree felony, a court must impose a community control sanction of at least a year if the offender has no prior felony record, the most serious offense is a fourth- or fifth-degree offense and the offender has not been convicted or pleaded guilty to a misdemeanor offense of violence in the last two years.

There are 11 exceptions to the statute which allow a trial court to impose a prison sentence for a fifth-degree felony, including the use of a firearm while committing the offense.

In Jones’ case, the appellate panel ruled that all of the requirements of the statute were met, thus, community control was mandatory for most of the offenses.

“Prison was appropriate here for the two offenses for which a firearm specification was charged,” wrote Judge DeWine. “But as so far as the other 12 felony offenses, there is nothing in the statute that would allow the court to impose a prison term.”

Judge DeWine noted that the appellate panel’s conclusion “may be anomalous.”

“If an offender is going to prison anyway, why not allow the sentencing court the option to deal with all the charges in one prison term?” he asked.

Under the statute, a trial court may impose a prison sentence rather than community control for fourth or fifth-degree felonies if the defendant is being sentenced on a greater charge.

“This makes sense,” wrote Judge DeWine. “There are lots of good reasons trial judges may want to allow prisoners who have been released from prison to reintegrate into society without community-control obligations.”

The appellate panel even agreed that Jones may be made worse off by its ruling.

On remand, it is possible he could be sentenced to the three-year prison term followed by the community control mandated by the statute.

“Be that as it may, the statutory language is clear,” wrote Judge DeWine. “Our task is to apply the statute. Here, under the statute as written, the court must impose a term of community control even if it also sends Mr. Jones to prison.”

The court of appeals also ruled that the trial court never made the requisite findings on the record before ordering that Jones’ sentences run consecutively, nor did it include its findings in the sentencing entry.

As a result, Jones’ sentence was vacated and the case was remanded with instructions that the Hamilton County court impose community control for the first 12 felony breaking and entering counts, determine whether consecutive sentences are appropriate and properly notify Jones of postrelease control.

Presiding Judge Lee Hildebrandt and Judge Sylvia Hendon joined Judge DeWine to form the majority.

The case is cited State v. Jones, 2014-Ohio-3345.

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