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State v. Kelly6/24/2005
{ } Timothy L. Kelly appeals from a judgment of the Champaign County Court of Common Pleas, which revoked his community control sanctions in two cases and imposed eleven and seventeen month sentences, to be served consecutively.
{ } In March 2001, Kelly was convicted of obstructing justice and was sentenced to community control sanctions (Case No. 177). In June 2001, Kelly was indicted for aggravated vehicular assault, driving under the influence , and underage consumption of alcohol (Case No. 134). He pled guilty to and was convicted of vehicular assault, which was a violation of his community control sanctions in Case No. 177. He was returned to community control in Case No. 177 with the additional condition that he successfully complete a program at West Central Correctional Facility, but he was advised that further violations would result in imprisonment for eleven months. In Case No. 134, he was also sentenced to community control, subject to imprisonment for seventeen months for a violation, to be served consecutively with the sentence in Case No. 177. He was ordered to undergo counseling for substance abuse, alcohol abuse, and rage control.
{ } In June 2003, Kelly was found to have violated his community control sanctions by breaking curfew, failing to contact his supervising officer, and testing positive for marijuana. He was continued on community control on the condition that he successfully complete the Nova House program in Montgomery County in addition to the previously imposed community control requirements. He was again warned that further violations would result in seventeen month and eleven month sentences in Case Nos. 134 and 177 respectively, to be served consecutively.
{ } In January 2004, Kelly was again brought before the court for community control violations based on his failure to report and use of marijuana. Kelly's community control was revoked and the sentences were imposed as previously described, to be served consecutively.
{ } Kelly raises three assignments of error on appeal from the revocation of his community control sanctions.
"THE TRIAL COURT ERRED IN IMPOSING A SENTENCE THAT WAS EXCESSIVE, UNCONSTITUTIONAL, AND CONTRARY TO LAW."
{ } Kelly claims that the trial court did not have a sufficient basis for imposing consecutive sentences and that his sentence was inconsistent with that of his co-defendant.
{ } Statutory law requires certain findings and reasons if consecutive sentences are to be imposed.
{ } R.C. 2929.14(E)(4) provides:
{ } "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:
{ } "(a) 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 [Residential sanctions], 2929.17 [Non-residential sanctions], or 2929.18 [Financial sanctions; restitution] of the Revised Code, *.
{ } " *
{ } "(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender."
{ } In considering the risk of recidivism, it is not only appropriate but necessary that the tri
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