State v. Abdullaev ( 2021 )

[Cite as State v. Abdullaev, 2021-Ohio-2195.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-200339
TRIAL NO. B-1906131
Plaintiff-Appellee, :
vs. : O P I N I O N.
AKMAL ABDULLAEV, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and
Cause Remanded
Date of Judgment Entry on Appeal: June 30, 2021
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ron Springman,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Timothy J. McKenna, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
HENDON, Judge.
{¶1} Defendant-appellant Akmal Abdullaev entered guilty pleas to five
counts of pandering sexually oriented matter involving a minor. The trial court
sentenced him to 18 months for each count. The trial court ordered counts one and
two to be served consecutively. The sentences in counts three, four and five were
ordered to be served concurrently with each other and concurrently with the
sentences imposed on counts one and two, for a total of 36 months in prison.
{¶2} Abdullaev now appeals, asserting in a single assignment of error, that
his sentence is contrary to law. Because the trial court did not make all of the
required findings prior to imposing consecutive sentences at the sentencing hearing,
we sustain Abdullaev’s assignment of error.
{¶3} Under R.C. 2953.08(G)(2), an appellate court may only modify or
vacate a defendant’s sentence “if we ‘clearly and convincingly find’ that either (1) the
record does not support the mandatory sentencing findings, or (2) that the sentence
is ‘otherwise contrary to law.’ ” State v. White, 2013-Ohio-4225, 997 N.E.2d 629, ¶ 11
(1st Dist.); State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶
7.
{¶4} Under this assignment, Abdullaev first argues that because he has no
criminal history and a low risk of recidivism the trial court should not have imposed
a prison term for these offenses. We are unpersuaded. The trial court had the
authority to impose a prison term for each offense, and it was appropriate given that
these offenses were sexual in nature and involved five different minors. See R.C.
2929.13(B)(1)(b)(iv).
{¶5} Next, Abdullaev contends that the imposition of consecutive sentences
was contrary to law. “R.C. 2929.14(C)(4) requires the trial court to make statutory
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OHIO FIRST DISTRICT COURT OF APPEALS
findings prior to imposing consecutive sentences, and Crim.R. 32(A)(4) therefore
directs the court to state those findings at the time of imposing sentence.” State v.
Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 26.
{¶6} At the sentencing hearing, the trial court made two out of the three
mandatory consecutive sentences findings pursuant to R.C. 2929.14(C)(4). The court
said, “consecutive sentences are necessary to protect the public” and “the harm
caused by two or more of the offenses was so great or unusual that no single prison
term for the offense committed as part of one or more courses of conduct would
adequately reflect the seriousness of the offense.” However, the court failed to make
the proportionality finding under R.C. 2929.14(C)(4) that “consecutive sentences are
not disproportionate to the seriousness of the offender’s conduct and to the danger
the offender poses to the public.”
{¶7} Although all three mandatory findings under R.C. 2929.14(C)(4) were
included in the sentencing entry (and supported by the record), the required
proportionality finding was not announced at the sentencing hearing and could not
be discerned from other statements that the court made at the hearing. Therefore, we
are constrained to vacate the consecutive nature of the sentences, and remand the
cause for a new sentencing hearing on that issue. See State v. Jackson, 1st Dist.
Hamilton Nos. C-180245 and C-180246, 2019-Ohio-3299, ¶ 44, citing State v.
Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 260.
{¶8} The assignment of error is sustained solely for the reasons set forth in
this opinion. The trial court’s judgment is affirmed in all other respects.
Judgment affirmed in part, reversed in part, and cause remanded.
MYERS, P.J., and WINKLER, J., concur.
SYLVIA S. HENDON, retired, from the First Appellate District, sitting by assignment.
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OHIO FIRST DISTRICT COURT OF APPEALS
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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