State v. Osborn , 2017 Ohio 8228 ( 2017 )

[Cite as State v. Osborn, 2017-Ohio-8228.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105196
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
TREVON A. OSBORN
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-16-606185-A
BEFORE: McCormack, P.J., Stewart, J., and Blackmon, J.
RELEASED AND JOURNALIZED: October 19, 2017
ATTORNEY FOR APPELLANT
Paul A. Mancino, Jr.
Mancino, Mancino & Mancino
75 Public Square Bldg., Ste. 1016
Cleveland, OH 44113-2098
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Anna Woods
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, P.J.:
{¶1} Defendant-appellant Trevon A. Osborn appeals from his conviction
following a guilty plea. After a thorough review, we affirm.
I. Procedural History
{¶2} Osborn was charged in a 12-count indictment as follows: Count 1 —
aggravated burglary in violation of R.C. 2911.11(A)(1); Count 2 — aggravated burglary
in violation of R.C. 2911.11(A)(2); Count 3 — aggravated robbery in violation of R.C.
2911.01(A)(1); Count 4 — grand theft in violation of R.C. 2913.02(A)(1); Count 5 —
theft in violation of R.C. 2913.02(A)(1); Count 6 — kidnapping in violation of R.C.
2905.01(B)(2); Count 7 — aggravated robbery in violation of R.C. 2911.01(A)(1);
Count 8 — kidnapping in violation of R.C. 2905.01(B)(2); Count 9 — aggravated
robbery in violation of R.C. 2911.01(A)(1); Count 10 — kidnapping in violation of R.C.
2905.01(B)(2); Count 11 — improperly handling firearms in a motor vehicle in violation
of R.C. 2923.16(B); and Count 12 — impersonation of certain officers in violation of
R.C. 2921.51(E). All charges contained one- and three-year firearm specifications as
well as a forfeiture specification. The incident from which the charges stem involved
three victims.
{¶3} Osborn entered into a plea agreement, whereby he pleaded guilty to the
charges contained in Counts 1 and 3 (and the three-year firearm specifications), Counts
4–6 (amended to delete the firearm specifications), Counts 7–9 (amended to delete the
firearm specifications), and Counts 11 and 12 (amended to delete the firearm
specifications). Osborn also pleaded guilty to the forfeiture specification. The
remaining charges and firearm specifications were nolled. The court accepted Osborn’s
plea and found him guilty. The court then referred Osborn for a presentence
investigation report (“PSI”) and scheduled the matter for sentencing.
{¶4} At the sentencing hearing, the parties agreed that Counts 3, 4, 5, and 6
merged, and Counts 7 and 8 merged. The state elected the defendant to be sentenced on
Counts 3 and 7. The court then sentenced Osborn to three years in prison on the
underlying offense in Count 1 as well as three years for that count’s firearm specification;
three years on the underlying offense in Count 3 as well as three years for that count’s
firearm specification; three years each on Counts 7, 9, and 12; and 18 months on Count
11. The court ordered the underlying offenses in Counts 1 and 3 to be served
concurrently to each other but consecutively to the respective firearm specifications. The
court also ordered the sentences in Counts 7 and 9 to be served consecutively, while
Counts 11 and 12 would be served concurrently. The aggregate prison sentence is 15
years. The court then ordered the forfeiture of weapons and it waived all fines and costs.
II. Assignments of Error
{¶5} Osborn now appeals, assigning five errors for our review. We will address
several of the alleged errors together and out of order. The assignments of error are as
follows:
I. Defendant was denied due process of law and equal protection of the
law when he was sentenced to a maximum sentence for a third
degree felony and a minimum sentence for a first degree felony.
II. Defendant was denied due process of law when the court imposed
consecutive sentences based upon judicial factfinding which denied
defendant his Sixth Amendment right.
III. Defendant was denied due process of law when the court imposed a
consecutive sentence without making the proper necessary findings.
IV. Defendant was denied due process of law when the court accepted
pleas of guilty to various offenses without determining that the
defendant understood the nature of the offenses.
V. Defendant was denied due process of law and subjected to
unconstitutional multiple punishments when he was sentenced
consecutively on firearm specification[s].
III. The Guilty Plea
{¶6} In his fourth assignment of error, Osborn contends that the court erred in
accepting his guilty plea without determining that he understood the nature of the
offenses.
{¶7} When a defendant enters a plea in a criminal case, “the plea must be made
knowingly, intelligently, and voluntarily. Failure on any of those points renders
enforcement of the plea unconstitutional under both the United States Constitution and
the Ohio Constitution.” State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996).
To ensure that a defendant enters a plea knowingly, voluntarily, and intelligently, a trial
court must engage in an oral dialogue with the defendant in accordance with Crim.R.
11(C). Id. The underlying purpose of Crim.R. 11(C) is to convey certain information to
a defendant so that he or she can make a voluntary and intelligent decision regarding
whether to plead guilty. State v. Schmick, 8th Dist. Cuyahoga No. 95210,
2011-Ohio-2263, ¶ 5.
{¶8} Crim.R. 11(C)(2) requires that a trial court determine from a colloquy with
the defendant whether the defendant understands (1) the nature of the charge and
maximum penalty, (2) the effect of the guilty plea, and (3) the constitutional rights waived
by a guilty plea. State v. Brown, 8th Dist. Cuyahoga No. 104095, 2017-Ohio-184, ¶ 5,
citing State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621.
{¶9} The reviewing court conducts a de novo review to determine whether the
trial court accepted a plea in compliance with Crim.R. 11(C). State v. Cardwell, 8th
Dist. Cuyahoga No. 92796, 2009-Ohio-6827, ¶ 26. Where the issue concerns a
nonconstitutional requirement, such as whether the defendant understood the nature of the
charges or the maximum penalties for the offenses, we review for substantial compliance.
See State v. Jordan, 8th Dist. Cuyahoga No. 103813, 2016-Ohio-5709, ¶ 46, citing Veney
at ¶ 14-17. “Substantial compliance means that under the totality of the circumstances
the defendant subjectively understands the implications of his plea and the rights he is
waiving.” State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990); State v.
Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163 (1977).
{¶10} Moreover, when a nonconstitutional aspect of a plea is at issue, a defendant
must show prejudice before the plea will be vacated for a trial court’s error involving the
court’s compliance with Crim.R. 11(C). Jordan at ¶ 47, citing Veney at ¶ 17. The test
for prejudice is whether the plea would have otherwise been made. State v. Malenda, 8th
Dist. Cuyahoga Nos. 104736 and 104829, 2017-Ohio-5574, ¶ 5.
{¶11} Osborn alleges that “no determination was made that [he] fully understood
the nature of the offenses.” In support, he claims that he was not aware that he was
pleading guilty to the three-year firearm specifications because of the numerous counts,
multiple victims and “different versions of the same offense,” and several one- and
three-year specifications, and that because of this alleged confusion, the court should have
made the determination. Thus, as Osborn contends, the court’s failure to make such a
determination denied him due process of the law.
{¶12} After a thorough review of the record, we find that the trial court did, in
fact, find that Osborn understood the nature of the charges, and the record supports the
court’s determination.
{¶13} Here, after the parties put the plea agreement on the record, the court noted
that the minimum sentence would be nine years due to the felony offenses and the firearm
specifications involved, and Osborn indicated that he understood. The court specifically
asked Osborn if he reviewed the indictment and understood “all those charges against
[him], to which he replied, “Yes, your Honor.” The court also asked Osborn if he was
satisfied with the services of his attorney, and he replied that he was satisfied. The court
encouraged Osborn to ask questions should he have any questions during the proceedings.
{¶14} Thereafter, the court engaged in a colloquy about the medication Osborn
was taking:
Court: So you’re on medication that helps [you]?
Osborn: It helps me maintain.
Court: Okay. And you take that every day?
Osborn: Yes, your Honor.
Court: And how long have you been taking that?
Osborn: I [have] been taking that since I was 12 or 13.
Court: So that helps your mental health situation. Right?
Osborn: Yes, your Honor.
Court: But does that affect your ability to understand what’s
happening in court today?
Osborn: No, your Honor.
Court: So do you, in fact, understand what is happening today?
Osborn: Yes, your Honor.
{¶15} The court then thoroughly reviewed the constitutional rights that Osborn
was waiving and ensured that Osborn understood that he waived those rights by pleading
guilty. The court reviewed all of the charges to which Osborn agreed to plead guilty,
including the three-year firearm specifications accompanying Counts 1 and 3, as well as
the maximum penalties involved with each charge.
{¶16} Specifically regarding the firearm specifications, the court engaged in the
following colloquy:
Court: Now, since you’re pleading guilty to a firearm specification
— two firearm specifications — obviously you already know
that prison is mandatory in this case. But pleading guilty to
two firearm specifications means that the three-year firearm
specifications must run consecutive to one another and to the
underlying offense. So that means that you face a minimum,
with just the firearm specification, on the underlying offense
of 9 years in prison.
Osborn: Just the firearm specifications?
Court: Two firearm specifications that have to be run consecutive to
each other. And then they run consecutive to the underlying
offense, so the two firearm specifications together is 6 years.
And then the underlying offense of Count 1, aggravated
burglary, * * * the minimum is 3 years. So running
consecutive to that, that adds years on so that makes it a
minimum prison sentence of 9 years.
Osborn: I understand, your Honor.
Court: That’s the minimum. However, if all of your counts are run
consecutive to one another * * *, then you are looking at a
maximum sentence of — do you know that number,
[counsel]?
Prosecutor: * * * If everything were to run consecutive to each other with
no merger, it would be 123 years. If the kidnapping and the
robbery were to merge, he would be looking at a sentence of
90 years, your Honor.
Court: * * * Do you understand that?
Osborn: Yes, your Honor.
{¶17} During this exchange, the court repeatedly asked Osborn if he understood, to
which he replied in the affirmative. The court continued to explain the other
consequences of his plea, including court costs, mandatory fines, restitution, fees, and
postrelease control. Osborn again stated that he understood.
{¶18} Finally, Osborn confirmed that no threats or promises were made in
exchange for his plea. When asked if he understood that there is no promise of a
particular sentence, Osborn answered, “Yes.” The court then accepted Osborn’s guilty
plea, satisfied that he “understands the nature of the charges, the effect of [the] plea, and
the maximum penalties [that] may be imposed,” and the court found Osborn’s plea was
made knowingly, intelligently, and voluntarily.
{¶19} In light of the above, we find that the trial court complied with Crim.R. 11
in ensuring that Osborn’s plea was knowingly, voluntarily, and intelligently entered, and
the record shows, that Osborn did, in fact, understand the nature of the charges and the
implications of his plea. Osborn has failed to identify any part of the record that
demonstrates otherwise. Moreover, Osborn fails to demonstrate how the court’s alleged
failure to determine that he understood the charges would have caused the plea to have
otherwise been made.
{¶20} Osborn’s fourth assignment of error is overruled.
IV. The Sentence
{¶21} In his remaining assignments of error, Osborn takes issue with several
aspects of his sentence. He contends that the court improperly sentenced him to the
maximum sentence for a third-degree felony while imposing a minimum sentence on the
first-degree felony; the court failed to consider the purposes and principles of felony
sentencing mandated by R.C. 2929.11 and 2929.12; the court’s alleged improper
considerations did not warrant consecutive sentences; the court failed to make the
statutorily mandated consecutive sentence findings; and the court’s imposition of
consecutive firearm specifications resulted in unconstitutional multiple punishments for
the same crime.
A. Standard of Review
{¶22} In reviewing felony sentences, we do not review the sentence for an abuse
of discretion. R.C. 2953.08(G)(2); see also State v. Marcum, 146 Ohio St.3d 516,
2016-Ohio-1002, 59 N.E.3d 1231. Rather, we may increase, reduce, modify a sentence,
or vacate and remand for resentencing if we clearly and convincingly find that the record
does not support the sentencing court’s statutory findings under R.C. 2929.14(C)(4) or the
sentence is contrary to law. State v. Wenmoth, 8th Dist. Cuyahoga No. 103520,
2016-Ohio-5135, ¶ 12, citing R.C. 2953.08(G)(2).
{¶23} A sentence is contrary to law if it falls outside the statutory range for the
particular degree of offense or if the trial court fails to consider the purposes and
principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors set
forth in R.C. 2929.12. State v. Pawlak, 8th Dist. Cuyahoga No. 103444,
2016-Ohio-5926, ¶ 58. Additionally, the imposition of consecutive sentences is contrary
to law if a trial court fails to make the findings mandated by R.C. 2929.14(C)(4). State v.
Morris, 2016-Ohio-7614, 73 N.E.3d 1010, ¶ 24 (8th Dist.), citing State v. Bonnell, 140
Ohio St. 3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37; State v. Primm, 8th Dist.
Cuyahoga No. 103548, 2016-Ohio-5237, ¶ 66.
{¶24} A trial court has full discretion to impose any term of imprisonment within
the statutory range, as long as it considers the sentencing purposes in R.C. 2929.11 and
the guidelines contained in R.C. 2929.12. State v. Ray, 8th Dist. Cuyahoga No. 101142,
2014-Ohio-4689, ¶ 14, citing State v. Holmes, 8th Dist. Cuyahoga No. 99783,
2014-Ohio-603, ¶ 8. Therefore, a sentence imposed within the statutory range is
“presumptively valid” if the court considered the applicable sentencing factors. State v.
Collier, 8th Dist. Cuyahoga No. 95572, 2011-Ohio-2791, ¶ 15, citing State v. Foster, 109
Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, paragraph seven of the syllabus.
B. Purposes and Principles of Sentencing and Judicial Factfinding
{¶25} In this case, Osborn does not dispute that he was sentenced within the
statutory range for his offenses. He contends in his first assignment of error, however,
that in imposing the maximum sentence for a third-degree felony (three years on Count
12, impersonation of certain officers) and a minimum sentence for a first-degree felony
(three years each on the aggravated burglary and aggravated robbery charges in Counts 1,
3, 7, and 9), the court failed to properly consider the purposes and principles of felony
sentencing. Additionally, in his second assignment of error, he contends that the trial
court violated his Sixth Amendment right to a jury trial when the court engaged in judicial
factfinding. He argues that rather than basing his sentence on the statutorily mandated
considerations, the court based his sentence on facts not alleged in the indictment or
admitted by him at the time of his plea.
{¶26} R.C. 2929.11(A) provides that the overriding purposes of felony sentencing
are (1) to protect the public from future crime by the offender and others; and (2) to
punish the offender using the minimum sanctions that the court determines accomplish
those purposes without imposing an unnecessary burden on state or local government
resources. Further, the sentence imposed shall be “commensurate with and not
demeaning to the seriousness of the offender’s conduct and its impact on the victim, and
consistent with sentences imposed for similar crimes by similar offenders.” R.C.
2929.11(B).
{¶27} The court that imposes a felony sentence has the discretion to determine the
most effective way to comply with the purposes and principles of sentencing as outlined
above. R.C. 2929.12(A); State v. Switzer, 8th Dist. Cuyahoga No. 102175,
2015-Ohio-2954, ¶ 10. In exercising this discretion, however, the sentencing court must
consider a statutory list of factors regarding the seriousness of the offender’s conduct and
the likelihood of recidivism, as well as any other factors relevant to achieving these
purposes and principles of sentencing. See R.C. 2929.12; Switzer.
{¶28} Although the trial court has a mandatory duty to “consider” the statutory
factors under R.C. 2929.11 and 2929.12, the court is not required to engage in any factual
findings under R.C. 2929.11 or 2929.12. State v. Combs, 8th Dist. Cuyahoga No. 99852,
2014-Ohio-497, ¶ 52; State v. Bement, 8th Dist. Cuyahoga No. 99914, 2013-Ohio-5437, ¶
17. Nor is the trial court required to explain its analysis of those factors. Switzer at ¶ 8.
“While trial courts must carefully consider the statutes that apply to every felony case, it
is not necessary for the trial court to articulate its consideration of each individual factor
as long as it is evident from the record that the principles of sentencing were considered.”
State v. Gonzalez, 8th Dist. Cuyahoga No. 102579, 2015-Ohio-4765, ¶ 6, citing State v.
Roberts, 8th Dist. Cuyahoga No. 89236, 2008-Ohio-1942, ¶ 10.
{¶29} Here, the court heard from Osborn, his counsel, and the state. Defense
counsel urged the court to consider the fact that this case is Osborn’s first conviction as
an adult and his client was “not the main perpetrator.” Osborn then offered an apology
to the victims, stating that he “did wrong,” he “wasn’t thinking,” and he made a mistake.
The court then discussed with Osborn the facts of the case as summarized in the PSI:
The victims told the police that they were in their bedroom when they heard
loud banging on the front door. Two males yelled Cleveland police, open
up and then proceeded to break down the front door. The males, one
identified as Osborn, ran into the bedroom and hit [the victim] on the head *
* * with a handgun and told him to get on the ground.
One of the males put a pillow on the victim’s head and said don’t— using
bad language — move or I’ll kill you. The victim could hear the other
male rummaging through his property before they exited the home. * * *
[T]he other victim said she ran into someone’s room to hide and a male put
a gun to her head and screamed do not open your eyes and do not open the
covers or I’ll shoot you. The defendants proceeded to fill garbage bags of
items and place [the bags] in the back of their vehicle.
{¶30} The court noted that Osborn’s actions were not “a mistake,” rather, they
resembled “a thought-out criminal plan to terrorize people.” The court stated that in
looking at Osborn’s record as a juvenile, the record showed he had a prior burglary and a
prior robbery, as well as charges of disorderly conduct, drug possession, and unauthorized
use of a motor vehicle. The court noted that Osborn’s conduct as an “active participant”
in pretending to be a police officer, breaking down the door, and “terroriz[ing]” the
victims “is so violent and reprehensible.”
{¶31} The court then heard from the prosecutor, who provided a brief outline of
the facts that the court had previously reviewed. Thereafter, prior to imposing sentence,
the court stated that it reviewed the PSI and “all of the facts of what occurred,” reiterating
that it found Osborn’s actions “extremely violent and reprehensible.” The court noted
that it considered all of the relevant seriousness and recidivism factors, and in assuring
“that the public is protected from future crime and that [Osborn is] punished,” the court
found Osborn not amenable to community control and imposed a prison sentence.
{¶32} Based upon the foregoing, we find the trial court did, in fact, consider the
principles and purposes of felony sentencing outlined in R.C. 2929.11 and the sentencing
factors outlined in R.C. 2929.12 prior to sentencing. Although Osborn disagrees with the
trial court’s imposition of a minimum prison sentence on his first-degree felony offenses
while imposing the maximum prison sentence on his third-degree felony, we are mindful
that trial courts have broad discretion in fashioning felony sentences. State v. Long, 138
Ohio St.3d 478, 2014-Ohio-849, 8 N.E.3d 890 (O’Connor, C.J., concurring); State v.
Anderson, 2016-Ohio-7044, 62 N.E.3d 229, ¶ 1 (8th Dist.) (“There is arguably nothing
more unassailable than the trial court’s discretion to fashion final sentences.”). “The
General Assembly has afforded judges great discretion in fashioning proper sentences,
constrained only by guideposts that require the sentencing judge to consider certain
factors that help determine the seriousness of the crime and the likelihood of recidivism.”
Long at ¶ 36, citing R.C. 2929.12. And in this case, the record demonstrates the trial
court considered such guideposts.
{¶33} To the extent that Osborn disagrees with the court’s consideration of the
sentencing factors, how the court weighed the factors, or the type of sentence imposed,
we have no jurisdiction for review. See Switzer, 8th Dist. Cuyahoga No. 102175,
2015-Ohio-2954, at ¶ 12. The trial court has the “‘discretion to determine the weight to
assign a particular statutory factor.’” Id., quoting State v. Arnett, 88 Ohio St.3d 208, 215,
2000-Ohio-302, 724 N.E.2d 793; see also R.C. 2929.12(A). And a defendant’s
disagreement with the trial court’s discretion and the manner in which it weighed each
factor does not make a sentence contrary to law. State v. Ongert, 8th Dist. Cuyahoga No.
103208, 2016-Ohio-1543, ¶ 14; State v. D.S., 10th Dist. Franklin No. 15AP-790,
2016-Ohio-2856, ¶ 15.
{¶34} We also find no impermissible judicial factfinding in this case. The Ohio
Supreme Court has held that judicial factfinding necessary to impose consecutive
sentences does not violate the Sixth Amendment. State v. Ruvolo, 8th Dist. Cuyahoga
No. 102569, 2015-Ohio-5417, ¶ 13, citing State v. Hodge, 128 Ohio St.3d 1,
2010-Ohio-6320, 941 N.E.2d 768; Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16
N.E.3d 659.
{¶35} Here, before imposing consecutive sentences, the trial court noted Osborn’s
juvenile record containing similar offenses and commented on the facts as summarized in
Osborn’s presentence investigation report. It found Osborn’s conduct of breaking into a
home while pretending to be a police officer, assaulting individuals in the home, and
causing great fear to be “a horrendous violent crime,” and therefore found consecutive
sentences proper.
{¶36} First, the court may consider Osborn’s prior record in determining an
appropriate sentence without engaging in improper judicial factfinding. State v. Lewis,
8th Dist. Cuyahoga No. 102939, 2015-Ohio-5267, ¶ 29. Second, the court’s comments
regarding the facts of the incident that gave rise to the charges were gleaned from the
presentence investigation report the court had ordered and reviewed prior to sentencing.
The trial court may consider “any reliable evidence in the record” when sentencing a
defendant, including a PSI. State v. Holt, 8th Dist. Cuyahoga No. 103772,
2016-Ohio-5246, ¶ 10, fn. 1, citing State v. Hinton, 8th Dist. Cuyahoga No. 84582,
2005-Ohio- 3427, ¶ 12; R.C. 2929.19(B).
{¶37} We therefore find the trial court considered the appropriate statutory factors
before sentencing Osborn. Further, we find the trial court did not engage in improper
judicial factfinding. Osborn’s first and second assignments of error are overruled.
C. Consecutive Sentences
{¶38} In his third assignment of error, Osborn contends that the trial court failed to
make the proper findings before imposing consecutive sentences. He also contends, in
his fifth and final assignment of error, that the court subjected him to unconstitutional
multiple punishments by ordering the firearm specifications to be served consecutively.
{¶39} In order to impose consecutive sentences, the trial court must make findings
set forth in R.C. 2929.14(C)(4) and incorporate those findings into the journal entry of
sentence. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at ¶ 37. R.C.
2929.14(C)(4) provides that the trial court must find that consecutive sentences are
necessary to protect the public from future crime or to punish the offender, that such
sentences would not be disproportionate to the seriousness of the conduct and to the
danger the offender poses to the public, and that one of the following applies:
(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, 2929.17, or 2929.18 of the
Revised Code, or was under postrelease control for a prior offense.
(b) 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 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.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
{¶40} Compliance with R.C. 2929.14(C)(4) requires the trial court to make the
statutory findings at the sentencing hearing, “and by doing so it affords notice to the
offender and to defense counsel.” Bonnell at ¶ 29. “Findings,” for these purposes,
means that “‘the [trial] court must note that it engaged in the analysis’ and that it ‘has
considered the statutory criteria and specifie[d] which of the given bases warrants its
decision.’” Id. at ¶ 26, quoting State v. Edmonson, 86 Ohio St.3d 324, 326, 715 N.E.2d
131 (1999). Further, the reviewing court must be able to determine that the record
contains evidence to support the findings. State v. Davis, 8th Dist. Cuyahoga No.
102639, 2015-Ohio-4501, ¶ 21, citing Bonnell at ¶ 29.
{¶41} We find in this case that the record demonstrates the trial court made the
requisite R.C. 2929.14(C)(4) findings in support of consecutive sentences. Upon
imposing sentence, the court stated as follows:
I’m also advising you that a consecutive prison term is necessary to protect
the community and punish you, the offender. And it’s not
disproportionate. And I find the harm is so great or unusual that a single
term does not adequately reflect the seriousness of your conduct and that
your criminal history shows that a consecutive sentence is necessary to
protect the public.
First, as I’ve already placed on the record, you have a juvenile record of the
same offenses, one of each, burglary and robbery. In addition to that, I find
that this was a horrendous violent crime and that you broke into someone’s
house pretending to be a police officer. Once in the home, you, with
weapons, assaulted individuals in the home and caused great fear from what
I’ve read through the presentence investigation report. Therefore, I find
that a consecutive prison sentence is necessary to protect the public and to
punish you, the offender.
{¶42} Although the trial court did not recite verbatim the second finding that
consecutive sentences “would not be disproportionate to the seriousness of the conduct
and to the danger the offender poses to the public,” the trial court is not required to give a
“talismanic incantation” of the words of the statute, provided the necessary findings are
found in the record. Bonnell at ¶ 37. When making the consecutive sentence findings,
“a word-for-word recitation of the language of the statute is not required, and as long as
the reviewing court can discern that the trial court engaged in the correct analysis and can
determine that the record contains evidence to support the findings, consecutive sentences
should be upheld.” Bonnell at ¶ 29.
{¶43} Here, the court stressed the seriousness of the crime in articulating that two
of the three given bases warranted its decision, where the statute requires only one of the
findings under R.C. 2929.14(C)(4)(a)-(c). The court found that “the harm is so great or
unusual that a single term does not adequately reflect the seriousness” of Osborn’s
conduct, under R.C. 2929.14(C)(4)(b), in addition to finding that Osborn’s criminal
history demonstrates that consecutive sentences are necessary to protect the public from
future crime by Osborn, the offender, under R.C. 2929.14(C)(4)(c).
{¶44} Additionally, the court emphasized the “horrendous” and “violent” nature of
the crime whereby Osborn instilled great fear in his victims by invading their home in
such a violent manner under the guise of being a police officer. The court’s remarks,
viewed in their entirety, reflect that the court engaged in the appropriate analysis and
placed the finding on the record. State v. Jackson, 8th Dist. Cuyahoga No. 104991,
2017-Ohio-7167, ¶ 13; State v. Amey, 8th Dist. Cuyahoga Nos. 103000 and 103001,
2016-Ohio-1121, ¶ 16 (stating the court’s finding that consecutive sentences “would not
be disproportionate” complied with the statute when considering the court’s additional
remarks). We therefore can discern the trial court found that consecutive sentences are
not disproportionate to the seriousness of Osborn’s conduct and to the danger he poses to
the public. State v. Blevins, 8th Dist. Cuyahoga No. 105023, 2017-Ohio-4444, ¶ 25.
{¶45} Osborn’s third assignment of error is overruled.
{¶46} Osborn also contends that the court erred when it sentenced him to
consecutive sentences for the two, three-year firearm specifications. He argues that
because the same firearm was used in the same incident, the firearm specifications ought
to have merged. This argument is without merit.
{¶47} Ordinarily, a trial court is prohibited from imposing more than one prison
term for firearm specifications “associated with felonies ‘committed as part of the same
act or transaction.’” State v. Nelson, 8th Dist. Cuyahoga No. 104336, 2017-Ohio-5568, ¶
81, citing R.C. 2929.14(B)(1)(b). The statute provides an exception, however, to this
general rule:
If an offender is convicted of or pleads guilty to two or more felonies, if one
or more of those felonies are aggravated murder, murder, attempted
aggravated murder, attempted murder, aggravated robbery, felonious
assault, or rape, and if the offender is convicted of or pleads guilty to a
specification of the type described under division (B)(1)(a) of this section,
[i.e. a specification of the type described in R.C. 2941.141, 2941.144, or
2941.145], in connection with two or more of the felonies, the sentencing
court shall impose on the offender the prison term specified under division
(B)(1)(a) of this section for each of the two most serious specifications of
which the offender is convicted or to which the offender pleads guilty and,
in its discretion, also may impose on the offender the prison term specified
under that division for any or all of the remaining specifications.
R.C. 2929.14(B)(1)(g).
{¶48} Pursuant to R.C. 2929.14(B)(1)(g), therefore, the trial court must impose
prison terms for the two most serious specifications and it has discretion to impose a
sentence for any other specification. State v. Nitsche, 2016-Ohio-3170, 66 N.E.3d 135, ¶
53 (8th Dist.), citing State v. James, 2015-Ohio-4987, 53 N.E.3d 770, ¶ 41 (8th Dist.).
And the multiple terms for the firearm specifications must be served consecutively:
“While the General Assembly did not include the word ‘consecutive’ in
R.C. 2929.14(B)(1)(g), it nonetheless carved out an exception to the general
rule that a trial court may not impose multiple firearm specifications for
crimes committed within a single transaction. The mandatory language of
the statute (‘the court shall impose’) also indicates the General Assembly’s
intention that the defendant serve multiple sentences for firearm
specifications associated with the enumerated crimes, such as murder or
felonious assault. Had the Legislature intended a per se rule that sentences
for firearm specifications must be served concurrent with one another, it
could have stated as much. Or, the Legislature could have chosen not to
codify R.C. 2929.14(B)(1)(g), which serves as an exception to the rule that
multiple firearm specifications must be merged for purposes of sentencing
when the predicate offenses were committed as a single criminal
transaction.”
State v. Vanderhorst, 8th Dist. Cuyahoga No. 97242, 2013-Ohio-1785, ¶ 10, quoting State
v. Isreal, 12th Dist. Warren No. CA2011-11-115, 2012-Ohio-4876, ¶ 73.
{¶49} Here, Osborn pleaded guilty to two or more felonies, including one count of
aggravated burglary and three counts of aggravated robbery. He also pleaded guilty to
the three-year firearm specifications in violation of R.C. 2941.145(A) that accompanied
Count 1, aggravated burglary, and Count 3, aggravated robbery. Under R.C.
2929.14(B)(1)(g), the court was therefore required to impose consecutive sentences on
each of the firearm specifications. Nelson at ¶ 81; Nitsche at ¶ 53; Vanderhorst at ¶ 10.
Thus, the trial court’s imposition of consecutive three-year sentences on the firearm
specifications was not improper.
{¶50} Osborn’s fifth and final assignment of error is overruled.
{¶51} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
________________________________________
TIM McCORMACK, PRESIDING JUDGE
MELODY J. STEWART, J., and
PATRICIA ANN BLACKMON, J., CONCUR