State v. Bryan , 2017 Ohio 1532 ( 2017 )

[Cite as State v. Bryan, 2017-Ohio-1532.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. CT2016-0056
MICHAEL S. BRYAN :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Muskingum
County Court of Common Pleas, Case No.
CR2016-0234
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: April 24, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GERALD ANDERSON II ERIC J. ALLEN
Assistant Prosecuting Attorney 4605 Morse Road
27 North Fifth Street Suite 201
Box 189 Gahanna, OH 43230
Zanesville, OH 43702
Muskingum County, Case No. CT2016-0056 2
Gwin, P.J.
{¶1} Appellant Michael Bryan appeals from the October 11, 2016 judgment
entry/sentencing of the Muskingum County Court of Common Pleas. Appellee is the
State of Ohio.
Facts & Procedural History
{¶2} Appellant was involved in multiple drug transactions with a confidential
informant working with the Central Ohio Drug Enforcement Task Force between
November 16, 2015 and April 6, 2016, culminating in a raid of his residence on April 7,
2016.
{¶3} Appellant was indicted on one count of trafficking drugs (cocaine) and four
counts of trafficking drugs (methamphetamine) in violation of R.C. 2925.03(A)(1). Two of
these offenses were elevated due to school specifications. On September 21, 2016,
appellant pled guilty to the five counts of trafficking in drugs and appellee dismissed the
two school specifications. There was no joint recommendation as to appellant’s
sentence. Appellant waived a pre-sentence investigation and thus the trial court
sentenced appellant following the plea hearing. Appellant signed a plea of guilty on
September 21, 2016, acknowledging that even if consecutive sentences were not
mandatory, they may be imposed by the court. Further, that appellee would be
recommending an aggregate ten year sentence.
{¶4} At the sentencing hearing, counsel for appellant requested an aggregate
four year sentence, while counsel for appellee requested an aggregate ten year sentence.
Appellee argued appellant’s pattern of conduct was such that no single sentence would
adequately punish him or protect the public.
Muskingum County, Case No. CT2016-0056 3
{¶5} The trial court stated at the sentencing hearing, “after reviewing the
defendant’s record, considering the seriousness and recidivism factors, and the purposes
and principles statutes, this Court finds that it would demean the seriousness of the
offense and not adequately protect the public to place the defendant on community
control.” The trial court then found a sentence of twenty-four months on each count was
appropriate. The trial court continued, “said sentences shall be served consecutive to
each other as not to demean the seriousness of the offenses and to protect the public, as
concurrent sentences would not adequately address the crimes committed herein.”
{¶6} The trial court issued a judgment entry of conviction on October 21, 2016.
As to consecutive sentences, the judgment entry stated the “periods of incarceration
imposed herein shall be served consecutive to one another for an aggregate prison
sentence of ten (10) years.”
{¶7} Appellant appeals from the judgment entry of his conviction and assigns the
following as error:
{¶8} “I. THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO
CONSECUTIVE SENTENCES AS THE COURT FAILED TO ENGAGE IN THE
REQUISITE THREE PART ANALYSIS REQUIRED TO SENTENCE A DEFENDANT TO
CONSECUTIVE SENTENCES BY FAILING TO FIND THAT ANY OF THE THREE
FACTORS LISTED IN 2929.14(C)(4)(a)-(c) APPLIED.”
I.
{¶9} Appellant contends the trial court failed to make the requisite findings to
impose consecutive prison terms. Appellee concedes the third requisite finding, a finding
that any of the three factors listed in R.C. 2929.14(C)(4)(a)-(c), was not made on the
Muskingum County, Case No. CT2016-0056 4
record at the sentencing hearing and was not incorporated into the court’s sentencing
entry.
{¶10} R.C. 2929.24(C)(4) states:
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 * * * or was under post-
release 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 the
consecutive sentences are necessary to protect the public from future crime
by the offender.
{¶11} In State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, 16 N.E.2d 659,
the Ohio Supreme Court held, “in order to impose consecutive terms of imprisonment, a
Muskingum County, Case No. CT2016-0056 5
trial court is required to make the findings mandated by R.C. 2929.14(C)(4) at the
sentencing hearing and incorporate its findings into the sentencing entry, but has no
obligation to state reasons to support its findings.” The sentencing court is not required
to give a “word-for-word” recitation of the language of the statute. Id. “[A]s 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.” Id. A failure to make the findings required by R.C.
2929.14(C)(4), however, renders a consecutive sentence contrary to law. Id. The
findings required by R.C. 2929.14(C)(4) must be made at the sentencing hearing and
included in the sentencing entry. Id.
{¶12} In this case, the trial court found that consecutive sentences are necessary
to protect the public or to punish the offender and found that consecutive sentences are
not disproportionate to the seriousness of the conduct and the danger posed to the public,
as evidenced in the sentencing colloquy by the trial court. However, the trial court did not
make a finding as to any of the three options set forth in R.C. 2929.14(C)(4)(a)-(c). We
are thus unable to find the trial court made all of the findings required by R.C.
2929.14(C)(4) at the time it imposed consecutive sentences; neither did it incorporate all
of the necessary findings into its judgment entry. See State v. Hunter, 5th Dist. Licking
No. 15-CA-18, 2015-Ohio-3498. The state, in its appellate brief, concedes this error in
sentencing.
{¶13} We are unable to uphold the consecutive sentences on this record because
we cannot “discern that the trial court engaged in the correct analysis and can[not]
Muskingum County, Case No. CT2016-0056 6
determine that the record contains evidence to support the findings.” Id., citing State v.
Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, 16 N.E.2d 659.
{¶14} Appellant’s assignment of error is sustained. Appellant’s sentence is
vacated, and this matter is reversed and remanded to the trial court for resentencing.
By Gwin, P.J.,
Wise, John J., and
Baldwin, J., concur