State v. Smith , 2014 Ohio 5547 ( 2014 )

[Cite as State v. Smith, 2014-Ohio-5547.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 101105
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
SANCHEZ K. SMITH
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-10-535173-B
BEFORE: McCormack, J., Jones, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: December 18, 2014
ATTORNEY FOR APPELLANT
Patricia J. Smith
9442 State Route 43
Streetsboro, OH 44241
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Daniel T. Van
Assistant County Prosecutor
9th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:
{¶1} Defendant-appellant, Sanchez K. Smith, appeals from his sentence of September 21,
2010. For the following reasons, we affirm.
Procedural History
{¶2} On March 16, 2010, Smith was charged in a multiple count indictment. On
August 26, 2010, he pleaded guilty to aggravated burglary (Counts 1 and 2), aggravated robbery
(Counts 3 and 4), having weapons while under disability (Count 13), and aggravated theft (Count
15). Smith also pleaded guilty to one- and three-year firearm specifications attendant to Counts
1, 2, 3, and 4, as well as forfeiture specifications attendant to Counts 1, 2, 3, 4, and 13.
{¶3} On September 21, 2010, the trial court sentenced Smith as follows: nine years
incarceration on each of Counts 1, 2, 3, and 4, to be run concurrently, plus three years on the
attendant firearm specification, to be run consecutively; four years on Count 13; and 11 months
on Count 15. The court ordered the sentences in Counts 1 through 4, Count 13, and Count 15 to
run consecutively to each other, for an aggregate prison term of 16 years, 11 months. The court
also ordered forfeiture of the weapon.
{¶4} On March 11, 2014, Smith filed this appeal, claiming that the trial court erred when
it imposed consecutive sentences without making the findings under R.C. 2929.14(C).
Law and Analysis
{¶5} In his sole assignment of error, Smith argues that the trial court, in sentencing him
to consecutive sentences, failed to make the statutorily mandated consecutive sentence findings.
The state concedes that the trial court did not make any findings at the sentencing hearing, and
our review of the record substantiates the state’s concession. The state claims, however, that the
trial court in this case was not obligated to make such findings. We agree.
{¶6} The record shows that Smith was sentenced on September 21, 2010. Under the
statutory law in effect at that time, the trial court was not required to make findings on the record
in order to justify imposing consecutive sentences. State v. Foster, 109 Ohio St. 3d 1,
2006-Ohio-856, 845 N.E.2d 470, paragraph seven of the syllabus. At the time Smith was
sentenced, trial courts still had the “discretion and inherent authority to determine whether a
prison sentence within the statutory range [should] run consecutively or concurrently * * *.”
State v. Bates, 118 Ohio St. 3d 174, 2008-Ohio-1983, 887 N.E.2d 328, ¶ 19.
{¶7} On September 30, 2011, however, the General Assembly enacted H.B. 86, which,
in effect, revived the requirement that trial courts make findings before imposing consecutive
sentences under R.C. 2929.14(C). Accordingly, R.C. 2929.14(C)(4), as revived, now requires
that a trial court, in order to impose consecutive sentences, find that: (1) consecutive sentences
are necessary to protect the public from future crime or to punish the offender; (2) consecutive
sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger
the offender poses to the public; and (3) at least one of the factors enumerated in R.C.
2929.14(C)(4)(a)-(c) applies. The General Assembly expressly provided in Section 4 of H.B.
86: “The amendments * * * apply to a person who commits an offense specified or penalized
under those sections on or after the effective date of this section[.]” (Emphasis added.)
{¶8} Because Smith was sentenced prior to September 30, 2011, the revived
consecutive sentence findings provisions do not apply to him. The trial court therefore did not
err when it sentenced Smith to consecutive sentences without making findings under R.C.
2929.14(C)(4).
{¶9} Smith’s sole assignment of error is overruled.
{¶10} 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, JUDGE
LARRY A. JONES, SR., P.J., and
SEAN C. GALLAGHER, J., CONCUR