State v. Burks ( 2019 )

[Cite as State v. Burks, 2019-Ohio-3289.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2018-CA-57
:
v. : Trial Court Case No. 2017-CR-663
:
RICHARD E. BURKS, IV : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 16th day of August, 2019.
...........
JOHN M. LINTZ, Atty. Reg. No. 0097715, Clark County Prosecutor’s Office, Appellate
Division, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
ALEKSANDR KOCHANOWSKI, Atty. Reg. No. 0090940, 6302 Kincaid Road, Cincinnati,
Ohio 45213
Attorney for Defendant-Appellant
.............
HALL, J.
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{¶ 1} Richard E. Burks IV appeals from the trial court’s revocation of his community
control and its imposition of consecutive prison sentences for receiving stolen property
and discharging a firearm on or near prohibited premises.
{¶ 2} In his sole assignment of error, Burks challenges the trial court’s imposition
of consecutive sentences. He argues that the trial court failed to make the findings
required for consecutive sentences during his sentencing hearing. He also asserts that
the record does not support consecutive sentences.
{¶ 3} The record reflects that Burks pled guilty to the above-referenced charges in
October 2017. The trial court accepted the plea and imposed community control
sanctions. It advised Burks that if he violated the terms of his community control he faced
consecutive prison sentences of 18 months for receiving stolen property and 36 months
for discharging a firearm on or near prohibited premises. (November 21, 2017 Sentencing
Tr. at 13; December 5, 2017 Judgment Entry of Conviction at 2). The trial court did not
address the statutory findings required for consecutive sentences at that time.
{¶ 4} Burks subsequently admitted to violating the conditions of his community
control by failing to complete a treatment program. (April 24, 2018 Community Control
Violation Hearing Tr. at 6). The trial court revoked community control and imposed
consecutive prison terms of 18 months and 36 months. (Id. at 9). During a revocation and
sentencing hearing, trial court did not make any findings under R.C. 2929.14(C) to support
consecutive sentences. In a subsequent April 25, 2018 judgment entry of conviction, the
trial court did make such findings. It stated:
The Court finds that consecutive service is necessary to protect the
public from future crime or to punish the defendant and that consecutive
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sentences are not disproportionate to the seriousness of the defendant’s
conduct and to the danger the defendant poses to the public, and the Court
also finds the defendant’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the defendant.
(Doc. # 12 at 2).
{¶ 5} On appeal, Burks contends the trial court erred by failing to make the
consecutive-sentence findings required by R.C. 2929.14(C) during his revocation and
sentencing hearing. He further argues that the record does not support consecutive
sentences. According to Burks, his own analysis of the statutory “seriousness” and
“recidivism” factors demonstrates that consecutive sentences are unwarranted.
{¶ 6} For its part, the State has conceded error in the trial court’s failure to make
consecutive-sentence findings during Burks’ sentencing hearing upon revoking
community control.1 We agree. “When an offender’s community control is revoked and
multiple prison terms are imposed for the underlying offenses, the trial court must make
the findings under R.C. 2929.14(C)(4) before imposing consecutive sentences at the
revocation sentencing hearing.” State v. Artz, 2d Dist. Champaign No. 2014-CA-34, 2015-
Ohio-3789, ¶ 12.
{¶ 7} As for whether the record supports consecutive sentences, that issue is
moot. Because a sentencing error has been conceded, Burks’ sentence must be vacated
1 We remind the State that pursuant to Second District Loc. R. 2.24, it was required to
“file a separate notice of conceded error along with the responsive brief,” and provide a
copy of the notice to the Court administrator. It did not. The rule’s requirement allows this
court to provide for expeditious resolution.
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and the case must be remanded for a new sentencing hearing. State v. Miller, 2d Dist.
Clark No. 2017-CA-94, 2018-Ohio-3197, ¶ 18. On remand, the trial court may elect not to
impose consecutive sentences. That being so, any discussion now about the propriety of
consecutive sentences merely would be advisory.2 Id.
{¶ 8} Based on the reasoning set forth above, Burks’ assignment of error is
sustained. The trial court’s judgment is reversed as to his sentence, and the cause is
remanded for a new sentencing hearing.
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FROELICH, J. and TUCKER, J., concur.
Copies sent to:
John M. Lintz
Aleksandr Kochanowski
Hon. Richard J. O’Neill
2 In Miller, as in the present case, the trial court made the necessary consecutive-
sentence findings in its judgment entry but neglected to make all of the findings during
the sentencing hearing. Miller at ¶ 10, 14. Under those circumstances, we declined to
decide whether the record supported consecutive sentences, electing instead simply to
reverse and remand for a new sentencing hearing. Id. at ¶ 18-20.