State v. Warren ( 2012 )

[Cite as State v. Warren, 2012-Ohio-4721.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97837
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DERRICK WARREN
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-551985
BEFORE: Celebrezze, P.J., Jones, J., and Cooney, J.
RELEASED AND JOURNALIZED: October 11, 2012
ATTORNEY FOR APPELLANT
Rick L. Ferrara
2077 East 4th Street
Second Floor
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Maxwell M. Martin
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.:
{¶1} Defendant-appellant, Derrick Warren, appeals from his sentence imposed in
the common pleas court. After careful review of the record and relevant case law, we
reverse and remand for a limited resentencing hearing.
{¶2} On July 7, 2011, appellant was indicted in an 11-count indictment alleging
two counts of attempted murder, in violation of R.C. 2903.02 and 2923.02; two counts of
felonious assault, in violation of R.C. 2903.11(A)(2); four counts of kidnapping, in
violation of R.C. 2905.01(A)(1); aggravated burglary, in violation of R.C. 2911.11;
aggravated robbery, in violation of R.C. 2911.01; and assault, in violation of R.C.
2903.13. The attempted murder, felonious assault, kidnapping, aggravated burglary, and
aggravated robbery counts had notices of prior convictions and repeat violent offender
specifications attached.
{¶3} On December 5, 2011, appellant pled guilty to one count of attempted
murder, along with the notice of prior conviction and repeat violent offender
specification. Appellant also pled guilty to aggravated burglary, felonious assault,
aggravated robbery, and kidnapping. The remaining counts were dismissed.
{¶4} On December 22, 2011, the trial court sentenced appellant to ten years on the
attempted murder charge, plus five years on the repeat violent offender specification, to
run consecutively to the underlying charge. Appellant was sentenced to five years each
on the remaining counts. The trial court ran the sentences for the remaining counts
concurrently to each other, but consecutively to the 15 years imposed on the attempted
murder charge and repeat violent offender specification, for an aggregate term of
imprisonment of 20 years.
{¶5} Appellant now brings this timely appeal, raising one assignment of error for
review.
Law and Analysis
{¶6} In his sole assignment of error, appellant argues that the trial court erred
when it failed to make statutorily necessitated findings of fact before imposing an
enhanced penalty on a repeat violent offender.
{¶7} The General Assembly, through the enactment of House Bill 86 (“H.B. 86”),
recently amended Ohio’s sentencing statutes. Since H.B. 86 took effect on September
30, 2011, and appellant was sentenced on December 22, 2011, the trial court was required
to sentence appellant according to the revisions implemented in H.B. 86.1
{¶8} Preliminarily, we note that appellant does not challenge the constitutionality
of the revised portions of R.C. 2929.14(B)(2)(a) following the enactment of H.B. 86.
Accordingly, we limit our review to appellant’s arguments concerning whether the trial
court adequately complied with the requirements of R.C. 2929.14(B)(2)(a).
1 We note, however, that pursuant to Section 4 of H.B. 86 and R.C. 1.58, the
revisions made by H.B. 86 to the felony sentencing guidelines in Section (A) of R.C.
2929.14 do not apply to appellant in this matter. Appellant committed the
underlying offenses before September 30, 2011, and was not subject to a “reduced”
penalty under the H.B. 86 revisions. Therefore, the maximum sentence appellant
could receive for his felony of the first degree was ten years in prison and not eleven
years, as revised.
{¶9} Pursuant to R.C. 2929.14(B)(2)(a), in addition to the longest prison term
authorized for the offense, the sentencing court may impose an additional definite prison
term of one, two, three, four, five, six, seven, eight, nine, or ten years for the repeat
violent offender specification, if all of the following criteria are met:
(i) The offender is convicted of or pleads guilty to a specification of the
type described in section 2941.149 of the Revised Code that the offender is
a repeat violent offender.
(ii) The offense of which the offender currently is convicted or to which the
offender currently pleads guilty is * * * any felony of the first degree that is
an offense of violence and the court does not impose a sentence of life
imprisonment without parole.
(iii) The court imposes the longest prison term for the offense that is not life
imprisonment without parole.
(iv) The court finds that the prison terms imposed * * * are inadequate to
punish the offender and protect the public from future crime, because the
applicable factors under section 2929.12 of the Revised Code indicating a
greater likelihood of recidivism outweigh the applicable factors under that
section indicating a lesser likelihood of recidivism.
(v) The court finds that the prison terms imposed * * * are demeaning to the
seriousness of the offense, because one or more of the factors under section
2929.12 of the Revised Code indicating that the offender’s conduct is more
serious than conduct normally constituting the offense are present, and they
outweigh the applicable factors under that section indicating that the
offender’s conduct is less serious than conduct normally constituting the
offense.
{¶10} In the case at hand, appellant pled guilty to attempted murder, a first-degree
felony that is an offense of violence, and its accompanying repeat violent offender
specification. At sentencing, the trial court sentenced appellant to the maximum term of
imprisonment on the attempted murder count. Thus, the criteria contained in R.C.
2929.14(B)(2)(a)(i), (ii), and (iii) are met in the instant matter.
{¶11} In addressing the finding requirements of R.C. 2929.14(B)(2)(a)(iv) and (v),
the trial court stated the following:
Defendant has a prior history here. Much violence, activities in the past.
In 1990, in 2003. I believe the seriousness of this offense warrants an
additional five years. Repeat violent offender specification, that’s 15 years
total on count one.
{¶12} On this record, we find that the trial court’s statements failed to comply with
the finding requirements of R.C. 2929.14(B)(2)(a)(iv) and (v). Although the trial court
noted that appellant committed a serious offense and that he had a violent criminal
history, the court did not find on the record that the maximum sentence was inadequate to
protect the public from future crime or to punish appellant because those factors indicated
a greater likelihood of recidivism. Additionally, the trial court did not find on the record
that the maximum sentence was demeaning to the seriousness of the offense because one
or more of the factors under R.C. 2929.12 indicated that appellant’s conduct was more
serious than conduct normally constituting the offense. Accordingly, we are constrained
to reverse and remand for a resentencing hearing on the repeat violent offender
specification only.
{¶13} Appellant’s assignment of error is sustained.
{¶14} Appellant’s sentence is reversed in part, and this cause is remanded to the
lower court for further proceedings consistent with this opinion.
It is ordered that appellant recover from appellee 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. Case remanded to the trial court for
sentencing.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
LARRY A. JONES, SR., J., and
COLLEEN CONWAY COONEY, J., CONCUR