State v. Davis , 2012 Ohio 3951 ( 2012 )

[Cite as State v. Davis, 2012-Ohio-3951.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 97689, 97691, and 97692
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
EDDIE DAVIS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-553823, CR-554690, and CR-555904
BEFORE: Cooney, J., Blackmon, A.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: August 30, 2012
ATTORNEY FOR APPELLANT
Mark R. Marshall
P.O. Box 451146
Westlake, Ohio 44145
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Mark D. Bullard
T. Allan Regas
Assistant County Prosecutors
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
COLLEEN CONWAY COONEY, J.:
{¶1} In this consolidated appeal, defendant-appellant, Eddie Davis (“Davis”),
appeals his sentences in three cases. We find no merit to the appeal and affirm the
sentences.
{¶2} Davis pled guilty to numerous offenses in three separate cases in November
2011. In CR-554690, he pled guilty to burglary and grand theft. The court sentenced
him to six years’ imprisonment for burglary and twelve months for grand theft, to run
concurrent to each other but consecutive to the sentences in his other two cases.
{¶3} In CR-555904, Davis pled guilty to burglary and theft. The State
dismissed a third charge of vandalism. The court sentenced him to three years’
imprisonment for burglary and six months for theft, to run concurrent to each other but
consecutive to the sentences in his other two cases.
{¶4} In CR-553823, Davis pled guilty to breaking and entering and grand theft.
The State dismissed the remaining charges of criminal damaging and receiving stolen
property. The court sentenced him to concurrent twelve-month prison terms, to be
served consecutive to the sentences issued in his other two cases. In total, the court
sentenced Davis to an aggregate ten-year prison term. This appeal followed.
{¶5} In his sole assignment of error, Davis argues the trial court erred by
imposing consecutive sentences without making the specific findings required by R.C.
2929.14(E)(4).
{¶6} House Bill 86, which became effective on September 30, 2011, revived the
language provided in former R.C. 2929.14(E) and moved it to R.C. 2929.14(C)(4). The
revisions to the felony sentencing statutes under H.B. 86 now require a trial court to make
specific findings when imposing consecutive sentences. R.C. 2929.14(C)(4) provides, in
relevant part:
(4) 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, was under a sanction imposed
pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, 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 that
consecutive sentences are necessary to protect the public from future crime
by the offender.
{¶7} In Section 11 of House Bill 86, the legislature explained that in amending
former R.C. 2929.14(E)(4), it intended “to simultaneously repeal and revive the amended
language in those divisions that was invalidated and severed by the Ohio Supreme Court’s
decision in State v. Foster (2006), 109 Ohio St.3d 1.” The General Assembly further
explained that the amended language in those divisions “is subject to reenactment under
the United States Supreme Court’s decision in Oregon v. Ice (2009), 555 U.S. 160, and
the Ohio Supreme Court’s decision in State v. Hodge (2010), ___ Ohio St.3d ___, Slip
Opinion No. 2010-Ohio-6320.” Thus, it is the legislature’s intent that courts interpret
the language in R.C. 2929.14(C)(4) in the same manner as the courts did prior to State v.
Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.
{¶8} Under R.C. 2929.14(C)(4), the trial court must state its findings in support of
consecutive sentences on the record at the sentencing hearing. State v. Comer, 99 Ohio
St.3d 463, 2003-Ohio-4165, 793 N.E.2d 473, paragraph one of the syllabus. However, it
is not required to recite any “magic” or “talismanic” words when imposing consecutive
sentences provided it is “clear from the record that the trial court engaged in the
appropriate analysis.” State v. Murrin, 8th Dist. No. 83714, 2004-Ohio-3962, ¶12. An
appellate court may only sustain an assignment of error challenging the imposition of
consecutive sentences under R.C. 2929.14 if the appellant shows that the judgment was
clearly and convincingly contrary to law. R.C. 2953.08(G).
{¶9} The trial court articulated the appropriate findings required by R.C.
2929.14(C)(4) both on the record at the sentencing hearing and in the judgment entry of
conviction and sentence. At the sentencing hearing, the court recounted Davis’s
extensive criminal record beginning with a burglary conviction in 1985. He was
convicted of breaking and entering and grand theft in 2002, violated probation, and went
to prison. He was convicted of another burglary in 2005 and breaking and entering in
2006. The court also commented on the harm he caused his victims. Davis’s
convictions included a burglary of a private residence and burglaries of two churches in
which he stole two tabernacles, a chalice, and a cross. The court noted that the pastor at
one of the churches stated that it was one of the worst things that ever happened to him in
his 30 years as a priest.
{¶10} Our review of the transcript reveals that the trial court considered not only
the impact of Davis’s actions on the churches and their parishioners for purposes of
punishment, but also the fact that prior attempts at rehabilitation had been unsuccessful.
The court found that the seriousness of the crimes coupled with Davis’s failure to be
rehabilitated required a longer term of incarceration to punish him and to protect the
public from future crime. In a similar case, this court recently found the trial court fully
met the requirements of newly enacted R.C. 2929.14(C)(4). State v. Parrish, 8th Dist.
No. 97482, 2012-Ohio-3153.
{¶11} We find the trial court made the necessary statutory findings to impose
consecutive sentences. Therefore, the sole assignment of error is overruled.
{¶12} 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. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
______________________________________________
COLLEEN CONWAY COONEY, JUDGE
EILEEN A. GALLAGHER, J., CONCURS;
PATRICIA ANN BLACKMON, A.J., CONCURS IN JUDGMENT ONLY (WITH
SEPARATE OPINION ATTACHED)
PATRICIA ANN BLACKMON, A.J., CONCURRING IN JUDGMENT ONLY:
{¶13} I concur in judgment only and write separately to discuss the standard of
review. I believe that the two-step analysis set forth in State v. Kalish, 120 Ohio St.3d 23,
2008-Ohio-4912, 896 N.E.2d 124, regarding appellate court review of a felony sentence
should be applied in reviewing imposition of consecutive sentences under H.B. 86.
Thus, the reviewing court should determine whether the consecutive sentence is clearly
and convincingly contrary to the law under the first-step. If the first step of Kalish is met
by the appellant, then our review is whether the record supports the findings. If the
record is void of evidence to support the findings, then the trial court has abused its
discretion. The majority opinion sets forth the first prong of Kalish and goes through the
record and determines that the record supports the findings. But, the majority opinion
does not specifically invoke Kalish, and I think it should.
{¶14} I would go further and require the trial court to be more specific in terms of
its findings, especially when it comes to the R.C. 2929.14(C)(4)(a), (b), or (c). We
should not have to guess as to which of the three findings the court is referencing.
{¶15} I am not suggesting that the trial court has to use the exact wording of the
statute or state reasons for its findings. State v. Brown, 8th Dist. No. 82298,
2004-Ohio-227.
{¶16} I agree that State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165, 793 N.E.2d
473, is instructive. The trial court should state on the record its findings as required by
H.B. 86. I agree with the majority opinion that this is not a silent-mental exercise. By
stating the findings on the record, the reviewing court will not have to guess as to the
trial court’s thought process or impose its own. This helps the reviewing court to
understand whether the trial court made the appropriate analysis. I believe this is a good
approach because there is a presumption in Ohio that all sentencing is to run concurrent.
See State v. Stanley, 2d Dist. No. 11CA0069, 2012-Ohio-2802.
{¶17} Finally, by not stating the necessary findings on the record, there is a
tendency to forget that there are several findings that must be made. They are the
necessary or punishment finding, the proportionality and danger to public findings, and
the “any of the three additional findings.”
{¶18} There is always the fear that H.B. 86 will result in the same checklist
approach that was used under S.B. 2; however, when the trial court states on the record its
findings, we are in a far better position to determine whether the appropriate analysis was
made because the appropriate findings were made.