State v. Smith ( 2014 )

[Cite as State v. Smith, 2014-Ohio-3700.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 14AP-123
(C.P.C. No. 13CR-2520)
v. :
(REGULAR CALENDAR)
Josias T. Smith, :
Defendant-Appellant. :
D E C I S I O N
Rendered on August 26, 2014
Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for
appellee.
Yeura R. Venters, Public Defender, and David L. Straight, for
appellant.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{¶ 1} Appellant, Josias T. Smith, appeals from a judgment of the Franklin County
Court of Common Pleas. For the following reasons, we reverse and remand to the trial
court for resentencing.
I. Facts and Procedural History
{¶ 2} On May 9, 2013, appellant was indicted on two counts of aggravated
burglary, two counts of aggravated robbery, two counts of kidnapping, four counts of
robbery, one count of tampering with evidence, and one count of failure to comply. All of
the counts, except the failure-to-comply count, contained either a one-year or three-year
firearm specification.
No. 14AP-123 2
{¶ 3} On December 9, 2013, appellant entered pleas of guilty to the following five
counts: (1) aggravated burglary with specification, in violation of R.C. 2911.11;
(2) kidnapping with specification, in violation of R.C. 2905.01; (3) aggravated robbery
with specification, in violation of R.C. 2911.01; (4) tampering with evidence with
specification, in violation of R.C. 2921.12; and (5) failure to comply with an order or signal
of a police officer, in violation of R.C. 2921.331. The court dismissed the remaining
counts. On January 10, 2014, the trial court conducted a sentencing hearing and
sentenced appellant to a 26-year prison term. The trial court journalized its decision on
January 13, 2014. Appellant appealed his sentence to this court on February 11, 2014.
II. Assignment of Error
{¶ 4} Appellant assigns the following assignment of error for our review:
The trial court committed plain error in imposing consecutive
sentences without making the necessary findings in violation
of R.C. 2929.14(C)(4).
III. Discussion
{¶ 5} In his single assignment of error, appellant contends the trial court erred by
imposing consecutive sentences without making the necessary findings as required by
R.C. 2929.14(C)(4). We agree.
{¶ 6} Because appellant did not challenge the trial court's imposition of
consecutive sentences at his sentencing hearing, we may reverse appellant's sentence only
if the sentence constitutes plain error. State v. Ayers, 10th Dist. No. 13AP-371, 2014-
Ohio-276, ¶ 7. The state does not argue that the trial court made the necessary findings
under R.C. 2929.14(C)(4); only that such failure is not plain error because the record
provides no indication that the trial court would have sentenced appellant differently had
it made the R.C. 2929.14(C)(4) findings.
{¶ 7} Contrary to the state's argument, this court has consistently determined a
trial court's failure to make the findings required by R.C. 2929.14(C)(4) is "plain error as a
matter of law." State v. Bailey, 10th Dist. No. 12AP-699, 2013-Ohio-3596, ¶ 46. See also
State v. Fair, 10th Dist. No. 13AP-901, 2014-Ohio-2788, ¶ 22; State v. Adams, 10th Dist.
No. 13AP-783, 2014-Ohio-1809, ¶ 7; State v. F.R., 10th Dist. No. 13AP-525, 2014-Ohio-
799, ¶ 25; State v. Bender, 10th Dist. No. 12AP-934, 2013-Ohio-2777, ¶ 7; State v. Hunter,
10th Dist. No. 13AP-196, 2013-Ohio-4013, ¶ 9; Ayers at ¶ 16; State v. Wilson, 10th Dist.
No. 14AP-123 3
No. 12AP-551, 2013-Ohio-1520, ¶ 18. Accordingly, if the trial court failed to make the
required findings, this court must remand for resentencing.
{¶ 8} Under R.C. 2929.14(C)(4), when a trial court sentences a defendant to
consecutive sentences for multiple offenses, it must make specific findings of fact. In
relevant part, the statute reads:
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 * * *, 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.
{¶ 9} The trial court is required under R.C. 2929.14(C)(4) to make three findings
before imposing consecutive sentences: " '(1) that consecutive sentences are necessary to
protect the public from the future crime or to punish the offender; (2) 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 (3) that one of the subsections (a), (b), or (c)
apply.' " Ayers at ¶ 12, quoting State v. Roush, 10th Dist. No. 12AP-201, 2013-Ohio-3162,
¶ 76. However, a trial court is not required to explain its findings. "[A] word-for-word
recitation of the language of the statute is not required, and as long as the reviewing court
can discern that the trial court engaged in the correct analysis and can determine that the
No. 14AP-123 4
record contains evidence to support the findings, consecutive sentences should be
upheld." State v. Bonnell, _Ohio St.3d_, 2014-Ohio-3177, ¶ 29.
{¶ 10} At appellant's sentencing hearing, the trial court reviewed the purposes of
felony sentencing as set out in R.C. 2929.11. The trial court then considered the factors
listed in R.C. 2929.12 as required when imposing a felony sentence. While analyzing the
above statutory factors, the trial court noted the seriousness of appellant's conduct.
Specifically, the trial court addressed the fact that appellant shot a gun in the direction of
a child. Although the trial court thoroughly examined a number of the statutory factors
for felony sentencing, we are unable to discern from the record that the trial court made
specific factual findings required by R.C. 2929.14(C)(4). The trial court did not address
whether consecutive sentences were not disproportionate to the seriousness of appellant's
conduct or whether consecutive sentences were necessary to protect the public from
future crime. Additionally, the trial court did not address whether any of the subsections
of R.C. 2929.14(C)(4) applied in this case.
{¶ 11} Because the record establishes that the trial court failed to make the
findings required by R.C. 2929.14(C)(4) prior to imposing consecutive sentences on
appellant's multiple offenses, appellant's sentence is contrary to law and constitutes plain
error. We therefore sustain appellant's sole assignment of error.
V. Conclusion
{¶ 12} Upon review of the record, we conclude the trial court committed plain
error. Having sustained appellant's assignment of error, we reverse the judgment of the
Franklin County Court of Common Pleas and remand this matter to that court for further
proceedings in accordance with law and consistent with this decision.
Judgment reversed and
cause remanded with instructions.
TYACK and BROWN, JJ., concur.