State v. Barajas-Anguiano ( 2018 )

[Cite as State v. Barajas-Anguiano, 2018-Ohio-3440.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2017-G-0112
- vs - :
DANIEL S. BARAJAS-ANGUIANO, :
Defendant-Appellant. :
Criminal Appeal from the Geauga County Court of Common Pleas, Case No. 2016 C
000147.
Judgment: Affirmed in part, reversed in part, and remanded.
James R. Flaiz, Geauga County Prosecutor, and Nicholas A. Burling, Assistant
Prosecuting Attorney, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH
44024 (For Plaintiff-Appellee).
Eric C. Nemecek, 1360 East Ninth Street, Suite 650, Cleveland, OH 44114 (For
Defendant-Appellant).
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, Daniel Barajas-Anguiano, appeals his sentence for
Endangering Children. The issue before this court is whether a trial court may impose
consecutive sentences for crimes committed in separate cases where the court did not
make an express finding regarding the harm suffered by the victim in the separate case.
For the following reasons, we affirm in part, reverse in part, and remand this case for
the trial court to issue a new sentencing entry.
{¶2} On August 25, 2016, the Geauga County Grand Jury returned an
Indictment against Barajas-Anguiano charging him with five counts of Rape, felonies of
the first degree in violation of R.C. 2907.02(A)(1)(b); one count of Gross Sexual
Imposition, a felony of the third degree in violation of R.C. 2907.05(A)(4); one count of
Endangering Children, a felony of the second degree in violation of R.C. 2919.22(B)(1)
and (E)(2)(d); and one count of Displaying Matter Harmful to Juveniles, a misdemeanor
of the first degree in violation of R.C. 2907.311(A).
{¶3} On September 9, 2016, Barajas-Anguiano entered a plea of not guilty to
the charges.
{¶4} On December 27, 2016, Barajas-Anguiano was sentenced in Geauga
County Court of Common Pleas Case No. 16-C-0012 following convictions for Gross
Sexual Imposition and Voyeurism involving his biological daughter. Barajas-Anguiano
received an aggregate prison term of 58 months for the charges in that case.
{¶5} On January 10, 2017, Barajas-Anguiano entered a written plea of guilty to
Endangering Children as charged in the Indictment. At the change of plea hearing, the
State proffered the following:
I believe that we would have been able to prove that * * * his
biological son was isolated by Mr. Barajas-Anguiano, he was
neglected by him to the point where he was suicidal. He spoke
about committing suicide. Mr. Barajas-Anguiano has choked him
and handed him a knife and said, go ahead and do it, and quit
talking about it and kill yourself. The young man is 15 years of age
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at this point * * * and is now living in a children’s home and
attending therapy and has been for quite some time.
{¶6} On February 22, 2017, a sentencing hearing was held. Counsel for
Barajas-Anguiano argued that the majority of the charges in the Indictment had no basis
in fact, “these sex offenses did not happen,” although conceding “he had some sexual
interaction with his daughter, and he admitted that.”
{¶7} The victim in the present case, Barajas-Anguiano’s biological son,
addressed the court and detailed physical, sexual, and psychological abuse. After
being committed to a youth center for being suicidal, his sister “made the allegation of
abuse against my dad” and family services took custody. The victim explained further:
“And me and my sister got split up. So I feel like I don’t have a family either. I love my
sister, but just feel neutral toward her. I can’t even trust my sister because of what
happened to me.”
{¶8} The prosecutor urged the court to impose a prison sentence to be served
consecutively with the sentence in the case involving Barajas-Anguiano’s daughter:
“The fact that you have two separate victims, the prior case involving his daughter, this
case involving his son, does demonstrate that in fact that the harm caused was so great
that consecutive sentences are necessary in this case.”
{¶9} In pronouncing sentence, the trial court stated that it had “reviewed the
presentence investigation, both the one associated with 16C12, as well as the one
associated with this case, 16C147,” and “letters from the victim, and letters from various
other people.” These included letters from the victim’s sister, his primary case worker,
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his independent living coordinator, the sister’s foster parents, and a police officer
assigned to the case.
{¶10} The court made the following findings:
I find that a consecutive sentence is necessary to protect the
public from future crime and to punish the offender.
I find that a consecutive sentence is not disproportionate to
the seriousness of the conduct and that the danger that the
defendant poses to the public.
I find that the acts you committed were a course of conduct,
and that the harm that was caused to your victim, that a single term
does not adequately reflect the seriousness of that conduct.
{¶11} The court ordered Barajas-Anguiano to serve a prison sentence of 72
months consecutively with the sentence in Case No. 16-C-0012.
{¶12} On February 28, 2017, Barajas-Anguiano’s sentence was memorialized in
a Judgment of Conviction.
{¶13} On March 27, 2018, Barajas-Anguiano filed a Notice of Appeal. On
appeal, Barajas-Anguiano raises the following assignments of error:
{¶14} “[1.] The trial court erred when it imposed consecutive sentences without
making the required findings pursuant to R.C. § 2929.14(C)(4).”
{¶15} “[2.] The trial court’s findings under R.C. § 2929.14(C)(4) are not
supported by the record.”
{¶16} “[3.] The trial court violated Barajas’ constitutional right to due process by
imposing a sentence that exceeds the statutory maximum.”
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{¶17} The Ohio Revised Code provides, in relevant part, as follows regarding
consecutive felony sentences:
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.
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(c) The offender’s history of criminal conduct demonstrates
that consecutive sentences are necessary to protect the public from
future crime by the offender.
R.C. 2929.14(C)(4).
{¶18} Under R.C. 2929.14(C)(4), a sentencing court is required to make three
distinct findings in order to require an offender to serve consecutive prison terms: (1)
that consecutive sentences are “necessary to protect the public from 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”; (3) “and * * * also” that one of the circumstances described in subdivision (a) to
(c) is present.
{¶19} In reviewing a felony sentence, “[t]he appellate court may increase,
reduce, or otherwise modify a sentence that is appealed under this section or may
vacate the sentence and remand the matter to the sentencing court for resentencing * *
* if it clearly and convincingly finds * * * [t]hat the sentence is otherwise contrary to law.”
R.C. 2953.08(G)(2). The failure to make the required findings to impose consecutive
sentences at the sentencing hearing renders the sentence contrary to law. State v.
Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 36-37.
{¶20} There are two preliminary matters to consider before addressing the
assignments of error.
{¶21} First, the State argues that, by failing to object to the imposition of
consecutive sentences at the sentencing hearing, Barajas-Anguiano has forfeited his
right to challenge his sentence absent plain error. Barajas-Anguiano counters that
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failing to make the requisite findings under R.C. 2929.14(C)(4) renders the sentence
contrary to law which is plain error. Barajas-Anguiano’s position has been adopted by
this court. State v. Dickerson, 11th Dist. Ashtabula No. 2013-A-0046, 2015-Ohio-938, ¶
64. We note that the Ohio Supreme Court has recently reversed the imposition of
consecutive sentences where the sentencing court failed to make the requisite findings
in the absence of an objection as well as plain error analysis, suggesting that the issue
of whether an offender objects to imposition of consecutive sentences is irrelevant for
the purposes of reviewing the imposition of consecutive sentences. State v. Beasley,
__ Ohio St.3d __, 2018-Ohio-493, __ N.E.3d __, ¶ 269-280 (DeWine, J., concurring in
part and dissenting in part). Inasmuch as we find no error in the imposition of
consecutive sentences in the present case, the issue is one we need not resolve.
{¶22} Second, Barajas-Anguiano points out that the sentencing entry states that
he “committed one or more of the multiple offenses while [he] 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,”
none of which is accurate.1 The State concedes that this finding is not supported by the
record. Accordingly, we remand this case for the limited purpose of having the trial
court issue a new sentencing entry omitting the finding that Barajas-Anguiano satisfied
the conditions of R.C. 2929.14(C)(4)(a).
{¶23} Barajas-Anguiano argues that the trial court failed to make proper findings
under R.C. 2929.14(C)(4)(b). The court failed to find that he “committed two (2) or more
separate offenses that constituted a ‘course of conduct,’” but, rather, found that “the
acts [he] committed were a course of conduct.” Acknowledging that “acts” as used by
1. No such finding was made by the trial court at the sentencing hearing.
7
the court could refer to “multiple offenses,” Barajas-Anguiano argues such a conclusion
is precluded by the fact that “the court’s focus was entirely on the offense that [he]
committed against [his son]” and it failed to “mention or discuss the conduct at issue in
Case No. 16 C 12 or the resultant harm to the victim in that proceeding (i.e. [his
daughter]).” Appellant’s brief at 15-16. Stated otherwise, “[b]y focusing solely on
Barajas’ conduct against [his son], which resulted in a conviction for a single count of
Endangering Children, the trial court failed to make a determination that Barajas
committed multiple offenses constituting a course of conduct sufficient to justify the
imposition of consecutive sentences under R.C. § 2929.14(C)(4)(b).” Reply brief at 4.
{¶24} We hold that the trial court’s findings were sufficient to satisfy the
requirements of R.C. 2929.14(C)(4)(b). With respect to this subsection, the trial court
stated at the sentencing hearing: “the acts you committed were a course of conduct,
and that the harm that was caused to your victim, that a single term does not
adequately reflect the seriousness of that conduct.”2 Admittedly, the court referred to
“acts” rather than “multiple offenses” and included a reference to the harm “caused to
your [Barajas-Anguiano’s] victim.” “However, 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
record contains evidence to support the findings, consecutive sentences should be
upheld.” Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at ¶ 29; State v.
Hairston, 10th Dist. Franklin No. 17AP-416, 2017-Ohio-8719, ¶ 7 (“appellate courts
2. The trial court’s February 28, 2017 Judgment of Conviction more precisely reflects that statutory
language: “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.”
8
have been ‘fairly deferential to the trial court’ in reviewing R.C. 2929.14(C)(4)
challenges and will determine the trial court made the requisite findings if reasonably
able to ‘glean’ such findings from the record”) (citation omitted); State v. Elmore, 2016-
Ohio-890, 60 N.E.3d 794, ¶ 51 (7th Dist.) (“post-Bonnell, we may liberally review the
entirety of the sentencing transcript to discern the findings”).
{¶25} In the present case, it is readily discernible that the trial court engaged in
the correct analysis and its findings are supported by the record. The issue of whether
Barajas-Anguiano’s prison sentence for Endangering Children in the present case
would be served consecutively with the sentences for Gross Sexual Imposition and
Voyeurism in Case No. 16-C-0012 was argued directly before the court by both the
defense and the prosecution. It is not reasonable to interpret the court’s use of the word
“acts” as referring to conduct for which Barajas-Anguiano was not convicted and for
which no sentence was imposed. At this point in the hearing the court was stating its
findings to support the imposition of consecutive sentences.
{¶26} Barajas-Anguiano would also have this court interpret the reference to
“your victim” to mean that the trial court only considered the harm caused to his son,
without any regard for the harm caused by the acts of Gross Sexual Imposition and
Voyeurism committed against his daughter, and imposed the consecutive sentences to
circumvent the eight-year maximum sentence for Endangering Children, i.e., that the
court believed that the harm solely caused by the Endangering Children merited a
prison term beyond the eight-year maximum. Such an interpretation, however, is not
supported by the record of the proceedings.
9
{¶27} It would be exceedingly difficult to disentangle the harm caused to the two
victims in this case and to their sibling relationship as Barajas-Anguiano suggests the
court did. The trial court stated that it considered both the pre-sentence investigation
report from the case involving the daughter as well as the letters including those written
by the daughter and her foster parents. These letters were also included in the pre-
sentence investigation report for the present case. The son’s own testimony before the
court at sentencing likewise bore witness to how he was harmed by Barajas-Anguiano’s
conduct in Case No. 16-C-0012: as a result of his sister’s allegations he and his sister
were “split up” and their sibling relationship effectively destroyed.3
{¶28} Assuming, arguendo, that the trial court focused solely on the harm
caused the son in the present case, we find no error. It had already been determined in
Case No.16-C-0012 that the harm caused the daughter was sufficient to impose
consecutive sentences based on the multiple charges in that case. Nothing the court
could do in sentencing Barajas-Anguiano for the crime against his son would invalidate
the finding of harm in the companion case, and the court described the acts underlying
the charges in both cases as “a course of conduct.” Thus, it was not necessary for the
court to find that the harm suffered by each victim individually was so great or unusual
that a single prison term would be inadequate to reflect the seriousness of his conduct.
{¶29} The assignments of error are without merit.
{¶30} For the foregoing reasons, Barajas-Anguiano’s sentence for Endangering
Children is affirmed in part, reversed in part, and this case is remanded with instructions
3. The import of this harm should not be underestimated inasmuch as the siblings’ mother is deceased
and their father along with the step-mother perpetrated the abuse. For practical purposes, brother and
sister were the family unit and Barajas-Anguiano’s crimes were against a family as much as against
distinct individuals. Barajas-Anguiano misspeaks by referring to Case No. 16-C-0012 as an “unrelated
proceeding.” Reply brief at 7.
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for the trial court to issue a new sentencing entry consistent with this opinion. Costs to
be taxed against appellant.
THOMAS R. WRIGHT, P.J., concurs,
COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.
___________________________________
COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.
{¶31} The majority finds appellant’s assignments of error without merit. For the
reasons stated, I respectfully dissent.
{¶32} In his first assignment of error, appellant argues the trial court erred in
imposing consecutive sentences without making the required R.C. 2929.14(C)(4)
findings. In his second assignment of error, appellant asserts the trial court’s findings
under R.C. 2929.14(C)(4) are not supported by the record. Because both assignments
challenge appellant’s consecutive sentence, I will address them together.
{¶33} “‘(T)his court utilizes R.C. 2953.08(G) as the standard of review in all
felony sentencing appeals.’ State v. Hettmansperger, 11th Dist. Ashtabula No. 2014-A-
0006, 2014-Ohio-4306, ¶14. R.C. 2953.08(G) provides, in pertinent part:
11
{¶34} “‘(2) The court hearing an appeal under division (A), (B), or (C) of this
section shall review the record, including the findings underlying the sentence or
modification given by the sentencing court.
{¶35} “‘The appellate court may increase, reduce, or otherwise modify a
sentence that is appealed under this section or may vacate the sentence and remand
the matter to the sentencing court for resentencing. The appellate court’s standard for
review is not whether the sentencing court abused its discretion. The appellate court
may take any action authorized by this division if it clearly and convincingly finds either
of the following:
{¶36} “‘(a) That the record does not support the sentencing court’s findings
under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section
2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is
relevant;
{¶37} “‘(b) That the sentence is otherwise contrary to law.’
{¶38} “R.C. 2929.14(C)(4) governs the imposition of consecutive felony
sentences. It provides:
{¶39} “‘(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:
12
{¶40} “‘(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.
{¶41} “‘(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.
{¶42} “‘(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime by the
offender.’
{¶43} “In State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, ¶37, the court
held:
{¶44} “‘In order to impose consecutive terms of imprisonment, a trial court is
required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing
hearing and incorporate its findings into its sentencing entry, but it has no obligation to
state reasons to support its findings. Nor is it required to give a talismanic incantation of
the words of the statute, provided that the necessary findings can be found in the record
and are incorporated into the sentencing entry.’
{¶45} “Failure to make the R.C. 2929.14(C)(4) findings at the sentencing hearing
and incorporate them in the judgment entry of sentence renders the sentence contrary
13
to law. See, e.g., id.” State v. Purtilo, 11th Dist. Lake No. 2015-L-003, 2015-Ohio-2985,
¶5-17.
{¶46} The presumption in Ohio is that sentencing is to run concurrent, unless the
trial court makes the required findings for imposing consecutive sentences set forth in
R.C. 2929.14(C)(4). State v. Wells, 8th Dist. Cuyahoga No. 98428, 2013-Ohio-1179,
¶11; R.C. 2929.41(A). “The imposition of consecutive sentences in Ohio is thus an
exception to the rule that sentences should be served concurrently. And there is no
doubt that the provisions of H.B. 86, like those of S.B. 2 before it, were intended, among
other things, to alleviate overcrowding in the prison system.” State v. Venes, 8th Dist.
Cuyahoga No. 98682, 2013-Ohio-1891, ¶15.
{¶47} “Pursuant to R.C. 2929.41(A), therefore, the trial court has the duty to
make the statutory findings when imposing consecutive sentences, even when one of
the terms had already been imposed in a separate proceeding in an unrelated case.”
State v. Howard, 8th Dist. Cuyahoga No. 100094, 2014-Ohio-2176, ¶44. A trial court’s
failure to make the statutorily-required findings under R.C. 2929.14(C) constitutes plain
error. State v. Hargrove, 10th Dist. Franklin No. 15AP-102, 2015-Ohio-3125, ¶5.
{¶48} At the sentencing hearing, appellant did not wish to say anything prior to
sentencing. Appellant’s counsel, however, advised the court that appellant had a
difficult childhood and that his experiences have translated into an unorthodox way of
dealing with his children. Also, the victim in this case, M.B., took the podium and spoke
to the court.
{¶49} M.B. indicated the following: he was 15 and a half years old at the time of
sentencing; M.B. was abused by appellant beginning at six years old; appellant would
14
pay M.B. for sex; the sexual abuse lasted around two years; physical and mental abuse
happened later and lasted about five years; M.B. was rarely allowed to take showers or
wash his clothes; M.B. was ridiculed at school and lost friends; M.B. did not feel safe;
M.B. felt exposed and vulnerable; M.B. had trouble sleeping and was diagnosed with
PTSD; in 2015, M.B. made 16 suicide attempts in three days and was told by appellant
to “just do it” as it would be one less mouth to feed; things have gotten better for M.B.
after he was sent to Ohio Guidestone in 2016; however, M.B. has a hard time trusting
people, has anxiety, and blames appellant; and M.B. asked the court to give appellant
the maximum sentence. (Sentencing T.p. 7-11).
{¶50} Thereafter, the trial court stated the following:
{¶51} “THE COURT: Thank you. Okay. Mr. Barajas Anguiano, the Court has
considered the purposes and principals of felony sentencing under Revised Code
2929.11, as well as the seriousness and recidivism factors under 2929.12, including the
seriousness of your conduct and the factors which make your conduct more serious, as
well as factors which may make your conduct less serious.
{¶52} “I specifically find that under 2929.12, some of the factors which make the
conduct more serious, which occurred in this case, is that the injury to the victim was
exacerbated by his age.
{¶53} “I further find that the victim suffered serious physical and emotional harm
and psychological harm. And I find that your relationship with the victim facilitated the
offense.
{¶54} “I have reviewed the presentence investigation, both the one associated
with 16C12, as well as the one associated with this case, 16C147.
15
{¶55} “I have also reviewed letters from the victim, and letters from various other
people. I have reviewed the plea agreement. I have listened to the statement from your
counsel, and I have reviewed the entire record in this case.
{¶56} “I order a prison sentence, and I am going to impose a prison sentence of
72 months. I do find that this will be consecutive to the sentence imposed under Case
No. 16C12.
{¶57} “I find that a consecutive sentence is necessary to protect the public from
future crime and to punish the offender.
{¶58} “I find that a consecutive sentence is not disproportionate to the
seriousness of the conduct and that the danger that the Defendant poses to the public.
{¶59} “I find that the acts that you committed were a course of conduct, and that
the harm that was caused to your victim, that a single term does not adequately reflect
the seriousness of that conduct.
{¶60} “I understand you had a difficult childhood, but you are the adult in this
case. And you have admitted to leaving your son out of the family. You have admitted
to the serious punishment, and I have seen nothing in any of the evidence to show you
to be supportive of your son.
{¶61} “In addition to your sentence, you will be subject to post release control.
You will be subject to a three year post release control term under Revised Code
2967.28.” (Sentencing T.p. 14-16).
{¶62} In its February 28, 2017 sentencing entry, the trial court stated:
{¶63} “Pursuant to R.C. 2929.14(C)(4), the Court finds that consecutive
sentences are necessary to protect the public from future crime or to punish [t]he
16
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 that,
pursuant to R.C. 2929.14(C)(4)(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, and that pursuant to R.C.
2929.14(C)(4)(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.” (Sentencing Entry pp. 2-3).
{¶64} The trial court’s ordering of appellant’s sentence in this case to be served
consecutively to the sentence imposed in Case No. 16 C 000012 does not alter or affect
the court’s duty to make the requisite statutory findings. Howard, supra, at ¶44. There
is no dispute that the trial court made the findings in R.C. 2929.14(C)(4), relating to
protecting the public, punishing appellant, and whether the sentence was
disproportionate. The court stated these findings at the sentencing hearing and in the
sentencing entry. The issue, then, is whether the court made the necessary finding
under R.C. 2929.14(C)(4)(a)-(c).
{¶65} At the sentencing hearing, it appears the trial court relied upon R.C.
2929.14(C)(4)(b) as the basis for imposing consecutive sentences by stating: “I find that
the acts that you committed were a course of conduct, and that the harm that was
caused to your victim, that a single term does not adequately reflect the seriousness of
17
that conduct.”4 (Sentencing T.p. 15-16). The court did not make reference to either of
the other factors set forth in that statutory section at the sentencing hearing, R.C.
2929.14(C)(4)(a) or (c).5
{¶66} Although R.C. 2929.14(C)(4)(a) was not referenced by the trial court at the
sentencing hearing, it was cited by the court in its sentencing entry: “[P]ursuant to R.C.
2929.14(C)(4)(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[.]” (Sentencing Entry p. 2).
{¶67} There is no additional information provided in the entry to support the
court’s foregoing conclusory statement. It is undisputed that appellant was not under a
sanction imposed pursuant to R.C. 2929.16, 2929.17, or 2929.18, nor was he under
post-release control at the time of the offense. In fact, the state concedes that R.C.
2929.14(C)(4)(a) does not apply to appellant’s situation.
{¶68} This writer additionally points out that there is no explanation as to why the
court failed to consider this factor, or even determine that it applied, during the
sentencing hearing. The trial court’s failure to make a required finding regarding R.C.
2929.14(C)(4)(a) at the time of imposing sentence cannot be cured by a subsequent
entry. Bonnell, supra, at ¶30. The record does not support the court’s determination
that consecutive sentences are justified under R.C. 2929.14(C)(4)(a).
1. The sentencing entry contains a similar conclusion regarding R.C. 2929.14(C)(4)(b).
2. The court also made no reference to R.C. 2929.14(C)(4)(c), “[t]he offender’s history of criminal
conduct,” in its sentencing entry.
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{¶69} Regarding R.C. 2929.14(C)(4)(b), as stated, the trial court determined that
consecutive sentences were justified at the sentencing hearing: “I find that the acts that
you committed were a course of conduct, and that the harm that was caused to your
victim, that a single term does not adequately reflect the seriousness of that conduct.”
(Sentencing T.p. 15-16). This conclusion is also memorialized in the court’s sentencing
entry: “[P]ursuant to R.C. 2929.14(C)(4)(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.” (Sentencing Entry pp. 2-
3).
{¶70} The record fails to establish the trial court’s determination that appellant
committed two or more separate offenses that constituted a course of conduct as
required by R.C. 2929.14(C)(4)(b). The court never expressly stated that appellant had
been convicted of multiple offenses. See State v. St. John, 11th Dist. Lake No. 2015-L-
133, 2017-Ohio-4043, ¶44 (“a trial court makes a sufficient ‘course of conduct’ finding if,
at some point during the sentencing hearing, the court notes that the defendant has
been found guilty of multiple offenses that had the necessary temporal relationship.”)
{¶71} The record reveals that the court’s focus was on the offense in this case
that appellant committed against M.B. The court did not mention or discuss the conduct
and harm to L.B. in Case No. 16 C 000012. Rather, the court’s only reference to Case
No. 16 C 000012 was the following: “I have reviewed the presentence investigation,
both the one associated with 16C12, as well as the one associated with this case,
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16C147.” (Sentencing T.p. 15). The court did not make any assertion that a temporal
relationship existed between the offense at issue in this case and the offenses in Case
No. 16 C 000012.
{¶72} A trial court does not err if it clearly explains that its R.C. 2929.14(C)(4)(b)
finding is reliant upon the fact that a defendant’s conduct harmed two or more separate
victims. See State v. English, 8th Dist. Cuyahoga No. 101883, 2015-Ohio-3227, ¶22.
In the case at bar, however, the court throughout the sentencing hearing repeatedly
used the term “victim” in the singular tense in discussing the applicability of R.C.
2929.14(C)(4)(b). The state even points out in its appellate brief that “[t]he trial court
may have stumbled over its words a bit when it referenced the harm caused to the
victim, rather than victims, when making the statutory finding under subsection
(C)(4)(b)[.]” (State’s Brief p. 8) The record reveals the court’s determination that
appellant engaged in a course of conduct was predicated only upon its consideration of
the acts against M.B., a singular victim. Although consecutive sentences for offenses
committed against a single victim may be justified in some circumstances, the same
cannot be said where, as here, a defendant is only convicted of a single offense against
a single victim.
{¶73} There is no doubt that appellant’s behavior was appalling. However “a
reviewing court may not imply a statutorily required finding that does not appear in the
record simply because the facts of the case are particularly appalling.” State v.
Farnsworth, 7th Dist. Columbiana No. 12 CO 10, 2013-Ohio-1275, ¶11. While “magic
language” is not required, the trial court’s findings regarding the R.C. 2929.14(C)(4)(a)-
(c) factors must be distinct and explicit. In this case, as addressed, they were not. The
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court’s deficiency renders appellant’s sentence contrary to law. See Purtilo, supra, at
¶17; State v. Skaggs, 11th Dist. Lake No. 2015-L-024, 2016-Ohio-1160, ¶44.
{¶74} Appellant’s first and second assignments of error have merit.
{¶75} In his third assignment of error, appellant contends the trial court erred in
imposing a consecutive sentence that exceeds the maximum.
{¶76} Given this writer’s determination that this case must be reversed and
remanded for resentencing, as addressed in appellant’s first and second assignments of
error, appellant’s sentencing contention contained in his third assignment is moot. See
App.R. 12(A)(1)(c); State v. Gleason, 10th Dist. Franklin No. 03AP-135, 2003-Ohio-
6110, ¶24, 28-30 (holding that because the trial court erred in imposing consecutive
sentences without making the required statutory findings and that the matter must be
reversed and remanded for resentencing, the appellant’s remaining maximum sentence
argument was rendered moot).
{¶77} For the foregoing reasons, because this humble writer finds merit in
appellant’s first and second assignments of error, I would reverse the trial court’s
judgment and remand for further proceedings.
{¶78} I respectfully dissent.
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