State v. Gordon , 2022 Ohio 337 ( 2022 )

[Cite as State v. Gordon, 2022-Ohio-337.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY
STATE OF OHIO, CASE NO. 2021-P-0061
Plaintiff-Appellee,
Criminal Appeal from the
-v- Court of Common Pleas
JERRIMIE A. GORDON,
Trial Court No. 2020 CR 00701
Defendant-Appellant.
OPINION
Decided: February 7, 2022
Judgment: Reversed; remanded
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Thomas Rein, 820 Superior Avenue, Suite 800, Cleveland, OH 44113 (For Defendant-
Appellant).
THOMAS R. WRIGHT, P.J.
{¶1} Appellant, Jerrimie A. Gordon, appeals the trial court’s March 23, 2021
sentencing entry, following guilty pleas to two counts of sexual battery, felonies of the
third degree, in violation of R.C. 2907.03. The trial court imposed a prison term of 48
months for each offense to be served consecutively. Appellant challenges the
consecutive nature of his sentences, and the state of Ohio concedes error. The judgment
is reversed, and the matter is remanded to the trial court.
{¶2} Our standard of review for felony sentencing is governed by R.C.
2953.08(G)(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.
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 of
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:
(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;
(b) That the sentence is otherwise contrary to law.
{¶3} Appellant advances one assignment of error on appeal: “The trial court
erred by ordering Appellant to serve a consecutive sentence without making the
appropriate findings required by R.C. 2929.14 and HB 86.”
{¶4} Pursuant to R.C. 2929.14(C)(4), separate prison terms for multiple offenses
may be ordered to be served consecutively if the court finds it is necessary to protect the
public from future crime or to punish the offender; 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 factors in R.C.
2929.14(C)(4)(a)-(c) are present. Those factors include 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,
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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.
{¶5} 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. State v. Bonnell, 140 Ohio St.3d 209,
2014-Ohio-3177, 16 N.E.3d 659, ¶ 37.
{¶6} Appellant contends the trial court failed to comply with R.C. 2929.14(C)(4)
both at the sentencing hearing and in the sentencing entry. The state of Ohio concedes
error, and we concur. The trial court failed to make any of the requisite findings to impose
consecutive sentences at the sentencing hearing and did not determine the presence of
any R.C. 2929.14(C)(4)(a)-(c) factor in the sentencing entry. Thus, the trial court did not
properly impose consecutive sentences.
{¶7} Appellant’s sole assignment of error has merit.
{¶8} The parties disagree in their appellate briefs as to the appropriate remedy
for the trial court’s failure to comply with R.C. 2929.14(C)(4). Appellant asserts that the
sentences must be modified to run concurrently, yet he cites no case law in support of
this remedy. The state responds that the matter must be remanded to the trial court to
hold a resentencing hearing and either (a) make the necessary findings to impose
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consecutive sentences or (b) impose concurrent sentences. At oral argument, counsel
for both parties agreed that R.C. 2953.08(G)(2) provides this court with the authority to
implement either remedy.
{¶9} Nevertheless, based on precedent from this court following that of the
Supreme Court of Ohio, we reverse the trial court’s judgment and remand to the trial court
for resentencing. If the trial court reimposes consecutive sentences, it must make all
requisite findings under R.C. 2929.14(C)(4) both at the resentencing hearing and in the
sentencing entry. State v. Howard, 162 Ohio St.3d 314, 2020-Ohio-3195, 165 N.E.3d
1088, ¶ 27, citing Bonnell, 2014-Ohio-3177, at ¶ 37. See also, e.g., State v. DiGrino, 11th
Dist. Portage No. 2018-P-0081, 2019-Ohio-3992, ¶ 23-25; State v. Bika, 11th Dist.
Portage Nos. 2018-P-0096 & 2018-P-0097, 2019-Ohio-3841, ¶ 44-45; State v. Welz, 11th
Dist. Trumbull No. 2020-T-0073, 2021-Ohio-2553, ¶ 35-36.
{¶10} The judgment of the Portage County Court of Common pleas is reversed,
and the cause is remanded to the trial court for resentencing.
MARY JANE TRAPP, J.,
MATT LYNCH, J.,
concur.
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