State v. Reed

[Cite as State v. Reed, 2014-Ohio-4385.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 101016 and 101017
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
KENNETH REED
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED, VACATED, AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-12-566485-C and CR-12-566901-B
BEFORE: E.T. Gallagher, J., Jones, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: October 2, 2014
ATTORNEY FOR APPELLANT
Paul A. Daher
Paul A. Daher & Associates
700 West St. Clair Avenue
Suite 218
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Brian D. Kraft
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:
{¶1} Defendant-appellant, Kenneth Reed (“Reed”), appeals from his consecutive
sentences. For the following reasons, we reverse and vacate the trial court’s judgment
ordering consecutive sentences, and remand for resentencing on this issue.
{¶2} On January 10, 2013, Reed pleaded guilty to one count of burglary in
CR-12-566901, and one count of burglary and one count of aggravated theft in
CR-12-566485. On February 11, 2013, he was sentenced to five years in prison for the
first case, which was ordered to run consecutively to the aggregate three-year prison term
he was sentenced to in the second case, for a total of eight years in prison. It is from this
sentence that Reed now appeals, raising one assignment of error.
{¶3} In his sole assignment of error, Reed argues the trial court erred in sentencing
him to consecutive sentences without making the required statutory findings. He cites
State v. Johnson, 8th Dist. Cuyahoga No. 99620, 2013-Ohio-5744 (appeal by Reed’s
codefendant), and State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453 (8th Dist.), both of
which reversed the trial court’s imposition of consecutive sentences based on the court’s
failure to make the required statutory findings pursuant to R.C. 2929.14(C)(4). In the
instant case, the state concedes the error.
{¶4} Most recently, in State v. Bonnell, Slip Opinion No. 2014-Ohio-3177, the
Ohio Supreme Court held that:
On appeals involving the imposition of consecutive sentences, R.C.
2953.08(G)(2)(a) directs the appellate court “to review the record, including
the findings underlying the sentence” and to modify or vacate the sentence
“if it clearly and convincingly finds * * * [t]hat the record does not support
the sentencing court’s findings under division * * * (C)(4) of section
2929.14 * * * of the Revised Code.” But that statute does not specify
where the findings are to be made. Thus, the record must contain a basis
upon which a reviewing court can determine that the trial court made the
findings required by R.C. 2929.14(C)(4) before it imposed consecutive
sentences.
When imposing consecutive sentences, a trial court must state the required
findings as part of the sentencing hearing, and by doing so it affords notice
to the offender and to defense counsel. See Crim.R. 32(A)(4). And
because a court speaks through its journal, State v. Brooke, 113 Ohio St. 3d
199, 2007-Ohio-1533, 863 N.E.2d 1024, ¶ 47, * * * . 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.
***
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 * * * . Accordingly, the imposition of consecutive
sentences in this case is contrary to law. Thus, we are constrained to
reverse the judgment * * * , vacate the sentence, and remand the matter to
the trial court for resentencing.
Id. at ¶ 28-29, 37. See also State v. Brooks, 8th Dist. Cuyahoga No. 100455,
2014-Ohio-3906, ¶ 11-13.
{¶5} In the instant case, having thoroughly reviewed the record, we cannot discern
that the trial court engaged in the correct analysis, nor can we find evidence in the record
to support the court’s imposition of consecutive sentences. We find the trial court failed
to make the necessary statutory findings at Reed’s sentencing hearing. Therefore, the
trial court’s imposition of consecutive sentences is contrary to law.
{¶6} Reed’s sole assignment of error is sustained.
{¶7} Accordingly, we reverse and vacate the trial court’s judgment ordering
consecutive sentences. We remand the matter to the trial court for a resentencing hearing
for the sole purpose of considering whether consecutive sentences are appropriate under
R.C. 2929.14(C)(4), and if so, for it to enter the required findings on the record. See
State v. Nia, 8th Dist. Cuyahoga No. 99387, 2014-Ohio-2527, ¶ 3. See also State v.
Saxon, 109 Ohio St. 3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 30; State v. Holdcroft,
137 Ohio St. 3d 526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 9 (“the appellate court is
authorized to modify the sentence or remand for resentencing to fix whatever has been
successfully challenged.”); R.C. 2953.08(G)(2)(a).
{¶8} Furthermore, pursuant to Bonnell, if, after making the required statutory
findings on the record during Reed’s resentencing, the court imposes consecutive
sentences, the trial court is required to incorporate its findings into its sentencing entry.
It does not, however, have an obligation to state reasons to support its findings in the
entry. See Bonnell at ¶ 37; R.C. 2929.14(C)(4).
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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
LARRY A. JONES, SR., P.J., and
PATRICIA ANN BLACKMON, J., CONCUR