State v. Hudson

[Cite as State v. Hudson, 2016-Ohio-3449.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103154
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
STEAFON M. HUDSON
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-589808-C
BEFORE: Stewart, J., Keough, P.J., and McCormack, J.
RELEASED AND JOURNALIZED: June 16, 2016
ATTORNEY FOR APPELLANT
Matthew M. Nee
Nee & Bittinger, L.L.C.
24629 Detroit Road
Westlake, OH 44145
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Joan M. Bascone
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, J.:
{¶1} In Cuyahoga C.P. No. CR-14-598808-C, the court found defendant-appellant
Steafon Hudson guilty of felonious assault and theft. The court ordered Hudson to serve
concurrent prison terms of two years on the felonious assault count and six months on the
theft count. Those terms were ordered to be served consecutive to a term of 18 months
in Cuyahoga C.P. No. CR-14-587443-A (receiving stolen property with a one-year
firearm specification). The sole issue on appeal is whether the court made the findings
required to order Hudson to serve consecutive sentences.
{¶2} R.C. 2929.14(C)(4) allows the court to order consecutive service of prisons
sentences, but only if the court makes certain findings: that consecutive service 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, as applicable here, that
the offender was under postrelease control for a prior offense. These findings must not
only be stated in open court, but made a part of the court’s sentencing entry. State v.
Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 29.
{¶3} The court did not make any of the findings required by R.C. 2929.14(C)(4).
When ordering consecutive service of prison terms, the court stated:
I’m going to sentence Mr. Hudson, in 587443, on the one-year firearm
specification, I’m going to impose that one-year sentence to be served prior
to and consecutive with the term of incarceration of six months on the
receiving stolen property. In 589808, I’m going to sentence * * * Mr.
Hudson, on the felonious assault to a term of incarceration of two years, and
on the theft six months concurrent time in that docket, but consecutive to
587443. I will order the sentence into execution.
{¶4} The state does not argue that the court actually made the required findings,
but claims that the record supports the statutory findings had they been made. This is a
specious argument, particularly given the state’s acknowledgment that Bonnell holds that
“[i]f a trial court fails to make [the R.C. 2929.14(C)(4)] findings, it renders the sentences
imposed consecutively to be contrary to law.” Appellee’s brief at 3.
{¶5} In addition, the state’s argument that other people made the findings is
mystifying. It is one thing to say that the court does not have to make the findings
word-for-word with R.C. 2929.14(C)(4), but quite another to say that others, for example
the defendant, who admitted to using “bad judgment” at the time he committed his
offenses, constituted a finding by the court. Nor can we give credit to the state’s
argument that the presentence investigation report supports consecutive service had the
court actually made the first and second findings. Again, if the findings were not made,
it does not matter that the record would support the findings had they been made.
{¶6} We question why the state makes borderline frivolous arguments in this
appeal, rather than concede the error, and risk diminishing its reputation by defending the
consecutive sentences imposed in this case. The assignment of error is sustained.
{¶7} Judgment reversed and remanded. This cause is remanded to the trial court
for further proceedings consistent with this opinion.
It is ordered that appellant recover of said appellee costs herein taxed.
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.
______________________________________________
MELODY J. STEWART, JUDGE
TIM McCORMACK, J., CONCURS;
KATHLEEN ANN KEOUGH, P.J., CONCURS IN JUDGMENT ONLY