[Cite as State v. Ducker, 2013-Ohio-3657.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :   JUDGES:
                                               :
                                               :   Hon. W. Scott Gwin, P.J.
       Plaintiff-Appellee                      :   Hon. William B. Hoffman, J.
                                               :   Hon. Patricia A. Delaney, J.
-vs-                                           :
                                               :   Case No. 2012CA00192
                                               :
JAMES N. DUCKER                                :
                                               :
                                               :
       Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Stark County Court of
                                                   Common Pleas, Case No. 2011CR1684



JUDGMENT:                                          AFFIRMED IN PART, REVERSED IN
                                                   PART, AND REMANDED



DATE OF JUDGMENT ENTRY:                            August 12, 2013




APPEARANCES:

For Plaintiff-Appellee:                            For Defendant-Appellant:

JOHN D. FERRERO, JR.                               KRISTINA SUPLER
STARK CO. PROSECUTOR                               Friedman & Frey, LLC
RONALD MARK CALDWELL                               1304 West 6th St.
110 Central Plaza S., Ste. 510                     Cleveland, OH 44113
Canton, OH 44702-1413
Stark County, Case No.2012CA00192                                                      2



Delaney, J.

         {¶1} Appellant James N. Ducker appeals from the June 22 and June 28, 2012

judgment entries of conviction and sentence in the Stark County Court of Common

Pleas. Appellee is the state of Ohio. This case is related to State v. Ducker, 5th Dist.

Stark No. 2012CA00193.

                         FACTS AND PROCEDURAL HISTORY

         {¶2} A statement of the facts underlying appellant’s criminal convictions is not

necessary to our resolution of this appeal.

         {¶3} On November 15, 2011, appellant was charged by indictment with one

count of illegal use of a minor in a nudity-oriented material or performance [R.C.

2907.323(A)(1), a felony of the second degree)]; one count of unlawful sexual conduct

with a minor [R.C. 2907.04(A), a felony of the third degree]; and one count of

disseminating material harmful to juveniles [R.C. 2907.31(A)(1), a felony of the fifth

degree].1 Appellant entered pleas of not guilty and a trial was scheduled for April 2012.

In the meantime, appellant was free on a personal recognizance bond.

         {¶4} During pretrial proceedings, appellant’s original defense trial counsel

moved to withdraw and appellant retained new counsel. The trial date was continued to

May 2012.

         {¶5} While the original case was pending, appellant was charged by indictment

with one count of tampering with evidence [R.C. 2921.12(A)(2), a felony of the third

degree].2 Because appellant committed this offense while on bond in the original case,



1
    Stark County Court of Common Pleas case no. 2011CR1684.
2
    Stark County Court of Common Pleas case no. 2012CR0684.
Stark County, Case No.2012CA00192                                                       3


the trial court revoked appellant’s bond on May 14, 2012 and appellant remained

incarcerated during pretrial proceedings.

       {¶6} Also during the May 14, 2012 pretrial, defense trial counsel moved for a

competency examination and appellant was ultimately found competent to stand trial.

       {¶7} On June 20, 2012, a change-of-plea hearing was held in both cases; the

trial court addressed the original charges and the tampering with evidence charge

simultaneously. Appellant entered pleas of guilty as charged and was sentenced two

days later to an aggregate prison term of eight years; appellant was also designated a

Tier II sexual offender. The trial court noted appellant’s sentence as follows: four years

upon the count of count of illegal use of a minor in a nudity-oriented material or

performance (Count I); 24 months upon the count of unlawful sexual conduct with a

minor (Count II); 12 months upon the count of disseminating material harmful to

juveniles (Count III); and 24 months on the count of tampering with evidence. Counts 1

and 2 are to be served consecutively, and consecutive to the term of 24 months on the

separate tampering offense. Count III is to be served concurrently.

       {¶8} We permitted appellant to file a delayed appeal from the judgment entry of

sentence and conviction but denied his motion to consolidate both appeals.           This

opinion, therefore, addresses only appellant’s appeal from the sentences in the

underlying case, Stark County Court of Common Pleas case no. 2011CR1684.
Stark County, Case No.2012CA00192                                                     4


      {¶9} Appellant raises three assignments of error:

                             ASSIGNMENTS OF ERROR

      {¶10} “I.     THE TRIAL COURT ERRED AND IMPOSED A SENTENCE

CONTRARY TO LAW BY FAILING TO ENGAGE IN THE REQUISITE ANALYSIS SET

FORTH IN R.C. 2929.14(C)(4) FOR IMPOSITION OF CONSECUTIVE SENTENCES.”

      {¶11} “II. THE TRIAL COURT ERRED BY EMPLOYING THE SENTENCING

PACKAGE DOCTRINE.”

      {¶12} “III.   THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF

COUNSEL IN VIOLATION OF HIS RIGHT TO COUNSEL UNDER THE 6TH AND 14TH

AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I,

SECTION 10 OF THE OHIO CONSTITUTION.”

                                      ANALYSIS

                                              I.

      {¶13} In his first assignment of error, appellant argues the trial court failed to

make requisite statutory findings in imposing consecutive sentences. We agree.

      {¶14} We have consistently held the record must clearly demonstrate

consecutive sentences are appropriate and are supported by the record. 2011

Am.Sub.H.B. No. 86, which became effective on September 30, 2011, revived the

language provided in former R.C. 2929.14(E) and moved it to R.C. 2929.14(C)(4). The

revisions now require a trial court to make specific findings when imposing consecutive

sentences. R.C. 2929.14(C)(4) provides in relevant part:

             (4) If multiple prison terms are imposed on an offender for

             convictions of multiple offenses the court may require the offender
Stark County, Case No.2012CA00192                                                  5


            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.

            (c) The offender's history of criminal conduct demonstrates that

            consecutive sentences are necessary to protect the public from

            future crime by the offender.

      {¶15} In Section 11, the legislature explained that in amending former R.C.

2929.14(E)(4), it intended “to simultaneously repeal and revive the amended language

in those divisions that was invalidated and severed by the Ohio Supreme Court's
Stark County, Case No.2012CA00192                                                            6

decision in State v. Foster, 109 Ohio St.3d 1 (2006).” The General Assembly further

explained that the amended language in those divisions “is subject to reenactment

under the United States Supreme Court's decision in Oregon v. Ice, 555 U.S. 160, [129

S.Ct. 711, 172 L.Ed.2d 517] (2009), and the Ohio Supreme Court's decision in State v.

Hodge, [128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768]..” Thus, it is the

legislature's intent that courts interpret the language in R.C. 2929 .14(C)(4) in the same

manner as the courts did prior to State v. Foster, 109 Ohio St.3d 1, 2006–Ohio–856,

845 N.E.2d 470. State v. Boyd, 5th Dist. Richland No. 12CA23, 2013-Ohio-1333, ¶ 36.

       {¶16} Appellant concedes his sentences are within the statutory range but

argues the trial court failed to make the findings required by R.C. 2929.14(C)(4);

appellee acknowledges the trial court noted appellant committed the tampering offense

while on bond on the underlying offenses but the record is otherwise silent as to findings

supporting the sentence. We have consistently stated that the record must clearly

demonstrate that consecutive sentences are not only appropriate, but are also clearly

supported by the record. See, State v. Fauntleroy, 5th Dist. Muskingum No. CT2012–

0001, 2012–Ohio–4955; State v. Bonnell, 5th Dist. Delaware No. 12CAA3022, 2012–

Ohio–5150. Our review on appeal of any subsequent resentencing will be directed at

looking at the entire trial court record to determine if that record supports the trial court's

findings that the R.C. 2929.14(C) factors were met. State v. Takos, 5th Dist. Richland

No. 2012CA0078, 2013-Ohio-565, ¶ 28, citing State v. Alexander, 1st Dist. Hamilton

Nos. C–110828, C–110829, 2012–Ohio–3349, ¶ 18; State v. Frasca, 11th Dist.

Trumbull No. 2011–T–0108, 2012–Ohio–3746, ¶ 57.
Stark County, Case No.2012CA00192                                                          7


       {¶17} We find that findings supporting consecutive sentences were not made on

the record at the sentencing hearing. The trial court noted appellant committed the

latter offense while the original case was pending, but imposed the consecutive terms in

a summary fashion, as appellee concedes.

       {¶18} Appellant’s first assignment of error is therefore sustained and this matter

is remanded to the trial court for resentencing.

                                                   II.

       {¶19} In his second assignment of error, appellant argues the trial court erred in

failing to impose an individualized sentence for each count in case number 2011-CR-

1684 prior to imposing a sentence in case number 2012-CR-684. This assignment of

error is moot in light of our decision sustaining appellant’s first assignment of error.

       {¶20} Appellant’s second assignment of error is therefore overruled.

                                                   III.

       {¶21} In his third assignment of error, appellant argues he received ineffective

assistance of trial counsel at the sentencing hearing. We disagree.

       {¶22} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-

prong test. Initially, a defendant must show that trial counsel acted incompetently. See,

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such

claims, “a court must indulge a strong presumption that counsel's conduct falls within

the wide range of reasonable professional assistance; that is, the defendant must

overcome the presumption that, under the circumstances, the challenged action ‘might

be considered sound trial strategy.’” Id. at 689, citing Michel v. Louisiana, 350 U.S. 91,

101, 76 S.Ct. 158 (1955).
Stark County, Case No.2012CA00192                                                        8


       {¶23} “There are countless ways to provide effective assistance in any given

case. Even the best criminal defense attorneys would not defend a particular client in

the same way.” Strickland, 466 U.S. at 689. The question is whether counsel acted

“outside the wide range of professionally competent assistance.” Id. at 690.

       {¶24} Even if a defendant shows that counsel was incompetent, the defendant

must then satisfy the second prong of the Strickland test. Under this “actual prejudice”

prong, the defendant must show that “there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694.

       {¶25} Appellant asserts defense trial counsel should have requested a

presentence investigation, should have filed a sentencing memorandum, and should

have presented evidence to mitigate the sentence.           Appellant cites trial counsel’s

alleged “failure to create a thorough record” but fails to establish how the outcome of the

sentencing hearing would have been different but for counsel’s alleged deficiencies.

We are unwilling to speculate the outcome of sentencing would have been different and

therefore find appellant did not receive ineffective assistance of trial counsel.

       {¶26} Appellant’s third assignment of error is overruled.
Stark County, Case No.2012CA00192                                                       9


                                     CONCLUSION

       {¶27} Appellant’s first assignment of error is sustained and his second and third

assignments of error are overruled. This matter is therefore reversed in part, affirmed in

part, and remanded to the Stark County Court of Common Pleas for resentencing in

accordance with this opinion.

By: Delaney, J. and

Gwin, P.J.

Hoffman, J., concur.



                                        HON. PATRICIA A. DELANEY




                                        HON. W. SCOTT GWIN



                                        HON. WILLIAM B. HOFFMAN
