[Cite as State v. Cowan, 2013-Ohio-4475.]




                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                       No. 99566



                                      STATE OF OHIO
                                              PLAINTIFF-APPELLEE

                                                vs.

                                      CRAIG COWAN
                                              DEFENDANT-APPELLANT

                                    JUDGMENT:
                              REVERSED AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-550536

             BEFORE:          Blackmon, J., Celebrezze, P.J., and E.A. Gallagher, J.

             RELEASED AND JOURNALIZED:                    October 10, 2013
                                    -i-



ATTORNEY FOR APPELLANT

Thomas A. Rein
Leader Building, Suite 940
526 Superior Avenue
Cleveland, Ohio 44114

Craig A. Cowan, Pro Se
Inmate No. 622-034
Trumbull Correctional Institution
5701 Burnett Road
Leavittsburg, Ohio 44430


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Joseph Ricotta
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:

       {¶1} Appellant Craig Cowan (“Cowan”) appeals from the trial court’s

resentencing and assigns, through counsel, the following error for our review:

       I. 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.

       {¶2} In addition, Cowan assigns the following pro se errors for our review:

       II. The trial court error [sic] by sentencing appellent [sic] to the charge of
       R.C. 2923.162(A)(3) with penalty enhancer [sic], forfeiture specification,
       making the offense a felony of the 1st (first degree), also 2929.16(B) F4
       with enhancer [sic]. Appellant was inappropriately sentenced to a charge
       that is contrary to law.

       III. The trial court erred by not instructing the jury on all issues raised by
       the evidence. R.C. 2945.75 jury instructions should be tailored to fit the
       facts of the case. The trial court erred by not considering (provocations) of
       the victim and enhancing appellant’s sentence to consecutive when a
       consecutive sentence is disproportionate to the seriousness of the offender’s
       conduct.

       {¶3} Having reviewed the record and pertinent law, we reverse and remand for a

new sentencing hearing. The apposite facts follow.

       {¶4} On May 31, 2011, the Cuyahoga County Grand Jury indicted Cowan on

three counts each of felonious assault and kidnapping with firearm specifications, notice

of prior conviction, and repeat violent offender specifications attached.   The grand jury

also indicted Cowan on one count each of having a weapon while under disability,

improperly handling a firearm in a motor vehicle, and discharging a firearm on or near

prohibited premises.
       {¶5} After a number of pretrials had been conducted, Cowan agreed to bifurcate

the matters and have a bench trial on the notice of prior conviction, repeat violent

offender specifications, forfeitures, the charge for improperly handling a firearm in a

motor vehicle, and having a weapon while under disability.     On January 9, 2012, a jury

trial commenced on the remaining charges.

       {¶6} Prior to the jury’s deliberation, the state dismissed one count of felonious

assault and two counts of kidnapping.     Thereafter, the jury found Cowan guilty of one

count of felonious assault along with the one-and three-year firearm specifications, notice

of prior convictions, repeat violent offender and forfeiture specifications. The jury also

found Cowan guilty of one count of discharging a firearm near or on a prohibited

premises, along with the firearm specification.

       {¶7} At a separate hearing, the trial court found Cowan guilty of having a

weapon while under disability and improperly handling firearms in a motor vehicle, along

with the forfeiture specification. The trial court imposed consecutive sentences totaling

18 years in prison.

       {¶8} Cowan timely appealed his conviction and sentence. In State v. Cowan,

8th Dist. Cuyahoga No. 97877, 2012-Ohio-5723, we affirmed Cowan’s convictions,

affirmed in part and reversed in part his sentence, and remanded for resentencing.

       {¶9} On February 6, 2013, the trial court resentenced Cowan and imposed the

same 18-year consecutive sentence.

                                 Consecutive Sentences
       {¶10} In the first assigned error, Cowan argues the trial court erred by imposing

consecutive sentences without making the appropriate findings.

       {¶11} We review consecutive sentences using the standard of review set forth in

R.C. 2953.08.    State v. Wells, 8th Dist. Cuyahoga Nos. 99305, 99306, and 99307,

2013-Ohio-3809, citing State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891,

¶ 10 (holding that the standard of review set forth by the Ohio Supreme Court in State v.

Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, is no longer valid in light

of the enactment of H.B. 86 and the “revival” of statutory findings necessary for imposing

consecutive sentences).

       {¶12} R.C. 2953.08(G)(2) provides two grounds for an appellate court to overturn

the imposition of consecutive sentences: (1) the sentence is “otherwise contrary to law”;

or (2) the appellate court, upon its review, clearly and convincingly finds that “the record

does not support the sentencing court’s findings” under R.C. 2929.14(C)(4). Id., citing

Venes at ¶ 11; R.C. 2953.08(G)(2).

       {¶13} The presumption in Ohio is that sentencing is to run concurrent, unless the

trial court makes the required findings for 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).

       {¶14} Under current R.C. 2929.14(C)(4), when imposing consecutive sentences,

the trial court must first find the sentence is “necessary to protect the public from future

crime or to punish the offender.” Next, the trial court must find that consecutive sentences
are “not disproportionate to the seriousness of the offender’s conduct and to the danger

the offender poses to the public.” Finally, the trial court must find that one of the

following factors applies:

       (a) The offender committed one or more of the multiple offenses while the
       offender was awaiting trial or sentencing, was under a sanction * * *, or
       was under postrelease 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 * * * 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.

R.C. 2929.14(c).

       {¶15} Compliance with this statute “requires separate and distinct findings in

addition to any findings relating to purposes and goals of criminal sentencing.” Venes, 8th

Dist. Cuyahoga No. 98682, 2013-Ohio-1891, at ¶ 17, citing State v. Jones, 93 Ohio St.3d

391, 399, 2001-Ohio-1341, 754 N.E.2d 1252. The failure to make these findings is

“contrary to law.” Id. at ¶ 12.

       {¶16} In the instant case, a review of the record reveals that the trial court did not

strictly comply with the requirements of R.C. 2929.14(C)(4) prior to the re-imposition of

consecutive sentences.       The state concedes that the trial court did not satisfy the

requirements of R.C. 2929.14(C)(4) and illuminated in Venes.
       {¶17} At the hearing, the trial court discussed Cowan’s criminal conduct,

highlighting that it was a “nightmare” to the victims.     The only finding the trial court

made was that a consecutive sentence was necessary to protect the public. The trial court

failed to find that consecutive sentences were not disproportionate to the seriousness of

Cowan’s conduct and to the danger he poses to the public as required by R.C.

2929.14(C)(4). The trial court also failed to find that at least one of the factors in R.C.

2929.14(C)(4), subsection (a),(b), or (c) applied.

       {¶18} Accordingly, we sustain the first assigned error, and are constrained, once

again, to reverse Cowan’s sentence and remand for a de novo resentencing hearing.

                                          Res Judicata

       {¶19} We now turn to Cowan’s two pro se assigned errors, which we find are

barred by the doctrine of res judicata.

       {¶20} It is well settled that under the doctrine of res judicata, a final judgment of

conviction bars a convicted defendant who was represented by counsel from raising and

litigating in any proceeding except an appeal from that judgment, any defense or any

claimed lack of due process that was raised or could have been raised by the defendant at

the trial, which resulted in that judgment of conviction, or on an appeal from that

judgment. State v. Kelly, 8th Dist. Cuyahoga No. 97673, 2012-Ohio-2930, citing State

v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus.

       {¶21} In the first pro se assigned error, Cowan takes issue with the sentence the

trial court imposed. However, Cowan directly appealed his sentence and the instant
matter flows from our remand for resentencing. Consequently, this assigned error is

barred by res judicata.

       {¶22} In the second pro se assigned error, Cowan takes issue with the trial court’s

jury instruction.   However, Cowan had the opportunity to raise a jury instruction

argument on direct appeal, but failed to do so. Consequently, this assigned error is also

barred by res judicata. Accordingly, we overrule both pro se assigned errors.

       {¶23} Judgment is reversed and remanded for resentencing.

       It is ordered that appellant recover of said appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said 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.



PATRICIA ANN BLACKMON, JUDGE

FRANK D. CELEBREZZE, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
