[Cite as State v. Farnsworth, 2013-Ohio-1275.]
                          STATE OF OHIO, COLUMBIANA COUNTY

                                  IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT


STATE OF OHIO                                    )   CASE NO. 12 CO 10
                                                 )
        PLAINTIFF-APPELLEE                       )
                                                 )
VS.                                              )   OPINION
                                                 )
GEORGE W. FARNSWORTH, JR.                        )
                                                 )
        DEFENDANT-APPELLANT                      )

CHARACTER OF PROCEEDINGS:                            Criminal Appeal from the Court of
                                                     Common Pleas of Columbiana County,
                                                     Ohio
                                                     Case No. 11 CR 25

JUDGMENT:                                            Sentence Vacated.
                                                     Reversed and Remanded.

APPEARANCES:

For Plaintiff-Appellee:                              Atty. Robert Herron
                                                     Columbiana County Prosecutor
                                                     Atty. Timothy J. McNicol
                                                     Assistant Prosecuting Attorney
                                                     105 South Market Street
                                                     Lisbon, Ohio 44432

For Defendant-Appellant:                             Atty. Bryan H. Felmet
                                                     1100 Jackson Place
                                                     Steubenville, Ohio 43952

JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
                                                     Dated: March 20, 2013
[Cite as State v. Farnsworth, 2013-Ohio-1275.]
WAITE, J.


        {¶1}    Appellant George W. Farnsworth, Jr., appeals the consecutive

sentences imposed after he pleaded guilty to two counts of rape and one count of

gross sexual imposition. Appellant contends that the trial judge did not make all the

findings required by R.C. 2929.14(C)(4) in order to impose consecutive sentences.

Appellant is correct, and the case is remanded for resentencing.

        {¶2}    Appellant was indicted on February 24, 2011, on five counts: count

one, rape with a force specification, R.C. 2907.02(A)(1)(b); count two, rape, R.C.

2907.02(A)(2); count three, gross sexual imposition, R.C. 2907.03(A)(5); count four,

gross sexual imposition, R.C. 2907.03(A)(4); and count five, felonious sexual

penetration with a force specification, R.C. 2907.12 (A)(1)(b). The assaults giving

rise to these offenses began in 1994 and continued until May of 2003. There were

two victims of the offenses, and both are the biological daughters of Appellant. Both

victims were minors when the crimes occurred. One of the sexual assaults resulted

in one of the victims becoming pregnant and giving birth at age 14. Appellant admits

to the paternity of this baby.

        {¶3}    On December 12, 2011, Appellant pleaded guilty to counts one, two

and four of the indictment. Counts one and two were first degree felonies, and count

four was a third degree felony. The other charges were dismissed. At sentencing,

the state recommended a sentence of ten years in prison each for counts one and

two, to be served consecutively, and two years for count four, to be served

concurrently. The court imposed ten years in prison for count one, ten years for

count two, and two years for count four, all to run consecutively. The court filed its
                                                                                      -2-

judgment entry of sentence on February 24, 2012, and this timely appeal followed.

Appellant presents an appeal as a matter of right that the sentence is contrary to law

pursuant to R.C. 2953.08(A)(4).

                              ASSIGNMENT OF ERROR

       THE TRIAL COURT FAILED TO MAKE THE NECESSARY FINDINGS

       REQUIRED UNDER R.C. 2929.14(C) FOR THE IMPOSITION OF

       CONSECUTIVE SENTENCES.

       {¶4}   Appellant argues that a sentencing judge is required to make certain

findings before imposing consecutive sentences. These findings are required by

R.C. 2929.14(C)(4), which was passed as part of 2011 Am.Sub.H.B. No. 86 (“H.B.

86”), effective September 30, 2011. Section 11 of H.B. No. 86 acknowledges that the

Ohio Supreme Court had declared such findings to violate the Sixth Amendment right

to trial by jury in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.

Foster held that the statutory requirement for judicial fact-finding at sentencing

violated the Sixth Amendment right to trial by jury, because the result of judicial fact-

finding was that a penalty could be imposed that was more severe than the penalty

allowed by the jury verdict standing by itself.     H.B. 86 also notes that the Ohio

Supreme Court later concluded in State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-

6320, 941 N.E.2d 768, that its decision in Foster was incorrect with respect to

consecutive sentences in light of the United States Supreme Court decision in

Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009).
                                                                                     -3-

      {¶5}   In Hodge, the Ohio Supreme Court held that “[t]he jury-trial guarantee

of the Sixth Amendment to the United States Constitution does not preclude states

from requiring trial court judges to engage in judicial fact-finding prior to imposing

consecutive sentences.” Hodge at paragraph one of the syllabus. The Court further

held that “[t]he United States Supreme Court's decision in Oregon v. Ice * * * d[id] not

revive Ohio's former consecutive-sentencing statutory provisions, R.C. 2929.14(E)(4)

and 2929.41(A), which were held unconstitutional in State v. Foster[.]”           Id. at

paragraph two of the syllabus. Thus, the Hodge Court concluded that “[t]rial court

judges are not obligated to engage in judicial fact-finding prior to imposing

consecutive sentences unless the General Assembly enacts new legislation requiring

that findings be made.” Id. at paragraph three of the syllabus.

      {¶6}   In H.B. No. 86 the state legislature did just that, by first repealing the

former consecutive sentencing statute, R.C. 2929.14(E)(4), and then reviving the

requirement that the trial judge make certain findings prior to imposing consecutive

sentences in R.C. 2929.14(C)(4). See Sections 2, 11, and 12 of H.B. No. 86.

      {¶7}   R.C. 2929.14(C)(4) now provides:

      If multiple prison terms are imposed on an offender for convictions of

      multiple offenses, the court may require the offender 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
                                                                                     -4-

      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 the 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.

      {¶8}   Based on the statute, the trial court is required to make three findings

before imposing consecutive sentences:          1) that consecutive sentences are

necessary to protect the public from the future crime or to punish the offender; 2) 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 3) that one of the

subsections (a), (b), or (c) apply. The court is not required to give reasons explaining
                                                                                   -5-

these findings. State v. Frasca, 11th Dist. No. 2011-T-0108, 2012-Ohio-3746, ¶57.

Neither is the court required to recite any “magic” or “talismanic” words when

imposing consecutive sentences. State v. Murrin, 8th Dist. No. 83714, 2004–Ohio–

3962, ¶12. Nevertheless, the record must actually reflect that the court made the

findings required by the statute. For example, in State v. Bradley, the Fifth District

Court of Appeals held that the following statement by the trial court did not meet the

statutory requirements for imposing consecutive sentences:

      As has been indicated, based on your record which is as indicated to

      give—to    not    give   consecutive   sentences   would   demean     the

      seriousness of the offenses and not adequately protect the public from

      further criminal behavior. Because of the nature of the offenses the

      Court finds that consecutive sentences are in fact warranted, and, and

      pursuant to the statute for consecutive sentences the conditions have

      been met. Accordingly, I'm sentencing you to 12 months with regard to

      each of the felony fours to be served consecutively one after the other

      for a total incarceration of 24 months giving you credit for all time

      served to date.

State v. Bradley, 5th Dist. No. 2012CA00011, 2012-Ohio-4787, ¶43.

      {¶9}   In Bradley, the trial court found that the consecutive sentences were

necessary to protect the public from future crime, which is the first of the three

findings required by R.C. 2929.14(C)(4).     The court failed to specifically mention

whether the sentence was disproportionate, or whether one of the findings described
                                                                                     -6-

in subsection (a), (b) or (c) had been met. The court did try to justify consecutive

sentences by stating:     “to not give consecutive sentences would demean the

seriousness of the offenses * * *.” This language is not found in R.C. 2929.14(C)(4).

The phrase “demean the seriousness of the offense” is associated with the court's

decision to impose community control sanctions instead of a prison term, or in

administering judicial release. It is not a factor in the decision to impose consecutive

sentences.     R.C. 2929.13(D)(2)(b), 2929.20(J)(1)(b).       The phrase was also

associated with a prior required finding dealing with imposing more than the minimum

sentence, but this finding was determined to be unconstitutional in Foster and is not

part of the current sentencing laws. See former R.C. 2929.14(B)(2). In the Bradley

case, the trial court's addition of “demean the seriousness of the offense” language

was clearly not considered to be a       substitute for the findings required by R.C.

2929.14(C)(4).

       {¶10} Similar to Bradley, the trial court in the instant case failed to make all

the findings required by R.C. 2929.14(C)(4). The court made the first two findings

required when it stated that consecutive sentences were necessary to punish

Appellant, and that consecutive sentences were not disproportionate to the

seriousness of the conduct and the danger that Appellant posed. (2/24/12 Tr., pp.

15-16.) However, the finding required by R.C. 2929.14(C)(4)(a)-(c) is absent from

this record. The court may have been attempting to allude to the third required

finding when it stated:
                                                                                   -7-

       Of significance to the Court is that the Defendant's daughters were the

       victims of these offenses.   In her statement, R.F. indicates that the

       sexual assaults occurred too many times for her to remember, starting

       when she was 9 or 10 years old. R.F. eventually became pregnant at

       age 14 with the Defendant's child.     The Court finds, therefore, that

       anything less than a significant prison sentence would demean the

       serious nature of these offenses.

(2/24/12 J.E., p. 2.)

       {¶11} Even though the court noted it did not want to “demean the serious

nature of the offenses,” R.C. 2929.14(C)(4)(b) requires more than a statement of the

serious nature of the crime. State v. Wilson, 8th Dist. No. 97827, 2012-Ohio-4159,

¶12. As discussed, the phrase “demean the serious nature of these offenses” is not

associated with the consecutive sentencing statute and may not be used as a

substitute for the findings required by the consecutive sentencing statute.      R.C.

2929.14(C)(4)(b) requires the trial court to connect the seriousness of the offense

with the decision to impose consecutive sentences. The court must find that “the

harm caused by the 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.” R.C. 2929.14(C)(4)(b). It appears that the trial court would be

well within its province in making such a finding given the facts of this case, but a

reviewing court may not imply a statutorily required finding that does not appear in

the record simply because the facts of the case are particularly appalling. There are
                                                                                   -8-

many ways that the court could have expressed its finding that the seriousness of this

offense requires consecutive sentences, and the trial judge does not have to recite

the exact words of the statute, but the record does have to clearly reflect that the

finding was actually made.     For this reason, Appellant's assignment of error is

sustained.

      {¶12} In conclusion, the trial court erred when it did not make all the required

findings stated in R.C. 2929.14(C)(4) that are prerequisites to imposing consecutive

sentences. Appellant’s sentence is hereby vacated and the case is remanded for

resentencing.


Donofrio, J., concurs.

Vukovich, J., concurs.
