[Cite as State v. Jordan, 2016-Ohio-5709.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 103813




                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                    ANTONIO JORDAN
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-15-595432-A

        BEFORE: Boyle, J., McCormack, P.J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED: September 8, 2016
ATTORNEY FOR APPELLANT

Mary Catherine O’Neill
50 Public Square, Suite 1900
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Mahmoud S. Awadallah
        Andrew J. Santoli
        David Schwark
Assistant County Prosecutors
Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, J.:

      {¶1} Defendant-appellant, Antonio Jordan, appeals his convictions and sentence.

 He raises four assignments of error for our review:

      1. The trial court erred by sentencing appellant to multiple consecutive
      sentences.

      2. Appellant received ineffective assistance of counsel during his plea
      negotiations.

      3. The trial court erred by proceeding to sentence the appellant when it was
      clear the plea had been involuntary.

      4. The trial court erred by sentencing appellant for the crime of murder, in
      violation of R.C. 2903.02, as opposed to sentencing appellant for the crime
      of involuntary manslaughter in violation of R.C. 2903.03.

      {¶2} Finding no merit to his arguments, we affirm.

I. Procedural History

      {¶3} In May 2014, in Cuyahoga C.P. No. CR-13-581343-A, Jordan pleaded

guilty to drug trafficking in violation of R.C. 2925.03(A)(2). The trial court sentenced

Jordan to two years of community control sanctions and reserved a sentence of 12 months

if Jordan violated the terms of his community control.

      {¶4} In May 2015, Jordan was indicted in another case, Cuyahoga C.P. No.

CR-15-595432-A, on nine counts, including one count each of aggravated murder,

murder, felonious assault, voluntary manslaughter, aggravated assault, discharging a

firearm on or near prohibited places, having a weapon while under a disability, and two

counts of endangering children. All of the counts except for the weapons disability
count and the endangering children counts carried one- and three-year firearm

specifications.

       {¶5} In September 2015, Jordan pleaded guilty to an amended indictment of

voluntary manslaughter in violation of R.C. 2903.03(A), a first-degree felony, with the

one- and three-year firearm specifications; aggravated assault in violation of R.C.

2903.12(A)(1), a fourth-degree felony; discharging a firearm at or near prohibited places

in violation of R.C. 2923.162(A)(3), a first-degree felony; having a weapon while under a

disability in violation of R.C. 2923.13(A)(3), a third-degree felony; and the two counts of

endangering children in violation of R.C. 2919.22(A), first-degree misdemeanors.       The

remaining counts were nolled.

       {¶6} In November 2015, the trial court held a joint sentencing hearing in both

cases, Case Nos. CR-13-581343-A (for violating his community control sanctions) and

CR-15-595432. Prior to sentencing, the trial court merged the voluntary manslaughter

count with the aggravated assault count; the state elected to proceed on voluntary

manslaughter.

       {¶7} In Case No. CR-15-595432-A, the trial court sentenced Jordan to three

years in prison for the firearm specifications, to be served prior to and consecutive to 11

years in prison for voluntary manslaughter; nine years in prison for discharging a firearm

at or near prohibited places, to be served concurrently to voluntary manslaughter; and 24

months in prison for having a weapon while under a disability to be served consecutively

to voluntary manslaughter, for a total of 16 years in prison.        The trial court also
sentenced Jordan to six months in jail on each count of child endangering and ordered

that they be served concurrent to each other and to all other time.

          {¶8} In Case No. CR-13-581343-A, the trial court sentenced Jordan to 12 months

in prison to be served consecutively to the sentence imposed in Case No.

CR-15-595432-A.         Thus, the aggregate prison term for both cases was 17 years in

prison.

          {¶9} It is from these judgments that Jordan appeals.

II. Plea and Sentencing Hearings

          {¶10} At the plea hearing, the state informed the court of the factual basis that led

to the charges.     Jordan was in a car with a woman and her two children.        The woman

was on the phone with her children’s father, who was the victim in this case. The

woman and the victim were attempting to arrange a meeting spot where the victim could

pick up the children.      They agreed to meet at a market.       On the way to the market,

Jordan, the woman, and the victim got into several “heated” arguments on a speaker

phone.      When Jordan and the woman arrived at the market, the woman went into the

market, while Jordan and the children remained in the car.         At some point, the victim

arrived. Jordan and the victim got into an argument outside of the car. Jordan pulled

out a gun and shot the victim in front of the children. Jordan got back in the vehicle

with the children still in the car.   He drove a short distance away, stopped and removed

both children from the car, and placed them on the corner of the street.           One of the

children was an infant, and the other child was a toddler.      A bystander saw Jordan shoot
the victim, drive away, stop at the corner, and place the two children on the corner.             The

witness picked up the children and called the police. The witness only saw Jordan with

a gun in his hand, not the victim.

       {¶11} The state also reviewed the plea deal and maximum penalties involved with

each count.     The state further informed the court that the voluntary manslaughter and

aggravated assault counts were the only counts that merged for purposes of sentencing.

       {¶12} The court then asked Jordan’s two defense attorneys if that is how they

understood the plea. They responded that it was, but then one of them added:

              Your Honor, I would just add for the record, so it is clear, there was
       an outstanding issue regarding some testing. We talked to our client about
       that. He understands that the county coroner is testing some potentially
       exculpatory materials.

              I talked to the court and the state about that, and he is aware that that
       testing is going on, and he would still like to proceed forward with today’s
       plea.1

       {¶13} The court then asked Jordan if he wished to enter into a plea that day.

Jordan responded that he did. Further, in response to the court’s questioning, Jordan

informed the court that he was 40 years old, was a United States citizen, had a two-year

Associates of Arts degree, that he was on disability from serving in the military, and that

he was on community control sanctions in another case before the court.                    The court


         At the sentencing hearing, the facts surrounding this “testing” is made more clear. Jordan
       1


apparently claimed that he retrieved a gun from the victim after shooting him. Defense counsel
turned the gun over to the state for testing a week before the scheduled trial date. On the date of the
scheduled trial, Jordan pleaded guilty despite the fact that the DNA testing had not yet come back on
the gun.
made sure that Jordan understood that by pleading guilty, he could violate his probation in

the other case.

       {¶14} The court then reviewed Jordan’s constitutional rights with him and made

sure that he understood that by entering into the plea, he was waiving those rights.

       {¶15} The court also reviewed the maximum penalty associated with each charge

and the parameters and nuances of postrelease control with Jordan, as well as the fact that

only the voluntary manslaughter and aggravated assault counts merged.            Jordan then

pleaded guilty to each count.

       {¶16} The court asked Jordan if he was satisfied with his defense attorneys.

Jordan replied, “Oh, yes, sir.”      Jordan further told the court that no one made any

promises or threats to him to get him to enter into the plea, and Jordan agreed that his

entering into the plea was “voluntarily made of [his] own free will.”      Finally, the court

asked Jordan if he understood that there were no agreements or promises as to what the

court would do at sentencing.      Jordan responded, “Correct.”     The court then accepted

Jordan’s guilty pleas, finding that he made a knowing, intelligent, and voluntary plea and

accepted his guilty pleas.      The state and both defense counsel told the court that it

satisfied Crim.R. 11.

       {¶17} Defense counsel requested that a presentence investigation report (“PSI”)

be completed before sentencing, as well as a mitigation of penalty report.

       {¶18} At the sentencing hearing, the court indicated that it received and reviewed

the mitigation of penalty report from the court psychiatric clinic, as well as the PSI.
       {¶19} The state reviewed the facts of the shooting with the court. While doing

so, the state discussed the fact that it had retrieved the victim’s cell phone.      On the

victim’s cell phone, the state found two photos that were “of significance.”      One was a

photo of three guns that the mother of the victim’s children sent to the victim that were

purportedly Jordan’s guns.       The other photo was a picture of a “small caliber handgun”

that the victim had apparently taken on April 12 (presumably 2015, but the record is not

clear as to what year).    The picture had not been sent to anyone in a text message; it was

just a picture of a small gun.     The state told the court that it was aware that Jordan had

claimed that the victim had a weapon on him, and that Jordan retrieved that weapon after

shooting the victim.      Defense counsel turned the gun over to the state a week before

trial. The gun was tested for DNA, and it was inconclusive for the victim’s fingerprints.

       {¶20} At that point, defense counsel objected, stating that they never saw a photo

“of that.”   The parties had a sidebar off the record.       When they were back on the

record, defense counsel agreed that the photos were shared with them in discovery, but

they said that they could not view them because they were too dark “due to their

transmission in the portal.”       The court asked defense counsel if that changed “any

position of the defense.” Both defense counsel responded, “No, your honor.”

       {¶21} Jordan’s mother spoke to the court on his behalf. Defense counsel then

spoke on behalf of Jordan, stating that they would have presented testimony at trial that

the victim had a gun and “came at” Jordan.          Defense counsel further stated that the
victim was highly intoxicated, almost twice the legal limit.       When the victim “came at”

Jordan, Jordan “reacted” and shot the victim.

       {¶22} Defense counsel further informed the court that Jordan had been in the

military.   When Jordan came home from the military, he had post traumatic stress

disorder (“PTSD”).     Defense counsel argued that the victim’s death was not the worst

form of voluntary manslaughter, which defense counsel asserted was why the state

reduced the charge from murder to voluntary manslaughter.

       {¶23}     Jordan also spoke to the court.        He apologized for everything that

happened.    He denied that he ever spoke to the victim on the phone.        He said he never

met the victim prior to the day in question. Jordan said that he had four witnesses,

whom he named, saying they were present at the time of the shooting.         Jordan stated that

the state’s witness was a “new acquaintance” of his who he sold drugs to. Jordan opined

that the state’s witness was not credible. He said that when he dropped the children off

at the corner, he was “30 feet” from the market, where his “new acquaintance” picked

them up.

       {¶24} Next, Jordan stated that the state “reneged” from the deal because the state

previously said they would “run everything concurrent.”          The court interrupted Jordan,

saying “wait a minute * * * that was not the deal.”        The court stated, “now you are

getting into * * * the confidence this court has in the plea.”    The court said, “I was there,

and I was making sure everything was fair.”      The court reminded Jordan that at the plea

hearing, the court made sure that Jordan knew that there were no other mergers besides
the voluntary manslaughter and the aggravated assault.        Jordan replied, “Okay. I take

that back.   I apologize.”     Jordan apologized to the court three times.      The court then

said, “all right, I just want to make sure.”        Jordan then apologized five more times,

stating, “I apologize.      Okay.    I apologize.    I misunderstood that, Your Honor.        I

apologize.   Strike that.    I apologize to the court and everybody.    I apologize.”

       {¶25} Jordan stated that he just wanted to tell the court that he was defending

himself at the time of the shooting. The court reminded Jordan that he pleaded guilty to

voluntary manslaughter.       Jordan replied, “it’s a gray area, Your Honor.”    Jordan stated

that the victim was dead because Jordan had a gun, but if he had not had a gun, he would

be dead instead of the victim.      Jordan further stated that the only danger the children

were in that day was from the victim, not Jordan. Lastly, Jordan apologized to the

victim’s family.

       {¶26} The court stated that the victim’s mother was correct when she said that

“everyone lost here.”       The court said, “One mother lost her son.     Murdered.     Killed.

Another mother is losing her son to incarceration.”        The court discussed the purposes

and principles of sentencing, as well as the seriousness and recidivism factors. The

court stated that it did not know what happened that night, but in looking at the

seriousness of the crime, the victim was “killed” as a result of Jordan’s conduct.

       {¶27} The court told Jordan that as a result of his community control sanctions in

the first case, that he should not have been there selling drugs.         The court stated to

Jordan that he should not have had a gun either. According to Jordan’s probation
officer, he tested positive for PCP on April 15, 2015. The court said that it would

consider that fact as well.   The court noted that in looking at the facts, it was aware that

there was “provocation” as that was indicated in the plea bargain from aggravated murder

to voluntary manslaughter.     But the court also noted that there are many reasons for plea

bargains and that it was not going to consider what the plea was.

       {¶28} The court then imposed the sentence for each offense.            In sentencing

Jordan to consecutive sentences, the court stated:

               [T]his Court imposed consecutive sentences because it’s necessary to
       protect and punish, it’s not disproportionate, and this court finds that this
       crime was committed while under a probationary period and the fact that
       your criminal history shows that consecutive terms are needed to protect the
       public.

              I think the sentence is fair. It reflects the seriousness of your
       conduct, the seriousness of the crimes charged in this case, and the fact that
       you should not have nor should you ever have had a weapon with you, and
       nor should you have been out on the streets being positive for PCP on April
       15th.

       {¶29} The court also advised Jordan about postrelease control, saying that “if” he

got out of prison, he would be subject to a period of five years of mandatory postrelease

control.

       {¶30} It is from this judgment that Jordan appeals, raising his four assignments of

error for our review.   We will address his assignments of error out of order and together

where necessary for ease of discussion.

III. Ineffective Assistance of Counsel
      {¶31} In his second assignment of error, Jordan argues that he received ineffective

assistance of counsel during his plea negotiations, which caused his plea to be

involuntary.   Jordan points to certain statements made at his plea and sentencing

hearings that he claims “made it abundantly clear” that he received ineffective assistance

of counsel.

      {¶32} To prevail on a claim of ineffective assistance of counsel, a defendant must

demonstrate: (1) deficient performance by counsel, i.e., that counsel’s performance fell

below an objective standard of reasonable representation, and (2) that counsel’s errors

prejudiced the defendant, i.e., a reasonable probability that but for counsel’s errors, the

result of the proceeding would have been different. Strickland v. Washington, 466 U.S.

668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio

St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus.

“Reasonable probability” is “probability sufficient to undermine confidence in the

outcome.” Strickland at 694.

      {¶33} Where a defendant challenges trial counsel’s performance in connection

with a guilty plea, the defendant can establish the prejudice necessary for an ineffective

assistance of counsel claim only by demonstrating that there is a reasonable probability

that, but for counsel’s deficient performance, he would not have pled guilty to the offense

at issue and would have insisted on going to trial. State v. Williams, 8th Dist. Cuyahoga

No. 100459, 2014-Ohio-3415, ¶ 11, citing State v. Xie, 62 Ohio St.3d 521, 524, 584
N.E.2d 715 (1992), and Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203

(1985); State v. Wright, 8th Dist. Cuyahoga No. 98345, 2013-Ohio-936, ¶ 12.

       {¶34} First, Jordan points to the fact that his counsel “allowed a plea to take place

* * * despite knowledge that potentially exculpatory evidence was still in the process of

being tested by the coroner’s office.” We disagree with Jordan that this shows his

counsel were ineffective.   His counsel informed the court at the beginning of the plea

hearing that Jordan wished to proceed with the plea hearing despite the fact that the DNA

testing was not completed yet.      The trial court asked Jordan if that was true; he

responded that it was.

       {¶35} Next, Jordan contends that because his counsel admitted at the sentencing

hearing that they had never seen the two photos from the victim’s cell phone, it “indicates

that they had not fully reviewed the discovery presented by the state.”   One of the photos

was a photo of three guns that the mother of the victim’s children sent to the victim; the

three guns were purportedly Jordan’s guns.     The second photo was apparently one that

the victim had taken of a small caliber gun that was purportedly the victim’s own gun.

Assuming for the sake of argument that Jordan’s counsel were ineffective for failing to

look at these photos, Jordan has not established that if he had seen a photo of a gun on the

victim’s cell phone that was taken ten days before he shot the victim that the photo would

have made him want to go to trial. Notably, Jordan had decided to enter into a guilty

plea before the results of the DNA testing came back on what Jordan alleged to be the
victim’s gun. Thus, we disagree with Jordan that “knowledge of these photographs”

would have influenced his decision to enter into the plea.

       {¶36} Jordan further maintains that his statements at the sentencing hearing

support “the unknowing and involuntary nature of the guilty pleas” because they show

that he would have been able to establish that he acted in self-defense and that he would

have had four witnesses testify to that fact.   He claims the fact that his counsel never

subpoenaed these four witnesses prior to the plea, which took place on the scheduled trial

date, supports his argument that his counsel “never attempted to put forth a defense” for

him.

       {¶37} Courts have held that failure to interview and subpoena witnesses who may

have offered exculpatory testimony at trial is neglectful and could constitute deficient

performance. State v. Akers, 11th Dist. Portage No. 95-P-0073, 1997 Ohio App. LEXIS

1354, *23 (Apr. 4, 1997). But a mere allegation that the testimony of a prospective

witness may have been helpful is insufficient to establish the prejudice prong of the test

for ineffective assistance. Id.   That is, prejudice cannot be shown when the record

before the appellate court contains no indication as to what the testimony of the

prospective witnesses would have been.      State v. Bleasdale, 11th Dist. Ashtabula No.

95-A-0047, 1996 Ohio App. LEXIS 3876, *15-16 (Sept. 6, 1996).                Under such

circumstances, a claim of ineffective assistance could only be shown in a petition for

postconviction relief. See State v. Cooperrider, 4 Ohio St.3d 226, 448 N.E.2d 452

(1983).   See also State v. Coulverson, 10th Dist. Franklin No. 01AP-893, 2002 Ohio
App. LEXIS 1290, *20 (Mar. 21, 2002); State v. Gales, 9th Dist. Lorain No.

00CA007541, 2000 Ohio App. LEXIS 5428, *24 (Nov. 22, 2000) (counsel’s mere failure

to subpoena witnesses is not a substantial violation of an essential duty to a client in the

absence of a showing that testimony of any one or more of the witnesses would have

assisted the defense).

       {¶38} Jordan further contends that his counsel was ineffective because they

allowed him to plea without ever requesting a psychological exam be conducted despite

the fact that he had “well documented issues with mental health.” In support of this

issue, Jordan points to the fact that his counsel requested a mitigation of penalty report be

conducted by the court’s mental health clinic in preparation for sentencing.   The fact that

Jordan’s counsel requested a mitigation of penalty report be conducted prior to

sentencing, however, does not establish that Jordan has “well documented issues with

mental health.”

       {¶39} We find, after a reviewing the entire record, that there is nothing

demonstrating that a psychological evaluation was needed. Despite Jordan informing

the court that he had PTSD from being in the military, there is no evidence throughout the

proceedings that Jordan displayed any type of behavior that would alert trial counsel to

request a psychological evaluation or request that the case be transferred to the mental

health docket.

       {¶40} Finally, Jordan argues that he was informed by both counsel that the counts

would run consecutively.     In raising this argument, Jordan “concedes that the record
supports the state’s indication that no agreement had been made regarding merger,” but

asserts that it serves to reinforce the lack of voluntariness of his plea.   We disagree.   At

the plea hearing, the trial court made sure that no one promised Jordan anything in

exchange for his plea, including the court.      Moreover, it is a fundamental principle of

appellate review that a reviewing court is limited to the record of proceedings at trial.

Morgan v. Eads, 104 Ohio St.3d 142, 2004-Ohio-6110, 818 N.E.2d 1157, ¶ 13; App.R.

12(A)(1)(b); App.R. 16(A)(7).

       {¶41} Jordan’s second assignment of error is overruled.

IV. Voluntariness of Plea

       {¶42} In his third assignment of error, Jordan argues that the trial court erred in

proceeding to sentence him after it became clear that his plea was involuntary.             In

arguing this point, he relies on the issues that he raised in his second assignment of error.

       {¶43} The underlying purpose of Crim.R. 11(C) is to convey certain information to

a defendant so that he or she can make a voluntary and intelligent decision regarding

whether to plead guilty.    State v. Ballard, 66 Ohio St.2d 473, 479-480, 423 N.E.2d 115

(1981).    “The standard for reviewing whether the trial court accepted a plea in

compliance with Crim.R. 11(C) is a de novo standard of review.” State v. Cardwell, 8th

Dist. Cuyahoga No. 92796, 2009-Ohio-6827, ¶ 26, citing State v. Stewart, 51 Ohio St.2d

86, 364 N.E.2d 1163 (1977). “It requires an appellate court to review the totality of the

circumstances and determine whether the plea hearing was in compliance with Crim.R.

11(C).” Id.
       {¶44} Crim.R. 11(C)(2) provides in pertinent part that in felony cases the court

may refuse to accept and shall not accept a plea of guilty without first addressing the

defendant personally and doing all of the following:

       (a) Determining that the defendant is making the plea voluntarily, with
       understanding of the nature of the charges and of the maximum penalty
       involved, and if applicable, that the defendant is not eligible for probation
       or for the imposition of community control sanctions at the sentencing
       hearing.

       (b) Informing the defendant of and determining that the defendant
       understands the effect of the plea of guilty or no contest, and that the court,
       upon acceptance of the plea, may proceed with judgment and sentence.

       (c) Informing the defendant and determining that the defendant understands
       that by the plea the defendant is waiving the rights to jury trial, to confront
       witnesses against him or her, to have compulsory process for obtaining
       witnesses in the defendant’s favor, and to require the state to prove the
       defendant’s guilt beyond a reasonable doubt at a trial at which the defendant
       cannot be compelled to testify against himself or herself.

       {¶45} A trial court must strictly comply with the Crim.R. 11(C)(2)(c) requirements

that relate to the waiver of constitutional rights.    State v. Veney, 120 Ohio St.3d 176,

2008-Ohio-5200, 897 N.E.2d 621, ¶ 18.            Under the more stringent standard for

constitutionally protected rights, a trial court’s acceptance of a guilty plea will be

affirmed only if the trial court engaged in meaningful dialogue with the defendant which,

in substance, explained the pertinent constitutional rights “in a manner reasonably

intelligible to that defendant.” Ballard at paragraph two of the syllabus.

       {¶46} With respect to the nonconstitutional requirements of Crim.R. 11, set forth

in Crim.R. 11(C)(2)(a) and (b), reviewing courts consider whether there was substantial

compliance with the rule. Veney at ¶ 14-17.      “Substantial compliance means that under
the totality of the circumstances the defendant subjectively understands the implications

of his plea and the rights he is waiving.”    State v. Nero, 56 Ohio St.3d 106, 108, 564

N.E.2d 474 (1990); Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163.         “[I]f it appears from

the record that the defendant appreciated the effect of his plea and his waiver of rights in

spite of the trial court’s error, there is still substantial compliance.” State v. Caplinger,

105 Ohio App.3d 567, 572, 664 N.E.2d 959 (4th Dist.1995).

       {¶47} Further, a defendant must show prejudice before a plea will be vacated for a

trial court’s error involving Crim.R. 11(C) procedure when nonconstitutional aspects of

the colloquy are at issue. Veney at ¶ 17.      The test for prejudice is whether the plea

would have otherwise been made. Id.; see also State v. Clark, 119 Ohio St.3d 239,

2008-Ohio-3748, 893 N.E.2d 462.

       {¶48} After a thorough review of the plea hearing, we conclude that the trial court

fully complied with Crim.R. 11 in making sure that Jordan’s plea was voluntarily,

knowingly, and intelligently entered.   The court reviewed the nature of the charges with

Jordan, as well as the maximum penalty involved with each charge.         The court further

informed Jordan of the effect of the plea and ensured that he understood the effect of the

plea. And the court also informed Jordan of the constitutional rights he was waiving and

made sure that he understood that by pleading guilty, he was waiving those rights.

       {¶49} Further, at the sentencing hearing, when the trial court interrupted Jordan

because he was undermining the court’s confidence in the plea with his statements that
the state reneged on the deal, Jordan apologized to the court numerous times and stated

that he was wrong for implying that he believed he would get concurrent sentences.

       {¶50} Accordingly, Jordan’s third assignment of error is overruled.

       V. Consecutive Sentences

       {¶51} In his first assignment of error, Jordan argues that the trial court erred when

it sentenced him to consecutive sentences.

       {¶52} R.C. 2953.08(G)(2) provides that our review of felony sentences is not an

abuse of discretion.   An appellate court must “review the record, including the findings

underlying the sentence or modification given by the sentencing court.” Id.            If an

appellate court clearly and convincingly finds either that (1) “the record does not support

the sentencing court’s findings under [R.C. 2929.14(C)(4)],” or (2) “the sentence is

otherwise contrary to law,” then “the appellate court may increase, reduce, or otherwise

modify a sentence * * * or may vacate the sentence and remand the matter to the

sentencing court for resentencing.” Id.

       {¶53} R.C. 2929.14(C)(4) requires trial courts to engage in a three-step analysis

when imposing consecutive sentences. First, the trial court must find that “consecutive

service is necessary to protect the public from future crime or to punish the offender.”

Id.   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.” Id. Finally, the trial court must find that at least one of the following applies:

(1) the offender committed one or more of the multiple offenses while awaiting trial or
sentencing, while under a sanction imposed under R.C. 2929.16, 2929.17, or 2929.18, or

while under postrelease control for a prior offense; (2) 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 offenses 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; or (3) 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)(4)(a) - (c).

       {¶54} The Ohio Supreme Court expressly rejected the claim that a trial court must

give a “talismanic incantation of the words of the statute” when imposing consecutive

sentences.   State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37.

 Indeed, the Supreme Court stated that “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.”    Id. at ¶ 29.

       {¶55} Moreover, a trial court is required not only to make the statutory findings

required for consecutive sentences at the sentencing hearing, but also to incorporate its

findings into its sentencing entry. Id. at the syllabus.

       {¶56} After a review of the sentencing hearing in this case, we find that the trial

court made the required R.C. 2929.14(C)(4) findings and that the record supports those

findings. Although the trial court did not use the exact language of the statute, this court
can discern that it engaged in the proper analysis and made the required findings.        The

court specifically stated that consecutive sentences were “necessary to protect and

punish,” were “not disproportionate,” that Jordan committed these crimes while under

community control sanctions, and that consecutive terms were “needed to protect the

public.”   The court further found that consecutive sentences reflected “the seriousness”

of the crimes and the fact that Jordan should not have had a weapon or tested positive for

PCP.

       {¶57} Jordan argues that the trial court failed to make one of the three findings

under R.C. 2929.14(C)(4)(a) through (c). He asserts that although he “was serving a term

of community control sanctions, there is no indication that [his] history of criminal

conduct demonstrates that consecutive sentences are required.”        He further claims that

there was no evidence of a “course of conduct.”     First, a trial court need only find that an

offender was on probation or community control when he or she committed the new

offense or that at least two or more offenses were committed as part of a course of

conduct or that an offender’s criminal history demonstrates that consecutive sentences are

necessary to protect the public.   As Jordan stated, he was on community control when he

shot and killed the victim in this case. This satisfies the third finding.

       {¶58} Jordan further argues that the trial court failed to make the required findings

for consecutive sentences for the 12 months it imposed for Case No. CR-13-581343-A.

We disagree.    The trial court’s consecutive sentence findings included facts regarding

Jordan’s probation violation.
       {¶59} Further, the trial court informed Jordan at the original sentencing hearing in

Case No. CR-13-581343-A that if he violated the terms of his community control

sanctions, it would “result in more restrictive sanctions or a prison term of 12 months.”

At the joint-sentencing hearing on the new case and the community control violations

case, the court explained that Jordan violated the terms of his community control by not

only shooting and killing the victim, but by even just having the gun. Further, Jordan

tested positive for PCP while on community control sanctions and was selling drugs.

Thus, we find that the record supports the trial court’s findings under R.C. 2929.14(C)(4).

       {¶60} Accordingly, we overrule Jordan’s first assignment of error.

VI. Sentencing for Voluntary Manslaughter versus Murder

       {¶61} In his fourth assignment of error, Jordan asserts that the trial court

improperly sentenced him for murder, rather than voluntary manslaughter.           He claims

that the court used consecutive sentence to effectively sentence him for murder.          He

further points to two comments made by the trial court that he claims shows that the trial

court intended to punish him for murder: (1) “one mother lost her son.             Murdered.

Killed[,]” and (2) “[i]f you get out of prison, you’re subject to postrelease control.”

       {¶62} After reviewing the entire record in this case, we find no error on the part of

the trial court. Based on the felonies that Jordan pleaded guilty to (besides aggravated

assault because it merged), which were voluntary manslaughter, a first-degree felony,

with one- and three-year firearm specifications, discharging a firearm at or near

prohibited places, a first-degree felony, and having a weapon while under a disability, a
third-degree felony, the trial court could have sentenced Jordan to a maximum of 28 years

in prison if he had ordered them all to be served consecutively.          We have already

determined that the trial court properly imposed consecutive sentences and the record

supported such imposition. But for these offenses, the trial court sentenced Jordan to 16

years in prison, considerably less than the maximum. Thus, we find no merit to Jordan’s

arguments.

       {¶63} Further, regarding the two comments made by the trial court that Jordan

claims support his argument, he is looking at them in a vacuum. When viewing them in

the context of the entire proceedings, they do not support Jordan’s claim that the trial

court intended to sentence him for murder instead of voluntary manslaughter.        The trial

court properly sentenced Jordan within the confines of the sentencing statutes.

       {¶64} Jordan’s fourth assignment of error is overruled.

       {¶65} Judgment affirmed.

       It is ordered that appellee recover from appellant the 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. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated.     Case remanded to the trial court

for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.
MARY J. BOYLE, JUDGE

TIM McCORMACK, P.J., CONCURS;
EILEEN T. GALLAGHER, J., DISSENTS (WITH SEPARATE OPINION)


EILEEN T. GALLAGHER, J., DISSENTING:

      {¶66} I concur with the majority’s resolution of Jordan’s second, third, and

fourth assignments of error.     However, I respectfully dissent from the majority’s

determination that the trial court made the findings necessary to run the sentence imposed

in Case No. CR-13-581343-A consecutive to the sentences imposed in Case No.

CR-15-595432-A.

      {¶67} In this case, the trial court made the following statement when imposing

consecutive sentences:

             As for the consecutive prison terms, on the having weapon while
      under disability to the voluntary manslaughter, this court imposed
      consecutive sentences because it’s necessary to protect and punish, it’s not
      disproportionate, and this court finds that this crime was committed while
      under a probationary period and the fact that your criminal history shows
      that consecutive terms are needed to protect the public. I think the
      sentence is fair. It reflects the seriousness of your conduct, the seriousness
      of the crimes charged in this case, and the fact that you should not have nor
      should you ever had a weapon with you, and nor should you have been out
      on the streets being positive for PCP on April 15th.

(Emphasis added.)
     {¶68} I agree with the majority’s conclusion that the foregoing colloquy was

sufficient to satisfy the findings requirements of R.C. 2929.14(C)(4) with respect to

Jordan’s voluntary manslaughter and having a weapon while under disability convictions
in Case No. CR-15-595432-A. However, the statement excludes consideration of the

12-month prison term imposed on Jordan’s violation of community control in Case No.

CR-13-581343-A, which was ordered to run consecutive to the sentences imposed in

Case No. CR-15-595432-A.           The court simply did not address Case No.

CR-13-581343-A during its discussion of the relevant R.C. 2929.14(C)(4) findings.

      {¶69} Accordingly, I would sustain Jordan’s first assignment of error regarding the

trial court’s failure to make the necessary R.C. 2929.14(C)(4) findings for the sentence

imposed in Case No. CR-13-581343-A.
