[Cite as State v. Barker, 2013-Ohio-4038.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 99320




                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                  SIMMIE BARKER, III
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                              Case Nos. CR-565370 and CR-565507

        BEFORE: Rocco, J., Boyle, P.J., and E.A. Gallagher, J.

        RELEASED AND JOURNALIZED: September 19, 2013

                                                -i-
ATTORNEY FOR APPELLANT

Joseph Vincent Pagano
P.O. Box 16869
Rocky River, Ohio 44116

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Edward Fadel
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:

       {¶1} After entering guilty pleas in two underlying cases to a charge of drug

possession, attempted burglary, assault, and abduction, defendant-appellant Simmie

Barker, III, appeals from the sentences he received.

       {¶2} Barker presents three assignments of error. He asserts that his sentences are

contrary to law because the trial court failed to make the findings necessary to impose

consecutive sentences. He also asserts that the trial court improperly stated that he could

not receive credit for time served because those days constituted his sentence for the

assault conviction.    Finally, he asserts that the sentences imposed violated R.C.

2941.25(A) because his convictions in one case were for allied offenses.

       {¶3} Following a review of the record, this court concludes that the trial court

complied with R.C. 2929.14(C)(4) when imposing consecutive terms and also that his

sentences are otherwise in accordance with law. Thus, Barker’s assignments of error are

overruled, and his sentences are affirmed.

       {¶4} Barker originally was indicted in case number CR-565370 on one count of

drug possession and in case number CR-565507 on one count of burglary, one count of

felonious assault, and one count of kidnapping. After several pretrial hearings, the

parties notified the trial court that a plea agreement had been reached.

       {¶5} As outlined by the prosecutor, in exchange for Barker’s guilty pleas, the

charges in CR-565507 would be amended to one count of attempted burglary, one count
of misdemeanor assault, and one count of abduction. The trial court conducted a careful

colloquy with Barker before accepting his guilty pleas. A subsequent discussion with

Barker led the trial court to order both a presentence report and a psychological

assessment for potential “mitigation”1 purposes.

       {¶6} When Barker’s cases were called for sentencing, on November 21, 2012, the

trial court noted that it had received the presentence report.2 The record reflects that the

prosecutor then showed the trial court a video of the incident that led to Barker’s

conviction in CR-565507; the video came from a neighbor who had recorded what she

observed and posted it on “YouTube.”3 The trial judge invited Barker to view the video

with him, and, as they watched, Barker attempted to explain his actions.

       {¶7} The trial court then turned to the prosecutor for his comments.             The

prosecutor argued that none of the offenses Barker committed in CR-565507 were allied

offenses pursuant to R.C. 2941.25(A), because each occurred at a separate time.

       {¶8} After listening to the assault victim, defense counsel, and Barker himself, the

trial court reviewed Barker’s history of misdemeanor convictions for a “weapons

violation,” a theft, and a “drug abuse,” the trial court stated that Barker had committed

“separate” offenses and that a consecutive sentence was “appropriate.”


       1This   is the trial court’s word.

       2 Noneof the parties referred to a report resulting from a psychological
assessment of Barker.
       3The prosecutor did not request of the trial court that the video be admitted
as an exhibit; therefore, it does not appear in the appellate record.
       {¶9} The trial court imposed on Barker prison terms that totaled five years, i.e.,

one year in CR-565370, to be served consecutively with consecutive terms in CR-565507

of 12 months for attempted burglary and 36 months for abduction.                 As to the

misdemeanor assault conviction in CR-565507, the trial court sentenced Barker to “time

served.” On this basis, the trial court declared that Barker was ineligible to receive

“jail-time” credit.

       {¶10} Barker appeals from his sentence with three assignments of error.

             I. The trial court erred when it sentenced Barker to maximum,
       consecutive prison terms.

            II. The trial court erred by not calculating and awarding
       Barker jail time credit in this case.

             III. The court erred when it sentenced Barker to consecutive
       prison terms for allied offenses of similar import.

       {¶11} Barker argues in his first assignment of error that the trial court neither made

the necessary findings in imposing consecutive sentences in his underlying cases, nor

engaged in any analysis regarding the sentences’ proportionality and consistency.

Because the record reflects otherwise, Barker’s argument is unpersuasive.

       {¶12} This court has set forth the current law relating to consecutive sentences in

State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891. The statutory language

directs that the trial court must “find” the relevant sentencing factors before imposing

consecutive sentences.

       {¶13} R.C. 2929.14(C)(4), as revived, now requires that a trial court engage in a

three-step analysis in order to impose 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, 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.
      Id.

      {¶14} In making these findings, a trial court is not required to use “talismanic

words,” however, it must be clear from the record that the trial court actually made the

findings required by statute. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, at

¶ 14, 17; see also State v. Pierson, 1st Dist. Hamilton No. C-970935, 1998 Ohio App.

LEXIS 3812 (Aug. 21, 1998).

      {¶15} In pertinent part, the trial court made the following comments when

imposing the sentences for Barker’s convictions in these two cases:

            THE COURT: Your behavior is disgusting, obscene, unlawful,
      degrading, obnoxious. It must be met with a penalty that is commensurate
      with the act. You destabilize the entire community with this type of
      behavior that took place in full view, in broad daylight, for anybody that
      was willing to even stop and look. And, in fact, people did videotape it.
      You seem to enjoy the punishment and the pain and the suffering that you
      were inflicting upon the victim in this case, and you seem to actually turn to
      the camera
      ***.

             So I’m taking into consideration the principles found in 2929.11, and
      the overriding principle is to punish the offender and to protect the public
      from future crimes * * * . * * * [W]e’re not going to impose a minimum
      sanction here. [Finding: “consecutive service is necessary to protect the
      public from future crime or to punish the offender.”] I’m considering the
      need for incapacitation, deterrence, and rehabilitation, but I’m, under
      2929.12(B), indicating that there was injury that was inflicted upon this
      victim * * * . * * * I am distressed that you would shout these racist terms
      as you assault this man. * * * [T]he victim here is 62 years old. * * * .

             ***

       THE COURT: So, therefore, I believe that the only appropriate sentence to punish
this defendant is with a consecutive period of incarceration. * * * [H]e has prior cases,
has a record of drug abuse, had prior opportunities to clean up his act and he has not
done so. These are separate incidents. [Finding: “consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to the danger the
offender poses to the public.”] * * *

      ***

      THE COURT: On Count 1 he’s sentenced to 12 months. How much time have
you spent in county jail?

      [BARKER]: Since August 1st, sir.

      THE COURT: On Count 2, * * * we’ll sentence him to time served.

       On Count 3, the abduction, I sentence him to 36 months. Count[s] 1 and 3 are
consecutive for a period of four years going forward. On the drug case, 565370, a
separate offense, you are sentenced to one year consecutive. That’s five years * * * .

      ***

      THE COURT: * * * I don’t think that one sentence in this case is appropriate to
punish the offender. * * *
             ***

             THE COURT: * * * And I guess the magic word, I am searching for it off the top
      of my head, I don’t think one prison term is appropriate for these acts. I believe it
      demeans the seriousness of the offense. I believe it is necessary to sentence a person
      [who] acts in the fashion that I described to a consecutive period of incarceration
      considering all of the factors that I have placed on the record and his prior criminal
      history. [Finding: 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.] * * * (Emphasis
      added.)

      {¶16} The foregoing italicized portions of the trial court’s comments demonstrates that, while

not following the language of R.C. 2929.14(C)(4) precisely, the trial court made each of the required

individual findings in order to impose maximum and consecutive sentences in Barker’s two cases.4

State v. Richmond, 8th Dist. Cuyahoga No. 98915, 2013-Ohio-2887, ¶ 13-14; State v. Bonness, 8th Dist.

Cuyahoga No. 99129, 2013-Ohio-2699, ¶ 13-16; State v. Grier, 8th Dist. Cuyahoga No. 98637,

2013-Ohio-1661. Similarly, the trial court specifically stated it had considered the application of R.C.

2929.11 to the sentences. Bonness at ¶ 18-21.

      {¶17} Consequently, Barker’s first assignment of error is overruled.


      4 Although   the record indicates the trial court made the necessary findings, it is also
evident that the state did little in this case to assist the trial court in determining whether a
consecutive sentence was appropriate. If the state has such a belief, the best practice would be
to provide a sentencing memorandum to the court that includes the required R.C. 2929.14(C)(4)
statutory findings along with citations to the record that support each finding. Alternatively,
the state could orally articulate at the sentencing hearing the R.C. 2929.14(C)(4) findings that
find support in the record. All too often, the state merely argues on appeal that the trial court’s
use of “talismanic words” is unnecessary, when it is the state’s responsibility to provide the
trial court with a sentencing memorandum in the first place. If the state did more at the proper
time, however, trial courts would announce clear findings, the need for “interpretation” would be
eliminated, and this court would most likely see a significant reduction in the number of cases
having to be remanded (at great expense to the public).
       {¶18} Barker also argues that the trial court improperly sentenced him to “time

served” for his misdemeanor conviction rather than giving him credit toward his prison

term for the time he spent in jail awaiting resolution of these cases. In support of his

argument, he cites State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440,

but Fugate is inapposite.

       {¶19} The applicable portion of R.C. 2967.191 states:

              The department of rehabilitation and correction shall reduce the
       stated prison term of a prisoner * * * by the total number of days that the
       prisoner was confined for any reason arising out of the offense for which
       the prisoner was convicted and sentenced
       ***.

       {¶20} However, R.C. 2929.41(B) provides in relevant part:

              (1) A jail term or sentence of imprisonment for a misdemeanor shall
       be served consecutively to any other prison term, jail term, or sentence of
       imprisonment when the trial court specifies that it is to be served
       consecutively * * * .

              ***

             (3) * * * When consecutive jail terms or sentences of imprisonment
       and prison terms are imposed for one or more misdemeanors and one or
       more felonies under this division, the term to be served is the aggregate of
       the consecutive terms imposed, and the offender shall serve all terms
       imposed for a felony before serving any term imposed for a misdemeanor.

       {¶21} In State v. Hughley, 8th Dist. Cuyahoga Nos. 92588 and 93070,

2009-Ohio-5824, at ¶ 35 (discretionary appeal not allowed, State v. Hughley, 124 Ohio

St.3d 1477, 2010-Ohio-354, 921 N.E.2d 247), this court observed:

       We note that under R.C. 2967.191, the department of rehabilitation and correction
credits jail time served; however, it is “the trial court that is to make the factual
determination as to the number of days that can constitute jail-time credit.” State v.
       Frazier, Cuyahoga App. No. 86984, 2006 Ohio 3023, P9, citing State v. Morgan (Mar.
       27, 1996), Wayne County App. No. 95CA0055, 1996 Ohio App. LEXIS 1239. * * * [I]n
       State v. Fugate, 117 Ohio St.3d. 261, 2008 Ohio 856, 883 N.E.2d 440, the Ohio Supreme
       Court noted that: “[w]hen a defendant is sentenced to consecutive terms, the terms of
       imprisonment are served one after another, jail-time credit applied to one prison term
       gives full credit that is due, because the credit reduces the entire length of the prison
       sentence.”

               * * * Because the trial court could run the misdemeanor sentence consecutive to
       the felony sentence, and the trial court must specify the number of days that constitute
       jail-time credit, we find that it was within the trial court’s discretion to direct that the
       jail-time credit be applied to the misdemeanor sentence in the instant case. This is
       especially true when his sentences are consecutive and the jail-time credit reduces the
       entire length of his sentence. (Emphasis added.)

       {¶22} The identical situation exists in this case. The trial court had the authority to sentence

Barker to a consecutive term of up to 180 days for his misdemeanor conviction. R.C. 2929.24(A)(1);

Maple Hts. v. Sweeney, 8th Dist. Cuyahoga No. 85415, 2005-Ohio-2820, ¶ 9. Application of the

jail-time credit to Barker’s consecutive terms reduced the length of his entire sentence. Therefore, the

trial court acted within its discretion to sentence Barker for his misdemeanor conviction to the days he

had already spent in jail. Consequently, Barker’s second assignment of error is also overruled.

       {¶23} In his third assignment of error, Barker asserts that his convictions in CR-565507 were

allied offenses pursuant to R.C. 2941.25(A); therefore, the trial court improperly imposed sentence for

each of the convictions. The record fails to support his assertion.

              {¶24} The Ohio Supreme Court set forth the following requirement in State v.

       Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, at paragraph one of the

       syllabus:

                     When determining whether two offenses are allied offenses of
              similar import subject to merger under R.C. 2941.25, the conduct of the
      accused must be considered. (State v. Rance (1999), 85 Ohio St.3d 632,
      1999 Ohio 291, 710 N.E.2d 699, overruled.)

      {¶25} The record of this case demonstrates the trial court considered Barker’s

conduct when the court determined at the sentencing hearing that the CR-565507 offenses

were “separate.” First, the trial court was aware from the indictment itself that the

attempted burglary was committed against a victim different from the victim set forth in

the other two counts.    See, e.g., State v. Blackfordi, 5th Dist. Perry No. 12 CA 3,

2012-Ohio-4956, ¶ 15.

      {¶26} Second, as the Johnson court stated at ¶ 51, if the offenses are committed

separately, or if the defendant has separate animus for each offense, then, according to

R.C. 2941.25(B), the offenses will not merge. The record reflects that the trial court had

observed the state’s video, which, as the prosecutor explained, showed that “after the

[physical] assault had taken place, [Barker] then prevented the victim from trying to enter

the apartment” to escape from Barker’s subsequent verbal assault. See, e.g., State v.

Martin, 8th Dist. Cuyahoga No. 95281, 2011-Ohio-222, ¶ 12.

      {¶27} Based on the foregoing, Barker’s third assignment of error also is overruled.

      {¶28} Barker’s sentences are affirmed.

      It is ordered that appellee recover from appellant 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.



___________________________________
KENNETH A. ROCCO, JUDGE

MARY J. BOYLE, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
