[Cite as State v. Warren, 2013-Ohio-3483.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                             CLERMONT COUNTY




STATE OF OHIO,                                      :

        Plaintiff-Appellee,                         :     CASE NO. CA2012-12-087

                                                    :           OPINION
   - vs -                                                        8/12/2013
                                                    :

ERIC SCOTT WARREN,                                  :

        Defendant-Appellant.                        :



    CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                         Case No. 2012-CR-0233



D. Vincent Faris, Clermont County Prosecuting Attorney, Judith Brant, 76 South Riverside
Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee

Denise S. Barone, 385 North Street, Batavia, Ohio 45103, for defendant-appellant



        PIPER, J.

        {¶ 1} Defendant-appellant, Eric Warren, appeals his sentence in the Clermont

County Court of Common Pleas for single counts of breaking and entering and theft.

        {¶ 2} Warren broke into a business equipped with a security system and surveillance

video equipment in order to steal copper fittings and tubing used in air conditioning units. An

employee of the business was alerted that someone had broken into the building, and that

employee contacted the police. When police came to the scene, they saw Warren run from
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the building and into a near-by car lot. Warren then tried to flee from police by driving away

in a truck belonging to the car lot. However, the police were able to stop the truck, at which

time Warren jumped from the truck and led police on a foot-chase. Warren was finally

apprehended when police caught and tased him.

       {¶ 3} Warren was indicted on four counts, including two counts of breaking and

entering, one count of grand theft, and one count of possessing criminal tools. Warren, who

has an extensive criminal history, and the state reached a plea agreement wherein Warren

agreed to plead guilty to one count of breaking and entering, a fifth-degree felony, and one

count of grand theft of a motor vehicle, a felony of the fourth degree. The other two charges

were dismissed. The trial court sentenced Warren to 12 months on the breaking and

entering charge, and 18 months on the grand theft charge, and ran the sentences

consecutive for an aggregate sentence of 30 months. Warren now appeals the trial court's

sentence, raising the following assignment of error.

       {¶ 4} THE TRIAL COURT ERRED IN IMPOSING A TWO-AND-ONE-HALF-YEAR

SENTENCE FOR THE CONVICTIONS HEREIN.

       {¶ 5} Warren argues in his assignment of error that the trial court's sentence was

erroneous.

       {¶ 6} As we recently noted in State v. Crawford, 12th Dist. Clermont No. CA2012-12-

088, 2013-Ohio-3315, "the standard of review set forth in R.C. 2953.08(G)(2) shall govern all

felony sentences." Id. at ¶ 6, quoting State v. A.H., 8th Dist. Cuyahoga No. 98622, 2013-

Ohio-2525, ¶ 7; see also State v. Cochran, 10th Dist. Franklin No. 11AP-408, 2012-Ohio-

5899, ¶ 52. Pursuant to R.C. 2953.08(G)(2), when hearing an appeal of a trial court's felony

sentencing decision, "the appellate court may increase, reduce, or otherwise modify a

sentence that is appealed under this section or may vacate the sentence and remand the

matter to the sentencing court for resentencing." However, as explicitly stated in R.C.
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2953.08(G)(2), "[t]he appellate court's standard for review is not whether the sentencing court

abused its discretion."

       {¶ 7} Instead, an appellate court may take any action authorized under R.C.

2953.08(G)(2) only if the court "clearly and convincingly finds" that either: (1) "the record

does not support the sentencing court's findings under division (B) or (D) of section 2929.13,

division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised

Code, whichever, if any, is relevant;" or (2) "[t]hat the sentence is otherwise contrary to law."

A sentence is not clearly and convincingly contrary to law where the trial court considers the

purposes and principles of R.C. 2929.11, as well as the factors listed in R.C. 2929.12, and

sentences appellant within the permissible statutory range. Crawford at ¶ 9; State v. Elliott,

12th Dist. Clermont No. CA2009-03-020, 2009-Ohio-5926, ¶ 10.

       {¶ 8} In making such a determination, it is "important to understand that the clear and

convincing standard used by R.C. 2953.08(G)(2) is written in the negative." Crawford at ¶ 8,

quoting Venes, 2013-Ohio-1891 at ¶ 21. "It does not say that the trial judge must have clear

and convincing evidence to support its findings." Id. Instead, "it is the court of appeals that

must clearly and convincingly find that the record does not support the court's findings." Id.

Simply stated, the language in R.C. 2953.08(G)(2) establishes an "extremely deferential

standard of review" for "the restriction is on the appellate court, not the trial judge." Id.

       {¶ 9} Regarding the maximum duration of the sentences, Warren was convicted of

felonies of the fourth and fifth degree. According to R.C. 2929.14(A)(4) and (5), "for a felony

of the fourth degree, the prison term shall be six, seven, eight, nine, ten, eleven, twelve,

thirteen, fourteen, fifteen, sixteen, seventeen, or eighteen months." "For a felony of the fifth

degree, the prison term shall be six, seven, eight, nine, ten, eleven, or twelve months." The

trial court sentenced Warren to 12 months on the fifth-degree felony and 18 months on the

fourth-degree felony so that each sentence is within the statutory limit.
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       {¶ 10} Further, the trial court sentenced Warren after stating that it had considered the

circumstances of the case, the principles and purposes of sentencing, and had balanced the

seriousness and recidivism factors. While both of the sentences constituted maximum

sentences, they are not clearly and convincingly contrary to law. State v. Humes, 12th Dist.

Clermont No. CA2009-10-057, 2010-Ohio-2173, ¶ 18.

       {¶ 11} Warren argues that his counsel was ineffective for not offering better mitigation

evidence, thus causing the trial court to sentence him to the maximum sentence. Regarding

ineffective assistance of counsel, an appellant must establish that first, "his trial counsel's

performance was deficient; and second, that the deficient performance prejudiced the

defense to the point of depriving the appellant of a fair trial." State v. Myers, 12th Dist.

Fayette No. CA2005-12-035, 2007-Ohio-915, ¶ 33, citing Strickland v. Washington, 466 U.S.

668, 689, 104 S.Ct. 2052 (1984). Regarding the first prong, an appellant must show that his

counsel's representation "fell below an objective standard of reasonableness." Strickland,

466 U.S at 688. The second prong requires the appellant to show "a reasonable probability

that, but for counsel's unprofessional errors, the result of the proceeding would have been

different." Id. at 694.

       {¶ 12} While Warren asserts that he would not have been sentenced to "such a long

sentence" but for his counsel failing "to present a better mitigation hearing," the record

indicates otherwise. Warren's counsel was not deficient for his conduct at the sentencing

hearing, as the record clearly indicates that counsel offered mitigation evidence before

Warren was sentenced. Warren's counsel discussed Warren's drug addiction, health

problems, as well as Warren's desire to seek treatment. Warren's counsel advocated for

treatment or community control rather than prison, but the trial court decided instead to

impose a prison sentence. That fact, however, did not render Warren's counsel ineffective.

       {¶ 13} Warren's extensive prior record coupled with the facts and circumstances of
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this case warranted the imposition of a prison sentence. The trial court's maximum sentence

was based upon full consideration of the sentencing guidelines, as well as consideration of

the mitigation evidence in favor of Warren. The record does not indicate, nor has Warren

suggested, the existence of any other mitigation evidence. Nor has Warren demonstrated

how counsel could have performed differently, or in what way the mitigation hearing could

have occurred differently. In short, Warren has not shown that the results of his sentence

would have been different but for counsel's performance. As such, Warren did not receive

ineffective assistance of counsel.

        {¶ 14} While we have found no error in the trial court's maximum sentence, we sua

sponte find that the trial court did not properly order consecutive sentences.1 After reviewing

the record, we clearly and convincingly find that the consecutive nature of the sentences was

improperly imposed because the trial court did not make the requisite findings as required by

statute.

        {¶ 15} According to 2929.14(C)

                (4) 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 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.




1. An appellate court has the discretion to recognize an issue not raised by the parties so long as the record
contains a sufficient basis for deciding the issue. Hungler v. Cincinnati, 25 Ohio St.3d 338 (1986). This court
has a sufficient basis for deciding the issue because the record contains a transcript of the sentencing hearing
and the trial court's judgment entry of sentence, neither of which contain the necessary statutory findings.
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              (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.

       {¶ 16} This court and others have found that a trial court is not required to state any

talismanic language when imposing a sentence. State v. Kuykendall, 12th Dist. Clermont No.

CA2004-12-111, 2005-Ohio-6872, ¶ 24. "The statutory language itself does not have magical

powers. Instead, it is merely a vehicle to ensure that the trial court engaged in the required

analysis." Id. Even so, there must be some reference in the record that the trial court

considered the statutory requirements and made the requisite findings. Here, there is no

indication that the trial court made consecutive findings after having considered the

requirements, or that it made the requisite findings.

       {¶ 17} The statute requires the court to find that (1) the consecutive sentence is

necessary to protect the public from future crime or to punish the offender, and (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. In addition to these two findings, the

court must find one of the three factors, as listed in subsections (a) through (c). Here, the

trial court did not make the requisite findings regarding consecutive sentences so that this

case must be remanded to the trial court to make the necessary findings.

       {¶ 18} Having found that Warren's maximum sentence was proper and that he did not

receive ineffective assistance of counsel, but that the consecutive nature of his sentence fails

to comport with the statutory requirements, his assignment of error is overruled in part and

sustained in part.


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      {¶ 19} Judgment affirmed in part, reversed in part, and remanded for further

proceedings consistent with this opinion.


      S. POWELL, P.J., and M. POWELL, J., concur.




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