[Cite as State v. Marcum, 2017-Ohio-7655.]


STATE OF OHIO                    )                     IN THE COURT OF APPEALS
                                 )ss:                  NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                  )

STATE OF OHIO                                          C.A. No.       16AP0084

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
CLINTON D. MARCUM                                      COURT OF COMMON PLEAS
                                                       COUNTY OF WAYNE, OHIO
        Appellant                                      CASE No.   2016 CRC-I 000101

                                DECISION AND JOURNAL ENTRY

Dated: September 18, 2017



        SCHAFER, Presiding Judge.

        {¶1}    Defendant-Appellant, Clinton Marcum, appeals from his sentence in the Wayne

County Court of Common Pleas. This Court reverses.

                                                  I.

        {¶2}    After his daughter and granddaughters accused him of sexually assaulting them

over different time periods, a grand jury indicted Marcum on two counts of rape, two counts of

gross sexual imposition, four counts of corrupting a minor, three counts of sexual battery, three

counts of sexual imposition, and three counts of public indecency. Marcum waived his right to a

jury trial, and eleven of his counts were either dismissed at the request of the State or by virtue of

the trial court granting his motion for acquittal. The trial court ultimately found him guilty of

two counts of gross sexual imposition, one count of sexual battery, and three counts of sexual

imposition.
                                                 2


         {¶3}   The trial court sentenced Marcum to five-year prison terms on each of his counts

for gross sexual imposition and sexual battery. It then sentenced him to 60-day jail terms on two

of his sexual imposition counts and declined to sentence him on the third sexual imposition

count.1 The court ordered Marcum to serve the sentences on his gross sexual imposition and

sexual imposition counts concurrently with one another, but consecutive to his five-year sentence

on the sexual battery count. Thus, it sentenced Marcum to a total of ten years in prison.

         {¶4}   Marcum now appeals from the court’s judgment and raises one assignment of

error for our review.

                                                II.

                                      Assignment of Error

         The trial court failed to make the findings necessary to impose consecutive
         sentences upon Appellant.

         {¶5}   In his sole assignment of error, Marcum argues that the trial court erred when it

imposed consecutive sentences upon him in the absence of the required statutory findings. We

agree.

         {¶6}   In reviewing a felony sentence, “[t]he appellate court’s standard for review is not

whether the sentencing court abused its discretion.” R.C. 2953.08(G)(2). “[A]n appellate court

may vacate or modify a felony sentence on appeal only if it determines by clear and convincing

evidence” that:    (1) “the record does not support the trial court’s findings under relevant

statutes[,]” or (2) “the sentence is otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d

516, 2016-Ohio-1002, ¶ 1. Clear and convincing evidence is that “which will produce in the




1
  During the sentencing hearing, the court found that two of the sexual imposition counts were
allied offenses of similar import. Thus, those counts merged for purposes of sentencing and no
separate sentence was imposed on the third count.
                                                3


mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”

Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.

       {¶7}    A court may order an offender to serve consecutive prison terms for multiple

offenses if: (1) “the court finds that the consecutive service is necessary to protect the public

from future crime or to punish the offender”; (2) “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) the court also makes one of the required findings under R.C. 2929.14(C)(4)(a)-(c). R.C.

2929.14(C)(4). Those required findings are that:

       (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 [R.C.] 2929.16, 2929.17, or 2929.18 * * *, 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 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[; or]

       (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)(4)(a)-(c). A court may not impose consecutive prison terms without “mak[ing]

the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporat[ing] its

findings into its sentencing entry * * *.” State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177,

syllabus. Though a “word-for-word recitation of the language of the statute is not required,” a

reviewing court must be able to (1) “discern that the trial court engaged in the correct analysis”;

and (2) “determine that the record contains evidence to support the findings * * *.” Id. at ¶ 29.

“When a trial court imposes consecutive sentences without making the R.C. 2929.14(C)(4)

findings at the sentencing hearing, the remedy is to remand the matter for resentencing.” State v.

Williams, 9th Dist. Medina No. 14CA0072-M, 2015-Ohio-2197, ¶ 9.
                                                4


       {¶8}     The trial court here did not cite R.C. 2929.14(C)(4) in its sentencing entry or

make any written findings corresponding to that subsection. Instead, the court wrote that it had

considered “the purposes and principles of sentencing under R.C. 2929.11, the seriousness and

recidivism factors relevant to the offense and offender pursuant to R.C. 2929.12, and the need for

deterrence, incapacitation, rehabilitation and restitution.” Likewise, at the sentencing hearing,

the court only discussed having fashioned Marcum’s sentence “based upon the overriding

principles and purposes of felony sentencing.” Though the court briefly noted that a sentence

should protect the public, punish the offender, and “be proportional to the harm caused and

impact upon the victims,” the court gave no indication that it was considering Marcum’s conduct

in light of R.C. 2929.14(C)(4). Moreover, the court did not make any statements that this Court

could construe as satisfying one of the required findings under R.C. 2929.14(C)(4)(a)-(c).

       {¶9}     In its brief on appeal, the State concedes that the trial court failed to make the

requisite findings under R.C. 2929.14(C)(4).          Upon review, the record also supports the

conclusion that the trial court failed to make those findings. Because the court sentenced

Marcum to serve consecutive prison terms without making the required statutory findings, this

matter must be remanded for resentencing. Id. Accordingly, Marcum’s sole assignment of error

is sustained.

                                               III.

       {¶10} Marcum’s assignment of error is sustained. The judgment of the Wayne County

Court of Common Pleas is reversed, and the cause is remanded for resentencing.

                                                                              Judgment reversed,
                                                                             and cause remanded.
                                                 5




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     JULIE A. SCHAFER
                                                     FOR THE COURT



TEODOSIO, J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

MATTHEW J. MALONE, Attorney at Law, for Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting
Attorney, for Appellee.
