[Cite as State v. Morris, 2016-Ohio-7614.]


                     Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 104013




                                       STATE OF OHIO
                                                   PLAINTIFF-APPELLEE

                                             vs.

                                    WILLIAM MORRIS
                                                   DEFENDANT-APPELLANT




                               JUDGMENT:
                   AFFIRMED IN PART; REVERSED IN PART;
                       VACATED IN PART; REMANDED


                                 Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                 Case Nos. CR-13-577354, CR-14-588516 and CR-15-597117

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

        RELEASED AND JOURNALIZED: November 3, 2016
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender
BY: Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Zachary M. Humphrey
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, P.J.:

       {¶1}    Defendant-appellant William Morris appeals the consecutive sentences

imposed after (1) he pled guilty, in separate cases, to charges of failure to verify address

and escape arising out of his failure to comply with his reporting obligations as a

registered sex offender and while on postrelease control and (2) was found to have

violated community control sanctions in a third case. For the reasons that follow, we

affirm the trial court’s imposition of consecutive sentences on the failure to verify address

and escape convictions.      However, as to the community control violation, we vacate the

sentence imposed by the trial court and remand the matter for resentencing.

       Factual and Procedural Background

       {¶2} On December 11, 2013, Morris pled guilty to failure to verify his address in

violation of R.C. 2950.06(F) (Case No. CR-13-577354). The trial court imposed a

sentence of two years of community control sanctions. At sentencing, the trial court

indicated that if Morris violated his community control sanctions he would be subject to a

sentence of 24 months in prison and three years of discretionary postrelease control.

       {¶3} On August 28, 2014, Morris was again charged with failure to verify his

address in violation of R.C. 2950.06(F) (Case No. CR-14-588516).1 On July 15, 2015,

Morris was charged with escape for failing to comply with his reporting obligations for


        The failure to verify address that gave rise to Morris’ conviction in Case No. CR-13-577354
       1


occurred in June 2013. The failure to verify address that gave rise to Morris’ conviction in Case No.
CR-14-588516 occurred in June 2014.
postrelease control arising out of a 2010 conviction for attempted failure to verify his

address (Case No. CR-15-597117). In December 2015, Morris pled guilty to the failure

to verify address charge in Case No. CR-14-588516 and the escape charge in Case No.

CR-15-597117. The trial court sentenced Morris to 12 months in prison on each of the

offenses. Based on these convictions, the trial court found that Morris had violated the

terms of his community control in Case No. CR-13-577354 and sentenced him to 24

months in prison.       The trial court ordered that all three sentences be served

consecutively, imposing an aggregate prison sentence of four years, along with

postrelease control for up to three years.

       {¶4} Morris appealed his sentences, raising the following two assignments of error
for review:

       ASSIGNMENT OF ERROR NO. I:
       The trial court erred in denying William Morris his right to allocute at his
       sentencing hearing on his community control violation hearing in Case No.
       588516.

       ASSIGNMENT OF ERROR NO. II:
       The trial court imposed a sentence contrary to law and violated Mr. Morris’
       right to due process when it ordered consecutive sentences without making
       the requisite statutory findings supported by the record.

       Law and Analysis

       Right to Allocute at Sentencing Hearing on Community Control Violation

       {¶5} In his first assignment of error, Morris argues that the trial court erred in

denying him a right to allocute prior to imposing the sentence for his violation of

community control sanctions.

       {¶6} Crim.R. 32(A)(1) provides, in relevant part:
      At the time of imposing sentence, the court shall * * * [a]fford counsel an

      opportunity to speak on behalf of the defendant and address the defendant

      personally and ask if he or she wishes to make a statement in his or her own

      behalf or present any information in mitigation of punishment.

      {¶7}    Crim.R. 32(A) confers upon a defendant “an absolute right of allocution.”

State v. Green, 90 Ohio St.3d 352, 358, 738 N.E.2d 1208 (2000). It also imposes an

affirmative obligation on the trial court to “ask” a defendant “if he or she wishes to”

exercise that right.   State v. Keith, 8th Dist. Cuyahoga Nos. 102981, 103006, and

103009, 2016-Ohio-3056, ¶ 31.     The right cannot be waived before the trial court has

asked the defendant if he or she wishes to speak in allocution.    State v. Campbell, 90

Ohio St.3d 320, 324-325, 738 N.E.2d 1178 (2000); Keith at ¶ 30.

      {¶8}    “The purpose of allocution is to allow the defendant an opportunity to state

for the record any mitigating information which the judge may take into consideration

when determining the sentence to be imposed.” State v. Turjonis, 7th Dist. Mahoning

No. 11 MA 28, 2012-Ohio-4215, ¶ 6. The right of allocution belongs to the defendant

himself or herself.       State v. Matthews, 1st Dist. Hamilton No. C-140663,

2015-Ohio-5075, ¶ 12, citing State v. Thompson, 1st Dist. Hamilton No. C-120516,

2013-Ohio-1981, ¶ 5. “It is not enough for the trial court to give defense counsel the

opportunity to speak on the defendant’s behalf.”     Matthews at ¶ 12, citing Green, 90

Ohio St.3d at 359-360; see also State v. Crawley, 1st Dist. Hamilton Nos. C-150403 and

C-150422, 2016-Ohio-658, ¶ 10 (“[T]he notion counsel’s argument may substitute for the
defendant’s allocution has been rejected: ‘The most persuasive counsel may not be able to

speak for a defendant as the defendant might, with halting eloquence, speak for

himself.’”), quoting Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 5 L.Ed.2d

670 (1961). “Trial courts must painstakingly adhere to Crim.R. 32, guaranteeing the

right of allocution.   A Crim.R. 32 inquiry is much more than an empty ritual: it

represents a defendant’s last opportunity to plead his case or express remorse.” Green,

90 Ohio St.3d at 359-360.

       {¶9} At issue in this case is whether a defendant who was afforded the right of

allocution at his or her original sentencing hearing also has a right of allocution at the

sentencing hearing for his or her violation of community control when the trial court

imposes the prison term that it stated at the original sentencing hearing it would impose if

the defendant violated community control.

       {¶10} It is undisputed that the trial court did not give Morris an opportunity to

exercise his right to allocution at the community control violation hearing.         At the

community control violation hearing, the trial court gave both the state and defense

counsel an opportunity to address the court prior to sentencing Morris — neither of whom

offered anything beyond what they had said with respect to sentencing on the failure to

verify address and escape offenses in Case Nos. CR-14-588516 and CR-15-597117.

However, the trial court denied Morris an opportunity to make a statement on his own

behalf or to himself present any information in mitigation of punishment, stating that

Morris had no right to allocution prior to sentencing for a community control violation:
       THE COURT: All right. With regard to probation violation or community

       control the defendant does not have a right to allocution.         He’s already

       been sentenced on that. I’m not going to give you defendant [a] right to

       allocution on that because he doesn’t have it according to the courts of

       appeals.

The trial court then proceeded to impose the sentence for Morris’ community control

violation that it had informed Morris, at the original sentencing hearing, it could impose if

he violated community control — i.e., 24 months in prison — and imposed that sentence

consecutively to the sentences imposed for the failure to verify address and escape

offenses in Case Nos. CR-14-588516 and CR-15-597117.

       {¶11}      As the parties point out, there is a split among the districts on this issue.

Morris urges us to follow the First District and find that a defendant has a right to

allocution when he or she is being sentenced for a community control violation. See,

e.g., State v. Jackson, 1st Dist. Hamilton No. C-140384, 2015-Ohio-2171, ¶ 8; see also

State v. Osume, 1st Dist. Hamilton No. C-140390, 2015-Ohio-3850, ¶ 18-25; State v.

McAfee, 1st Dist. Hamilton No. C-130567, 2014-Ohio-1639, ¶ 14. The state urges us to

follow this court’s prior decision in State v. Henderson, 8th Dist. Cuyahoga No. 42765,

1981 Ohio App. LEXIS 10890, *12 (June 18, 1981) — in which we rejected the

defendant’s argument that he had a right to allocution prior to sentencing at his probation

revocation hearing — and decisions from the Third, Seventh and Eleventh Districts that

have held a defendant has no right to allocution prior to sentencing at a probation
revocation or community control violation hearing.    See, e.g., State v. Michael, 3d Dist.

Henry No. 7-13-05, 2014-Ohio-754, ¶ 29-32; State v. Favors, 7th Dist. Mahoning No.

08-MA-35, 2008-Ohio-6361, ¶ 13, 15-19; Turjonis, 2012-Ohio-4215, at ¶ 13; State v.

Payne, 11th Dist. Ashtabula No. 2015-A-0007, 2015-Ohio-5073, ¶ 29-34; see also State

v. Krouskoupf, 5th Dist. Muskingum No. CT2005-0024, 2006-Ohio-783, ¶ 15.

       {¶12} Since these cases were decided, the Ohio Supreme Court issued its decision

in State v. Heinz, 146 Ohio St.3d 374, 2016-Ohio-2814, 56 N.E.3d 965. In Heinz, the

Ohio Supreme Court held that the county prosecuting attorney has a right to notice of, and

the opportunity to represent the state at, community control violation proceedings. Id. at

¶ 2, 19, 21, 23. In reaching this conclusion, the court distinguished community control

violation hearings from probation violation and revocation hearings, noting, among other

differences, that following a community control violation hearing, the trial court conducts

a “second sentencing hearing” to which Crim.R. 32(A)(2) applies:

       Effective July 1, 1996, the General Assembly enacted Am.Sub.S.B. No. 2,
       146 Ohio Laws, Part IV, 7136 to revise Ohio’s felony sentencing statutes,
       and among other changes, “community control replaced probation as a
       possible sentence under Ohio’s felony sentencing law.” (Emphasis
       added.) State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-4888, 814 N.E.2d
       1201, ¶ 16. Unlike probation, which is a period of time served during
       suspension of a sentence, community control sanctions are imposed as the
       punishment for an offense at a sentencing hearing. R.C. 2929.01(E); R.C.
       2929.01(FF). * * *

       The revocation of community control is an exercise of the sentencing
       court’s criminal jurisdiction, and pursuant to R.C. 2929.15(B)(1), the court
       may extend the term of the offender’s community control or impose a more
       restrictive sanction or a prison term if the conditions of community control
       are violated. As we explained in State v. Fraley, 105 Ohio St.3d 13,
       2004-Ohio-7110, 821 N.E.2d 995, ¶ 17, “[f]ollowing a community control
       violation, the trial court conducts a second sentencing hearing. At this
       second hearing, the court sentences the offender anew and must comply
       with the relevant sentencing statutes.” And at a sentencing hearing, “[t]he
       state has the right to be present * * *.” State v. Simpkins, 117 Ohio St.3d
       420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 44, fn. 2 (Lanzinger, J.,
       dissenting).

       Thus, in contrast to probation violation and revocation proceedings as
       described by the court in Gagnon, community control violation hearings are
       formal, adversarial proceedings.          Moreover, at community control
       violation hearings, the Rules of Criminal Procedure afford an offender the
       right to counsel, Crim.R. 32.3(B), and pursuant to R.C. 2930.09, a victim in
       the case has the right to be present. * * *

       Furthermore, R.C. 2929.19(A) and Crim.R. 32(A)(2) direct the trial court at
       the time of imposing sentence to afford the prosecuting attorney the right to
       appear and speak on behalf of the state, because it has an interest in
       ensuring that a proper sentence is imposed to punish and rehabilitate the
       offender while protecting the public, R.C. 2929.11(A). These same
       statutes apply when the court decides the appropriate sentence for a
       community control violation. Fraley at ¶ 17. * * *

Heinz at ¶ 14-16, 19.

       {¶13} Crim.R. 32(A)(2) provides that “[a]t the time of imposing sentence, the

court shall * * * [a]fford the prosecuting attorney an opportunity to speak.” Because,

under Heinz, Crim.R. 32(A)(2) “appl[ies] when the court decides the appropriate sentence

for a community control violation,” Heinz at ¶ 19, Crim.R. 32(A)(1), which requires the

trial court, “[a]t the time of imposing sentence,” to “address the defendant personally and

ask if he or she wishes to make a statement in his or her own behalf or present any

information in mitigation of punishment,” must also apply when sentencing a defendant

for a community control violation.   Accordingly, the trial court erred in denying Morris a

right of allocution at the sentencing hearing on his community control violation.
       {¶14}     The state argues that even if Morris had a right of allocution at the

community control violation hearing, he was not denied that right because the trial court

gave Morris an opportunity to personally address the trial court at the sentencing hearing

on the failure to verify address and escape offenses, which immediately preceded the

community control violation hearing, and the trial court indicated it would “incorporate”

the “arguments” made at that sentencing hearing into the community control violation

hearing. At the sentencing hearing in Case Nos. CR-14-588516 and CR-15-597117, the

trial court stated:

       THE COURT: At this point it’s my intention to go directly to sentencing on
       these matters. I will also follow up with a community control violation
       hearing on the 577354 case. I’ll incorporate all of your arguments from
       sentencing into the PV as well.

       {¶15}     After the state and defense counsel made their respective arguments to the

trial court regarding appropriate sentencing on the failure to verify address and escape

offenses, the trial court gave Morris an opportunity to address the court:

       THE COURT: Mr. Morris, anything you like to add before I impose
       sentence?

       THE DEFENDANT: No sir.

       {¶16} We do not agree that this exchange satisfied the trial court’s obligation

under Crim.R. 32(A)(1) to “address the defendant personally and ask if he or she wishes

to make a statement in his or her own behalf or present any information in mitigation of

punishment” at the time of imposing sentence on Morris’ community control violation.

Although the trial court indicated that it would incorporate all of the parties’ arguments
made during sentencing on the failure to verify and escape offenses in Case Nos.

CR-14-588516 and CR-15-597117 into the community control violation hearing, it did

not indicate that any statements made by Morris at sentencing on the failure to verify

address and escape charges would be considered in sentencing him on his community

control violation. To the contrary, the trial court expressly stated that it was “not going

to give [Morris] a right to allocution on that,” mistakenly believing that Morris did not

have a right to allocution at the sentencing hearing on his community control violation.

          {¶17}   Where, as here, “the trial court has imposed sentence without first asking

the defendant whether he or she wishes to exercise the right of allocution created by

Crim.R. 32(A), resentencing is required unless the error is invited error or harmless

error.”     Campbell, 90 Ohio St.3d 320, 738 N.E.2d 1178, at paragraph three of the

syllabus; see also State v. King, 8th Dist. Cuyahoga No. 95972, 2011-Ohio-3985, ¶ 8

(defendant was entitled to remand for further resentencing where transcript from

resentencing hearing demonstrated that, while the trial court allowed defense counsel to

speak, it failed to personally address the defendant and afford her the opportunity to make

a statement or offer information in mitigation of punishment and there were “no factors

warranting a finding of invited or harmless error”).

          {¶18} “Invited error” is more than “mere acquiescence” in the trial court’s failure

to comply with Crim.R. 32(A)(1). Campbell at 324.           An error is “invited” only if the

defendant or defense counsel “‘induced’” or was “‘actively responsible’” for the        trial

court’s error.    Id., quoting State v. Kollar, 93 Ohio St. 89, 91, 112 N.E. 196 (1915).
There is nothing in the record that warrants a finding of invited error.          We must,

therefore, consider whether the trial court’s failure to ask Morris if he wished to make a

statement in his own behalf or present any information in mitigation of punishment prior

to sentencing him on the community control violation was harmless error.

       {¶19}   “[A] trial court’s failure to address the defendant at sentencing is not

prejudicial in every case.” Campbell at 325; see also Crim.R. 52(A) (“[a]ny error,

defect, irregularity, or variance which does not affect substantial rights” is harmless error

and “shall be disregarded”). “The question of what constitutes harmless error in the

context of the right to allocution, however, is open to some question.”             State v.

Thompson, 1st Dist. Hamilton No. 2013-Ohio-1981, ¶ 9; compare State v. Reynolds, 80

Ohio St.3d 670, 684, 687 N.E.2d 1358 (1998) (trial court’s failure to afford defendant a

right of allocution before sentencing him to the death penalty was harmless error because

defendant had made an unsworn statement during the penalty phase, had sent a letter to

the trial court and defense counsel made a statement on his behalf); State v. Woods, 8th

Dist. Cuyahoga No. 96487, 2011-Ohio-5825, ¶ 25 (trial court’s failure to provide

defendant an opportunity for allocution at his resentencing to impose postrelease control

was harmless error where defendant was provided an opportunity for allocution at the

original sentencing hearing, the same trial judge who originally sentenced defendant

conducted the resentencing, the defendant’s sentence remained unchanged and “[t]he

outcome was inevitable” because the trial court was statutorily required to impose five

years of postrelease control); State v. Reed, 10th Dist. Franklin No. 09AP-1164,
2010-Ohio-5819, ¶ 19 (trial court’s failure to provide defendant with right to allocution

was harmless where defendant had been sentenced to the minimum prison term allowed

and trial court imposed no fines and waived costs) with In re S.D., 8th Dist. Cuyahoga

No. 99763, 2014-Ohio-2528, ¶ 34-35 (denial of defendant’s right to allocute was not

harmless error where trial court considered defendant’s lack of remorse and “used [it]

against him” during disposition given that “[t]hose words of contrition the court was

looking for normally come, if at all, at the sentencing or dispositional hearing after the

defendant is given the opportunity to make a statement”); Jackson, 2015-Ohio-2171, at ¶

13-15 (denial of right to allocute was not harmless error where, when defendant attempted

to speak, trial court told him to be quiet two times, trial court did not afford defendant’s

counsel an opportunity to speak on his behalf before imposing sentence and “[g]iven that

the trial court imposed the maximum prison term,” it could not be said that “had the trial

court afforded [defendant] and his attorney the opportunity to present evidence in

mitigation, it would have had no positive effect upon his sentence”); State v. McComb, 2d

Dist. Montgomery Nos. 23604, 23605, 23606, 23607 and 23608, 2010-Ohio-4043, ¶ 9

(trial court’s error in failing to address defendant personally and inquire whether he

wished to speak on his own behalf prior to imposing sentence was not harmless because

defendant “did not have an alternative opportunity to address the court on the issue of

mitigation prior to the imposition of sentence”).

       {¶20} Morris asserts that, if he had been permitted to allocute at the community

control violation hearing, he would have “remind[ed]” the trial court of the “mitigating
circumstances” from “two years earlier” that led the trial court to impose community

control sanctions at the original sentencing hearing.    He indicates that “while [he] may

not have had mitigation with respect to his second two cases [Case Nos. CR-14-588516

and CR-15-597117], he clearly did have mitigation with respect to his first case,” noting

that at Morris’ original sentencing hearing in Case No. CR-13-577354, “the trial court

was receptive to Morris’ explanation that his difficulty verifying was attributable, in part,

to his homelessness and his being a victim of assault at the homeless shelter.”

       {¶21} Where, as here, the trial court explicitly stated that it would “not * * * give

[Morris] a right to allocution” and Morris did not otherwise have an opportunity, prior to

sentencing, to personally address the trial court and offer mitigation information with

respect to his community control violation, we cannot state that the trial court’s failure to

ask the defendant whether he wished to make a statement in his own behalf or present any

information in mitigation of punishment prior to sentencing him on the community

control violation was harmless error.

       {¶22} This is not a case in which the defendant received the minimum sentence for

his offense.   Morris received the maximum sentence the trial court could impose for his

community control violation. We cannot know what, if anything, Morris might have

said if he had been given an opportunity to speak prior to sentencing on his community

control violation or how, if at all, any mitigation information he might have provided

could have impacted the sentence he ultimately received.     As such, the trial court’s error

in denying Morris a right to allocute was not harmless.           We sustain Morris’ first
assignment of error.      We reverse the trial court’s judgment in part, vacate the sentence

imposed on Morris’ community control violation in Case No. CR-13-577354 only and

remand the matter to the trial court with instructions to resentence Morris on his

community control violation after providing him an opportunity to allocute in accordance

with Crim.R. 32(A)(1).

       Imposition of Consecutive Sentences

       {¶23} In his second assignment of error, Morris contends that his consecutive

sentences should be vacated because the trial court failed to make the requisite findings

for the imposition of consecutive sentences under R.C. 2929.14(C)(4) and that, even if the

trial court made such findings, the findings were not supported by the record. Based on

our disposition of Morris’ first assignment of error, we address his second assignment of

error only to the extent it alleges the trial court erred in imposing consecutive sentences

on the failure to verify address and escape offenses in Case Nos. CR-14-588516 and

                   2
CR-15-597117.

       {¶24} We review felony sentences under the standard set forth in R.C.

2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d

1231, ¶ 1, 21-22.        Under R.C. 2953.08(G)(2), an appellate court may vacate the

imposition of consecutive sentences where it “clearly and convincingly” finds that (1)


       2
         As to Morris’ claim that the trial court erred in ordering that the sentence on his community
control violation in Case No. CR-13-577354 be served consecutively to the sentences imposed on the
failure to verify address and escape offenses in Case Nos. CR-14-588516 and CR-15-597117, his
assignment of error is moot.
the record does not support the trial court’s findings under R.C. 2929.14(C)(4) or (2) the

sentence is “otherwise contrary to law.” R.C. 2953.08(G)(2). If a trial court fails to

make the findings required under R.C. 2929.14(C)(4), the imposition of consecutive

sentences is contrary to law. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16

N.E.3d 659, ¶ 37; State v. Primm, 8th Dist. Cuyahoga No. 103548, 2016-Ohio-5237, ¶ 66,

citing State v. Balbi, 8th Dist. Cuyahoga No. 102321, 2015-Ohio-4075, ¶ 4.

       {¶25} In Ohio, there is a presumption that prison sentences should be served

concurrently, unless the trial court makes the findings outlined in R.C. 2929.14(C)(4) to

warrant consecutive service of the prison terms. Primm at ¶ 64, citing State v. Cox, 8th

Dist. Cuyahoga No. 102629, 2016-Ohio-20, ¶ 3, and R.C. 2929.41(A). Pursuant to R.C.

2929.14(C)(4), in order to impose consecutive sentences, the trial court must find that

consecutive sentences are necessary to protect the public from future crime or to punish

the offender, that such sentences are not disproportionate to the seriousness of the

conduct and to the danger the offender poses to the public and that at least one of the

following also applies:

       (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 postrelease 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.
       (c) The offender’s history of criminal conduct demonstrates that
       consecutive sentences are necessary to protect the public from future crime
       by the offender.

       {¶26} The trial court must both make the statutory findings required for

consecutive sentences at the sentencing hearing and incorporate those findings into its

sentencing entry. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at

syllabus. To make the requisite “findings” under the statute, “‘the [trial] court must note

that it engaged in the analysis’ and that it ‘has considered the statutory criteria and

specifie[d] which of the given bases warrants its decision.’” Id. at ¶ 26, quoting State v.

Edmonson, 86 Ohio St.3d 324, 326, 715 N.E.2d 131 (1999). A trial court need not give a

“talismanic incantation of the words of the statute” when imposing consecutive sentences,

“provided that the necessary findings can be found in the record and are incorporated in

the sentencing entry.” Bonnell at ¶ 37; see also State v. Thomas, 8th Dist. Cuyahoga No.

102976, 2016-Ohio-1221, ¶ 16 (“the trial court’s failure to employ the exact wording of

the statute does not mean that the appropriate analysis is not otherwise reflected in the

transcript or that the necessary finding has not been satisfied”).

       {¶27} In this case, when imposing consecutive sentences, the trial court stated:

       The law does favor concurrent terms. However, a judge is given
       discretion in certain circumstances if necessary to protect and punish, if the
       offense is — if the offense, sentence is not disproportionate to impose
       consecutive sentences. As I said, this defendant was found guilty of
       violent [crimes], rape and kidnapping, he has utterly failed the
       responsibilities to the people of the State of Ohio to report his whereabouts
       and make his whereabouts known. I believe he’s a danger to the public
       doing that. I believe consecutive sentences in this matter are necessary to
       protect and punish, are not disproportionate. The present crimes were
       committed while defendant was on post-release control from the original
      rape case in this matter and also while the defendant was on probation to
      this court for the identical offense. And also the defendant’s criminal
      history shows that consecutive terms are necessary in this matter for [the]
      reasons I already stated to protect the public. Therefore, case numbers
      597117, 577534 and 588516 will be run consecutive to one another for an
      overall aggregate sentence of four years.

      {¶28} In addition, the trial court’s December 17, 2015 sentencing journal entry

included the following findings:

      The court imposes prison terms consecutively finding that consecutive

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

      defendant; that the consecutive sentences are not disproportionate to the

      seriousness of defendant’s conduct and to the danger defendant poses to the

      public; and that, the defendant committed one or more of the multiple

      offenses while the defendant was awaiting trial or sentencing or was under

      a community control or was under post-release control for a prior offense,

      or defendant’s history of criminal conduct demonstrates that consecutive

      sentences are necessary to protect the public from future crime by

      defendant.

      {¶29} Morris concedes that the trial court made some of the findings required for

the imposition of consecutive sentences, including that consecutive sentences are

necessary to protect the public from future crime or to punish the offender and one or

more of the findings required under R.C. 2929.14(C)(4)(a)-(c). He does not dispute that

all of the requisite findings were included in the trial court’s sentencing entry. However,

Morris contends that the trial court failed to make the proportionality findings required
under R.C. 2929.14(C)(4) at the sentencing hearing. He argues that the trial court failed

to find that (1) consecutive sentences would not be disproportionate to the seriousness of

Morris’ conduct and (2) consecutive sentences would not be disproportionate to the

danger Morris poses to the public. He contends that the trial court’s determination that

consecutive sentences “are not disproportionate” without “specify[ing] what, if anything,

its proportionality finding was related to” did not satisfy its statutory obligation to find

that consecutive sentences are not disproportionate both to the “seriousness of the

conduct” and the “danger the offender poses to the public” prior to imposing consecutive

sentences.   We disagree.

       {¶30} This court has repeatedly rejected similar arguments. In State v. Crawley,

8th Dist. Cuyahoga No. 102781, 2015-Ohio-5150, for example, this court stated:

       In the case at hand, appellant contends that the trial court failed to make the
       requisite findings, under R.C. 2929.14(C)(4), that consecutive sentences are
       not disproportionate to the seriousness of his conduct and to the danger he
       poses to the public. * * *

       Appellant disputes the trial court’s lack of specificity, arguing that the court
       merely stated that the sentences were “not disproportionate,” without
       specifying the basis on which that determination was made. Therefore,
       appellant argues, the trial court failed to make sufficient findings required
       by R.C. 2929.14(C)(4).

       This court has repeatedly held that although the trial court must make the

       findings required by R.C. 2929.14(C)(4), the court has no obligation to state

       the reasons to support its findings. Having made sufficient findings for the

       imposition of consecutive sentences, the trial court fulfilled the R.C.

       2929.14(C)(4) requirements. Thus, the trial court’s failure to identify the
      factors — or “the reasons” — that were considered in its proportionality

      analysis does not render the consecutive sentences contrary to law.

Crawley at ¶ 10, 12-13. Similarly, in State v. Cooperwood, 8th Dist. Cuyahoga Nos.

99309-99311, 2013-Ohio-3432, this court stated:

      Cooperwood complains that the trial court, instead of stating that
      consecutive sentences “would not be disproportionate to the seriousness of
      the offender’s conduct and to the danger the offender poses to the public,”
      stated only that consecutive sentences “would not be disproportionate.”
      Viewing the court’s statement in its context, we are satisfied that the trial
      court made a distinct “proportionality” finding in compliance with the
      statute.

Cooperwood at ¶ 40.

      {¶31} Likewise, in State v. Amey, 8th Dist. Cuyahoga Nos. 103000 and 103001,

2016-Ohio-1121, this court held that, when the trial court’s remarks were “[v]iew[ed] * *

* in their entirety,” the trial court’s statement that consecutive sentences “would not be

disproportionate” was sufficient to constitute a statutory finding that consecutive

sentences “would not be disproportionate to the seriousness of the offender’s conduct and

to the danger the offender poses to the public” in compliance with R.C. 2929.14(C)(4) as

follows:

      Amey complains that the court stated only that consecutive sentences
      “would not be disproportionate,” and therefore did not make the statutory
      finding that consecutive sentences “would not be disproportionate to the
      seriousness of the offender’s conduct and to the danger the offender poses
      to the public.” * * *

      [I]n this matter, the trial court’s statements on the record clearly indicate
      that it considered proportionality with regard to the seriousness of Amey’s
      conduct and the danger presented. The court remarked that Amey was on
      probation for a domestic violence conviction * * *. The court noted that he
      had been referred to domestic violence classes but did not attend them. The
      court also outlined Amey’s extensive record that included crimes of
      violence and offenses committed while Amey was on community control
      sanctions. The court remarked that he had not “responded favorably to
      sanctions previously imposed.” Viewing the court’s remarks in their
      entirety, we are satisfied that the trial court made a distinct “proportionality”
      finding in compliance with the statute.

Amey at ¶ 15-16.

      {¶32} In State v. Kirkman, 8th Dist. Cuyahoga No. 103683, 2016-Ohio-5326, this

court held that a finding that consecutive service of a defendant’s sentences would not be

disproportionate to the seriousness of his conduct could be discerned from the court’s

statement that “I don’t believe it’s disproportionate.”       Kirkman at ¶ 5.      The court

indicated that “[w]hile we prefer that the sentencing judge make separate and distinct

findings under R.C. 2929.14(C)(4),” in Bonnell, the Ohio Supreme Court took “a more

‘relaxed’ approach to those findings, finding that the requisite findings could be made if

the reviewing court could ‘discern’ them from statements made by the sentencing judge.”

Id. at ¶ 4; see also State v. McCoy, 8th Dist. Cuyahoga No. 103671, 2016-Ohio-5240, ¶

13-14 (trial court made findings required under R.C. 2929.14(C)(4) that consecutive

sentences were not disproportionate to the seriousness of defendant’s conduct and the

danger he posed to the public where trial judge said “based upon the defendant’s actions,

three separate cases where firearms were utilized or brandished, individuals being robbed

* * * at shopping centers, I don’t believe that any punishment would be disproportionate,

and I believe it’s necessary to protect and punish”); State v. Chaney, 2d Dist.

Montgomery No. 2015-CA-116, 2016-Ohio-5437, ¶ 11 (“‘[T]he trial court’s failure to
employ the phrase “not disproportionate to the * * * danger [appellant] poses to the

public” does not mean that the trial court failed to engage in the appropriate analysis and

failed to make the required finding.’”), quoting State v. Hargrove, 10th Dist. Franklin No.

15AP-102, 2015-Ohio-3125, ¶ 21.

       {¶33} State v. Elmore, 7th Dist. Jefferson No. 14 JE 0021, 2016-Ohio-890, upon

which Morris relies, is distinguishable. In that case, the trial court never used the term

consecutive sentence and never used the terms proportionate or disproportionate or

otherwise applied the concept when imposing consecutive sentences. Id. at ¶ 54, 58-60.

As the Seventh District noted: “Inherent in the proportionality finding is that a trial court

engage in a weighing process, comparing or balancing these two factors, which it stands

in the best position to do.” Id. at ¶ 58. In this case, the record demonstrates that the trial

court carefully weighed the seriousness of Morris’ conduct and the danger he poses to

the public against the consecutive service of his sentences.

       {¶34} On the record before us, we find that the trial court satisfied its statutory

obligations to make the requisite findings for imposing consecutive sentences under R.C.

2929.14(C)(4) and to incorporate those findings into the sentencing entry. The trial

court’s statements on the record indicate that it considered proportionality both with

regard to the seriousness of Morris’ conduct and the danger he poses to the public. The

trial court expressly found that consecutive service of Morris’s sentences was “necessary

* * * to protect the public” and that “consecutive sentences in this matter are necessary to

protect and punish, are not disproportionate.” The trial court further remarked that
Morris “was found guilty of violent sentences, rape and kidnapping,” that he “has utterly

failed the responsibilities to the people of the State of Ohio to report his whereabouts and

make his whereabouts known” and that he’s “a danger to the public doing that.”           The

trial court also noted that the offenses were committed while Morris was on postrelease

control and while he was on “probation” for an “identical offense” for failure to verify his

address.    Viewing the trial court’s remarks in their entirety, we can discern from the trial

court’s statement — “I believe consecutive sentences in this matter are necessary to

protect and punish, are not disproportionate” — findings that consecutive sentences are

both not disproportionate to the seriousness of Morris’ conduct and not disproportionate

to the danger Morris poses to the public.

       {¶35} Morris next argues that the record does not support the trial court’s

proportionality findings. He contends that because the reporting violations giving rise to

his convictions did not involve “any harm to persons or property” and “are not new

substantive crimes at all” but rather, are only “technical in nature,” the record does not

support the trial court’s findings that consecutive sentences are disproportionate to the

seriousness of his conduct and to the danger he poses to the public. Once again, we

disagree.

       {¶36} Where, as here, the trial court has made the findings required to impose

consecutive sentences, we cannot vacate those sentences unless we “clearly and

convincingly find[]” that “the record does not support the sentencing court’s findings.”

R.C. 2953.08(G)(2); see also Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d
1231 at ¶ 22 (“R.C. 2953.08(G)(2)(a) compels appellate courts to modify or vacate

sentences if they find by clear and convincing evidence that the record does not support

any relevant findings under [R.C. 2929.14(C)(4)]”), citing State v. Belew, 140 Ohio St.3d

221, 2014-Ohio-2964, 17 N.E.3d 515, ¶ 12 (Lanzinger, J., dissenting from the decision to

dismiss the appeal as having been improvidently accepted).

       {¶37} As this court explained in State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453

(8th Dist.), “[t]his is an extremely deferential standard of review”:

       It is also important to understand that the clear and convincing standard
       used by R.C. 2953.08(G)(2) is written in the negative. It does not say that
       the trial judge must have clear and convincing evidence to support its
       findings. Instead, it is the court of appeals that must clearly and
       convincingly find that the record does not support the court’s findings. In
       other words, the restriction is on the appellate court, not the trial judge.

Id. at ¶ 21.

       {¶38} “Clear and convincing evidence is that measure or degree of proof which is

more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty

as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in

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

established.” Marcum at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d

118 (1954), paragraph three of the syllabus.

       {¶39} We do not “clearly and convincingly” find that the record does not support

the trial court’s findings. The record reflects that Morris has a fairly extensive criminal

history dating back to 1993 that includes several OVIs, a domestic violence conviction,

probation violations, rape, kidnapping and burglary convictions and multiple similar
reporting violations, as to which prior, lesser sanctions had not discouraged Morris from

engaging in the same conduct.        The trial court concluded that consecutive prison

sentences were the only way to impress on Morris the importance of complying with his

reporting obligations and to keep the public safe from his criminal conduct.

       {¶40}   Accordingly, there is no basis for vacating the trial court’s imposition of

consecutive sentences on the failure to verify address conviction in Case No.

CR-14-588516 and the escape conviction in Case No. CR-15-597117 under R.C.

2929.14(C)(4) or R.C. 2953.08(G)(2). Morris’ second assignment of error is overruled

in part and moot in part.

       {¶41} Judgment affirmed in part; reversed in part; vacated in part; remanded.

       It is ordered that appellant recover from appellee 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 Cuyahoga

County Court of Common Pleas to carry this judgment into execution.

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

Rule 27 of the Rules of Appellate Procedure.


______________________________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE

TIM McCORMACK, J., and
EILEEN T. GALLAGHER, J., CONCUR
