[Cite as State v. Brooks, 2014-Ohio-3906.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 100455




                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                     DONZEL BROOKS
                                                    DEFENDANT-APPELLANT




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CR-11-556822

        BEFORE: Rocco, P.J., Keough, J., and Stewart, J.

        RELEASED AND JOURNALIZED: September 11, 2014

                                              -i-
ATTORNEY FOR APPELLANT

Michael K. Webster
800 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: James M. Price
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, P.J.:

       {¶1} Defendant-appellant Donzel Brooks appeals from the sentences imposed

upon him after he entered guilty pleas to charges of attempted murder, domestic violence,

endangering children, and criminal damaging.

       {¶2} Brooks presents a single assignment of error in which he asserts that the trial

court failed to make the necessary findings prior to imposing consecutive terms of

incarceration. Based upon the directive set forth by the Ohio Supreme Court in State v.

Bonnell, Slip Opinion No. 2014-Ohio-3177, his his assignment of error is sustained.

This case must be remanded for a resentencing hearing.

       {¶3} Brooks was indicted in this case in December, 2011 on six counts. He was

charged with attempted murder, kidnapping, two counts of felonious assault, domestic

violence, endangering children, and criminal damaging. He entered pleas of not guilty at

his arraignment.

       {¶4} After obtaining discovery from the state, Brooks accepted the state’s offer to

dismiss the counts of kidnapping and felonious assault in exchange for Brooks’s guilty

pleas to the other charges. The trial court conducted a thorough plea hearing prior to

accepting Brooks’s guilty pleas.     The trial court then ordered the preparation of a

presentence investigation report.

       {¶5} When the trial court called Brooks’s case for sentencing on March 19, 2012,

the court stated it had reviewed the presentence report. The court permitted Brooks’s

attorney to present a mitigation argument, heard Brooks’s expression of remorse for the
offenses, and listened to the victim, her cousin, and the prosecutor as each described the

incident and its effect.

       {¶6} The trial court stated that it had considered R.C. 2929.11 and 2929.12. The

court listed the seriousness and recidivism factors that it found applied in Brooks’s case.

The court noted that Brooks attacked his wife with two knives, “scarred her for life in

many ways,” and also placed their infant in danger by his behavior.

       {¶7} The court then stated that it found that a prison sentence was “consistent

with” the sentencing statutes.    The court stated that Brooks was “not amenable to

community-controlled sanction due to the seriousness of [his] conduct and its impact on

the victim,” and that a prison sentence was “reasonably necessary to deter the offender, in

order to protect the public from future crimes, and because it would not place an

unnecessary burden on government resources.”

       {¶8} The trial court proceeded to impose a ten-year prison sentence for Brooks’s

attempted murder conviction and concurent six-month terms of incarceration on each of

his other convictions, but the term imposed for the child endangering conviction was

ordered to be served consecutively to the other terms.

       {¶9} This court permitted Brooks to file a delayed appeal.        He presents one

assignment of error for review.

             I. The trial court failed to make the statutorily-required findings
       necessary to impose consecutive prison sentences.

       {¶10} Brooks argues that the trial court’s remarks were insufficient to comply with

R.C. 2929.14(C)(4); therefore, the court improperly imposed consecutive terms.
      Brooks’s sentencing hearing took place after the provisions of 2011 Am.Sub.H.B. 86

      became effective. Based upon the Ohio Supreme Court’s interpretation of the sentencing

      provisions contained in that law as set forth in State v. Bonnell, Slip Opinion No.

      2014-Ohio-3177, this court agrees.

             {¶11} In Bonnell, at ¶ 28-29, the court stated in relevant part as follows:

                      On appeals involving the imposition of consecutive sentences, R.C.
             2953.08(G)(2)(a) directs the appellate court “to review the record, including
             the findings underlying the sentence” and to modify or vacate the sentence
             “if it clearly and convincingly finds * * * [t]hat the record does not support
             the sentencing court’s findings under division * * * (C)(4) of section
             2929.14 * * * of the Revised Code.” But that statute does not specify where
             the findings are to be made. Thus, the record must contain a basis upon
             which a reviewing court can determine that the trial court made the findings
             required by R.C. 2929.14(C)(4) before it imposed consecutive sentences.

             When imposing consecutive sentences, a trial court must state the required
      findings as part of the sentencing hearing, and by doing so it affords notice to the
      offender and to defense counsel. See Crim.R. 32(A)(4). And because a court speaks
      through its journal, State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, 863 N.E.2d
      1024, ¶ 47, the court should also incorporate its statutory findings into the sentencing
      entry. However, 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.

(Emphasis added.)

      {¶12} Thus, the record must demonstrate that the trial court imposed consecutive sentences

because it found: (1) consecutive sentences were necessary to protect the public or to punish the

offender, (2) they are not disproportionate to the seriousness of the offender’s conduct and the danger

the offender poses to the public, and (3) either, (a) the offender’s history of criminal conduct

demonstrated consecutive sentences were necessary to protect the public from future crime, or, (b) 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, or, (c) 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. R.C. 2929.14(C)(4).

              {¶13} The trial court’s comments in this case were insufficient to comply with

       R.C. 2929.14(C)(4).     Although the trial court found that consecutive terms were

       necessary “to protect the public,” and that the harm Brooks caused by the offenses he

       committed was so great or unusual that no single prison term reflected the seriousness of

       his conduct, the court made no proportionality finding.       As stated in Bonnell, Slip

       Opinion No. 2014-Ohio-3177, ¶ 37:

                     In order to impose consecutive terms of imprisonment, a trial court is
              required to make the findings mandated by R.C. 2929.14(C)(4) at the
              sentencing hearing and incorporate its findings into its sentencing entry * *
              * . Accordingly, the imposition of consecutive sentences in this case is
              contrary to law. Thus, we are constrained to * * * vacate the sentence, and
              remand the matter to the trial court for re-sentencing.

       (Emphasis added.)

              {¶14} Therefore, Brooks’s assignment of error is sustained.

              {¶15} Brooks’s sentence is reversed and this case is remanded for resentencing

       pursuant to Bonnell. But see State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, 1

       N.E.3d 382, ¶ 7-9.
      It is ordered that appellant recover from appellee 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. Case remanded to the trial court for

further proceedings.




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

the Rules of Appellate Procedure.



__________________________________________
KENNETH A. ROCCO, PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., CONCURS;
MELODY J. STEWART, J., CONCURS,
(SEE SEPARATE CONCURRING OPINION)

MELODY J. STEWART, J., CONCURRING:

      {¶16} I concur with the majority decision in this case, but write separately to

question whether the Supreme Court’s decision in Bonnell suggests or permits two

unexplored (or relatively unexplored) avenues in which reviewing courts can proceed

when considering the imposition of consecutive sentences. The first is, can reviewing

courts construe as synonymous the argument that — “the trial court failed to make the
statutory findings for consecutive sentences” with the argument that “the record does not

support the findings for consecutive sentences”? The second is, if the reviewing court

determines that the trial court did not make all or some of the required findings, instead of

vacating the sentence and remanding for resentencing, as we do in this case and as the

Supreme Court ordered in Bonnell, can the reviewing court instead

       reduce, or otherwise modify [the] sentence * * * [as an] action authorized

       by [the statute] if [the reviewing court] clearly and convincingly finds * * *

       [t]hat the record does not support the sentencing court’s findings under

       division * * * (C)(4) of section 2929.14 * * * [or] * * * [t]hat the sentence

       is otherwise contrary to law

pursuant to R.C. 2953.08(G)(2), and order that the sentences be served concurrently?

R.C. 2953.08(G)(2). The opinion in Bonnell implies that the answer is “yes” to both.

       {¶17} In his appeal to the Fifth District, Bonnell asserted that “the imposition of

consecutive sentences was contrary to law because the trial court failed to make the

findings required by R.C. 2929.14(C)(4).” Id. at ¶ 11, citing [State v. Bonnell, 5th Dist.

Delaware No. 12CAA030022,] 2012-Ohio-5150, ¶ 5. The Supreme Court accepted

Bonnell’s discretionary appeal on the proposition of law: “A trial court must expressly

make the findings required in R.C. 2929.14, give the reasons supporting those finding at

the time of sentencing, and include said findings in its subsequent judgment entry.”

(Quotation marks omitted.) Id. at ¶ 12. These statements make clear that at the court of
appeals and at the Supreme Court, Bonnell argued specifically that the trial court did not

make the statutory findings required to impose consecutive sentences.

       {¶18} However, the Supreme Court’s decision appears to conflate the

failed-to-make-the-findings argument with an argument that the record does not support

the trial court’s findings. Opening its analysis with the encompassing sentence, “On

appeals involving the imposition of consecutive sentences,” the court at ¶ 28 of Bonnell

states that “R.C. 2953.08(G)(2)(a) directs the appellate court ‘to review the record,

including the findings underlying the sentence’ and to modify or vacate * * * ‘if it * * *

finds * * *[t]hat the record does not support the sentencing court’s findings * * *.’”

(Emphasis added). The court notes, however, that the above “statute does not specify

where the findings are to be made” and states that the record must contain the trial

court’s findings for appellate review. Id. The court goes on to conclude that, “[w]hen

imposing consecutive sentences, a trial court must state the required findings as part of

the sentencing hearing * * *” and that the exact statutory language need not be used “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 * * *.”

(Emphasis added.) Id. at ¶ 29.

       {¶19} Finally, while referencing the statute that mandates the presumption of

concurrent sentences, the court notes at ¶ 23 of the opinion that:

       [I]f the trial court does not make the factual findings required by R.C.

       2929.14(C)(4), then ‘a prison term, jail term, or sentence of imprisonment
       shall be served concurrently with any other prison term, jail term or

       sentence of imprisonment imposed * * *.”

(Emphasis added). Id., quoting R.C. 2929.41(A). This statement, coupled with the

authority of appellate courts to “reduce, or otherwise modify a sentence” pursuant to R.C.

2953.08(G), strongly suggests that reviewing courts need not remand a case for

resentencing when the trial court fails to make the required findings for consecutive

sentences, but may order that the sentences be served concurrently. Some might even

say that the paragraph above compels this result.
