[Cite as State v. Barkley, 2013-Ohio-1545.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                 Nos. 98549, 98551, and 98552



                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                     RUBEN BARKLEY
                                                    DEFENDANT-APPELLANT




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                    Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                        Case Nos. CR-555009, CR-558789, and CR-554504

        BEFORE: Boyle, J., Stewart, A.J., and Kilbane, J.

        RELEASED AND JOURNALIZED:                     April 18, 2013
ATTORNEY FOR APPELLANT

Patricia J. Smith
4403 St. Clair Avenue
The Brownhoist Building
Cleveland, Ohio 44103

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Katherine Mullin
        Mary H. McGrath
Assistant County Prosecutors
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, J.:

       {¶1} Defendant-appellant, Ruben Barkley, appeals his sentences in connection

with three separate cases, raising the following single assignment of error:

       The trial court erred when it failed to make findings required by statute
       prior to imposing a prison term of consecutive sentences for the appellant’s
       convictions of fourth and fifth degree felonies, therefore the sentence is
       contrary to law.

       {¶2} Finding merit to the appeal, we reverse and remand for further proceedings.

                               Procedural History and Facts

       {¶3} In October 2011, Barkley was indicted in Cuyahoga C.P. No. CR-554504

on the following four counts for events occurring on September 11, 2011: two counts of

receiving stolen property, violations of R.C. 2913.51(A); misuse of credit cards, a

violation of R.C. 2913.21(B)(2); and grand theft, a violation of R.C. 2913.02(A)(1).

Barkley was also indicted in a separate case, Cuyahoga C.P. No. CR-555009, with a

single count of unauthorized use of a motor vehicle, a violation of R.C. 2913.03(B), for

his alleged use of a rental car, namely, a 2010 Audi,   that he unlawfully kept beyond the

rental period.

       {¶4} In January 2012, pursuant to a plea agreement, Barkley ultimately withdrew

his not guilty plea. In Case No. CR-554504, he pleaded guilty to a single count of grand

theft, a fourth degree felony, and the remaining charges were dismissed.       Barkley further

pleaded guilty to the single charge of unauthorized use of a motor vehicle, a fifth degree
felony, in Case No. CR-555009, and the state moved to nolle a third case that Barkley had

pending at the time, Case No. CR-554581.

       {¶5} Following the acceptance of Barkley’s guilty plea, the trial court ordered a

presentence investigation report and deferred sentencing to a later date.     While Barkley

was out on bond and prior to sentencing, he was indicted in another case, Cuyahoga C.P.

No. CR-558789, for forgery, a violation of R.C. 2913.31(A)(3), and theft, a violation of

R.C. 2913.02(A)(1). In April 2012, Barkley pled guilty to forgery, a fifth degree felony,

and the remaining count was dismissed.

       {¶6} In May 2012, the trial court held the sentencing hearing.        At the hearing,

the trial court discussed the details of Barkley’s presentence investigation report,

including his extensive criminal record.   The trial court noted that Barkley has “spent 22,

the better part of 22 of the previous 24 years in the state penitentiary for crimes of various

degrees of harm.”     In imposing consecutive sentences, the court further stated the

following:

       While your first two cases were pending, you went out and committed a
       fraud on Gordon Food Service. * * * I’ve considered the purposes and the
       principles of our sentencing laws, I find that case 558789 was committed
       while awaiting trial and/or sentencing. In Cases 554504 and 555009, I
       find that your criminal history does demonstrate that consecutive terms are
       needed to protect the public.

       Despite being 58, again, you show no signs of slowing down. Heck, you
       have at least five felonies in the last decade alone, therefore, I’m going to
       impose the following sentences:
       On Case 554504, on the fourth-degree felony of grand theft, I will sentence
       you to 15 months at Lorain Correctional Institute [sic].
       In Case 555009, on the F5 offense of unauthorized use of a motor vehicle, I
       will sentence you to 10 months at Lorain Correctional Institute [sic].

       {¶7} The trial court ordered that each of the sentences be served consecutive to

one another. Thus, the court imposed a total sentence of 37 months in prison for all

three cases.   The trial court also informed Barkley that he would be subject to a

discretionary period of three years of postrelease control and ordered Barkley to pay

restitution in the amount of $1,197.

       {¶8} Barkley now appeals, challenging the trial court’s imposition of consecutive

sentences.

                                   Standard of Review

       {¶9} An appellate court must conduct a meaningful review of the trial court’s

sentencing decision.   State v. Johnson, 8th Dist. No. 97579, 2012-Ohio-2508, ¶ 6, citing

State v. Hites, 3d Dist. No. 6-11-07, 2012-Ohio-1892, ¶ 7.              Specifically, R.C.

2953.08(G)(2) provides that our review of consecutive sentences is not an abuse of

discretion.    An appellate court must “review the record, including the findings

underlying the sentence or modification given by the sentencing court.” Id. If an

appellate court clearly and convincingly finds either that (1) “the record does not support

the sentencing court’s findings under [R.C. 2929.14(C)(4)]” or (2) “the sentence is

otherwise contrary to law,” then “the appellate court may increase, reduce, or otherwise

modify a sentence * * * or may vacate the sentence and remand the matter to the

sentencing court for resentencing.” Id.

                                  Consecutive Sentences
      {¶10} In his sole assignment of error, Barkley contends that the trial court failed to

comply with R.C. 2929.14(C) and make the necessary findings to support the imposition

of consecutive sentences.

      {¶11} R.C. 2929.14(C)(4) 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.

      {¶12} In each step of this analysis, the statutory language directs that the trial court

must “find” the relevant sentencing factors before imposing consecutive sentences. R.C.

2929.14(C)(4). In making these findings, a trial court is not required to use “talismanic
words to comply with the guidelines and factors for sentencing.”        State v. Brewer, 1st

Dist. No. C-000148, 2000 Ohio App. LEXIS 5455 (Nov. 24, 2000). But it must be clear

from the record that the trial court actually made the findings required by statute. See

State v. Pierson, 1st Dist. No. C-970935, 1998 Ohio App. LEXIS 3812 (Aug. 21, 1998).

A trial court satisfies this statutory requirement when the record reflects that the court has

engaged in the required analysis and has selected the appropriate statutory criteria. See

State v. Edmonson, 86 Ohio St.3d 324, 326, 715 N.E.2d 131 (1999).

       {¶13} Barkley acknowledges that the trial court made two of the required findings,

but contends that the trial court failed to make any finding that consecutive sentences are

not disproportionate to the seriousness of Barkley’s conduct and to the danger he poses to

the public.

       {¶14} The “not disproportionate” finding essentially encompasses two parts: (1)

seriousness of the offender’s conduct, and (2) the danger the offender poses to the public.

 While we find that the trial court’s discussion on the record was sufficient to satisfy the

“not disproportionate” finding related to the danger that Barkley poses to the public, we

agree with Barkley that the trial court failed to make any finding as to whether the

imposition of consecutive sentences was not disproportionate to the seriousness of

Barkley’s conduct in the three underlying cases. Indeed, the trial court did not discuss

Barkley’s conduct in these cases.     The only reference to any conduct was that Barkley

“went out and committed a fraud on Gordon Food Service” while his first two cases were
pending. We find this insufficient to infer any disproportionate finding related to the

seriousness of Barkley’s conduct in each case.

       {¶15} Thus, given the absence of this specific finding or any discussion of

Barkley’s conduct in these cases to infer such a finding, we are constrained to sustain this

assignment of error.    See, e.g., State v. Jones, 8th Dist. No. 98371, 2013-Ohio-489, ¶

22-23 (defendant’s conduct may well warrant consecutive sentences but the trial court’s

failure to articulate findings required remand); State v. Matthews, 8th Dist. No. 97916,

2012-Ohio-5174 (the record did not demonstrate that the trial court engaged in the

required analysis and made the necessary findings for the imposition of consecutive

sentences).

       {¶16} Barkley’s sole assignment of error is sustained. Judgment reversed and

case remanded to the lower court for further proceedings consistent with this opinion.

       It is ordered that appellant recover of 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.

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

the Rules of Appellate Procedure.




MARY J. BOYLE, JUDGE
MELODY J. STEWART, A.J., and
MARY EILEEN KILBANE, J., CONCUR
