         [Cite as State v. Jones, 2012-Ohio-2075.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                       :   APPEAL NO. C-110603
                                                         TRIAL NO. B-1100702
        Plaintiff-Appellee,                          :

  vs.                                                :      O P I N I O N.

NAJEE JONES,                                         :

    Defendant-Appellant.                             :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgments Appealed From Are: Affirmed in Part, Sentence Vacated in Part, and
                            Cause Remanded

Date of Judgment Entry on Appeal: May 11, 2012


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Christine Y. Jones, for Defendant-Appellant.




Please note: This case has been removed from the accelerated calendar.
                      OHIO FIRST DISTRICT COURT OF APPEALS



J. H OWARD S UNDERMANN , Presiding Judge.

       {¶1}     Defendant-appellant Najee Jones appeals his conviction and sentence

for three counts of felonious assault, one count of having weapons under disability, and

the accompanying firearm specifications. In two assignments of error, Jones challenges

the trial court’s denial of his presentence motions to withdraw his guilty pleas and the

length of his prison sentence. Because Jones was sentenced after the effective date of

2011 Am.Sub.H.B. No. 86, which amended R.C. 2929.14(A) to reduce the maximum

prison sentence for certain third-degree-felony offenses, including having weapons

under disability, from five years to 36 months, we vacate his sentence for that offense

and remand this case to the trial court for resentencing on that offense alone. We,

otherwise, affirm the trial court’s judgment and sentences.

                              I. Jones’s Guilty Pleas and Sentences

       {¶2}     Jones was indicted for one count of attempted aggravated murder, five

counts of felonious assault, one count of carrying a concealed weapon, one count of

obstructing official business, one count of having weapons under disability, two counts

of trafficking in cocaine, and one count of possession of cocaine. The attempted-

aggravated-murder, felonious-assault, trafficking, and possession offenses were

accompanied by firearm specifications.

       {¶3}     Jones subsequently filed a motion to suppress his post-arrest statements

to police, which the trial court denied after a hearing. Jones then withdrew his not guilty

pleas and pleaded guilty to three counts of felonious assault and the accompanying

firearm specifications, and to one count of having weapons under disability.            In

exchange for his guilty pleas, the state dismissed the remaining eight charges and

firearm specifications.

       {¶4}     The trial court ordered a presentence investigation and scheduled

Jones’s sentencing for September 22, 2011. Prior to the sentencing hearing, Jones filed



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two pro se motions to withdraw his guilty pleas. At a subsequent hearing, Jones

asserted that he was innocent of the charges and that he wanted a bench trial. The trial

court denied Jones’s motions to withdraw his guilty pleas, and sentenced him to eight

years for each felonious assault, five years for the weapons-under-disability offense, and

three years for the merged firearm specifications.      The court ordered the terms to be

served consecutively, for an aggregate sentence of 32 years in prison.

                        II. Jones’s Motions to Withdraw His Guilty Pleas

       {¶5}     In his first assignment of error, Jones argues that the trial court abused

its discretion in denying his motions to withdraw his guilty pleas.

       {¶6}     Whether a motion to withdraw a plea is granted or denied lies within the

sound discretion of the trial court. State v. Xie, 62 Ohio St.3d 521, 587 N.E.2d 715

(1992), paragraph two of the syllabus. While the general rule is that a motion to

withdraw a guilty plea made prior to sentencing is “to be freely allowed and treated with

liberality,” a “defendant does not have an absolute right to withdraw a guilty plea prior

to sentencing.” Xie at paragraph one of the syllabus.

       {¶7}    In his motions to withdraw his guilty pleas, Jones argued that the trial

court had failed to properly inform him of the possible maximum prison term he was

facing, and that he was innocent of the offenses. Jones maintained that he had been

walking down the street when he saw masked men with guns shoot the three victims.

       {¶8}    At the hearing on the motions, the trial court addressed the factors set

forth in State v. Fish, 104 Ohio App.3d 236, 239, 661 N.E.2d 788 (1st Dist.1995). The

trial court concluded that even though Jones’s motions were timely and would not

prejudice the state, the remaining factors weighed against granting the motions. The

trial court stated that Jones had been represented by highly competent counsel; he

had been given a full Crim.R. 11 hearing before he had entered his pleas; he had

indicated during that hearing his understanding of the nature of the charges and



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their maximum penalties; and that Jones’s current claims of innocence not only

lacked evidentiary support, but were also contradicted by his post-arrest statements

to police admitting his involvement in the offenses as well as his statements during

the plea proceedings, admitting his guilt to the offenses.

        {¶9}    Because there is no indication in the record that Jones’s motions to

withdraw his guilty pleas were anything other than a “mere change of heart,” which is an

insufficient basis upon which a defendant can rely in order to successfully withdraw his

guilty pleas, we cannot conclude that the trial court, after a full and impartial hearing,

abused its discretion in denying Jones’s motions to withdraw his guilty pleas. We,

therefore, overrule his first assignment of error. See State v. Henderson, 1st Dist.

Nos. C-060799 and C-060823, 2007-Ohio-5128, ¶ 6; see also State v. Calloway, 1st

Dist. No. C-040066, 2004-Ohio-5613, ¶ 10-17 (holding that the trial court was

entitled to conclude that the defendant’s guilty plea was an admission of his guilt in

the absence of facts or inferences to justify his claim of innocence); State v. King,

2nd Dist. No. 19814, 2004-Ohio-262, ¶ 11 (holding that the defendant’s claims of

innocence were not a reasonable or legitimate basis for the withdrawal of his guilty

plea in light of his extensive statements to police admitting his guilt).

                        III. Jones’s Sentence under Am.Sub.H.B. No. 86

        {¶10}   In his second assignment of error, Jones challenges the length of his

prison term. He argues that the trial court’s imposition of a 32 year prison sentence was

excessive.

        {¶11}   The record reflects that while the trial court held Jones’s sentencing

hearing on September 22, 2011, it did not journalize its judgment entry until October 7,

2011.   Although raised by neither Jones’s counsel nor the state, we note that Am.

Sub.H.B. No. 86 was enacted on June 29, 2011, and became effective September 30,

2011. Because a trial court speaks only through its docket and journal entries, Jones



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was not sentenced until the trial court’s sentencing entry had been journalized. See,

e.g., State v. Miller, 127 Ohio St.3d 407, 2010-Ohio-5705, 940 N.E.2d 924, ¶ 12.

Consequently, Am.Sub.H.B. No. 86 was in effect at the time Jones was sentenced.

       {¶12}   While Am.Sub.H.B. No. 86 made multiple changes to Ohio’s criminal

sentencing scheme, Jones’s sentence was affected by only two of those changes: (1)

the trial court’s imposition of a five-year prison term for the weapons-under-

disability offense and (2) the trial court’s imposition of consecutive sentences.

                     A. Reduction in Penalty for Certain F-3 Offenses

       {¶13}   Am.Sub.H.B. No. 86 amended R.C. 2929.14(A)(3) to change the range

of possible prison terms for certain third-degree felonies. R.C. 2929.14(A)(3)(b)

decreases the range of penalties for most felonies of the third degree, including

having weapons under disability, to nine, 12, 18, 24, 30, or 36 months.             R.C.

2929.14(A)(3)(a) maintains the maximum 60-month penalty for the following offenses:

aggravated vehicular homicide, aggravated vehicular assault, vehicular assault,

sexual battery, or unlawful sexual conduct with a minor, or robbery or burglary if the

offender previously has been convicted of or pleaded guilty in two or more separate

proceedings to two or more aggravated-robbery, robbery, aggravated-burglary, or

burglary offenses.

       {¶14}   The General Assembly expressly provided in Section 4 of

Am.Sub.H.B. No. 86 that the amendments to R.C. 2929.14(A) “apply to a person who

commits an offense specified or penalized under those sections on or after the

effective date of this section and to a person to whom division (B) of section 1.58 of

the Revised Code makes the amendments applicable.”

       {¶15}   R.C. 1.58(B) states that “[i]f the penalty, forfeiture, or punishment for

any offense is reduced by a reenactment or amendment of a statute, the penalty,




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forfeiture, or punishment, if not already imposed, shall be imposed according to the

statute as amended.”

       {¶16}   Jones fits within the R.C. 1.58(B) exception provided in Section 4 of

Am.Sub.H.B. No. 86. While Jones committed the weapons-under-disability offense

prior to the September 30, 2011, effective date of the act, he was not sentenced until

October 7, 2011. Because the penalty for the weapons-under-disability offense was

reduced by the amendment to R.C. 2929.14(A), the trial court could only have

sentenced Jones to a maximum of 36 months’ incarceration instead of a five-year

term of imprisonment. See David J. Diroll, H.B. 86 Summary, The 2011 Changes to

Criminal and Juvenile Law, The Ohio Sentencing Commission (Sept. 26, 2011); Ohio

Legislative Service Commission Final Analysis of Am.Sub.H.B. 86. Consequently, we

must agree with Jones that his sentence for this offense was excessive albeit for a

reason not advanced by Jones.

                                B. Consecutive Sentences

       {¶17}   In addition to reducing the penalty for the weapons-under-disability

offense, Am.Sub.H.B. No. 86 also impacted the trial court’s imposition of consecutive

sentences in this case. Am.Sub.H.B. No. 86 revived the requirement that trial courts

make findings before imposing consecutive sentences in R.C. 2929.14(C).

       {¶18}   Section 11 of Am.Sub.H.B. No. 86, expressly acknowledges that the

Ohio Supreme Court had originally held these findings unconstitutional in State v.

Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, but that the court later

concluded in State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768,

following the United State’s Supreme Court’s decision in Oregon v. Ice, 555 U.S. 160,

129 S.Ct. 711, 172 L.Ed.2d 517 (2009), that its decision in Foster was incorrect.

       {¶19}   In Hodge, the Ohio Supreme Court held that “[t]he jury-trial

guarantee of the Sixth Amendment to the United States Constitution does not



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                     OHIO FIRST DISTRICT COURT OF APPEALS



preclude states from requiring trial court judges to engage in judicial fact-finding

prior to imposing consecutive sentences. (Oregon v. Ice (2009), 555 U.S. 160, 129

S.Ct. 711, 172 L.Ed.2d 517, construed.)” Hodge at paragraph one of the syllabus. The

court further held that “[t]he United States Supreme Court’s decision in Oregon v.

Ice (2009), 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517, d[id] not revive Ohio’s

former consecutive-sentencing statutory provisions, R.C. 2929.14(E)(4) and

2929.41(A), which were held unconstitutional in State v. Foster, 109 Ohio St.3d 1,

2006-Ohio-856, 845 N.E.2d 470.” Hodge at paragraph two of the syllabus. Thus, the

Supreme Court concluded that “[t]rial court judges are not obligated to engage in

judicial fact-finding prior to imposing consecutive sentences unless the General

Assembly enacts new legislation requiring that findings be made.” Hodge at

paragraph three of the syllabus, ¶ 27, and ¶ 30.

       {¶20}   Am.Sub.H.B. No. 86 did just that by first repealing former R.C.

2929.14(E)(4) and then reviving the findings requirement for consecutive sentences

verbatim in R.C. 2929.14(C)(4). See Sections 2, 11, and 12 of Am.Sub.H.B. No. 86.

       {¶21}   R.C. 2929.14(C)(4) now provides:

       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 the 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



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                    OHIO FIRST DISTRICT COURT OF APPEALS



       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.

       (b) At least two of the multiple offenses were committed as part of one

       or more courses of conduct, and the harm caused by the 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.

       {¶22}   This court has stated that trial courts are not required to use

talismanic words as long as the reasons for the sentence are apparent from the

record. See State v. Wedge, 1st Dist. No. C-000747, 2001 Ohio App. LEXIS 5949,

*18 (Dec. 21, 2001), citing State v. Parsons, 1st Dist. No. C-980900, 1999 Ohio App.

LEXIS 5784, *3 (Nov. 26, 1999).        Having reviewed the record, including the

transcript of the sentencing hearing and the presentence investigation report, we are

convinced that the trial court imposed consecutive sentences because it had found

that the harm caused by the offenses was so great or unusual that a single prison

term would not adequately reflect the seriousness of Jones’s conduct and that

Jones’s history of criminal conduct demonstrated that consecutive sentences were

necessary to protect the public from future crime.

       {¶23}   The trial court stated during the sentencing hearing that it was

imposing the maximum prison term for each offense and ordering them to be served

consecutively because Jones, who was only 21 years old, already had an extensive

criminal history as an adult, which included three felony and five misdemeanor



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convictions; Jones had served two prior prison terms; and he had been released from

prison just four months prior to committing the present offenses. The trial court also

stated that maximum and consecutive prison terms were warranted because Jones

had seriously injured two of his three victims, paralyzing one from the waist down,

and causing another to miss three months of employment because of gunshot

wounds to her face, hand, back, and chest. These statements were sufficient to show

that the trial court’s imposition of consecutive sentences was not only appropriate,

but was also clearly supported by the record. See R.C. 2929.14(C)(4)(b) and (c).

                                    IV. Conclusion

       {¶24}   We, therefore, sustain Jones’s second assignment of error only to the

extent that the trial court imposed a five-year term for the weapons-under-disability

offense, instead of a term within the statutory range. We vacate the sentence for the

weapons-under-disability offense and remand this cause to the trial court for

resentencing on only that offense. See R.C. 2953.08(G)(2). We affirm the trial court’s

judgment in all other respects.
                                                              Judgment accordingly.

HENDON and CUNNINGHAM, JJ., concur.


Please note:
       The court has recorded its own entry this date.




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