      [Cite as State v. Jackson, 2019-Ohio-3299.]




                        IN THE COURT OF APPEALS
               FIRST APPELLATE DISTRICT OF OHIO
                         HAMILTON COUNTY, OHIO




STATE OF OHIO,                                  :   APPEAL NOS. C-180245
                                                                C-180246
        Plaintiff-Appellee,                         TRIAL NOS. B-1705497-B
                                                :               B-1706671
      vs.
                                                      O P I N I O N.
                                                :
KAITLIN JACKSON,

      Defendant-Appellant.
                                                :



Criminal Appeals From: Hamilton County Court of Common Pleas

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

Date of Judgment Entry on Appeal: August 16, 2019




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

William Gallagher, for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS




CROUSE, Judge.

       {¶1}   Kaitlin Jackson has appealed her sentences in two cases in which she

pled guilty to a string of burglaries and receiving stolen property. In one assignment

of error, Jackson argues that the trial court failed to comply with Ohio law and

imposed a sentence which was unconstitutionally excessive.

       {¶2}   During the sentencing hearing, the trial court failed to make the

findings required by R.C. 2929.14(C)(4) in order to impose consecutive sentences,

and so we vacate the consecutive nature of the sentences and remand the cause for a

new sentencing hearing on that issue only. We affirm in all other respects.

                              Factual Background

       {¶3}   Jackson and her codefendants, Robert Daniel and Roslyn Mills,

committed a string of burglaries across Hamilton County to get money for drugs.

Daniel burglarized the homes, then Mills and Jackson would pick Daniel up in the

getaway car. Jackson would then pawn the stolen items, and the three would split

the profits. Jackson claims that her ex-boyfriend introduced her to heroin and then

broke up with her, causing her to go into a depression. The two codefendants,

associates of the ex-boyfriend, then moved in with Jackson, and the three began

burglarizing homes to support their drug habits.

       {¶4}   As part of a plea deal, Jackson pled guilty to one count of second-

degree-felony burglary, four counts of third-degree-felony burglary, and three counts

of fourth-degree-felony receiving stolen property.

       {¶5}   The court sentenced Jackson to eight years on the second-degree

burglary and two years on one of the third-degree burglaries, to be served




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                     OHIO FIRST DISTRICT COURT OF APPEALS



consecutively, for a total sentence of ten years.        The remaining third-degree

burglaries netted sentences of three years each, to be served concurrently with the

ten-year sentence.   Jackson received 18 months on each of the three counts of

receiving stolen property, to be served concurrently with the ten-year sentence.

       {¶6}   Jackson contends that the trial court’s seriousness and recidivism

findings under R.C. 2929.11 and 2929.12, and the consecutive-sentencing findings

under R.C. 2929.14(C)(4) were erroneous, and that her sentence shocks the sense of

justice in the community such that it violates the Ohio Constitution.

      R.C. 2953.08(G)(2) and Appellate Review of Felony Sentences

       {¶7}   An Ohio appellate court’s review of criminal sentences is quite limited.

Pursuant to R.C. 2953.08 (G)(2):

     The appellate court may [increase, reduce, otherwise modify, or vacate a

     sentence] if it clearly and convincingly finds either of the following:

     (a) That the record does not support the sentencing court's findings

     under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4)

     of section 2929.14, or division (I) of section 2929.20 of the Revised Code,

     whichever, if any, is relevant;

     (b) That the sentence is otherwise contrary to law.

       {¶8}   In State v. White, 2013-Ohio-4225, 997 N.E.2d 629, ¶ 11 (1st Dist.),

this court interpreted R.C. 2953.08 (G)(2) to mean that we may only modify or

vacate a defendant’s sentence “if we ‘clearly and convincingly find’ that either (1) the

record does not support the mandatory sentencing findings, or (2) that the sentence

is ‘otherwise contrary to law.’ ”      (Emphasis added.)    Subsequently, in State v.

Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶1, the Ohio Supreme




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                     OHIO FIRST DISTRICT COURT OF APPEALS



Court held that “an appellate court may vacate or modify a felony sentence on appeal

only if it determines by clear and convincing evidence that the record does not

support the trial court’s findings under relevant statutes or that the sentence is

otherwise contrary to law.” (Emphasis added.) Later in the opinion, the court noted:

      some sentences do not require findings that R.C. 2953.08(G) specifically

     addresses. Nevertheless, it is fully consistent for appellate courts to

     review those sentences that are imposed solely after consideration of the

     factors in R.C. 2929.11 and 2929.12 under a standard that is equally

     deferential to the sentencing court. That is, an appellate court may

     vacate or modify any sentence that is not clearly and convincingly

     contrary to law only if the appellate court finds by clear and convincing

     evidence that the record does not support the sentence.

(Emphasis added.) Id. at ¶ 23.

       {¶9}   Since Marcum, this court has held that an appellate court may modify

or vacate a felony sentence “only if it ‘clearly and convincingly finds’ that the record

does not support the mandatory sentencing findings, if any, or that the sentence is

‘otherwise contrary to law.’ ” (Emphasis added.) State v. Brown, 1st Dist. Hamilton

Nos. C-170713 and C-170714, 2019-Ohio-1455; Marcum at ¶ 7; White at ¶ 11.

       {¶10} This court has further held that a trial court is not required to make

findings regarding the R.C. 2929.11 principles and purposes of felony sentencing, or

the seriousness and recidivism factors of R.C. 2929.12. State v. Ridder, 1st Dist.

Hamilton No. C-150460, 2016-Ohio-5195, ¶ 29. In fact, this court has held that

where the record is silent regarding the court’s consideration of R.C. 2929.11 or

2929.12, we presume the trial judge properly considered those statutes, and it is the




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                     OHIO FIRST DISTRICT COURT OF APPEALS



defendant’s burden to demonstrate otherwise. (Emphasis added.) Id.; State v.

Cephas, 1st Dist. Hamilton No. C-180105, 2019-Ohio-52, ¶ 42, appeal not allowed,

155 Ohio St.3d 1423, 2019-Ohio-1421, 120 N.E.3d 868.

       {¶11} It is in light of these restrictions that we will review Jackson’s

sentence.

                         R.C. 2929.11 and 2929.12

       {¶12} While the sentencing court was not required to make findings

pursuant to R.C. 2929.11 and 2929.12, it is clear from the record in this case that the

court properly considered those statutes. Our review is limited to whether the trial

court properly considered the factors in coming to its sentencing decisions, not

whether the trial court correctly weighed each factor. In Jackson’s case, the trial

court went above and beyond what was required and stated some of its reasons for

Jackson’s sentences both orally at the sentencing hearing and in a written entry.

       {¶13} In its written reasons justifying its sentences, the court found that the

victims suffered serious psychological and economic harm, Jackson’s relationship

with some of the victims facilitated the offenses, Jackson was the “brains” behind the

burglaries, and she was a danger to the community. None of these reasons are

erroneous or contrary to the record.

       {¶14} At the sentencing hearing, the court was presented with evidence that

Jackson and her codefendants took items of great value from the people they

burglarized, including jewelry, firearms, family heirlooms, and over $60,000 worth

of cash and other items from one family alone. Moreover, Jackson’s actions took an

emotional and mental toll on the families she burglarized. There was ample evidence

in the form of victim testimony and victim-impact statements of the great




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                      OHIO FIRST DISTRICT COURT OF APPEALS



psychological harm Jackson caused the victims. For at least two of the burglaries,

Jackson selected the victims, who were known to her previously. Two police officers

testified at the sentencing hearing that Jackson was the “ringleader” and the “brains

of the burglaries.”

       {¶15} The judge recognized during the sentencing hearing that Jackson and

her codefendants did not cause any physical harm to any of the victims’ persons, but

there was evidence in the record to support a finding that Jackson did expect to

cause physical harm to the victims’ property. Daniel broke into the homes and then

forcibly removed the victims’ property, and Jackson acknowledged in her sentencing

memorandum that her actions caused harm to the victims’ property.

       {¶16} In its written reasons justifying its sentences, the trial court noted that

there were “many burglaries,” the victims were “emotionally devastated,” and

Jackson “[a]ppears to be willing to commit criminal acts of any means to get drug

money.” Also, during the sentencing hearing, the judge told Jackson, “I do not have

before me, other than words, an assurance that you would not commit crimes again.

The last time you were a free person, it took seven Narcan hits to bring you back * *

*.”

       {¶17} While Jackson should be commended for acknowledging her drug

problem, completing a treatment program, and doing well during her time at Talbert

House, it is clear that the judge was particularly disturbed that she relapsed and

overdosed while on bond.

       {¶18} Admittedly, there was much mitigating evidence in Jackson’s favor.

She wrote letters of apology to all of the victims she was allowed to contact. At the

sentencing hearing, she offered to pay restitution. She completed a drug-treatment




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                      OHIO FIRST DISTRICT COURT OF APPEALS



program. She completed the Women’s Reward program at Talbert House and

indicated that she wanted to help other people addicted to drugs. She was elected

“community leader” by the staff at Talbert House. Jackson cooperated with members

of law enforcement after her arrest. Jackson had essentially no criminal record, and

had a stable job and family life prior to becoming addicted to drugs.

       {¶19} It is clear from the record that the trial judge considered all of the

mitigating evidence presented by Jackson, including evidence that she was less likely

to recidivate. The judge acknowledged at the sentencing hearing that Jackson had

almost no criminal record and that she was a law-abiding, contributing member of

society for a number of years. Although Jackson seemed to be progressing in drug

treatment at the Talbert House, the judge still found that her drug addiction made

her more likely to reoffend.

       {¶20} The trial court imposed the maximum sentence of eight years for

second-degree burglary on count six, and the maximum sentence of three years for

all but one of the third-degree burglary counts. On count seven, the court imposed a

sentence of two years, the shortest of any of the burglaries, despite the fact that

Jackson’s actions in regard to count seven were particularly egregious.

       {¶21} The victims in count seven were friends of Jackson, and were targeted

by Jackson while they were out of town for a dance team competition with Jackson’s

daughter. Jackson and her codefendants took over $60,000 worth of items, much of

which the victims will have to pay for out of pocket, in addition to irreplaceable

family heirlooms. The victims in count seven testified at the sentencing hearing

about the psychological trauma the burglary has caused their family as a whole, and

specifically the children.




                                              7
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶22} During the sentencing hearing, the prosecutor requested the

maximum sentence, and said that ten years should be the absolute minimum

sentence. In their statements to the court, the arresting officers requested the same—

a maximum sentence, and ten years as the minimum acceptable sentence. In his

victim-impact statement, the victim in count three (Jackson’s uncle) said “the

prosecuting attorney said it appeared that 10 years was possible.” He requested

three to five years. It appears as though a ten-year sentence was percolating well

before the sentencing hearing even began.

       {¶23} A sentence which was a foregone conclusion prior to the sentencing

hearing would be contrary to law, as the trial court is required to consider certain

information during the hearing before imposing a sentence. See R.C. 2929.19(A) and

(B). But, without more evidence, this court cannot conclude by clear and convincing

evidence that the ten-year sentence was a foregone conclusion.

       {¶24} It is clear from the record that the trial court appropriately considered

R.C. 2929.11 and 2929.12. Jackson has failed to show by clear and convincing

evidence that the record does not support the individual sentences handed down for

each count. Furthermore, Jackson’s sentences for each count fell within the

authorized sentencing ranges.

       {¶25} Jackson also argues that her aggregate ten-year sentence is

unconstitutionally excessive because it shocks the sense of justice in the community.

Since we vacate the consecutive nature of the sentences due to the trial court’s failure

to make the required findings, we do not reach the question of whether her aggregate

sentence shocks the sense of justice in the community.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



                               Consecutive Sentences

       {¶26} Despite making the mandatory consecutive sentencing findings in the

sentencing entry, the trial court failed to make the mandatory findings during the

sentencing hearing, and so we must vacate the consecutive nature of the sentences,

and remand the cause for a new sentencing hearing on that issue.

       {¶27} Imposition of consecutive sentences is proper only when the trial court

makes the findings required by R.C. 2929.14(C)(4) at the sentencing hearing and

incorporates its findings into its sentencing entry. State v. Bonnell, 140 Ohio St.3d

209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. But, the court is not obligated to state

reasons to support its findings. Id. Also, no “talismanic incantation” is given to the

words of R.C. 2929.14(C)(4). Id. As long as the appellate court can discern that the

trial court engaged in the correct analysis and the record contains evidence to

support the findings, consecutive sentences should be upheld. Id. at ¶ 29.

       {¶28} R.C. 2929.14(C)(4) requires the trial court to make three findings:

       consecutive service is necessary to protect the public from future crime

       or to punish the offender and 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

       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.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       (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.

(Emphasis added.)

       {¶29} Regarding the third finding, subsection (b) is the only subsection

potentially applicable to Jackson’s case, and is the one the trial court included in its

sentencing entry where it nearly quoted the language of subsection (b).             The

sentencing entry stated,

       with respect to the imposition of consecutive sentences, the Court

       hereby finds that consecutive sentences are necessary to protect the

       public and to punish the Defendant, and are not disproportionate to

       seriousness of the Defendant’s conduct and the danger the Defendant

       poses to the public.

       Further, specifically, the Court finds that 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




                                              10
                     OHIO FIRST DISTRICT COURT OF APPEALS



       of the offenses committed as part of any of the courses of conduct

       adequately reflects the seriousness of the Defendant’s conduct.

       {¶30} During Jackson’s plea hearing the judge informed her that the

sentences for the offenses she was pleading guilty to could be made to run

consecutively to each other. During the sentencing hearing, the judge repeatedly

noted the seriousness of Jackson’s conduct and the danger she posed to the public.

The judge highlighted the victim-impact statements, testimony of the victims, and

police officer statements, which illustrated the great psychological and economic

harm caused by Jackson. The judge indicated that he considered Jackson’s crimes to

be serious and life-changing for the victims.       The judge highlighted Jackson’s

violation of the trust of her family and friends when she chose them as victims, and

emphasized the damage done to the children of the families burglarized. The judge

stated that he considered “the sentencing factors under 2929 of the Ohio Revised

Code” in reaching his decision to impose consecutive sentences.

                                    First Finding

       {¶31} We can discern from the record that the judge made the required first

finding, that consecutive sentences were necessary to protect the public from

Jackson, because the judge stated during the hearing that Jackson was a danger to

the public.

                                   Second Finding

       {¶32} In State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d

1028, ¶ 255, the Supreme Court remanded for resentencing where the trial court

made explicit findings on the first and third R.C. 2929.14(C)(4) findings, but failed to

make a finding on the second—proportionality.       The trial court in Beasley satisfied




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                     OHIO FIRST DISTRICT COURT OF APPEALS



the first finding when it found that the sentence was necessary to protect the public.

Id. at ¶ 254. The trial court also found that the offenses were committed while the

defendant was awaiting trial, satisfying the third finding via subsection (a). Id. But,

the trial court said nothing about the proportionality of the sentence. Id. at ¶ 255.

The state argued that the Supreme Court could discern the trial court’s views on

proportionality from its other statements. Id. at ¶ 257. The Supreme Court found

that doing so would “remove one of the separate statutorily required findings for

consecutive sentences,” and so declined to do so. Id.

       {¶33} Bonnell and Beasley make it clear that a statement made by the trial

court cannot be used to discern more than one of the required findings.

       {¶34} In State v. Petty, 10th Dist. Franklin No. 15AP-950, 2017-Ohio-1062,

the Tenth District decided a case very similar to Jackson’s. The court found that

even though the judge had included all of the required R.C. 2929.14(C)(4) findings in

the judgment entry, his failure to make a finding on proportionality during the

sentencing hearing required remand. Id. at ¶ 89. The language used by the judge

allowed the court to discern that the sentence was necessary to protect the public and

that the offense was committed while the defendant was out on bail, satisfying the

first and third required findings. Id. at ¶ 93. But, the court could not discern

whether the trial judge made the proportionality finding. Id. at ¶ 90.

       {¶35} In Jackson’s case, we cannot discern from the record that the trial

judge made the proper finding with regards to the proportionality factor.          The

language employed by the trial court is very similar to that employed by the trial

court in Petty. The court did not discuss proportionality, and the only way to discern

proportionality would be from the other statements about harm and danger to the




                                             12
                      OHIO FIRST DISTRICT COURT OF APPEALS



public. Pursuant to Bonnell, Beasley, and Petty, the statements the trial court made

about the danger Jackson poses to the public and the harm she was responsible for

cannot be the sole bases used to discern proportionality. We cannot discern from the

judge’s statements during the sentencing hearing that he found that Jackson’s

sentence was not disproportionate to the seriousness of her conduct and the danger

she posed to the public.

                                   Third Finding

       {¶36} In imposing consecutive sentences on Jackson, the trial court was also

required to make a finding under one of subsections (a) – (c) of R.C. 2929.14(C)(4).

In its sentencing entry, the court found that subsection (b) applied—that the offenses

were committed as part of one or more courses of conduct, and the harm caused by

two or more of the multiple offenses was so great or unusual that a single prison term

for any of the offenses would be inadequate. But, it did not make this finding during

the sentencing hearing.

       {¶37} In State v. C.G., 10th Dist. Franklin No. 14AP-1005, 2015-Ohio-3254, ¶

46, the court discerned the third finding from the trial judge’s statements that he

would have sentenced the defendant to more years in prison if he had the option and

“I feel that the factors of a continuous course of conduct were met here pursuant to

Section b.” Id. at ¶ 44.

       {¶38} There are multiple other cases in which appellate courts were able to

discern a finding under subsection (b) even though the trial court did not use the

exact language of the statute.    See, e.g., State v. Tucker, 9th Dist. Lorain Nos.

16CA010963 and 16CA010964, 2017-Ohio-4215, ¶ 14 (the trial court used a

shortened version of the statutory text—“[a] single prison term would not adequately




                                             13
                     OHIO FIRST DISTRICT COURT OF APPEALS



reflect the seriousness of defendant's conduct.”); State v. Blanton, 4th Dist. Adams

No. 16CA1031, 2018-Ohio-1275, ¶ 100 (the trial court noted the great harm caused by

defendant and similarly used a shortened version of text when it said that it was

unaware of “any sentence that would adequately reflect the seriousness of this

conduct.”).

        {¶39} The Ninth District, in State v. Marcum, 9th Dist. Wayne No.

16AP0084, 2017-Ohio-7655, ¶ 8, was unable to discern great or unusual harm where

the trial court only discussed the principles of sentencing, the need to protect the

public, the need to punish the defendant, and that the sentence be proportional to

the harm.

        {¶40} In State v. Johnson, 8th Dist. Cuyahoga No. 102449, 2016-Ohio-1536,

¶ 16, the trial judge discussed how the defendant committed multiple crimes and

described the crimes as “heinous” and “terrible.” The Eighth District stated, “we

might even be able to stretch the trial court's statements that these crimes were

heinous and happened on several occasions to equate to a finding under the third

part of the three-tier test under R.C. 2929.14(C)(4)(b).” Id. at ¶ 16. But, the court

ultimately found that the record did not support a finding that the harm was more

egregious or unusual than the harm resulting from other similar multiple offenses.

Id. at ¶ 21.

        {¶41} Even though the Johnson court indicated that it might be possible, we

are unable to discern from the record that the trial judge made the subsection (b)

finding at the sentencing hearing.    Cases from other districts, such as Tucker,

Blanton, Marcum, and C.G., show that while the trial court need not quote the




                                            14
                      OHIO FIRST DISTRICT COURT OF APPEALS



statute exactly, its statements must be substantially closer than those in Jackson’s

case.

        {¶42} Unlike in C.G., the trial judge in Jackson’s case did not reference

subsection (b) of R.C. 2929.14(C)(4), nor did he say that he would impose more time

if able to. Unlike in Tucker and Blanton, the judge did not use a shortened form of

the language of subsection (b). In fact, there is nothing in the trial court’s statements

during the sentencing hearing which tracks or paraphrases the language of

subsection (b). Similar to Marcum, where the Ninth District was likewise unable to

discern a finding under (b), the trial court here focused its discussion on the need to

protect the public, the need to punish Jackson, and the harm caused by Jackson.

        {¶43} The trial judge made written findings in the judgment entry which

satisfy R.C. 2929.14(C)(4), but did not make the required findings during the

sentencing hearing. We cannot discern from the record that the trial court properly

considered the proportionality of the sentence, or that it made a finding under

subsection (b) that the offenses were committed as part of one or more courses of

conduct, and the harm caused by two or more of the multiple offenses was so great or

unusual that a single prison term for any of the offenses would be inadequate.

Therefore, the trial court failed to make the second and third findings required by

R.C. 2929.14(C)(4).

        {¶44} Where the trial court fails to make a required finding at a sentencing

hearing for consecutive sentences under R.C. 2929.14(C)(4), the error cannot be

cured nunc pro tunc, and the proper remedy is remand for a new hearing. State v.

Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 260.




                                               15
                      OHIO FIRST DISTRICT COURT OF APPEALS



                                      Conclusion

       {¶45} We do not find the sentences for any individual count to be contrary to

law or unsupported by the record. Nevertheless, we must sustain Jackson’s sole

assignment of error with regard to the imposition of consecutive sentences because

the trial court’s failure to make certain mandatory sentencing findings was contrary

to law. Since the trial court failed to make the findings required by R.C.

2929.14(C)(4) during the sentencing hearing, we vacate the consecutive nature of the

sentences, and remand for a new sentencing hearing on that issue only.

                   Judgments affirmed in part, reversed in part, and cause remanded.



MYERS, P.J., and WINKLER, J., concur.

Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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