[Cite as State v. Hodges, 2013-Ohio-5025.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99511




                                      STATE OF OHIO

                                                             PLAINTIFF-APPELLEE

                                                vs.

                                JAVONTE L. HODGES

                                                             DEFENDANT-APPELLANT



                                 JUDGMENT:
                         REVERSED AND REMANDED FOR
                               RESENTENCING


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-562692

        BEFORE:          Jones, J., Celebrezze, P.J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED: November 14, 2013
ATTORNEY FOR APPELLANT

Michael P. Maloney
24441 Detroit Road
Suite 300
Westlake, Ohio 44145


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Brian M. McDonough
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:

       {¶1} Defendant-appellant, Javonte L. Hodges, appeals his 20-years-to-life

sentence, which was imposed after his plea to murder and associated crimes.            We

reverse the consecutive portion of the sentence and remand for resentencing.

                                            I.

       {¶2} In May 2012, Hodges was charged with the aggravated murder of Christopher

Johnson.   The nine-count indictment also charged Hodges with aggravated robbery,

improperly handling firearms in a motor vehicle, having weapons while under disability,

and tampering with evidence.     The aggravated murder and aggravated robbery charges

contained one- and three-year firearm specifications.

       {¶3} After negotiations with the state, Hodges pleaded guilty to amended Count 1,

murder, with a three-year firearm specification; Count 3, aggravated robbery, with a

three-year firearm specification; Count 5, improperly handling firearms in a motor

vehicle; and Count 6, having weapons while under disability. The remaining counts and

specifications were nolled.

       {¶4} For purposes of sentencing, the murder, aggravated robbery, and improperly

handling firearms in a motor vehicle were merged as allied offenses; the state elected to

proceed to sentencing on the murder conviction.         The trial court sentenced Hodges to

three years on the firearm specification attendant to the murder count, to be served prior

and consecutively to 15 years to life on the underlying charge; and 24 months on the
having weapons while under disability conviction, to be served consecutive to the murder

sentence.   Hodges was, therefore, sentenced to 20 years to life.

                                             II.

       {¶5} In March 2012, Hodges, along with codefendants John Johnson and Deante

Kidd, shot and killed the victim, Christopher Johnson, because of a drug deal gone bad.

Hodges was the shooter; he shot Johnson in the back of the head from close range in the

vehicle where the drug transaction occurred.       After being shot, the victim, who had been

driving the vehicle, crashed into a home.      Hodges fled the scene and thereafter fled to

Florida, where he was eventually apprehended.         According to law enforcement officials

who apprehended him, Hodges initially denied being the shooter.               At sentencing,

Hodges stated that the shooting was an accident.

                                            III.

       {¶6} In his sole assignment of error, Hodges challenges his consecutive sentence,

contending that the trial court failed to (1) sufficiently inquire into and apply the factors

under R.C. 2929.12 and, therefore, did not comply with the purposes of felony sentencing

set forth under R.C. 2929.11, (2) merge the murder and having weapons while under

disability convictions, and (3) make the required findings for the imposition of

consecutive sentences.



Sentencing Factors under R.C. 2929.12

       {¶7} The trial court has the full discretion to impose any term of imprisonment
within the statutory range, but it must consider the sentencing purposes in R.C. 2929.11

and the guidelines contained in R.C. 2929.12. State v. Stone, 3d Dist. Marion No.

9-11-39, 2012-Ohio-1895, ¶ 10, citing State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856,

845 N.E.2d 470, ¶ 36-42; State v. Elston, 3d Dist. Putnam No. 12-11-11,

2012-Ohio-2842, ¶ 10.

      {¶8} R.C. 2929.11(A) provides that a sentence imposed for a felony shall be

reasonably calculated to achieve the two overriding purposes of felony sentencing:    (1)

“to protect the public from future crime by the offender and others,” and (2) “to punish

the offender using the minimum sanctions that the court determines accomplish those

purposes.”    The sentence imposed shall also be “commensurate with and not demeaning

to the seriousness of the offender’s conduct and its impact on the victim, and consistent

with sentences imposed for similar crimes committed by similar offenders.”           R.C.

2929.11(B).

      {¶9} The sentencing court must consider the seriousness and recidivism factors set

forth in R.C. 2929.12 in determining the most effective way to comply with the purposes

and principles of sentencing set forth in R.C. 2929.11. State v. Arnett, 88 Ohio St.3d

208, 213, 724 N.E.2d 793 (2000).       R.C. 2929.12 provides a non-exhaustive list of

factors a trial court must consider when determining the seriousness of the offense and

the likelihood that the offender will commit future offenses. State v. Samuels, 8th Dist.

Cuyahoga No. 88610, 2007-Ohio-3904, ¶ 14. R.C. 2929.12(A) also permits the court to

consider “any other factors that are relevant to achieving the purposes and principles of
sentencing.”

       {¶10} At sentencing, Hodges maintained that the shooting accidently occurred

when he was taking his money out of his sleeve, where he also had the gun, and the gun

jammed; he denied ever pulling the trigger.

       {¶11} The court noted that Hodges, who was 23 years old at the time of

sentencing, had a juvenile record and an adult record that included convictions for rioting

and criminal gang activity.       The court found that Hodges’s past criminal record

demonstrated that the “respect [he has] for human life is not all that great * * *.”

       {¶12} The court further stated the following:

       Now, whether your victim was a drug dealer or not is really of no
       consequence, because you don’t have the right or the power to execute
       anyone. And in our country we don’t execute drug dealers. We may
       imprison them, but we don’t execute them. You did. And I don’t buy
       that it was an accident. I find that extremely difficult to believe. And
       that story makes me say that you are not remorseful for your actions and
       that you are really not even taking responsibility for your actions despite the
       guilty plea because you still want us all to believe it was an accident. I
       don’t know how anyone carries a gun by accident starting there. A gun
       can’t get in your pocket, your waistband, or your arm sleeve by accident.
       An intentional movement must place that gun on your person. How does a
       gun get loaded? Not by accident. It’s an intentional movement to put
       those bullets in that gun.

       ***

       [There was] [n]o accidental meeting on the street. It was a planned
       meeting. It was planned that you would have a gun. It was planned that
       the gun had bullets. So if it had a hair trigger, which I disbelieve, and if it
       accidently went off, which I disbelieve, there were still planned actions
       leading up to that point. And you know that a gun is a deadly weapon.
       So you know even carrying a gun has a consequence of killing someone
       else.
      So whatever part of this you think was an accident, this court disagrees with
      you. And your plea states otherwise as well.

      {¶13} The court’s judgment entry of sentence states the court “considered all

required factors of the law. The court finds that prison is consistent with the purpose of

R.C. 2929.11.”

      {¶14} Upon review of the record, the trial court properly considered the applicable

factors and principles set forth in R.C. 2929.11 and 2929.12, including recidivism factors

and the need to punish Hodges.       Hodges’s contention that the trial court failed to

consider the sentencing considerations under R.C. 2929.11 and 2929.12 is therefore

without merit.

Allied Offenses

      {¶15} Hodges next challenges his sentence on the ground that the murder and

having weapons while under disability convictions should have merged. We disagree.

      {¶16} A merger analysis was conducted in this case and resulted in the merger of

the murder, aggravated robbery, and improperly handling firearms in a motor vehicle

convictions.     The murder and having weapons while under disability convictions were

properly not merged.

      {¶17} The Ohio Supreme Court set forth a two-part test for determining whether

offenses are allied offenses of similar import in State v. Johnson, 128 Ohio St.3d 153,

2010-Ohio-6314, 942 N.E.2d 1061. The first inquiry focuses on “whether it is possible

to commit one offense and commit the other with the same conduct * * *.” Id. at ¶ 48.

It is not necessary that the commission of one offense will always result in the
commission of the other. Id. Rather, the question is whether it is possible for both

offenses to be committed by the same conduct. Id. Conversely, if the commission of one

offense will never result in the commission of the other, the offenses will not merge. Id.

at ¶ 51.

       {¶18} If the multiple offenses can be committed with the same conduct, the court

must then determine whether the offenses were in fact committed by a single act, or

performed with a single state of mind. Id. at ¶ 49. If the answer to both questions is

yes, the offenses are allied offenses of similar import and must be merged.       Id. at ¶ 50.

On the other hand, if the offenses are committed separately or with a separate animus, the

offenses will not merge. Id. at ¶ 51.

       {¶19} This court has previously held that the

       animus of having a weapon under disability is making a conscious choice to
       possess a weapon. [The defendant] necessarily acquired the guns
       sometime prior to committing the other crimes. The fact that he then used
       the weapons to commit the other crimes does not absolve [the defendant] of
       the criminal liability that arises solely from his decision to illegally possess
       the weapons.

State v. Cowan, 8th Dist. Cuyahoga No. 97877, 2012-Ohio-5723, ¶ 39; see also State v.

West, 8th Dist. Cuyahoga No. 98274, 2013-Ohio-487, ¶ 43-45.

       {¶20} Here, Hodges took a gun to meet the victim to buy drugs.           He therefore

was in possession of the gun before he ever met up with the victim. He shot the victim

after the codefendants purchased drugs from the victim and it was decided that he had

been “cheated.”    On this record, the crime of having weapons while under disability

occurred before Hodges’s meeting with the victim and, therefore, was committed with an
animus separate from the murder.     Therefore, the having weapons while under disability

and murder convictions were properly not merged.

Consecutive Sentences

       {¶21} Under R.C. 2953.08(G)(2), the following two grounds permit an appellate

court to reverse a trial court’s imposition of consecutive sentences upon an offender if:

(1) the sentence is “otherwise contrary to law”; or (2) the appellate court, upon its review,

clearly and convincingly finds that “the record does not support the sentencing court’s

findings.” See also State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, ¶

11.

       {¶22} Under R.C. 2929.14(C)(4), when imposing consecutive sentences, the trial

court must first find that the sentence is “necessary to protect the public from future crime

or to punish the offender.”   The trial court must also 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. Further, the trial court must find that one of the

following factors applies:

       (a) The offender committed one or more of the multiple offenses while the
       offender was awaiting trial or sentencing, was under a sanction * * *, 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 * * * 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.

Id.

        {¶23} After sentencing Hodges to the mandatory 18 years for the murder

conviction, the court stated the following:

        The Court will also sentence you to * * * 24 months on the having
        weapon[s] while under disability, Count 6. And I will run that consecutive
        to the murder charge in Count 1. * * * Those 24 months will run * * *
        consecutive to amended Count 1. This, of course, is the most serious
        offense. I find that recidivism factors are present, and that any less of a
        sentence would demean the seriousness of this offense. Your lack of
        remorse is palpable.

        {¶24} The assistant prosecuting attorney stated that:

        [o]bviously this court has the discretion to impose those consecutive
        sentences if necessary to protect the public or punish the Defendant, and
        that they’re not disproportionate, and this was the worst form of the offense.




        {¶25} The court replied:

        Thank you. And as I’ve said, the seriousness of the offense, the facts of
        this case would — may support a theory of premeditation, meeting, a
        planned meeting, telling the co-defendant Deante Kidd that this is a cheater,
        bring a scale, and placing a gun in an arm sleeve as opposed to a pocket or
        holster or a waistband all are facts that this court believes given the
        statements of this Defendant also could lead to premeditation on this case.

        {¶26} We find on this record that the trial court did not comply with the

requirements for the imposition of consecutive sentences.1 The court offered “reasons”


         In its brief on appeal, the state acknowledges that the trial court “did not explicitly go through
        1


the three[-]step analysis required under R.C. 2929.14(C)(4),” but notes that in the past this court has
not required trial courts to do so. But recently, this court stated that the “current trend * * * has been
for the sentence, but besides finding that “any less of a sentence would demean the

seriousness of this offense,” the court did not make the required findings required for

consecutive sentences.      The assistant prosecuting attorney attempted to prompt the court

to make the required findings, but the court did not.

       {¶27} At sentencing, the state requested the maximum sentence; it also filed a

sentencing memorandum prior to sentencing seeking the same.                        The sentencing

memorandum consisted of letters from the victim’s family and friends, the funeral

program for the victim, and a remembrance book in honor of the victim.                        It has

previously been suggested that

       if the state believes that a consecutive sentence is appropriate in a given
       case, the best practice would be to provide the trial court with a sentencing
       memorandum that includes the required statutory findings under R.C.
       2929.14(C)(4) with citations to the record supporting each required finding.

State v. Wilson, 8th Dist. Cuyahoga No. 99331, 2013-Ohio-3915, ¶ 21 (Rocco, J.,

concurring).     Perhaps a sentencing memorandum that also included the requisite

statutory findings for the imposition of consecutive sentences would have guided the trial

court in this case.

       {¶28} In light of the above, the sole assignment of error is sustained as it relates to


to hold the trial court responsible for more than just ‘substantial compliance’ with the requirements.
We do not believe following the trend is unreasonable. Otherwise, general statements made by trial
courts can too easily be read as consecutive sentence findings. We do not believe that the legislature
intended such a result; rather, it has specifically delineated the findings that need to be made when
sentencing to consecutive terms.”          State v. Schmick, 8th Dist. Cuyahoga No. 99262,
2013-Ohio-4488, ¶ 13.
the imposition of consecutive sentences.

       {¶29} Judgment imposing consecutive sentences reversed; case remanded for

resentencing.

       It is ordered that appellant and appellee split 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 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.




LARRY A. JONES, SR., JUDGE

FRANK D. CELEBREZZE, JR., P.J., CONCURS;
EILEEN T. GALLAGHER, J., CONCURS IN
JUDGMENT ONLY WITH SEPARATE OPINION


EILEEN T. GALLAGHER, J., CONCURRING IN JUDGMENT ONLY:

       {¶30} I concur with the majority’s disposition of the first and second assigned

errors. However, I concur in judgment only as it relates to Hodges’s third assignment of
error, which relates to the mandatory findings for the imposition of consecutive sentences.

       {¶31} The majority determined that the trial court failed to make any of the

findings required under R.C. 2929.14(C)(4). I would find the court satisfied the required

findings under the first and third prongs of the statute, but failed to make a finding of

proportionality. Although the trial court is not required to use “talismanic words” to

comply with R.C. 2929.14(C)(4), “it must be clear from the record that the trial court

actually made the findings required by statute.” State v. Goins, 8th Dist. Cuyahoga No.

98256, 2013-Ohio-263, ¶ 10.

       {¶32} The court described Hodges’s violent criminal history and noted his

extensive juvenile record. The court found that recidivism factors were present and

stated that “any less of a sentence would demean the seriousness of the offense.” The

court did not, however, make any finding that a consecutive sentence is not

disproportionate to the seriousness of Hodges’s conduct and to the danger Hodges poses

to the public. For that reason, I respectfully concur in judgment only.
