[Cite as State v. Maire, 2020-Ohio-3491.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                    SANDUSKY COUNTY


State of Ohio                                   Court of Appeals No. S-19-033

        Appellee                                Trial Court No. 18 CR 1011

v.

James Y. Maire                                  DECISION AND JUDGMENT

        Appellant                               Decided: June 26, 2020

                                            *****

        Beth A. Tischler, Sandusky County Prosecuting Attorney,
        for appellee.

        Brett A. Klimkowsky, for appellant.

                                            *****

        SINGER, J.

        {¶ 1} Appellant, James Maire, appeals the January 31, 2019 judgment of the

Sandusky County Court of Common Pleas imposing consecutive sentences. For the

reasons that follow, we reverse.
       {¶ 2} Appellant sets forth one assignment of error:

              1. The Trial Court’s sentence of James Y. Maire (“Appellant”)

       violates R.C. § 2929.14(C)(4) - and is thus contrary to law - insofar as the

       Trial Court did not making [sic] appropriate findings of fact for Appellant

       to be sentenced in a consecutive manner.

                                       Background

       {¶ 3} On October 1, 2018, appellant was indicted, in Sandusky County Common

Pleas Court case No. 18 CR 1011, on one count of domestic violence in violation of R.C.

2919.25(A), a felony of the fourth degree, and one count of violating a protection order,

in violation of R.C. 2919.27(A)(1), a felony of the third degree. These charges arose out

of events which occurred between appellant and his live-in girlfriend on December 31,

2017. The domestic violence count included a specification that appellant had a prior

conviction for domestic violence.

       {¶ 4} Appellant was also indicted, in Sandusky County Common Pleas Court case

No. 18 CR 714, on one count of domestic violence in violation of R.C. 2919.25(A), a

felony of the third degree, and one count of abduction, in violation of R.C.

2905.02(A)(1), also a felony of the third degree. The charges arose out of an incident

which occurred with appellant and his live-in girlfriend on July 5, 2018. The domestic

violence count included a specification that appellant had two prior convictions for

domestic violence.




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       {¶ 5} On October 30, 2018, appellant was arraigned, and pled not guilty to the

charges. A jury trial was held on January 29, 2019. After the state rested, the court

granted appellant’s Crim.R. 29 motion as to the charge of violating a protection order.

The jury found appellant guilty of the two domestic violence charges and not guilty of the

abduction charge. Appellant was then sentenced to 36 months in prison on the domestic

violence count in case No. 18 CR 714, and 18 months in prison on the domestic violence

count in case No. 18 CR 1011, to be served consecutively, for a total period of

incarceration of 54 months. Appellant appealed, arguing the trial court failed to make all

of the findings required under R.C. 2929.14(C)(4) for consecutive sentences.

                                         Standard

       {¶ 6} The standard of appellate review of felony sentences is set forth in R.C.

2953.08. This court outlined that standard of review in State v. Tammerine, 6th Dist.

Lucas No. L-13-1081, 2014-Ohio-425, as limiting our review to whether there is clear

and convincing evidence to support the trial court’s findings and whether the sentence is

contrary to law.

                                            Law

       {¶ 7} R.C. 2929.14(C)(4) 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 future crime or to punish the offender




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       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

       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 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.

       {¶ 8} “When imposing consecutive sentences, a trial court must state the required

findings as part of the sentencing hearing * * *. And because a court speaks through its

journal * * * 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,




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consecutive sentences should be upheld.” State v. Bonnell, 140 Ohio St.3d 209, 2014-

Ohio-3177, 16 N.E.3d 659, ¶ 29.

                                 Argument and Analysis

       {¶ 9} Appellant asserts the trial court failed to find that consecutive sentences were

necessary to protect the public from future crime or to punish appellant. Appellant further

contends the court did not find that the consecutive sentences were disproportionate to the

seriousness of appellant’s conduct and to the danger appellant poses to the public, and if

the court also finds any of the following one of the factors of R.C. 2929.14(C)(4)(a), (b) or

(c) at the sentencing hearing, and none of the required findings was incorporated into the

judgment entry of sentencing.

       {¶ 10} The state counters the trial court engaged in the proper analysis, and the

court acknowledged that consecutive sentences were necessary to protect the public. The

state submits consecutive sentences were not disproportionate, and appellant had been

convicted of violent acts towards his partner four times. The state also maintains the

court speaks through its journal, and the sentencing entry outlines verbatim the

consecutive sentences factors upon which appellant’s sentence was based.

       {¶ 11} The transcript reveals that during the sentencing hearing, the state asked the

court for maximum, consecutive sentences for appellant due to his numerous court

contacts, including a long domestic violence history with the same victim, and the fact

that he had been to prison before. The court observed the state “has asked for four and a

half years, which is what you’ve been convicted of.” The court accepted the state’s




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recommendation of three years in prison for the third-degree felony domestic violence,

and 18 months in prison for the fourth-degree felony. The court stated “it’s certainly very

concerning -- four times, you’ve been convicted now of violent acts towards your partner.

Doesn’t that scare you a little bit that * * * you have such little control? I mean * * * you

can’t believe that you’re entitled to beat on someone like that.” The court further said

“[w]e’ve all seen the pictures…heard the testimony. A lot of people have gone through

life * * * never even seeing the inside of a court or a jail cell. They learned at a young

age * * * and went with the mantra of never hit a woman.” The court also stated “the

older we get, the more we’re supposed to figure it out, and unfortunately, that hasn’t

happened yet, so -- my job is to attempt to protect the public and impose an appropriate

punishment for the -- the conduct.” The court then clarified the terms were consecutive.

       {¶ 12} A review of the record shows the trial court found consecutive sentences

were necessary to protect the public from future crime and to punish appellant, but the

court did not find that consecutive sentences were not disproportionate to the seriousness

of appellant’s conduct and to the danger he poses to the public. In addition, the court

failed to find one of the factors of R.C. 2929.14(C)(4)(a), (b) or (c) at the sentencing

hearing. The court did, however, set forth all of the required findings in the judgment

entry of sentencing.

       {¶ 13} We therefore find the record does not support the conclusion that the trial

court made all findings required by R.C. 2929.14(C) at the time it imposed consecutive

sentences. We further find appellant’s sentence is contrary to law. Thus, this matter




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must be remanded for a new sentencing hearing. Accordingly, appellant’s assignment of

error is well-taken.

       {¶ 14} The sentence of the Sandusky County Court of Common Pleas is vacated

and the matter remanded to the trial court for resentencing. Appellee is ordered to pay

the costs of this appeal pursuant to App.R. 24.

                                                             Judgment reversed, sentence
                                                            vacated and matter remanded.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                                 _______________________________
                                                              JUDGE
Christine E. Mayle, J.
                                                  _______________________________
Gene A. Zmuda, P.J.                                           JUDGE
CONCUR.
                                                  _______________________________
                                                              JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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