[Cite as State v. Matthews, 2015-Ohio-4072.]


                   Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 102217



                                      STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                 STACEY MATTHEWS
                                                     DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-11-549605-A

        BEFORE:          McCormack, J., Jones, P.J., and Boyle, J.

        RELEASED AND JOURNALIZED: October 1, 2015
ATTORNEY FOR APPELLANT

Thomas A. Rein
700 W. St. Clair
Suite 212
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Norman Schroth
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:

      {¶1} Defendant-appellant, Stacey Matthews, appeals her consecutive sentence for

the third time. For the following reasons, we affirm.

      {¶2} In April 2011, Matthews was charged with seven counts of felonious

assault and two counts of assault.       The charges stemmed from an incident at a

McDonald’s parking lot where she drove her car in reverse at a high rate of speed,

injuring five people. A jury convicted Matthews of five counts of felonious assault.

The trial court sentenced Matthews to an aggregate prison term of seven years, ordering

Counts 2 and 4 to run consecutive to each other.   Matthews appealed her conviction and

sentence.   On appeal, this court affirmed her convictions.   We found, however, that the

trial court failed to make the requisite consecutive sentence findings and remanded for

resentencing. See State v. Matthews, 8th Dist. Cuyahoga No. 97916, 2012-Ohio-5174

(“Matthews I”).

      {¶3} In September 2013, the trial court held a resentencing hearing, during which

the court resentenced Matthews to seven years, again ordering Counts 2 and 4 to be

served consecutively.     Matthews appealed her sentence.         On appeal, this court

determined that the trial court, once again, failed to make the findings necessary for

consecutive sentences.    We specifically determined that the trial court found that

consecutive sentences were not disproportionate to the seriousness of Matthews’s conduct
and to the danger she poses to the public and that at least two of the offenses were

committed as part of a course of conduct and that the harm caused by those offenses was

so great or unusual that a single prison term did not adequately reflect the seriousness of

the offender’s conduct. We found, however, that the trial court failed to specifically find

that consecutive sentences were necessary to protect the public from future crime or to

punish Matthews.     We therefore remanded for the trial court to determine if the statutory

findings it failed to make would be warranted under the circumstances of the case and, if

so, to make the findings prior to imposing consecutive sentences on Counts 2 and 4. See

State v. Matthews, 8th Dist. Cuyahoga No. 100476, 2014-Ohio-3137 (“Matthews II”).

        {¶4} After the second remand, the trial court held another sentencing hearing in

October 2014.     The trial court acknowledged this court’s limited remand in Matthews II,

as noted above.    However, the court stated that in an effort to “get it right this time,” and

over the state’s objection, it would conduct a “normal sentencing.”

        {¶5} The court then proceeded to hear statements from the prosecutor, two of the

victims, defense counsel, and Matthews.      At this time, the prosecutor reiterated the facts

of the case, stating that Matthews “floored [her car] in reverse,” driving in the direction of

a large group of people, and she ran over one victim and hit another with her open car

door.   The prosecutor stated that Matthews then continued to flee the scene.              He

advised the court that he believes consecutive sentences are appropriate in this case.

The victims then explained their injuries to the court and requested that the court

resentence Matthews to seven years in prison.        Thereafter, defense counsel stated that
Matthews is a first-time offender, she has been a model prisoner, she has participated in

“all the programs that have been made available to her,” and she has learned a lot from

being in prison.    He requested a sentence of less than five years, thus making the

sentences for the two counts concurrent.      Finally, Matthews apologized and asked for

forgiveness, expressing her regret for the pain she has caused her family and the victims.

       {¶6} Before imposing sentence, the trial court indicated that it requested the

victims to provide a statement to the court once again in order to “cover all the bases”

regarding this court’s remand.    The court then stated that it would re-impose the original

sentence because, although the training in which Matthews has participated is “laudable,

* * * [it does not] change the facts of the case.”

       {¶7} The court reiterated Matthews’s sentence and stated as follows:

       [M]y thinking was at the time, and what I said in the case, had to do with
       the nature of the conduct, the nature of the injuries sustained by these two
       people and the other people who were not there for the sentencing. The
       fact that it was discussed by [assistant prosecutor] here, by fleeing the
       scene, and then fleeing after being stopped and running into the
       neighborhood.

       Ms. Matthews doesn’t have a record. You don’t believe that she is
       someone who is a current danger or posing a danger of reoffending to the
       public. But there’s [an] issue about punishment for what occurred.
       So my thinking in terms of making these consecutive is to — that there was
       more than one, or multiple, offenses here. * * * It was multiple offenses,
       committed as part of one course of conduct. The harm was caused to more
       than one person. It was so great or unusual that no single prison term for
       any one of the offenses committed would adequately reflect the seriousness
       of the conduct.

       And again, I think it has to [do] with the matter of punishment.
       {¶8} Thereafter, in an effort to clarify what the court had stated regarding

consecutive sentences, the state submitted as follows:

       Your Honor, the court indicated, and previously did indicate, 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 multiple offenses so
       committed was so great or unusual that no single prison term for any of the
       prison — offenses committed adequately reflect the seriousness of the
       offender’s conduct.

       And the [state] just wants to make sure the record is clear that the court did
       find previously, did find and is still finding, that consecutive sentences are
       not disproportionate to the seriousness of the offender’s conduct.

       And Your Honor mentioned punishment. It should be made very clear * *

       * that this court is imposing consecutive sentences because it is necessary to

       protect the public from future harm or to punish Ms. Matthews.

       {¶9}   In response, the court stated that “[i]f [it] didn’t say all those things as

crudely as you put them on the record, [it] intended to do so * * *.” The court then

advised Matthews that her sentence included a mandatory three years of postrelease

control.

       {¶10} Finally, the court stated that the original restitution order in the amount of

$3,000 for Mr. Strange and $24,000 for Ms. Ostricker “will stay the same.”           Defense

counsel advised the court that Matthews does not have the ability to pay the restitution

and requested the court waive the restitution orders.    In response, the court stated that it

will continue the orders of    restitution because “those orders were appropriate” at the

time of the original sentencing.
      {¶11} In this third appeal, Matthews raises two assignments of error for our

review:

      I. The trial court again erred by ordering appellant to serve a consecutive
      sentence without making the appropriate findings required by R.C. 2929.14
      and H.B. 86.

      II. The trial court erred by ordering appellant to make restitution without
      properly determining appellant’s ability to pay.

                                 Consecutive Sentences

      {¶12} Matthews claims in her first assignment of error that the trial court once

again failed to make the statutorily mandated consecutive sentence findings.

      {¶13} H.B. 86 revived a presumption of concurrent sentences; therefore,

consecutive sentences can be imposed only if the trial court makes the required findings

pursuant to R.C. 2929.14(C)(4). State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177,

16 N.E.3d 659, ¶ 20-22.

      {¶14} R.C. 2929.14(C)(4) states:

              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
      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.

       {¶15} Compliance with R.C. 2929.14(C)(4) requires the trial court to make the

statutory findings at the sentencing hearing, “and by doing so it affords notice to the

offender and to defense counsel.” Bonnell at ¶ 29. “Findings,” for these purposes,

means that “‘the [trial] court must note that it engaged in the analysis’ and that it ‘has

considered the statutory criteria and specifie[d] which of the given bases warrants its

decision.’” Id. at ¶ 26, quoting State v. Edmonson, 86 Ohio St.3d 324, 326, 715 N.E.2d

131 (1999).   A trial court is not, however, required to recite the statute word-for-word or

state its reasons to support its findings. Id. at ¶ 37.   “[A]s 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, consecutive sentences should be

upheld.” Id. at ¶ 29.

       {¶16} We note, initially, that when a case is remanded, a lower court must “‘carry

the mandate of the upper court into execution and not consider the questions which the

mandate laid at rest.’” State v. Falkenstein, 8th Dist. Cuyahoga No. 99670,

2013-Ohio-5315, ¶ 12, quoting State v. Carlisle, 8th Dist. Cuyahoga No. 93266,

2010-Ohio-3407, ¶ 16; see Sprague v. Ticonic Natl. Bank, 307 U.S. 161, 168, 59 S.Ct.
777, 83 L.Ed. 1184 (1939).     The “mandate rule” vests the lower court on remand with

jurisdiction and it gives the lower court on remand the authority to render judgment

consistent with the appellate court’s judgment. Carlisle, citing Sprague.        The lower

court may not disregard the explicit directives of the appellate court. State v. Larkins,

8th Dist. Cuyahoga No. 85877, 2006-Ohio-90, ¶ 31. Thus, where this court does not

mandate a resentencing hearing, the trial court has no power to conduct one. State v.

Howard, 8th Dist. Cuyahoga No. 87490, 2006-Ohio-6412.

       {¶17} Here, in Matthews II, this court determined that the trial court made two of

the three statutorily mandated consecutive sentence findings.    However, we specifically

found that the trial court failed to make the finding that consecutive service is necessary

to protect the public from future crime or to punish the offender.           We therefore

remanded for the trial court to determine “if the statutory findings it failed to make would

be warranted under the circumstances of the case and, if so, to make the findings prior to

imposing consecutive sentences on Counts 2 and 4.” Matthews II, 8th Dist. Cuyahoga

No. 100476, 2014-Ohio-3137, at ¶ 16.

       {¶18} This court has held that the proper remedy for correcting an error during the

imposition of consecutive sentences is not a de novo hearing; rather, it is a limited remand

for the purpose of determining whether consecutive sentences should be imposed and to

make those findings, if warranted. State v. Frost, 8th Dist. Cuyahoga No. 100498,

2014-Ohio-2645, ¶ 10.     And in the event that the reviewing court made a determination

regarding two of the three findings, the trial court is bound by the prior court’s
determination as to the two findings. “The trial court could not revisit the findings it had

already made because they are now the law of the case,” and therefore, “the scope of the

remand is limited to the finding(s) lacking in the original sentencing.” Id.

       {¶19} Here, the court entertained arguments from the state and the defense and,

although not required to, statements from two of the victims. It then explained its bases

for determining that consecutive sentences were necessary when it stated that it had

considered “the nature of the conduct, the nature of the injuries sustained” by the victims,

and Matthews’s “fleeing the scene, and then fleeing after being stopped and running into

the neighborhood.”     The court stated that Matthews’s sentence is “about punishment for

what occurred * * *.     [I]t has to [do] with the matter of punishment.”      Thereafter, the

state reiterated all of the statutorily mandated findings in an effort to clarify the court’s

findings, and the court acknowledged that although it may not have stated the findings as

eloquently as the prosecutor did, it “intended to do so.”

       {¶20} In light of the above, we find that the trial court did what it was required

upon remand to do:     it determined that a consecutive sentence was warranted under the

circumstances of the case, and it made the finding that a consecutive sentence was

necessary in order to punish Matthews. Although the court did not recite the statutory

finding word-for-word, the record demonstrates that the court engaged in the correct

analysis and identified the bases for its decision.

       {¶21} Matthews’s first assignment of error is overruled.

                                         Restitution
       {¶22} Matthews’s second assignment of error pertains to the order of restitution.

Matthews claims that the trial court erred in ordering restitution without making a

determination regarding her ability to pay.

       {¶23} For the reasons stated above, Matthews’s argument is without merit. The

record shows that the trial court ordered restitution at the original sentencing hearing and

the court only reiterated its restitution orders at the October 2014 resentencing hearing.

This court’s remand in Matthew II was limited to consecutive sentence findings.

Therefore, the trial court had no authority to revisit its restitution orders at the October

2014 sentencing hearing.

       {¶24} Matthews’s second assignment of error is overruled.

       {¶25} Judgment affirmed.

       It is ordered that appellee recover of appellant 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. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

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

the Rules of Appellate Procedure.



______________________________________________
TIM McCORMACK, JUDGE
LARRY A. JONES, SR., P.J., and
MARY J. BOYLE, J., CONCUR
