[Cite as State v. Davila, 2013-Ohio-4922.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 99683




                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                   ALCIVIADE DAVILA
                                                    DEFENDANT-APPELLANT




                                    JUDGMENT:
                              REVERSED AND REMANDED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-556457

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

        RELEASED AND JOURNALIZED: November 7, 2013
ATTORNEY FOR APPELLANT

Mark R. Marshall
P.O. Box 451146
Westlake, Ohio 44145


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Erin Stone
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:

       {¶1} Defendant-appellant Alciviade Davila (“Davila”) appeals his consecutive

sentence. We find merit to the appeal and reverse.

       {¶2} Davila was charged with aggravated burglary, kidnapping, robbery, and grand

theft of a motor vehicle.      Pursuant to a plea agreement, Davila pleaded guilty to

abduction and grand theft of a motor vehicle. Davila also agreed to serve a prison

sentence and consented to a five-year protection order. After taking Davila’s plea, the

trial court scheduled a sentencing hearing for a later date at which Davila failed to appear.

       {¶3} Davila was subsequently arrested, and the trial court sentenced him to 36

months on the abduction conviction and 18 months on the grand theft conviction to be

served consecutively for an aggregate 54-month prison term.           Davila filed a timely

appeal of the trial court judgment.

       {¶4} In his sole assignment of error, Davila argues the trial court erred by

imposing consecutive prison terms without making the findings required under R.C.

2929.14(C)(4). We agree.

       {¶5} R.C. 2953.08(G)(2) states that when reviewing prison sentences, “[t]he

appellate court’s standard for review is not whether the sentencing court abused its

discretion.” Instead, the statute states that if we “clearly and convincingly” find that, (1)

“the record does not support the sentencing court’s findings under [R.C. 2929.14(C)(4)]”

or that, (2) “the sentence is otherwise contrary to law,” then we “may increase, reduce, or

otherwise modify a sentence * * * or [we] may vacate the sentence and remand the matter
to the sentencing court for resentencing.” State v. Goins, 8th Dist. Cuyahoga No. 98256,

2013-Ohio-263, ¶ 6, quoting R.C. 2953.08(G)(2).

       {¶6} R.C. 2929.14(C)(4) requires a sentencing judge to make three separate and

distinct findings before imposing consecutive sentences. State v. Richmond, 8th Dist.

Cuyahoga No. 98915, 2013-Ohio-2887, ¶ 11.          First, the trial court must find that

“consecutive service is necessary to protect the public from future crime or to punish the

offender.” R.C. 2929.14(C)(4). Second, the trial court must 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. Finally, the trial court must find that at

least one of the following applies:

       (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 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 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.

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

       {¶7} In this case, the trial court noted that Davila had nine prior convictions for

violent crimes including felonious assaults and domestic violence.        The court also

commented that, according to the police report, Davila threatened to kill the victim 16
times after the police arrived on the scene. Davila told police: “When I get out of jail I

am going to kill that b-i-t-c-h, and they can’t hold me forever. When they let me go that

b-i-t-c-h is dead.” Based on these facts, the court found that “consecutive sentences are

necessary to protect the public from any criminal activity and, therefore, the Court will

order that the sentences be served consecutively.”

       {¶8} Although it is clear from the record that the court found Davila has a violent

past and has made threats to kill the victim in the future, the court failed to make any

findings with respect to proportionality. The state argues the proportionality finding is

satisfied by virtue of the court’s comments regarding the seriousness of the offenses and

the danger Davila poses to the public. The state contends we may conclude that the trial

court found consecutive sentences were “not disproportionate to the seriousness of the

offender’s conduct and to the danger of the public” based on the court’s findings on the

seriousness and recidivism factors.

       {¶9} However, we cannot speculate as to what the trial court thought when it

imposed the sentence, nor may we infer findings from elsewhere in the record. State v.

Wilson, 8th Dist. Cuyahoga No. 99331, 2013-Ohio-3915, ¶ 8. Although the trial court is

not required to use “talismanic words” when making its findings, it must be clear from the

record that the trial court actually made the required statutory findings. Goins, 8th Dist.

Cuyahoga No. 98256 at ¶ 10. The requirements of R.C. 2929.14(C)(4) are designed to

ensure that the trial court engaged in the required analysis. Id. It is clear the trial court

failed to make a finding that consecutive sentences are not disproportionate to the
seriousness of Davila’s conduct or the danger he poses to the public. Therefore, we

sustain the sole assignment of error.

       {¶10} Judgment reversed.         The case is remanded to the trial court for

resentencing.

       It is ordered that appellant recover from appellee 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.



EILEEN T. GALLAGHER, JUDGE

LARRY A. JONES, SR., P.J., and
TIM McCORMACK, J., CONCUR
