[Cite as State v. Johnson, 2012-Ohio-2508.]




                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 97579



                                      STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                 ANTHONY JOHNSON
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-553734

        BEFORE: Boyle, J., Stewart, P.J., and Rocco, J.

        RELEASED AND JOURNALIZED:                        June 7, 2012
ATTORNEY FOR APPELLANT

David K. Greer
1150 Morse Road
Suite 230
Columbus, Ohio 43229-6327


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Mary McGrath
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, J.:

       {¶1} Defendant-appellant, Anthony Johnson, appeals his sentence, raising the

following two assignments of error:

       “I.    The trial court erred in sentencing appellant to consecutive prison terms,

without making the findings required by R.C. 2929.14(C)(4).

       “II.    The trial court erred in imposing a maximum prison sentence on the

attempted assault count.”

       {¶2} We find Johnson’s arguments unpersuasive and affirm.

                               Procedural History and Facts

       {¶3} In August 2011, Johnson was indicted on three counts: (1) assault on a

peace officer, in violation of R.C. 2903.13(A); (2) harassment by inmate, in violation of

R.C. 2921.38(B); and (3) resisting arrest, in violation of R.C. 2921.33(A).          The

allegations giving rise to the indictment were that Johnson, who was severely intoxicated

at the time, attempted to kick Detective Gerald Sowul when Detective Sowul placed him

under arrest for disorderly conduct.   Then, while being booked on charges, Johnson later

spit at Lieutenant Thomas Dillon.       Johnson ultimately pleaded guilty to the lesser

offense of attempted assault on Count 1 and to the charge of harassment by inmate as

charged in Count 2. The remaining count of the indictment was nolled.

       {¶4} Following Johnson’s guilty plea, the trial court immediately proceeded to

sentencing. After detailing Johnson’s extensive criminal history, i.e., 15 juvenile court

cases, an assault on a peace officer, four drug trafficking cases, one robbery case, a
      carrying a concealed weapon and having a weapon while under disability case, and an

      assault on an EMS worker — the trial court found that “society is better off with

      [Johnson] in jail than out of jail.” The trial court sentenced Johnson to 12 months on the

      attempted assault on a peace officer count and 11 months on the harassment by inmate

      count, each to run consecutive, for a total of 23 months in prison.

             {¶5} From this order, Johnson now appeals.

                                          Standard of Review

             {¶6} An appellate court must conduct a meaningful review of the trial court’s

      sentencing decision.    State v. Hites, 3d Dist. No. 6-11-07, 2012-Ohio-1892, ¶ 7.

      Specifically, R.C. 2953.08(G)(2) provides the following regarding an appellate court’s

      review of a sentence on appeal:

             The court hearing an appeal * * * shall review the record, including the findings
             underlying the sentence or modification given by the sentencing court.

             The appellate court may increase, reduce, or otherwise modify a sentence that is
             appealed under this section or may vacate the sentence and remand the matter to
             the sentencing court for resentencing. The appellate court’s standard for review
             is not whether the sentencing court abused its discretion. The appellate court may
             take any action authorized by this division 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.

      {¶7} Additionally, 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.”         R.C. 2929.11(A).     The sentence

imposed shall also be “commensurate with and not demeaning to the seriousness of the

offender’s conduct and its impact upon the victim, and consistent with sentences imposed for

similar crimes committed by similar offenders.” R.C. 2929.11(B).

                                     Consecutive Sentences

      {¶8} In his first assignment of error, Johnson argues that the trial court failed to make

the necessary findings required under R.C. 2929.14(C) for the imposition of consecutive

sentences.   We disagree.

      {¶9} The General Assembly, through the enactment of H.B. 86, recently amended

Ohio’s sentencing statutes. Because H.B. 86 took effect on September 30, 2011, and Johnson

was sentenced on October 17, 2011, the trial court was required to sentence Johnson under the

new provisions. Pertinent to this appeal, the revisions under H.B. 86 now require a trial court

to make specific findings when imposing consecutive sentences.                Specifically, R.C.

2929.14(C)(4) provides as follows:

              (4) 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.

       {¶10} Johnson argues that the trial court failed to make all three of the required

findings and failed to correlate the findings to the specific facts of this case.        He

contends that the trial court focused solely on his criminal history and that this single

factor does not allow the imposition of consecutive sentences. He further contends that

the trial judge misquoted the statute, confusing the disproportionate standard as contained

in R.C. 2929.11, i.e., “are not disproportionate to other sentences,” with the required

finding of “are not disproportionate to the seriousness of the offender’s conduct and to the

danger the offender poses to the public.”

       {¶11} The trial court’s specific findings prior to imposing consecutive sentences

are as follows:

       Mr. Johnson, it’s clear that society is better off with you in jail than out of
       jail despite its costs. This is your third case where you either assaulted a
       peace officer or EMS worker. When you are free, you seem to spend your
       time trafficking in drugs. Most of your juvenile court cases are theft cases.

       Let’s see. We have a new sentencing statute that indicates that there is a
       presumption of concurrent terms; the Court must find that the offender’s —
       that the consecutive sentences are necessary to punish the offender and
       protect the public and are not disproportionate to other sentences and must
      find also that the offender’s criminal history shows that consecutive terms
      are needed to protect the public.

      I also find this offense occurred while on probation to municipal court.

      So, the facts are that you assaulted a police officer and then spit on another
      one. This is again in line with a long history of doing this. You did it to
      an EMS worker and you did it to another police officer in the past.

      And it’s clear that you are at great risk to reoffend. Once free it doesn’t
      take you long to find trouble. So, it is necessary to protect the public
      against future crimes to impose consecutive sentences.


      {¶12} Contrary to Johnson’s assertion, we find that the trial court complied with

the dictates of the newly amended R.C. 2929.14(C)(4) and made all the required findings

to support the imposition of consecutive sentences. While we acknowledge that the trial

judge mis-spoke in his exact language in discussing the disproportionate standard, we

nonetheless find that the trial judge found that the imposition of consecutive sentences

would not be disproportionate to the seriousness of Johnson’s conduct and to the danger

that he poses to the public.   It is obvious by the trial judge’s reference to the amended

statute and supporting statements, i.e., Johnson’s specific conduct in this case and

Johnson’s repeated engagement in criminal activity, that the trial court found that

consecutive sentences were not disproportionate to Johnson’s conduct and the threat he

poses. Indeed, the trial judge emphasized more than once that this is Johnson’s third

case involving disrespect and violence toward a peace officer.

      {¶13} We further disagree that the trial judge only focused on Johnson’s past

criminal history in imposing consecutive sentences. As discussed above, the trial judge
discussed the specific facts of the underlying case in support of its imposition of

consecutive sentences. But nonetheless Johnson’s criminal history was a significant

factor supporting the trial court’s findings, especially given that consecutive sentences are

necessary to protect the public from future crime by Johnson.

       {¶14} Accordingly, we overrule the first assignment of error.

                                   Maximum Sentences

       {¶15} In his second assignment of error, Johnson argues that the trial court erred in

imposing a maximum sentence on Count 1 because “none of the statutory aggravating

factors apply to justify a maximum sentence” under R.C. 2929.12(B). But the factors

listed under R.C. 2929.12(B) are not exhaustive. Nor is the trial court prohibited from

imposing a maximum sentence if it does not find that one of the specific factors listed

under R.C. 2929.12(B) apply. Indeed, the statute specifically states that the trial court

shall consider “any other relevant factors.”

       {¶16} Further, Johnson’s argument ignores the other provisions under R.C.

2929.12, namely, subsections (D) and (E) relating to the offender’s likelihood of

recidivism, that the trial court must also consider in order to achieve the overriding

purposes of protecting the public from future crime and punishing the offender. Those

factors, i.e., that Johnson was on probation at the time of his offense, his extensive

criminal history and failure to respond favorably to past sanctions, and his repeated

pattern of the same activity giving rise to the underlying offense, supported the trial

court’s decision to impose the maximum term of one year on Count 1.
      {¶17} The second assignment of error is overruled.

      {¶18} 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.




MARY J. BOYLE, JUDGE

MELODY J. STEWART, P.J., and
KENNETH A. ROCCO, J., CONCUR
