[Cite as State v. Johnson, 2013-Ohio-3306.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                         C.A. No.     12CA0050-M

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
BRIAN W. JOHNSON                                      COURT OF COMMON PLEAS
                                                      COUNTY OF MEDINA, OHIO
        Appellant                                     CASE No.   08-CR-0282

                                 DECISION AND JOURNAL ENTRY

Dated: July 29, 2013



        WHITMORE, Judge.

        {¶1}     Defendant-Appellant, Brian Johnson, appeals from the judgment of the Medina

County Court of Common Pleas. This Court reverses.

                                                 I

        {¶2}     On April 15, 2008, Brian and Carol Johnson gave birth to a son, N.J. On June 6,

2008, the Johnsons brought N.J. into the emergency room after noticing something was wrong

with his arm. N.J. was diagnosed with a displaced fracture of the right humerus and twelve

additional bone fractures in various stages of healing.

        {¶3}     Brian Johnson was indicted on three counts of felonious assault: one count for

May 23rd through May 30th; one count for May 31st through June 6th; and one count for June

6th. In addition, Johnson was indicted on five counts of child endangering: two counts covering

the time period of May 23rd through May 30th; one count for May 31st through June 5th; one

count for May 31st through June 6th; and one count for June 6th.
                                                 2


        {¶4}   A jury found Johnson not guilty of felonious assault for May 23rd through May

30th and guilty of the remaining counts. The court sentenced Johnson to seven years for each of

the two felonious assaults, and six years for one of the child endangering charges for May 23rd

through May 31st. The court found the remaining child endangering counts were allied offenses

of similar import. The court ordered Johnson’s sentences to be served consecutively, for a total

of twenty years in prison. Johnson appealed and this Court affirmed in part, reversed in part, and

remanded for re-sentencing. State v. Johnson, 9th Dist. Medina No. 09CA0054-M, 2011-Ohio-

3623.

        {¶5}   On remand the trial court conducted several hearings and ultimately sentenced

Johnson to seven years on each of the two felonious assault convictions and six months on each

of the child endangering convictions. The court found the two felonious assaults were not allied

offenses of similar import and ordered the sentences to be served consecutively. The court

further ordered the child endangering sentences to be served consecutive to one another, but

concurrent to the felonious assault. Johnson now appeals and raises four assignments of error for

our review. To facilitate the analysis, we address the assignments of error out of order.

                                                II

                                Assignment of Error Number Two

        THE TRIAL COURT’S SENTENCE OF CONSECUTIVE, NEARLY
        MAXIMUM TERMS FOR THE FELONIOUS ASSAULTS WAS CONTRARY
        TO THE PURPOSES OF THE STATE’S SENTENCING SCHEME AND [R.C.]
        2929.14(C)(4)[.]

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

on incorrect factual findings when imposing consecutive sentences.

        {¶7}   R.C. 2929.14(C)(4) permits the court to impose consecutive sentences if it finds

(1) “that the consecutive service is necessary to protect the public from future crime or to punish
                                                 3


the offender,” (2) “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 (3) one of the

following:

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

       (b) At least two of the multiple offenses were committed as part of one or more
           courses of conduct, and the harm caused * * * 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 * * *.

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

       {¶8}   At the May 4, 2012 sentencing hearing, the court acknowledged that it had the

discretion to impose consecutive sentences if it found that consecutive sentences were necessary

to protect the public and punish the offender and were not disproportionate. The court then went

on to make specific findings regarding its decision to impose consecutive sentences.

       Under R.C. 2929.14(C)(4), the [c]ourt’s going to conclude in this case, based on
       the numerous and, the [c]ourt has to say, horrific injuries that were suffered by a
       very, very young child, that the harm in the case is so great and so unusual that a
       single term would not adequately reflect the seriousness of the conduct of this
       Defendant in causing these injuries, that has been found by the doctors, as well as
       other hospital personnel, and the injury in this particular case, as a result of that,
       the [c]ourt’s going to order consecutive sentences in this particular case * * *.

       {¶9}   Johnson argues that the court erred in relying on fractures that occurred prior to

May 31st when it found that the “harm caused * * * was so great or unusual that no single prison

term * * * adequately reflects the seriousness of the offender’s conduct.”                See R.C.

2929.14(C)(4)(b).

       {¶10} Prior to imposing a prison sentence, the court recapped the facts in order to

determine whether some of the offenses were allied offenses of similar import. In doing so, the
                                                   4


court detailed that “there [we]re a series of events; one, the broken * * * arm, that occurred June

6th; then a series of events that resulted in, well, twelve other separate fractures between May

31st and June 6th.” The court went on to conclude that the two felonious assaults were “not

allied offenses of similar import but, in fact, two separate counts of felonious assault: One, the

June 6th felonious assault relating to the arm hanging and being taken to the emergency room;

and then the May 31st to June 6th events resulting in the other offenses, the other twelve separate

fractures, including fractures to the head, ribs, the right humerus, and several other bones.”

       {¶11} This factual finding is unsupported by the record. In fact, in its brief, the “State

concedes all of the twelve fractures did not occur between May 31st and June 6th.” Because the

court relied on this erroneous factual finding in its rationale for ordering the two felonious

assault sentences to be served consecutively, we must reverse the trial court’s imposition of

consecutive sentences and remand this matter for the trial court to conduct a new hearing to

determine whether consecutive sentences are appropriate based on the facts of this case.

       {¶12} Johnson’s second assignment of error is sustained.

                                 Assignment of Error Number Four

       THE TRIAL COURT INCORRECTLY SENTENCED MR. JOHNSON ON
       ALLIED OFFENSES UNDER JOHNSON[.]

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

sentencing him on both felonious assault charges because they are allied offenses of similar

import. Because the trial court relied on the erroneous factual findings in its determination that

the offenses were not allied, we decline to address this assignment of error. Instead, we remand

this issue for the trial court to address in the new hearing.
                                                 5


                                Assignment of Error Number One

       THE TRIAL COURT SENTENCED MR. JOHNSON FOR CONDUCT OF
       WHICH HE HAD BEEN ACQUITTED.

                               Assignment of Error Number Three

       THE TRIAL COURT FAILED TO ADEQUATELY CONSIDER THE
       PURPOSES AND PRINCIPLES OF [R.C.] 2929.11, AS WELL AS THE
       FACTORS LISTED IN [R.C.] 2929.12[.]

       {¶14} In his first and third assignments of error, Johnson asserts additional sentencing

errors. In light of our disposition of Johnson’s second assignment of error, these assignments of

error are moot and we decline to address them. App.R. 12(A)(1)(c).

                                                III

       {¶15} Johnson’s second assignment of error is sustained. His first and third assignments

of error are moot, and we decline to address his fourth. The judgment of the Medina County

Court of Common Pleas is reversed, and the cause is remanded for proceedings consistent with

the foregoing opinion.

                                                                              Judgment reversed,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
                                                6


instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                    BETH WHITMORE
                                                    FOR THE COURT



BELFANCE, P. J.
CARR, J.
CONCUR.


APPEARANCES:

WILLIAM T. WHITAKER and ANDREA L. WHITAKER, Attorneys at Law, for Appellant.

DEAN HOLMAN, Prosecuting Attorney, and SCOTT G. SALISBURY, Assistant Prosecuting
Attorney, for Appellee.
