[Cite as State v. Jones, 2014-Ohio-2248.]
                            STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


STATE OF OHIO                                 )    CASE NO. 13 MA 101
                                              )
        PLAINTIFF-APPELLEE                    )
                                              )
VS.                                           )    OPINION
                                              )
MIKE W. JONES                                 )
                                              )
        DEFENDANT-APPELLANT                   )

CHARACTER OF PROCEEDINGS:                          Criminal Appeal from the Court of
                                                   Common Pleas of Mahoning County,
                                                   Ohio
                                                   Case No. 13 CR 146

JUDGMENT:                                          Affirmed.

APPEARANCES:

For Plaintiff-Appellee:                            Atty. Paul J. Gains
                                                   Mahoning County Prosecutor
                                                   Atty. Ralph M. Rivera
                                                   Assistant Prosecuting Attorney
                                                   21 West Boardman Street, 6th Floor
                                                   Youngstown, Ohio 44503

For Defendant-Appellant:                           Atty. Edward A. Czopur
                                                   DeGenova & Yarwood, Ltd.
                                                   42 N. Phelps St.
                                                   Youngstown, Ohio 44503


JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
                                                   Dated: May 23, 2014
[Cite as State v. Jones, 2014-Ohio-2248.]
WAITE, J.


        {¶1}     Appellant Mike W. Jones appeals the imposition of consecutive

sentences in his felony criminal case. He was sentenced to eight years in prison for

attempted rape and five years for gross sexual imposition, to be served

consecutively, for a total of thirteen years in prison. Appellant argues that the trial

court could not impose consecutive sentences because it failed to make one of the

findings required by R.C. 2929.14(C)(4). Specifically, Appellant argues that the trial

court did not find that the consecutive prison terms were necessary to protect the

public from future crime or punish the offender. The sentencing transcript repeatedly

refers to the need to impose maximum consecutive sentences to punish Appellant

due to the seriousness of his crimes, and the judgment entry tracks the exact

language of the consecutive sentencing statute. Appellant's assignment of error is

without merit and the judgment of the trial court is affirmed.

        {¶2}     On February 7, 2013, Appellant was indicted in the Mahoning County

Court of Common Pleas for one count of rape of a child under 13 years of age, by

force or threat of force, pursuant to R.C. 2907.02(A)(1)(b) and (B), which carried a

penalty of life in prison.          He was also indicted on one count of gross sexual

imposition, R.C. 2907.05(A)(4), a third-degree felony with a potential five-year prison

term. Appellant subsequently pleaded guilty to a reduced charge of attempted rape,

a second-degree felony carrying a maximum penalty of eight years in prison, and to

the gross sexual imposition charge. The prosecutor recommended that maximum

consecutive sentence of 13 years in prison be imposed. On June 7, 2013, the trial

court sentenced Appellant to eight years in prison for rape, and five years in prison
                                                                                      -2-

for gross sexual imposition, to be served consecutively. The court filed its judgment

entry of conviction and sentence on June 12, 2013, and this timely appeal followed.

                              ASSIGNMENT OF ERROR

       The sentence imposed against Mr. Jones was in violation of

       2929.14(C)(4) and, therefore, an abuse of discretion, not supported by

       the record and/or contrary to law as the trial court did not make the

       necessary findings before imposing consecutive sentences.

       {¶3}   Appellant argues that the trial court could not impose consecutive

sentences because it failed to make all the required findings listed in R.C.

2929.14(C)(4). More specifically, Appellant argues that the court failed to find that

consecutive sentences were necessary to protect the public from future crimes or to

punish the offender. When reviewing a felony sentence, an appellate court first

reviews the sentence to ensure that the sentencing court clearly and convincingly

complied with the applicable laws. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-

4912, 896 N.E.2d 124, ¶4.       If this step is satisfied, the court then reviews the

sentencing decision for abuse of discretion. Id. at ¶17, 19-20. An abuse of discretion

means more than an error of judgment, but rather, implies that the court's attitude is

unreasonable, arbitrary or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157,

404 N.E.2d 144 (1980). Appellant is arguing that the trial court's sentence is clearly

and convincingly contrary to law due to its failure to make required statutory findings.

       {¶4}   Under the revisions of R.C. 2929.14 that became effective on

September 20, 2011, a court imposing consecutive sentencing must make certain
                                                                                       -3-

findings. See 2011 H.B. 86. Before H.B. 86 was enacted, the Ohio Supreme Court

held “there is no mandate for judicial fact-finding in the general guidance statutes.”

State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶42. Foster

struck down former R.C. 2929.14(E)(4), which at the time governed the imposition of

consecutive sentences, because it required judicial fact-finding in violation of the right

to trial by jury protected by the Sixth Amendment. This aspect of Foster's holding

was later undermined by Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d

517 (2009), which held that there was no Sixth Amendment violation if judicial fact-

finding was involved in imposing consecutive sentences. The Ohio Supreme Court

later noted in State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768,

that “[a]fter Ice, it is now settled law that * * * the jury-trial guarantee of the Sixth

Amendment to the United States Constitution does not preclude states from requiring

trial court judges to engage in judicial fact-finding prior to imposing consecutive

sentences.” Id. at ¶19. Hodge also held, however, that Ice did not revive the former

consecutive sentencing provisions held to be unconstitutional in Foster. The state

legislature responded by reenacting some, but not all, of the prior consecutive

sentencing statutes. The reenactment is contained primarily in R.C. 2929.14(C)(4),

which states:

       (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
                                                                                  -4-

      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.

      {¶5}   Based on the wording of R.C. 2929.14(C)(4), the trial court can impose

sentences consecutively if it makes three findings: (1) that consecutive service is

necessary to protect the public from future crime or to punish 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) finds one of the
                                                                                       -5-

following three: that (a) the offender committed one or more of the multiple offenses

while the offender was subject to postrelease control, was awaiting trial or

sentencing, or was subject to a community control or financial sanction, or that (b) the

harm caused by two or more of the offenses was so great or unusual that a single

prison term does not adequately reflect the seriousness of the offender's conduct, or

that (c) consecutive sentences are necessary to protect the public from future crime

by the offender based on the offender's criminal history. Appellant is arguing that the

trial court did not make finding number one, i.e., that consecutive sentences were

necessary to protect the public from future crime or punish the offender.

       {¶6}   Although the trial court is required to make findings, it is not required to

state reasons supporting those findings, as had been the case under prior law. State

v. Galindo–Barjas, 7th Dist. No. 12 MA 37, 2013-Ohio-431. Furthermore, the court is

not required to use any “magic” or “talismanic” words in order to comply with the

statutory requirement. State v. Verity, 7th Dist. No. 12 MA 139, 2013-Ohio-1158,

¶28-29.   It may quote the language used in R.C. 2929.14(C)(4), or it may use

different wording, as long as it is clear from the record that the trial court engaged in

the appropriate analysis. State v. Power, 7th Dist. No. 12 CO 14, 2013-Ohio-4254,

¶40.

       {¶7}   In this case, the trial court noted at sentencing that the more serious

charge had been reduced in the plea agreement from forcible rape of a child to

attempted rape in order to avoid having the child testify at trial.          Due to the

seriousness of the charges, and the fact that the charges had already been reduced,
                                                                                        -6-

the judge stated that nothing less than the maximum consecutive prison term would

be imposed. The court did not cite all of the language of the consecutive sentencing

statute during the sentencing hearing, but did say that it “ordered these sentences to

be served consecutively because the harm is so great or unusual that a single term

does not adequately reflect the seriousness of the conduct. I can't imagine anything

more despicable than to commit crimes of this nature against your own daughter.”

(6/7/13 Tr., pp. 30-31.) This satisfies the third of the three required findings. The

judge stated that Appellant's crimes were an affront to decency in society and to

everyone in the community, and that maximum consecutive sentences would be

imposed because such crimes required “the full measure of the law * * * there's no

other way to look at this.” (6/7/13 Tr., p. 25.) This and similar statements made at

sentencing satisfy the first of the three findings. Finally, the judge stated that “I can't

imagine anybody doing anything worse than what you did in this case.” (6/7/13 Tr.,

p. 28.) The court indicated that the nature of the crime was such that he could not

consider any mitigation of the punishment based on Appellant’s promises that the

crime would never again occur. These and similar comments satisfy the second of

the three findings.

       {¶8}   Although it is the better practice to clearly make the three findings using

the language of R.C. 2929.14(C)(4) at both the sentencing hearing and in the

judgment entry, it is settled that the sentencing judge is not required to use any

“magic words” and may make the findings in any manner he or she deems

appropriate. In this case, the judge made the three required findings during the
                                                                                        -7-

course of its lengthy colloquy with defendant, and the court then repeated its findings

by tracking the exact language of R.C. 2929.14(C)(4) in the sentencing judgment

entry. The record reflects that the trial court made the three required findings both at

the sentencing hearing and in the court's judgment entry. Appellant's assignment of

error has no merit and is overruled, and the judgment of the trial court is affirmed.


Donofrio, J., concurs.

Vukovich, J., concurs.
