[Cite as State v. Kinder, 2013-Ohio-5250.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 99613




                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                  JIMMY LEE KINDER
                                                    DEFENDANT-APPELLANT




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-561491

        BEFORE: Rocco, P.J., E.A. Gallagher, J., and Blackmon, J.

        RELEASED AND JOURNALIZED: November 27, 2013

                                              -i-
ATTORNEYS FOR APPELLANT

Christopher R. Lenahan
2035 Crocker Road
Suite 104
Westlake, Ohio 44145

Donald Gallick
The Law Office of Donald Gallick L.L.C.
190 North Union Street, #102
Akron, Ohio 44304

Donald R. Hicks
159 South Main Street, #423
Akron, Ohio 44308

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Kristen L. Sobieski
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, P.J.:

       {¶1}   After   entering guilty pleas to three counts of             sexual battery,

defendant-appellant Jimmy Lee Kinder appeals from the sentences he received.

       {¶2} Kinder presents one assignment of error, claiming that the trial court did not

make the necessary statutory findings prior to imposing consecutive terms for his

convictions. Because the record reflects Kinder’s claim has merit, his sentences are

reversed, and this case is remanded for resentencing.

       {¶3} On June 12, 2012, Kinder originally was indicted in this case for five counts

of rape and five counts of kidnapping. All of the charges pertained to the same victim.

Each count contained a sexually violent predator (“SVP”) specification, and the

kidnapping counts also contained a sexual motivation specification. Kinder pleaded not

guilty at his arraignment.

       {¶4} Eventually, Kinder entered into a plea agreement with the state. In exchange

for the state’s amendment of the first three rape counts to charges of sexual battery, the

deletion of the SVP specifications in those counts, and the state’s dismissal of the

remaining counts, Kinder pleaded guilty to the three amended charges. The trial court

accepted Kinder’s pleas.

       {¶5} On December 19, 2012, when the trial court called Kinder’s case for

sentencing, the court heard from defense counsel, Kinder’s adult son, Kinder, the victim,

and the prosecutor. The trial court then stated in pertinent part as follows:

             First, I’ll note for the record that, Mr. Kinder, you do appear to this
       Court to be remorseful for your actions, you have taken responsibility for
      your actions, and I balance that with the fact that you for your 59 years of
      age have been law abiding, don’t have any prior record, this is the first time
      that you have you — you find yourself in the justice system. So I balance
      those factors with the facts of this case.

              When I get to the facts of this case, I find the facts to be serious
      facts, and the reason that I find them to be serious facts are many, actually.
      To me, the most poignant is the fact that it is who your victim is, actually,
      and your victim is an individual, one, who you knew and you knew for an
      extended period of your life, someone that you had a relationship with, and
      insofar as she’s a family member * * * who * * * has limited abilities, and
      that was not unknown to you. * * *

             * * * [Y]our victim was an individual who really didn’t have * * *

      many options. She really didn’t have anyplace to go, anywhere to turn. * *

      * I think you knew that.

             So for those reasons, I do find that prison is consistent with the
      purposes of sentencing in this case, and * * * I don’t believe that a
      minimum sentence is appropriate here because of the seriousness and the
      extended period of time that this took place over. It wasn’t one incident.
      It was many incidents. It was over a period of time. In my mind, it was
      calculated. It was choosing your victim * * * and you’re going to stop her
      from telling anybody and you picked in your mind the perfect person who
      you thought won’t tell anyone.
      ***

             So as to amended Count 1, sexual battery, that being a felony of the
      third degree, I’m going to sentence you to a term of 2 years. That will run
      consecutive to the amended Count 3, 2 years and consecutive to the
      amended Count 5, 2 years. You will serve a total of 6 years.


      {¶6} This court granted Kinder’s motion to file a delayed appeal. He presents the

following assignment of error for review.

             I. The trial court erred by imposing consecutive sentences in

      violation of R.C. 2929.14(C)(4).
       {¶7} Kinder argues that his sentence is improper because the trial court failed to

follow the mandate of R.C. 2929.14(C)(4) to make findings prior to imposing consecutive

terms. This court finds merit to his argument.

       {¶8} Appellate courts must review consecutive sentences using the standard set

forth in R.C. 2953.08. State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, ¶

10. R.C. 2953.08(G)(2) provides two grounds for an appellate court to overturn the

imposition of consecutive sentences: (1) the appellate court, upon its review, clearly and

convincingly finds that “the record does not support the sentencing court’s findings”

under R.C. 2929.14(C)(4), or (2) the sentence is “otherwise contrary to law.” See also

Venes at ¶ 11. The appellate court’s standard for review is not whether the sentencing

court abused its discretion. R.C. 2953.08(G)(2).

       {¶9} R.C. 2929.14(C)(4), therefore, sets forth the requirement that trial courts

make certain findings before imposing consecutive sentences. State v. Graves, 8th Dist.

Cuyahoga No. 98559, 2013-Ohio-2197, ¶ 11. That is, in Ohio, unless the trial court

makes the required findings for consecutive sentences set forth in R.C. 2929.14(C)(4),

there is a presumption that sentences are to run concurrently. Venes at ¶ 15-16; R.C.

2929.41(A).

       {¶10} R.C. 2929.14(C)(4) states that, when imposing consecutive sentences, the

trial court must first find the sentence is “necessary to protect the public from future

crime or to punish the offender.”      Next, 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.” Finally, the trial court must find that one of the

following factors applies:

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

       Id.

       {¶11} Compliance with this statute “requires separate and distinct findings in

addition to any findings relating to purposes and goals of criminal sentencing.” Venes,

8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, ¶ 17. A trial court’s failure to make

these findings is “contrary to law.” Id. at ¶ 12, citing State v. Jones, 93 Ohio St.3d 391,

399, 754 N.E.2d 1252.

       {¶12} Applying the principles outlined above to this case, this court is compelled

to find that the trial court did not comply with R.C. 2929.14(C)(4). The trial court stated

several valid reasons for choosing a six-year total prison sentence, and indicated its belief

that R.C. 2929.14(C)(4)(b) applied to the facts, but the court’s commentary omitted the

findings necessary for imposing consecutive terms. State v. Stowes, 8th Dist. Cuyahoga
No. 98774, 2013-Ohio-2996, ¶ 27; State v. Marton, 8th Dist. Cuyahoga No. 99253,

2013-Ohio-3430,

¶ 15.

        {¶13} Because the record reflects that the trial court made did not make all of the

R.C. 2929.14(C)(4) findings prior to imposing consecutive terms for Kinder’s

convictions, Kinder’s assignment of error is sustained.

        {¶14} Kinder’s sentences are reversed, and this case is remanded pursuant to R.C.

2953.08(G)(2) with instructions to the trial court to conduct a resentencing hearing and

“to state, on the record, the required findings.”

        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. 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.



__________________________________________
KENNETH A. ROCCO, PRESIDING JUDGE

EILEEN A. GALLAGHER, J., and
PATRICIA ANN BLACKMON, J., CONCUR
