[Cite as State v. Hudson, 2016-Ohio-3449.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 103154



                                      STATE OF OHIO
                                                   PLAINTIFF-APPELLEE

                                             vs.

                                STEAFON M. HUDSON
                                                   DEFENDANT-APPELLANT




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                  Case No. CR-14-589808-C

        BEFORE: Stewart, J., Keough, P.J., and McCormack, J.

        RELEASED AND JOURNALIZED: June 16, 2016
ATTORNEY FOR APPELLANT

Matthew M. Nee
Nee & Bittinger, L.L.C.
24629 Detroit Road
Westlake, OH 44145


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

Joan M. Bascone
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, J.:

      {¶1} In Cuyahoga C.P. No. CR-14-598808-C, the court found defendant-appellant

Steafon Hudson guilty of felonious assault and theft. The court ordered Hudson to serve

concurrent prison terms of two years on the felonious assault count and six months on the

theft count. Those terms were ordered to be served consecutive to a term of 18 months

in Cuyahoga C.P. No. CR-14-587443-A (receiving stolen property with a one-year

firearm specification). The sole issue on appeal is whether the court made the findings

required to order Hudson to serve consecutive sentences.

      {¶2} R.C. 2929.14(C)(4) allows the court to order consecutive service of prisons

sentences, but only if the court makes certain findings: that consecutive service is

necessary to protect the public from future crime or to punish the offender; 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, as applicable here, that

the offender was under postrelease control for a prior offense. These findings must not

only be stated in open court, but made a part of the court’s sentencing entry. State v.

Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 29.

      {¶3} The court did not make any of the findings required by R.C. 2929.14(C)(4).

When ordering consecutive service of prison terms, the court stated:

      I’m going to sentence Mr. Hudson, in 587443, on the one-year firearm
      specification, I’m going to impose that one-year sentence to be served prior
      to and consecutive with the term of incarceration of six months on the
      receiving stolen property. In 589808, I’m going to sentence * * * Mr.
       Hudson, on the felonious assault to a term of incarceration of two years, and
       on the theft six months concurrent time in that docket, but consecutive to
       587443. I will order the sentence into execution.

       {¶4} The state does not argue that the court actually made the required findings,

but claims that the record supports the statutory findings had they been made. This is a

specious argument, particularly given the state’s acknowledgment that Bonnell holds that

“[i]f a trial court fails to make [the R.C. 2929.14(C)(4)] findings, it renders the sentences

imposed consecutively to be contrary to law.” Appellee’s brief at 3.

       {¶5} In addition, the state’s argument that other people made the findings is

mystifying. It is one thing to say that the court does not have to make the findings

word-for-word with R.C. 2929.14(C)(4), but quite another to say that others, for example

the defendant, who admitted to using “bad judgment” at the time he committed his

offenses, constituted a finding by the court.      Nor can we give credit to the state’s

argument that the presentence investigation report supports consecutive service had the

court actually made the first and second findings. Again, if the findings were not made,

it does not matter that the record would support the findings had they been made.

       {¶6} We question why the state makes borderline frivolous arguments in this

appeal, rather than concede the error, and risk diminishing its reputation by defending the

consecutive sentences imposed in this case. The assignment of error is sustained.

       {¶7} Judgment reversed and remanded. This cause is remanded to the trial court

for further proceedings consistent with this opinion.

       It is ordered that appellant recover of said appellee costs herein taxed.
       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.



______________________________________________
MELODY J. STEWART, JUDGE

TIM McCORMACK, J., CONCURS;
KATHLEEN ANN KEOUGH, P.J., CONCURS IN JUDGMENT ONLY
