[Cite as State v. Chevalier, 2018-Ohio-4456.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                       Court of Appeals No. L-17-1113

        Appellee                                    Trial Court No. CR0201602691

v.

Timothy Chevalier                                   DECISION AND JUDGMENT

        Appellant                                   Decided: November 2, 2018

                                                *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Mark T. Herr, Assistant Prosecuting Attorney, for appellee.

        Spiros P. Cocoves, for appellant.

                                                *****

        MAYLE, P.J.

        {¶ 1} Defendant-appellant, Timothy Chevalier, appeals the April 10, 2017

judgment of the Lucas County Court of Common Pleas, convicting him of rape and

sentencing him to a prison term of nine years, to be served consecutively to a term of

imprisonment imposed in Lucas County case No. CR0201501350. For the reasons that

follow, we reverse the trial court judgment and remand for resentencing.
                                      I. Background

       {¶ 2} On March 22, 2017, Timothy Chevalier entered a plea of guilty pursuant to

North Carolina v. Alford, 400 U.S. 25, 28, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to one

count of rape, a violation of R.C. 2907.02(A)(2) and (B). On April 5, 2017, the trial court

sentenced Chevalier to nine years’ imprisonment, to be served consecutively to a three-

year term of imprisonment imposed in Lucas County case No. CR0201501350.

       {¶ 3} Chevalier appealed and assigns the following error for our review:

              The trial court erred in imposing appellant’s prison sentence

       consecutive to a prison sentence previously imposed in an unrelated case,

       without making the findings required by Ohio Revised Code § 2929.14(C)(4).

                                  II. Law and Analysis

       {¶ 4} In his sole assignment of error, Chevalier argues that his sentence is contrary

to law because the trial court failed to make all the findings required by R.C.

2929.14(C)(4) before imposing consecutive prison terms. Specifically, he points out that

the trial court made “no reference to the danger of future crime by the offender, no

reference to whether consecutive sentences would be ‘disproportionate to the seriousness

of the offender’s conduct,’ no reference to ‘the danger the offender poses to the public,’

and * * * no reference to subsections (a), (b), or (c).” He also complains that the trial

court’s judgment entry included no findings in support of consecutive sentences. He

maintains that the case must be remanded to the trial court for resentencing.




2.
       {¶ 5} The state concedes error here. Although it contends that the trial court

mentioned some of the necessary findings and factors, it recognizes that it did not do so

“to the requisite degree.” It also agrees with Chevalier that the trial court failed to

incorporate any R.C. 2929.14(C)(4) findings into its judgment entry. Accordingly, the

state agrees that the case must be remanded to the trial court for resentencing.

       {¶ 6} We review a felony sentence under the two-pronged approach set forth in

R.C. 2953.08(G)(2). State v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425,

¶ 11. R.C. 2953.08(G)(2) provides that an appellate court may increase, reduce, modify,

or vacate and remand a disputed sentence 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} R.C. 2929.14(C)(4) provides:

              (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




3.
       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.

       {¶ 8} “When imposing consecutive sentences, a trial court must state the required

findings as part of the sentencing hearing.” State v. Bonnell, 140 Ohio St.3d 209, 2014-

Ohio-3177, 16 N.E.3d 659, ¶ 29. “And because a court speaks through its journal, * * *

the court should also incorporate its statutory findings into the sentencing entry.” Id.,

citing State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, 863 N.E.2d 1024, ¶ 47.

       {¶ 9} Here, at sentencing the trial court explained the following reasons for

imposing consecutive sentences:




4.
              It is hereby ordered Defendant will serve a term of 9 years at the

       State penitentiary, which will be ordered served consecutive to the sentence

       being served in CR15-1350. So that was a 3 year sentence. So the

       maximum sentence that can be served between the two combined is 12

       years * * *.

              The Court finds consecutive sentences are necessary as there are two

       separate victims in this case. The other case is a conviction for a GSI, and

       the Court finds it appropriate to make these sentences consecutive. Also

       find that the harm caused was so great or unusual that the single prison term

       for either one of these separate offenses is so great that concurrent

       sentences would be offensive to the sentencing and the criminal history

       requires consecutive sentences.

We agree with the parties that this explanation falls short of what was required by R.C.

2929.14(C)(4).

       {¶ 10} In addition to this, the trial court’s judgment entry provides no explanation

for imposing consecutive sentences. It states only that “It is ORDERED that defendant

serve a term of 9 years in prison as to Count Two to be served consecutively to the

sentence in CR2015-1350 of 3 years for a total sentence of 12 years in prison.”

       {¶ 11} Accordingly, because the trial court failed to make all the findings required

by R.C. 2929.14(C)(4) and failed to incorporate any of its findings into the April 10,

2017 sentencing entry, we find that Chevalier’s sentence was contrary to law. We,




5.
therefore, reverse the trial court judgment and remand this case to the trial court for the

limited purpose of resentencing.

       {¶ 12} Chevalier’s single assignment of error is well-taken.

                                      III. Conclusion

       {¶ 13} The trial court failed to make all the findings required by R.C.

2929.14(C)(4), and it failed to incorporate any of its findings into its sentencing entry.

We, therefore, find Chevalier’s assignment of error well-taken. We reverse the April 10,

2017 judgment of the Lucas County Court of Common Pleas, and we remand this matter

to the trial court for resentencing. The state is ordered to pay the costs of this appeal

under App.R. 24.

                                                                          Judgment reversed.


       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                         _______________________________
                                                             JUDGE
James D. Jensen, J.
                                                 _______________________________
Christine E. Mayle, P.J.                                     JUDGE
CONCUR.
                                                 _______________________________
                                                             JUDGE

           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.



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