[Cite as State v. Nia, 2013-Ohio-5424.]




                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 99387


                                          STATE OF OHIO
                                               PLAINTIFF-APPELLEE

                                                 vs.

                                           AKANBI NIA
                                               DEFENDANT-APPELLANT



                       JUDGMENT:
    AFFIRMED IN PART, REVERSED IN PART AND REMANDED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-456529

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

              RELEASED AND JOURNALIZED:                    December 12, 2013

                                                 -i-
ATTORNEY FOR APPELLANT

Joseph Vincent Pagano
P.O. Box 16869
Rocky River, Ohio 44116

Akanbi Nia, Pro Se
Mansfield Correctional Institution
P.O. Box 788
Mansfield, Ohio 44901


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: John R. Kosko
Assistant County Prosecutor
9th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:

       {¶1} Appellant Akanbi Nia appeals his sentence and assigns, through counsel,

the following errors for our review:

       I. Appellant’s federal and state constitutional right to due process was
       violated when the trial court imposed a prison term after an unreasonable
       delay, approximately 68 months after appellant’s original sentences were
       vacated.

       II. Appellant’s Sixth Amendment right to effective assistance of counsel
       was violated where appellant was not resentenced until 68 months after his
       original sentences were vacated.

       III. The court erred when it sentenced appellant to consecutive prison terms.

       {¶2} Nia also assigns the following, pro se, supplemental errors:

       IV. The trial court erred when it imposed a sentence upon the appellant after
       a 68 month unreasonable delay upon remand for resentencing, violating his
       rights to due process to a final appealable judgment without unnecessary
       delay under both the Fourteenth Amendment to the United States
       Constitution and Section 16, Article I of the Ohio Constitution guarantee
       due process of law.

       V. The trial court abused its discretion when it failed to consider whether
       the state acted in bad faith in the unreasonable delay of having the appellant
       resentenced.

       {¶3} Having reviewed the record and pertinent law, we affirm in part, reverse in

part, and remand for resentencing. The apposite facts follow.

       {¶4} In 2005, a jury convicted Nia of aggravated murder and attempted

aggravated murder. The judge sentenced him to an aggregate prison term of 28 years to
life. In State v. Nia, 8th Dist. Cuyahoga No. 87335, 2007-Ohio-1283, we affirmed the

convictions, but vacated the sentences, and remanded the case to the trial court for

resentencing pursuant to State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d

470.

       {¶5} On April 23, 2007, the trial court scheduled a resentencing hearing for May

8, 2007, and ordered the sheriff to transport Nia back to Cuyahoga County. However,

Nia was not resentenced. On March 31, 2011, Nia filed a pro se motion for discharge.

On April 8, 2011, the trial court attempted to conduct a resentencing hearing by video

conference, but Nia declined to waive his physical appearance in court. Thereafter, the

trial court overruled Nia’s motion for discharge.

       {¶6} On December 3, 2012, Nia filed a writ of mandamus against the trial court

and the prison warden to compel them to remand him to the custody of the Cuyahoga

County Sheriff.    On December 7, 2012, the trial court ordered that Nia be transported

back to Cuyahoga County for resentencing.

       {¶7} On December 19, 2012, the trial court resentenced Nia to consecutive prison

terms totaling 28 years.   Nia having been resentenced, in State ex rel. Nia v. Friedman,

8th Dist. Cuyahoga No. 99244, 2013-Ohio-706, we denied, as moot, the application for a

writ of mandamus.
                                 Delay in Resentencing

       {¶8} Because of their common basis in fact and law, we will simultaneously

address the first, fourth, and fifth assigned errors. Within these assigned errors, Nia

contends the trial court violated his due process rights when it imposed a prison term after

a 68-month delay.

       {¶9} Preliminarily, we note this court has repeatedly held that Crim.R. 32(A)’s

requirement that a sentence be imposed without unnecessary delay does not apply to

resentencing. State v. Wright, 8th Dist. Cuyahoga No. 95096, 2011-Ohio-733; State v.

Harris, 8th Dist. Cuyahoga No. 95010, 2011-Ohio-482; State v. Coleman, 8th Dist.

Cuyahoga No. 94866, 2011-Ohio-341; State v. Craddock, 8th Dist. Cuyahoga No. 94387,

2010-Ohio-5782; State v. Huber, 8th Dist. Cuyahoga No. 85082, 2005-Ohio-2625.

       {¶10} When reviewing a delay in resentencing, the appellate court must consider

whether the delay prejudiced the defendant. State v. McQueen, 8th Dist. Cuyahoga No.

91370, 2009-Ohio-1085, ¶ 5. Whether the defendant suffered prejudice as a result of the

delay depends on the facts of the case. Id. For example, we have found prejudice when

the defendant was released on bond during the delay and was then ordered to return to

prison to serve an additional two months after the length of his sentence had lapsed.

Euclid v. Brackis, 135 Ohio App.3d 729, 735 N.E.2d 511 (8th Dist.1999). However, we

did not find prejudice where the defendant was incarcerated during the length of the delay

and would not have been eligible for release during that time period. Huber, 8th Dist.

Cuyahoga No. 85082, 2005-Ohio-2625.
       {¶11} As previously noted, we affirmed Nia’s convictions. Nia, 8th Dist.

Cuyahoga No. 87335, 2007-Ohio-1283.         Nia’s convictions included one for aggravated

murder, under R.C. 2903.01, which carries a penalty of 20 years to life. R.C. 2929.03(A).

  As a result, the trial court was required to impose a mandatory sentence of 20 years

imprisonment for that offense.

       {¶12} In the instant case, approximately 68 months elapsed between our remand

and Nia’s resentencing. Nia does not allege, nor does the record support a finding that

the government purposely delayed his sentencing or acted in bad faith. In addition, the

state does not allege, nor does the record support a finding that Nia delayed the hearing in

any way. Thus, we view this delay as a serious administrative lapse.

       {¶13} However, despite the lengthy delay, we cannot find prejudice to Nia given

the facts of this case. Here, the trial court was required to resentence Nia to a minimum

of 20 years imprisonment based only on the aggravated murder conviction. Because Nia

could not have been released during the 68-month delay, he was not prejudiced.

       {¶14} Nonetheless, Nia cites State v. Smith, 196 Ohio App.3d 431,

2011-Ohio-3786, 964 N.E.2d 3 (10th Dist.), in support of his contention that his right to

due process was violated. However, Smith is distinguishable from the case at hand. In

Smith, the court stated:

       * * * The trial court originally imposed an aggregate 16-year prison term.
       The court later sentenced Smith to an aggregate five-year prison term and
       notified him that he was subject to a five-year mandatory period of
       postrelease control on his release from prison. However, the court did not
       sentence Smith until he already spent more than six and one-half years in
       prison. Had the trial court sentenced him in a timely fashion, Smith would
          not have unnecessarily spent more than a year and one-half of “extra” time
          in prison for his crimes. Moreover, Smith could have completed part of
          postrelease control during that time.

          {¶15} Here, as previously stated, the trial court was required to resentence Nia to a

minimum of 20 years imprisonment based only on the aggravated murder conviction.

Therefore, unlike in Smith, in the instant case, Nia would not have unnecessarily spent

more time in prison by virtue of the aforementioned 68-month delay. As such, Nia was

not prejudiced by the delay. Accordingly, we overrule the first, fourth, and fifth assigned

errors.

                               Ineffective Assistance of Counsel

          {¶16} In the second assigned error, Nia argues that if we determine that counsel

did not preserve his right to appeal his resentencing, then he was denied the right to the

effective assistance of counsel. Our review of the transcript of the sentencing hearing

reveals that Nia’s right to appeal his resentencing was adequately preserved by Nia and

his counsel.      Further, our disposition of the first, fourth, and fifth assigned errors,

wherein we found that Nia was not prejudiced by the 68-month delay in resentencing,

renders this issue moot. Accordingly, we overrule the second assigned error.

                                    Consecutive Sentences

          {¶17} In the third assigned error, Nia argues the trial court erred by imposing

consecutive sentences without making the appropriate findings.

          {¶18} We review consecutive sentences using the standard of review set forth in

R.C. 2953.08.       State v. Wells, 8th Dist. Cuyahoga Nos. 99305, 99306, and 99307,
2013-Ohio-3809, citing State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891,

¶ 10 (holding that the standard of review set forth by the Ohio Supreme Court in State v.

Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, is no longer valid in light

of the enactment of H.B. 86 and the “revival” of statutory findings necessary for imposing

consecutive sentences).

       {¶19} R.C. 2953.08(G)(2) provides two grounds for an appellate court to overturn

the imposition of consecutive sentences: (1) the sentence is “otherwise contrary to law”;

or (2) 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). Id., citing

Venes at ¶ 11; R.C. 2953.08(G)(2).

       {¶20} The presumption in Ohio is that sentencing is to run concurrent, unless the

trial court makes the required findings for consecutive sentences set forth in R.C.

2929.14(C)(4). State v. Wells, 8th Dist. Cuyahoga No. 98428, 2013-Ohio-1179, ¶ 11;

R.C. 2929.41(A).

       {¶21} Under current R.C. 2929.14(C)(4), 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.

R.C. 2929.14(C).

       {¶22} 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 at ¶ 17, citing State v. Jones, 93 Ohio St.3d

391, 399, 2001 Ohio 1341, 754 N.E.2d 1252. The failure to make these findings is

“contrary to law.” Id. at ¶ 12.

       {¶23} In the instant case, a review of the record reveals that the trial court did not

strictly comply with the requirements of R.C. 2929.14(C)(4) prior to the re-imposition of

consecutive sentences.     At the hearing, the trial court discussed Nia’s criminal conduct

and specifically stated:

       I don’t always remember individual cases, and even some very serious ones
       tend to get confused over time. Some, on the other hand, some cases
       remain very active in memory. And every time I drive by the intersection
       of Superior and Coventry Roads in East Cleveland — and that is more than
       occasionally —I remember this trial. I remember the circumstances. I
       remember what happened. Tr. 19.

       {¶24} The trial court then proceeded to make the following pertinent finding:
       I firmly believe, as I did then, that nothing less than a consecutive sentence
       would adequately punish you, protect society, and anything less would
       demean the seriousness of this incident. I am not known on this court for
       giving many consecutive sentences, or lengthy sentences. In this case I
       believe that anything less than the 20 years to life plus eight years
       consecutive would not be appropriate. Tr. 20.

       {¶25} Here, a review of the above excerpt reveals that the trial court found that a

consecutive sentence was necessary to adequately punish Nia and protect the public. The

trial court also found that consecutive sentences were not disproportionate to the

seriousness of Nia’s conduct and to the danger he poses to the public as required by R.C.

2929.14(C)(4).

       {¶26} However, the trial court failed to find that at least one of the factors in R.C.

2929.14(C)(4), subsection (a),(b), or (c) applied. The trial court came close when it

stated: “I do recall my own statement in the sentencing that there were — this is not a —

simply a case of murder but the attempted murder as well are such that I do not believe

that concurrent sentences are appropriate.” Tr. 19. Here, the trial court stated what

could be interpreted as the rationale for a subsection (b) finding, but stopped short of

actually stating the finding.

       {¶27} Accordingly, we sustain the third assigned error, and are constrained to

reverse Nia’s sentence and remand for a de novo resentencing hearing.

       {¶28} Judgment affirmed in part, reversed in part, and remanded for resentencing.

       It is ordered that appellee and appellant split the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.
      It is ordered that a special mandate be sent to said 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.



PATRICIA ANN BLACKMON, JUDGE

KENNETH A. ROCCO, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
