[Cite as State v. Johnson, 2019-Ohio-4668.]

                                  COURT OF APPEALS OF OHIO

                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA

STATE OF OHIO,                                      :

                 Plaintiff-Appellee,                :
                                                             No. 107528
                 v.                                 :

ADRIAN JOHNSON, JR.,                                :

                 Defendant-Appellant.               :



                               JOURNAL ENTRY AND OPINION

                 JUDGMENT: VACATED AND REMANDED
                 RELEASED AND JOURNALIZED: November 14, 2019


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-18-625186-A


                                              Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Tasha Forchione and Daniel Van, Assistant
                 Prosecuting Attorneys, for appellee.

                 Edward F. Borkowski, Jr., for appellant.


PATRICIA ANN BLACKMON, J.:

                   Adrian Johnson, Jr., (“Johnson”) appeals from the trial court’s

imposition of a 15-year prison sentence, after Johnson pled guilty to aggravated

robbery and weapons charges, and assigns the following errors for our review:
      I.     The trial court erred by imposing consecutive sentences without
             making the necessary statutory findings.

      II.    Appellant’s sentence is contrary to law because the trial court
             failed to properly consider and weigh the relevant statutory
             principles and factors.

      III.   The trial court’s bias against appellant deprived him of a fair
             sentencing hearing in violation of his due process rights.

               Having reviewed the record and pertinent law, all three panel judges

agree that Johnson’s first assigned error arguing that the trial court failed to make

the consecutive sentence findings should be sustained. Thus, all three judges agree

to vacate the trial court’s sentencing order only as it relates to consecutive sentences

and remand this matter to the trial court for the limited purpose of considering

whether consecutive sentences are appropriate under R.C. 2929.14(C) and, if so,

entering the required findings on the record.

               All three panel judges also agree that Johnson’s third assigned error

regarding judicial bias is without merit. Thus, Johnson’s third assigned error is

overruled.

               With respect to Johnson’s second assigned error, the three panel

judges disagree. This lead opinion would sustain Johnson’s second assigned error

and find that the record does not support the maximum 15-year sentence that the

court imposed. However, both the first separate opinion and the second separate

opinion would overrule Johnson’s second assigned error, but disagree on the law

and reasoning as to why it should be overruled. Thus, a majority of the judges, as
noted in the first and second separate opinions, agree to overrule this assigned error.

Therefore, Johnson’s second assigned error is overruled.

I.   Facts and Procedural History

               On June 20, 2018, Johnson pled guilty to aggravated robbery in

violation of R.C. 2911.01(A)(1), with a one-year firearm specification, which is a first-

degree felony, and having a weapon while under disability in violation of R.C.

2923.13(A)(2), which is a third-degree felony. On July 17, 2018, the court sentenced

Johnson to the maximum term of 11 years in prison for the aggravated robbery, one

year in prison for the firearm specification, and three years in prison for the having

a weapon while under disability conviction, all to run consecutively, for a total prison

term of 15 years. It is from this sentence that Johnson appeals.

II. Felony Sentencing

          A. Standard of Review

               R.C. 2953.08(G)(2) provides, in part, that when reviewing felony

sentences, the appellate court’s standard is not whether the sentencing court abused

its discretion; rather, if this court “clearly and convincingly” finds that (1) “the record

does not support the sentencing court’s findings under” R.C. Chapter 2929 or (2)

“the sentence is otherwise contrary to law,” then we may conclude that the court

erred in sentencing. See also State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,

59 N.E.3d 1231.

                A sentence is not clearly and convincingly contrary to law “where the

trial court considers the purposes and principles of sentencing under R.C. 2929.11
as well as the seriousness and recidivism factors listed in R.C. 2929.12, properly

applies post-release control, and sentences a defendant within the permissible

statutory range.” State v. A.H., 8th Dist. Cuyahoga No. 98622, 2013-Ohio-2525,

¶ 10.

              Pursuant to R.C. 2929.11(A), the three overriding purposes of felony

sentencing are “to protect the public from future crime by the offender and others,”

“to punish the offender,” and “to promote the effective rehabilitation of the offender

using the minimum sanctions that the court determines accomplish those purposes

* * *.” Additionally, the sentence imposed shall be “commensurate with and not

demeaning to the seriousness of the offender’s conduct and its impact on the victim,

and consistent with sentences imposed for similar crimes committed by similar

offenders.” R.C. 2929.11(B).

              Furthermore, in imposing a felony sentence, “the court shall consider

the factors set forth in [R.C. 2929.12(B) and (C)] relating to the seriousness of the

conduct [and] the factors provided in [R.C. 2929.12(D) and (E)] relating to the

likelihood of the offender’s recidivism * * *.” R.C. 2929.12. However, this court has

held that “[a]lthough the trial court must consider the principles and purposes of

sentencing as well as the mitigating factors, the court is not required to use

particular language or make specific findings on the record regarding its

consideration of those factors.” State v. Carter, 8th Dist. Cuyahoga No. 103279,

2016-Ohio-2725, ¶ 15.
          B. Consecutive Sentences

               Additionally, “to impose consecutive terms of imprisonment, a trial

court is required to make the findings mandated by R.C. 2929.14(C)(4) at the

sentencing hearing and incorporate its findings into its sentencing entry * * *.” State

v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. Pursuant to

R.C. 2929.14(C)(4), the court must find consecutive sentences are “necessary to

protect the public from future crime or to punish the offender”; “not

disproportionate to the seriousness of the offender’s conduct and to the danger the

offender poses to the public”; and at least one of the following three factors:

      (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 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.

III. The Sentencing Hearing

               At Johnson’s sentencing hearing, the state indicated on the record the

facts surrounding Johnson’s convictions: Johnson and three other males robbed

Johnson’s relatives at gunpoint in their home. Johnson allegedly believed there was

a gun at the house that he was “entitled to.” According to the state, Johnson was on
probation at the time of the offense. As a recommendation to the court, the

prosecutor stated on the record that “a prison sentence is appropriate in this case.”

              One of the victims gave a statement at the hearing, parts of which

follow:

      Adrian is family. Given the situation, he’s been in and out of trouble.

      ***

      When I found out there was a gun in my house, I had a whole talk with
      him. A gun is not allowed in my house like that. I told his mom come
      get him, he’s being disrespectful to my home. He was not welcome
      back.

      So he went to the back, he got into a fight with my younger son. His
      friend, he came to the door, they pulled guns on me and my son. At
      that moment, that’s like the worst thing I ever had. I had to step in
      front of my son because I didn’t want him to be shot or take my kid out.
      That was the tough decision to make.

      But I grabbed my son, held him and I prayed that if anything happened,
      happen to me because I couldn’t see burying one of my kids. Too many
      bad decisions have happened to children, I can’t imagine it happening
      to me.

      Give him a couple years to get him to understand what could have
      happened to our family, how devastating this situation could have
      turned out. It’s not like I haven’t tried to help him. We all have. But at
      this time, I think he needs some time to think because it’s not changed
      anything, the way he thinks.

              In mitigation, Johnson’s attorney stated on the record that the victims

in this case were Johnson’s relatives and friends, Johnson was “very apologetic”

about what happened, and he “was going to get what he believed to be his property,

[but] that’s not the way it should have been handled.” Counsel stated that Johnson

turned himself in to the police and apologized to the victims via text messages.
Counsel further stated that Johnson was “still a young kid. Certainly we don’t want

a large amount of prison time to cause him to suddenly get into that mindset of a

revolving door. I think the minimum sentence you could give is 4 years. That’s a

sizeable amount of time, certainly would correlate with the wishes of the victim and

the sons.”

              Johnson’s mother, Taiwarna Powell, also made a statement at the

sentencing hearing and the following colloquy took place:

      MS. POWELL:         My son has made choices that hasn’t been great for
      him, but he has got to a point where he turned around and was making
      better choices for himself. He does listen. You might not think that he
      hears you. He listens. Even in this situation, he feels like he needs to
      have some type of protection on him to walk around in Ohio and the
      thing is, my son wasn’t the only person, it was more than just him that
      was involved.

      I do apologize about the fact that he went to the house which he
      shouldn’t have. I talked to him myself about going over there. He felt
      he needed to be around other boys that he felt were making better
      choices. Adrian’s intentions, he asked to borrow a gun, he was going to
      a different area that he was not used to and he wanted to feel safe for
      himself. It was his intentions.

      THE COURT:         Do you understand he’s on probation for felonious
      assault?

      MS. POWELL:          I understand that. I understand he shouldn’t have
      had a weapon. I understand that situation is the reason why he was in
      jail for felonious assault.

      I also — Adrian should have left it up to the police. They hadn’t taken
      fingerprints or anything. They started on their way to school one day —

      THE COURT:         You want to retry that case, too?

      MS. POWELL:        They got into a fight.
THE COURT:          Do you want to go over his juvenile record of
assault, riot, criminal trespass? Ms. Powell, you have been given an
opportunity to speak. You are not helping your son’s case now. I see
why he’s been enabled to continue the criminal type behavior.

MS. POWELL:        Could you tell me why?

THE COURT:         Why what?

MS. POWELL:        Why do you say that?

THE COURT:         You are up here apologizing.

MS. POWELL:        I apologize for the fact he shouldn’t have went to
that house. That’s something he shouldn’t have done. He shouldn’t
have had a gun, either, that wasn’t a good choice.

THE COURT:         Yes, it’s a felonious assault case. There is a lot of
shouldn’t there.

MS. POWELL:          I’m a domestic violence survivor. For six-and-a-
half years I was in a relationship with someone, his dad was abusive. I
have post traumatic stress just as my son did.

THE COURT:         We are not here to talk about you.

MS. POWELL:        You could not insult me as a mother, because I have
been there as a mother for my son. I made sure my son had gone to
school. I have been a parent.

THE COURT:         Ms. Powell, we are not here to talk about you.

MS. POWELL:        Other kids’ mentor. Anything that I could have, for
my son, because I care about my son.

THE COURT:         Are you done?

MS. POWELL:        No. I apologize to the mother and I apologize to the
two victims.

THE COURT:        We are not going to have courtroom conversation.
You can sit down.

MS. POWELL:        Thank you.
                 The court then questioned the issue of Powell being a survivor of

domestic violence, asking defense counsel, “what does that have to do with your

client’s violent criminal history?” Defense counsel replied that Johnson witnessed

violence in the home as a child and was also abused, stating that “[i]t was a tough

position they were in when he was growing up.”

                 The court asked Johnson if there was anything he would like to say.

Johnson replied, “I don’t got nothing to say.” The court then sentenced Johnson as

follows:

      THE COURT:         Okay. Mr. Johnson, well, I do. It’s my intention to
      remove you from society for as long as I can. You are a monster. You
      frankly scare me. Your behavior is inappropriate throughout this case.
      The way you stand and look speaks to your character.

      You were on probation [for felonious assault] when you committed this
      crime of aggravated robbery * * *. You received a gift of probation on
      an offense that carries with it a presumption of prison in the case
      number 605931.

      While on that case, you felt the need to go possess a firearm, use the
      firearm, use force to get that firearm, bring a couple other people in this
      situation. Then you identify a poor, innocent guy who gets locked up
      with you.3 Thankfully he had a job — if you interrupt me it’s not going
      to go well for you.

      JOHNSON: You do what you got to do.

      THE COURT:        I will do what I have to do. Sit down or you are
      going with him. Carmen, one more word, take her into custody.

      Mr. Johnson, if I had any doubts as to whether you should ever walk
      free among organized society again, it was clearly a mistake. I’m going
      to give consecutive maximum time on this case.



      3   It is unclear from the record what the court is referring to.
        The court then stated the following regarding consecutive sentences:

I have considered the seriousness and recidivism factors and the
purposes and principles of our sentencing statutes. This serious felony
of the first degree offense that was committed with a firearm was
committed while you were on community control [sanctions] in case
number 605931.

Let’s review your Juvenile Court history. 2014, adjudicated delinquent
on riot and disorderly conduct in case number 14-109739. April of
2014, adjudicated delinquent on attempted assault in case number 14-
109751. June of 2014, adjudicated delinquent on a breaking and
entering and criminal trespass, case 14-111090.

July of 2014, adjudicated delinquent, sale to underage persons. August
of 2014, adjudicated delinquent on an assault and resisting charge in
14-111094. 2014, August 9, adjudicated delinquent on an aggravated
menacing case, 14-112199.

September of 2014, adjudicated delinquent on case number 14-111339,
criminal trespass. December of 2014, adjudicated delinquent on
another criminal trespass.

And then April of 2016, you picked up your felonious assault case. You
were placed in the community based correctional facility program and
while on that, you picked up a riot case, May of 20[1]7 in Bedford
Municipal Court. You have a warrant out for your failure to appear.
Now you are here on this case.

You will receive 11 years on the base count subsequent to the one-year
firearm specification on Count 2. That will run consecutive to 36
months on Count 6. You will also serve that consecutive to the penalty
Judge Fuerst will impose in case 605931.

You will be placed on a mandatory five-year period of post-release
control following the completion of your prison term. You will be
serving on this case 14 [sic] years consecutive to whatever you get on
the 2 to 8 year sentence hanging over your head in Judge Fuerst’s room.

I would suggest you comport yourself a little better in front of Judge
Fuerst, and don’t ask your mom to come to sentencing. You are ordered
remanded. Good luck.
              In the case at hand, the court found that Johnson was on probation

when he committed the offenses in question. The court also stated on the record

that it “considered the seriousness and recidivism factors and the purposes and

principles of our sentencing statutes.” The court categorized Johnson’s actions as

“serious” and noted his history of being adjudicated delinquent as a juvenile, as well

as having one previous felony conviction as an adult, for which he was sentenced to

community control sanctions.

              The court stated at Johnson’s sentencing hearing that it received and

reviewed Johnson’s presentence investigation report. This report details Johnson’s

offense as follows: On November 22, 2017, at 2:00 p.m., Johnson and two other

males arrived at Johnson’s relatives’ house to retrieve “a borrowed handgun.” After

an argument, the victims would not let Johnson inside the house. He and the other

males “rushed inside the residence and drew handguns.” While holding the victims

at gunpoint, the males took “$400 cash and a hand gun” from the victims. Johnson

allegedly struck one of the victims, and the three males fled the scene.

              The victims called 911, and one of the males was apprehended while

fleeing. This suspect, along with the victims, identified Johnson as the one who

planned the robbery. Ultimately, Johnson admitted to the police that he was present

during the incident.

              The presentence investigation report lists Johnson’s age at the time

of the offense as 20 and states that he completed the 11th grade before being

“expelled from school for fighting.” Johnson has difficulty reading and writing, he
has never served time in prison prior to this case, and he has no history of mental or

physical health problems. Johnson denied having a substance abuse problem,

although he self-reported that he has been using alcohol since he was 13 and

marijuana since he was 14. Johnson lives with his mother, has no job, and pays no

rent. According to the report, Johnson’s recidivism risk level is “moderate.”

IV. Analysis

          A. Consecutive Sentences

               In Johnson’s first assigned error, he argues that the court failed to

make the necessary statutory findings before imposing consecutive sentences. Upon

review, we find that the court failed to make the findings, both at the sentencing

hearing and in the sentencing journal entry, required under R.C. 2929.14(C) to

impose consecutive sentences. See State v. Jones, 93 Ohio St.3d 391, 399, 754

N.E.2d 1252 (2001) (“when a trial court imposes consecutive sentences, it must state

on the record its reasons for doing so”). For example, there is no finding by the court

that Johnson’s sentence is necessary to protect the public, punish the offender, or

“not disproportionate to the seriousness of the offender’s conduct and to the danger

the offender poses to the public” pursuant to R.C. 2929.14(C)(4).            See R.C.

2953.08(G)(2). See also State v. Hairston, 10th Dist. Franklin Nos. 17AP-416, 17AP-

417, 2017-Ohio-8719, ¶ 13 (remanding case for resentencing because “the trial court

did not make the complete disproportionality finding as required by R.C.

2929.14(C)(4)”).
               Accordingly, Johnson’s first assigned error is sustained. Sentence

vacated, and case remanded for the limited purpose of resentencing in accordance

with R.C. 2929.14(C)(4). See State v. Nia, 8th Dist. Cuyahoga No. 99387, 2014-

Ohio-2527 (“the trial court is limited on remand to only the * * * required findings

pursuant to R.C. 2929.14(C)(4) to justify consecutive sentences”).

V.   Court Bias and a Fair Sentencing Hearing

               In Johnson’s third assigned error, he argues that the trial court was

biased against him and deprived him of a fair sentencing hearing.

      It is well settled that a criminal trial before a biased judge is
      fundamentally unfair and denies a defendant due process of the law.
      * * * We have described judicial bias as “a hostile feeling or spirit of ill
      will * * * toward one of the litigants or his attorney, with the formation
      of a fixed anticipatory judgment on the part of the judge, as
      contradistinguished from an open state of mind which will be governed
      by the law and the facts.”

State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 34, quoting

State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 132 N.E.2d 191 (1956), paragraph

four of the syllabus.

               Generally, a challenge to a trial judge’s objectivity must comport with

the procedures outlined in R.C. 2701.03, section (A) of which states that “any party

to the proceeding or the party’s counsel may file an affidavit of disqualification with

the clerk of the supreme court * * *.”        Therefore, “[w]e have no authority to

determine a claim that a trial judge is biased or prejudiced against a defendant and

no authority to void a trial court’s judgment based on a claim that the trial judge is
biased or prejudiced.” State v. Williamson, 8th Dist. Cuyahoga No. 104294, 2016-

Ohio-7053, ¶ 27.

               However, Ohio courts have held that a judicial bias claim may be

interpreted “as an argument that [the defendant’s] sentence is contrary to law based

on a due process violation.” See, e.g., State v. Frazier, 8th Dist. Cuyahoga No.

104264, 2017-Ohio-8307, ¶ 15. Furthermore, “[t]he law presumes that a judge is

unbiased and unprejudiced in the matters over which he or she presides, and the

appearance of bias or prejudice must be compelling in order to overcome the

presumption.” State v. Filous, 8th Dist. Cuyahoga No. 104287, 2016-Ohio-8312,

¶ 14.

               “If the trial judge forms an opinion based on facts introduced or

events occurring during the course of the current or prior proceedings, this does not

rise to the level of judicial bias * * *.” State v. Hough, 8th Dist. Cuyahoga Nos. 98480

and 98482, 2013-Ohio-1543, ¶ 11. However, an exception to this rule occurs if the

judge’s opinions “display a deep-seated favoritism or antagonism that would make

fair judgment impossible.” Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147,

127 L.Ed.2d 474 (1994).

               It appears from the sentencing hearing transcript in the case at hand

that the court did not like the way Johnson presented himself throughout these

proceedings, and it did not like Johnson’s mother’s remarks. The court referred to

Johnson as a “monster.” The court found the manner in which Johnson was

standing to be “inappropriate.” The court stated, “[I]f I had any doubts as to whether
you should ever walk free among organized society again, it was clearly a mistake.”

The court told Johnson that if he interrupted, “[I]t’s not going to go well for you.”

               Additionally, the court was brusque with Johnson’s mother, telling

her that she was “not helping your son’s case now. I see why he’s been enabled to

continue the criminal type behavior.” The court asked Johnson’s mother if she

wanted to retry his juvenile cases and told Johnson not to bring his mother to the

upcoming sentencing hearing for the violation of his community control sanctions.

               While we cannot condone the court’s extraneous comments, they do

not rise to the level of a due process violation nor do they render Johnson’s sentence

contrary to law. Accordingly, Johnson’s third assigned error is overruled.

VI. Felony Sentencing Under R.C. 2929.11 and 2929.12

               In his second assigned error, Johnson argues that his “sentence is

contrary to law because the trial court failed to properly consider and weigh the

relevant statutory principles and factors.”

               This lead opinion and the second separate opinion agree that a trial

court may review the record to determine if it clearly and convincingly supports the

given sentence under R.C. Chapter 2929. This is the current law in Ohio regarding

felony sentencing. See Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d

1231, at ¶ 23 (“an appellate court may vacate or modify any sentence that is not

clearly and convincingly contrary to law only if the appellate court finds by clear and

convincing evidence that the record does not support the sentence”); State v. Jones,

2018-Ohio-498, 105 N.E.3d 702 (8th Dist.), ¶ 20, (concluding in an en banc decision
that appellate review of felony sentences “includes the considerations under R.C.

2929.11 and the findings under 2929.12”).

               We are aware that the trial court does not have to make findings on

the record regarding the R.C. 2929.11 and 2929.12 sentencing factors. We are also

aware that appellate courts may not substitute their judgment for the trial court’s

judgment nor may they independently weigh the sentencing factors. That is not to

say, however, that appellate courts have no authority to review an individual felony

sentence based on whether it is excessive given the evidence in the record.4 As the

Ohio Supreme Court noted in Marcum,

      it is fully consistent for appellate courts to review those sentences that
      are imposed solely after consideration of the factors in R.C. 2929.11 and
      2929.12 under a standard that is equally deferential to the sentencing
      court. That is, an appellate court may vacate or modify any sentence
      that is not clearly and convincingly contrary to law only if the appellate
      court finds by clear and convincing evidence that the record does not
      support the sentence.

Marcum at ¶ 23.

               Meaningful appellate review allows this court to consider the parties’

arguments “through the lens of the law.” Jones at ¶ 19. Felony sentencing law in

Ohio grants trial courts substantial, but not unfettered, discretion to impose a

sentence within the statutory range. In like manner, the law grants appellate courts



      4 A similar proposition of  law is pending review in State v. Gwynne, Ohio Supreme
Court No. 2017-1506. The proposition of law is: “Does R.C. 2953.08(G)(2) allow a Court
of Appeals to review the trial court’s findings made pursuant to R.C. 2929.11 and 2929.12.”
This court’s en banc decision in Jones has been accepted for review by the Ohio Supreme
Court and is being held for the decision in Gwynne. See 9/12/2018 Case Announcements,
153 Ohio St.3d 1474, 2018-Ohio-3637, 106 N.E.3d 1260.
the authority to review felony sentences with substantial, but not unfettered,

deference to the trial court’s judgment.

               The first separate opinion reaches a different conclusion regarding

the law and would find that “this court has no basis to reverse a prison sentence

imposed within the applicable statutory range for the felony offense unless there is

objective information in the record that the trial court (1) failed to consider R.C.

2929.11 and 2929.12 in formulating the sentence, or (2) relied on demonstrably false

or inaccurate information when making said considerations.”

               Respectfully, the first separate opinion’s reasoning loses sight of the

purposes and principles of Ohio’s felony sentencing statutes. Under this view, a

court could properly impose the maximum sentence for every felony on its docket if

it states on the record that it considered the proper sentencing statutes. The unique

facts of each case would be meaningless, the seriousness of each offense would be

diluted, and the difference between depraved criminals and offenders who may be

rehabilitated would be eradicated.

                Although this lead opinion and the second separate opinion agree on

the law, the panel members disagree on the disposition of the second assigned error

after applying the facts of this case to the law.

               It is my opinion that in the case at hand the record does not clearly

and convincingly support the court’s decision to sentence Johnson to maximum

consecutive prison terms. Although the court stated that it “considered” the proper
factors, Johnson’s sentence is objectively unreasonable and unsupported by the

evidence in the record.

               The record does not support that the maximum consecutive sentence

was needed to protect the public from Johnson or to punish Johnson for the crimes

committed. Furthermore, the record does not support the notion that courts should

“promote the effective rehabilitation of the offender using the minimum sanctions

that the court determines accomplish” the purposes and principles of felony

sentencing. Particularly in light of the victim’s statement to the court, this sentence

is not commensurate to the seriousness of Johnson’s conduct nor its impact on the

victims.

               Additionally, the only evidence in the record concerning Johnson’s

recidivism risk is in his presentence investigation report, which lists his level as

“moderate.” Furthermore, there is no evidence to support that Johnson’s sentence

was “consistent with sentences imposed for similar crimes committed by similar

offenders,” pursuant to R.C. 2929.11(B).

               Accordingly, I would sustain Johnson’s second assigned error.

However, the first and second separate opinions agree to overrule Johnson’s second

assigned error, albeit for different reasons.

               In summary, Johnson’s first assigned error is sustained, and his

second and third assigned errors are overruled.         We vacate the trial court’s

sentencing order only as it relates to consecutive sentences and remand this matter

to the trial court for the limited purpose of considering whether consecutive
sentences are appropriate under R.C. 2929.14(C) and, if so, entering the required

findings on the record

              Sentence vacated. Case remanded for limited resentencing.

      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.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.


                                              ___
PATRICIA ANN BLACKMON, JUDGE

EILEEN T. GALLAGHER, P.J., CONCURS IN PART
AND DISSENTS IN PART WITH SEPARATE
OPINION;
MARY J. BOYLE, J., CONCURS IN PART AND
DISSENTS IN PART WITH SEPARATE OPINION


EILEEN T. GALLAGHER, P.J., CONCURRING IN PART AND DISSENTING IN
PART:

              I concur with the majority’s resolution of the first assignment of error.

After careful review of the sentencing transcript, I agree with Johnson that the trial

court failed to make the necessary findings for imposing consecutive sentences

under R.C. 2929.14(C)(4). In addition, I concur with the majority’s resolution of the

third assignment of error, because Johnson failed to set forth a meritorious judicial

bias claim. However, I respectfully disagree with the lead opinion’s position that the
record does not support the sentence. I further disagree with the lead and second

separate opinion’s subjective approach to appellate review of felony sentences.

               To begin, I note that Johnson’s second assignment of error challenges

the adequacy of the trial court’s sentencing considerations under R.C. 2929.11 and

2929.12. Johnson argues the trial court did not “properly” consider the relevant

recidivism factors under R.C. 2929.12 and, therefore, imposed an aggregate prison

term that “is contrary to law.” While Johnson references the aggregate prison term

he received, appellate review of a trial court’s consideration of the applicable

sentencing criteria under R.C. 2929.11 and 2929.12 does not implicate the

consecutive nature of the sentences. Rather, our review of the court’s compliance

with R.C 2929.11 and 2929.12 concerns the individual sentence imposed on each

felony offense. Thus, the majority’s determination that the record does not support

the relevant R.C. 2929.14(C)(4) consecutive sentence findings concerns an issue that

is distinct from whether the record supports the prison term imposed on each

offense.

               A sentence is contrary to law if it falls outside the statutory range for

the particular degree of offense or if the trial court fails to consider the purposes and

principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors

set forth in R.C. 2929.12. State v. Pawlak, 8th Dist. Cuyahoga No. 103444, 2016-

Ohio-5926, ¶ 58. Although the trial court must consider the purposes and principles

of felony sentencing set forth in R.C. 2929.11 and the sentencing factors listed in R.C.

2929.12, the court is not required to make findings or give reasons for imposing
more than the minimum sentence. State v. Pavlina, 8th Dist. Cuyahoga No. 99207,

2013-Ohio-3620, ¶ 15, citing State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845

N.E.2d 470. A trial court’s general statement that it considered the required

statutory factors, without more, is sufficient to fulfill its obligations under the

sentencing statutes. Id., citing State v. Wright, 8th Dist. Cuyahoga No. 95096, 2011-

Ohio-733, ¶ 4. And because courts have full discretion to impose sentences within

the statutory range, a sentence imposed within the statutory range is “presumptively

valid” if the court considered the applicable sentencing factors. Id., citing State v.

Collier, 8th Dist. Cuyahoga No. 95572, 2011-Ohio-2791, ¶ 15.

              As stated by the lead opinion, when a sentence is imposed solely after

consideration of the factors in R.C. 2929.11 and 2929.12, “[a]n appellate court may

vacate or modify any sentence that is not clearly and convincingly contrary to law

only if the appellate court finds by clear and convincing evidence that the record

does not support the sentence.” Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59

N.E.3d 1231, at ¶ 23.

      Clear and convincing evidence is that measure or degree of proof which
      is more than a mere “preponderance of the evidence,” but not to the
      extent of such certainty as is required “beyond a reasonable doubt” in
      criminal cases, and which will produce in the mind of the trier of facts
      a firm belief or conviction as to the facts sought to be established.

Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the

syllabus.

              Significantly, an “‘appellate court’s standard for review is not whether

the sentencing court abused its discretion.’ As a practical consideration, this means
that appellate courts are prohibited from substituting their judgment for that of the

trial judge.” State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 20 (8th Dist.). “This

is an extremely deferential standard of review.” Id. at ¶ 21.

              In this case, the record reflects that in formulating Johnson’s

sentence, the trial court stated that it “considered the seriousness and recidivism

factors and the purposes and principles of our sentencing statutes.” Despite this

unambiguous statement, however, the lead opinion concludes that “Johnson’s

sentence is objectively unreasonable and unsupported by the evidence in the

record.” Without specifying how the record is objectively inadequate, the lead

opinion finds that the record does not support the court’s considerations under R.C.

2929.11 and 2929.12.        After careful consideration, I am unable to join this

assessment of the record.

              In my view, the lead opinion’s conclusion impermissibly discounts

the discretion afforded to sentencing courts and imposes a fact-finding obligation

on the trial court when no such requirement is mandated by the Ohio Revised Code.

Contrary to the implications of the lead opinion’s holding, the trial court was not

required to verbally analyze, weigh, or make findings on the record regarding the

relevant mitigating factors. By failing to accept the trial court’s statement that it

made the necessary statutory considerations, the lead opinion is merely substituting

its judgment for that of the trial court, which appellate courts are not permitted to

do. State v. McCoy, 8th Dist. Cuyahoga No. 107029, 2019-Ohio-868, ¶ 19 (“We

cannot substitute our judgment for that of the sentencing judge.”). Moreover, by
contemplating the seriousness of Johnson’s conduct in light of the relevant

mitigating factors, I believe the lead opinion is independently weighing the

sentencing factors, which appellate courts are also not permitted to do. State v.

Ongert, 8th Dist. Cuyahoga No. 103208, 2016-Ohio-1543, ¶ 14; State v. Price, 8th

Dist. Cuyahoga No. 104341, 2017-Ohio-533, ¶ 20;          State v. Bailey, 8th Dist.

Cuyahoga No. 107216, 2019-Ohio-1242, ¶ 15; State v. Rahab, 150 Ohio St.3d 152,

2017-Ohio-1401, 80 N.E.3d 431, ¶ 10; and State v. Anderson, 8th Dist. Cuyahoga

No. 103490, 2016-Ohio-3323, ¶ 9.         While the lead opinion uses the phrase

“objectively unreasonable,” the lead opinion’s analysis demonstrates that it finds the

sentences imposed on each offense to be excessive under the facts and

circumstances of this case. Respectfully, this is a subjective conclusion that usurps

the discretion of the sentencing court. Because appellate courts are not sentencing

courts, I believe this decision goes against the clear standard of review set forth in

R.C. 2952.08(G) and is contrary to well-established precedent of this court.

              Upon review, I believe the record demonstrates that the trial court

imposed individual prison terms within the applicable statutory ranges, and

carefully considered the relevant factors set forth under R.C. 2929.11 and 2929.12.

The trial court stated that it considered the relevant recidivism factors and

extensively discussed the relevant seriousness factors, including Johnson’s use of a

firearm, the breadth of his juvenile record, and the harm caused to the victims.

Regarding the relevant mitigating factors, I would also note that while several

individuals stated during the sentencing hearing that Johnson had apologized and
demonstrated remorse, the record reflects that when given the opportunity to make

such statements himself during the sentencing hearing, Johnson stated, “I don’t got

nothing to say.” Under these circumstances, I am unable to conclude that Johnson’s

individual sentences were clearly and convincingly unsupported by the record.

               Accordingly, I would overrule the second assignment of error, but

would vacate Johnson’s consecutive sentences and remand the case for resentencing

for the trial court to again consider whether consecutive sentences are appropriate

under R.C. 2929.14(C)(4) and, if so, to make the required findings on the record and

incorporate those findings in the sentencing journal entry in accordance with

Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at syllabus. A de novo

resentencing hearing is not appropriate.

               In many regards, this case perfectly illustrates the appellate dilemma

created by the Ohio Supreme Court’s apparent extension of the clear and convincing

standard set forth under R.C. 2953.08 to appellate review of a trial court’s

compliance with R.C. 2929.11 and 2929.12. Marcum, 146 Ohio St.3d 516, 2016-

Ohio-1002, 59 N.E.3d 1231, at ¶ 23.

               In this court’s en banc decision in State v. Jones, 2018-Ohio-498, 105

N.E.3d 702 (8th Dist.),5 I agreed with the majority’s determination that:

      under State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59
      N.E.3d 1231, the Ohio Supreme Court read R.C. 2929.11 and 2929.12

      5  Jones has been accepted by the Ohio Supreme Court for review and held for
review of State v. Gwynne, 5th Dist. Delaware No. 16 CAA 12 0056, 2017-Ohio-7570.
9/12/2019 Case Announcements, 153 Ohio St.3d 1474, 2018-Ohio-3637, 106 N.E.3d
1260. The issue in these two cases is whether R.C. 2953.08(G)(2) allows a court of appeals
to review the trial court’s findings made pursuant to R.C. 2929.11 and 2929.12.
      into R.C. 2953.08(G)(2)(a), allowing an appellate court to increase,
      reduce, or otherwise modify a sentence or vacate the sentence and
      remand the matter to the sentencing court for re-sentencing if the
      record does not support the sentencing court’s findings under R.C.
      2929.13(B) or (D), R.C. 2929.14(B)(2)(e) or (C), R.C. 2929.20(I), as
      well as R.C. 2929.11 and 2929.12.

Id. at ¶ 5, 21. However, while I joined the majority based upon the clear language

used in Marcum at ¶ 23, I found portions of the dissent to be persuasive. In relevant

part, I agree that the more pressing issue is:

      whether Marcum altered the appellate standard of review under R.C.
      2953.08(G) to permit a more expansive appellate review process that
      permits an appellate court to independently consider the sentencing
      factors and independently determine the most effective way to comply
      with R.C. 2929.11.

Jones at ¶ 44 (S. Gallagher, J., dissenting). At this time, it is my belief that Marcum

did not intend to disrupt the well-settled position of Ohio appellate courts that

reviewing courts are not entitled to substitute their judgment for that of the trial

court, nor are they entitled to independently weigh the sentencing factors set forth

under R.C. 2929.11 and 2929.12.        It is therefore my position that, following

Marcum, this court has no basis to reverse a prison sentence imposed within the

applicable statutory range for the felony offense unless there is objective

information in the record that the trial court (1) failed to consider R.C. 2929.11 and

2929.12 in formulating the sentence, or (2) relied on demonstrably false or

inaccurate information when making said considerations. See State v. Whitaker,

8th Dist. Cuyahoga Nos. 107584 and 107967, 2019-Ohio-2823, ¶ 18 (finding by

clear and convincing evidence that the record did not support the imposed prison
term where the record indicated the trial court relied exclusively on the defendant’s

“prior convictions” in its consideration of the sentencing factors, but the record

objectively showed the defendant had no prior criminal convictions at the time of

the offenses or at the time of sentencing).

               Nevertheless, without further guidance on this issue from the Ohio

Supreme Court, it is not surprising that appellate courts, including the lead opinion

and second separate opinion in this case, have adopted a more comprehensive

interpretation of Marcum in an effort to reverse felony sentences deemed by the

reviewing court to be excessive.

               Following the release of Marcum, criminal appellants have routinely

argued on appeal that the prison term imposed by the trial court is not supported by

the record or is otherwise contrary to law. In resolving this issue, many appellate

courts have begun to independently scour the record in search of information that

clearly and convincingly does or does not support the trial court’s presumed R.C.

2929.11 and 2929.12 considerations. Unlike the objective application of the clearly

and convincing standard to the fact-finding statutes specifically referenced in R.C.

2953.08(G)(2)(a), the application of this standard of review to R.C. 2929.11 and

2929.12 is more ambiguous and empowers more subjective appellate review of

individual sentences. This is because trial courts are not required to make findings

or state the specific statutory factors in R.C. 2929.11 and 2929.12 on which the court

relied. Thus, the record is often silent on this issue and appellate courts are left to

review felony sentences without a complete understanding of how the trial court
balanced the competing sentencing factors. In my view, it necessarily follows that

in determining whether “by clear and convincing evidence the record does not

support the sentence,” appellate courts have begun to independently review the

entire record, while simultaneously assessing the presumed weight given, or as in

this case — not given, by the trial court to certain felony sentencing factors. As

previously discussed, however, this subjective and quasi-de novo approach has been

expressly forbidden by clear precedent of this court. Yet, the lead opinion and

second separate opinion apply an undoubtedly subjective approach in this case

anyway.

               Inevitably, the contradictions involved in Marcum’s expansion of

R.C. 2953.08(G)(2)(a) will lead to inconsistent appellate decisions and, most

importantly, the inappropriate substitution of a trial court’s sentencing discretion.

Absent clear statutory instruction, or further judicial guidance, appellate courts will

continue to apply their best judgment when reviewing sentences imposed upon

consideration of R.C. 2929.11 and 2929.12. Unfortunately, I believe paragraph 23

of Marcum has merely created a standard of review that seemingly imitates the

famous “I know it when I see it” standard expressed by United States Supreme Court

Justice Potter Stewart. Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 12

L.Ed.2d 793 (1964) (Stewart, J., concurring). I do not believe this is the standard

contemplated by R.C. 2953.08(G).

               My comments are not intended to suggest that I always agree with the

sentencing discretion exercised by trial courts in this county, or that I necessarily
agree with the length of the prison terms imposed in this case. In some instances,

this court is presented with individual or aggregate sentences that could reasonably

be characterized as excessive. As stated, however, Ohio courts have routinely

characterized appellate review of felony sentencing is “extremely deferential” to the

sentencing court. See State v. Tidmore, 8th Dist. Cuyahoga No. 107369, 2019-Ohio-

1529, ¶ 22; State v. Boyd, 2d Dist. Clark No. 2018-CA-68, 2019-Ohio-1902, ¶ 26;

State v. Robinson, 4th Dist. Meigs Nos. 18CA10 and 18CA17, 2019-Ohio-2155, ¶ 31;

State v. Payton, 5th Dist. Muskingum Nos. CT2017-0095 and CT2017-0096, 2018-

Ohio-3864, ¶ 22; State v. Thompson, 9th Dist. Wayne No. 15AP0016, 2016-Ohio-

4689, ¶ 45; State v. McKnight, 10th Dist. Franklin Nos. 17AP-778 and 17AP-780,

2018-Ohio-1916, ¶ 15; State v. Hurd, 11th Dist. Geauga No. 2018-G-0157, 2019-

Ohio-327, ¶ 18; State v. Blevings, 12th Dist. Warren No. CA2017-12-175, 2018-Ohio-

4382, ¶ 16. Thus, the purpose of our review is to ensure that the trial court has

complied with all applicable sentencing statutes, not to review the discretion utilized

by the court during its implementation of these statutes. The appellate division is

not a sentencing court.

               It is my hope, however, that moving forward the trial court will

carefully consider and give equal weight to the new sentencing purpose of promoting

“effective rehabilitation.” It is evident that S.B. 66 was formulated in an effort to

reduce mass incarceration by rehabilitating individuals, expanding prison

alternative programs, and reducing aggregate prison terms. The amendment to R.C.
2929.11 is not inconsequential and sentences should start reflecting the legislature’s

comprehensive goals.



MARY J. BOYLE, J., CONCURRING IN PART AND DISSENTING IN PART:

                 Respectfully, I am compelled to write separately from both the lead

and concurring in part and dissenting in part opinions (“separate opinion”). I agree

with the lead and separate opinions on Johnson’s first and third assignments of

error. That is, I agree that the trial court failed to make the consecutive sentence

findings on the record at the sentencing hearing and failed to place those findings in

the judgment entry. I also agree that there is no evidence of judicial bias in this case.

But with respect to Johnson’s second assignment of error involving the principles

and purposes of felony sentencing in R.C. 2929.11 and the seriousness and

recidivism factors in R.C. 2929.12, I disagree with the lead opinion that the record

does not support the sentence; it is my view that it does. And although the separate

opinion would also overrule Johnson’s second assignment of error, I cannot agree

with the law or reasoning set forth in the separate opinion, and thus, I concur in

judgment only with the separate opinion.6

I.    R.C. 2929.11 and 2929.12.

                  In his second assignment of error, Johnson argues that the trial

court failed to properly consider R.C. 2929.11 and 2929.12 when imposing his




      6   This writer’s separate opinion will be referred to as the “third opinion.”
sentence. He argues that his 15-year sentence “went well beyond what was necessary

to protect the public and to punish and rehabilitate him.”

                 I agree with the lead opinion that an appellate court may review the

record to determine if it supports the trial court’s sentence under R.C. 2929.11 and

2929.12. I simply disagree with the lead opinion’s conclusion on this issue, however,

because it is my view that the record in this case clearly and convincingly supports

the sentence. While the separate opinion would also overrule Johnson’s second

assignment of error, I cannot agree with the law or reasoning set forth in the

separate opinion.

          A. En Banc Proceedings

                 In Jones, 8th Dist. Cuyahoga Nos. 103290 and 103302, 2018-Ohio-

498, 105 N.E.3d 702, a majority of this court held en banc that we may review a

sentence that is within the statutory range for the offenses where the trial court

stated it considered R.C. 2929.11 and 2929.12. The en banc Jones decision further

explained our obligation under R.C. 2953.08(G)(2), stating:

      [W]e are required to “review the record, including the findings
      underlying the sentence or modification given by the sentencing court.”
      And for the reasons discussed, our review includes the considerations
      under R.C 2929.11 and the findings under 2929.12. Then, if after
      reviewing those findings, we find that the sentence is contrary to law or
      not supported by the record, we may take action.

Jones at ¶ 19.

                 I recognize that the Ohio Supreme Court has accepted Jones for

discretionary appeal and held it for its decision in Gwynne, 5th Dist. Delaware No.
16CAA120056, 2017-Ohio-7570, on the question of whether an appellate court may

review a trial court's findings under R.C. 2929.11 and 2929.12. But until the

Supreme Court overrules Jones, it is the settled law in this district that we are

required to follow. App.R. 26(A)(2)(b) (“The decision of the en banc court shall

become the decision of the court.”); see also In re J.J., 111 Ohio St.3d 205, 2006-

Ohio-5484, 855 N.E.2d 851, 18 (“The Eighth District's conflicting rulings on the

same legal issue create confusion for lawyers and litigants and do not promote public

confidence in the judiciary. Appellate courts are duty-bound to resolve conflicts

within the district through en banc proceedings.”); McFadden v. Cleveland State

Univ., 120 Ohio St.3d 54, 2008-Ohio-4914, 896 N.E.2d 672, 15 (“The issuance of

conflicting decisions from a court of appeals does not serve the fundamental purpose

for the operation of courts - the resolution of legal disputes.”).

               The Ohio Supreme Court further explained in McFadden at ¶ 16:

      “‘The principal utility of determinations by the courts of appeals in banc
      is to enable the court to maintain its integrity as an institution by
      making it possible for a majority of its judges always to control and
      thereby to secure uniformity and continuity in its decisions, while
      enabling the court at the same time to follow the efficient and time-
      saving procedure of having panels of three judges hear and decide the
      vast majority of cases as to which no division exists within the court.’”
      United States v. American-Foreign Steamship Corp. (1960), 363 U.S.
      685, 689-690, 80 S.Ct. 1336, 4 L.Ed.2d 1491, quoting Maris, Hearing
      and Rehearing Cases en banc (1954), 14 F.R.D. 91, 96. This form of
      review promotes finality and predictability of the law within appellate
      districts, which is especially important considering that the court of
      appeals is the final stop in the legal process for many cases. See Textile
      Mills [Sec. v. Commr. of Internal Revenue], 314 U.S. [326], 335, 62
      S.Ct. 272, 86 L.Ed. 249 [1941].
               Despite these well-settled en banc principles, the separate opinion

cites to Ongert, 8th Dist. Cuyahoga No. 103208, 2016-Ohio-1543 (and others that

followed it), in support of its statement that the lead opinion was not permitted to

“contemplate[] the seriousness of Johnson’s conduct in light of the mitigating

factors” because appellate courts are not permitted to independently weigh

sentencing factors under R.C. 2929.11 and 2929.12. Ongert, however, was the

certified intradistrict conflict case in Jones and was therefore overruled by Jones.

See Jones at ¶ 1.

          B. Sentencing Review Under R.C. 2953.08(G)(2)

               Regarding our review of felony sentences, the separate opinion states:

      Significantly, an “‘appellate court’s standard for review is not whether
      the sentencing court abused its discretion.’             As a practical
      consideration, this means that appellate courts are prohibited from
      substituting their judgment for that of the trial judge.” State v. Venes,
      2013-Ohio-1891, 992 N.E.2d 453, ¶ 20 (8th Dist.). “This is an
      extremely deferential standard of review.” Id. at ¶ 21.

               This writer has previously pointed out the deeply troubling

contradictions in this paragraph and in Venes. See State v. Roberts, 8th Dist.

Cuyahoga No. 104474, 2017-Ohio-9014, ¶ 34 - 41 (Boyle, J., dissenting). Indeed,

one would be hard pressed to find a more established legal principle in the state of

Ohio (or country for that matter) than that of the abuse-of-discretion review — that

it is an extremely deferential standard of review.      When appellate courts are

reviewing for abuse of discretion, we are prohibited from substituting our judgment
for that of the trial judge. This writer does not need to cite cases for this well-

established black letter law.

               R.C. 2953.08(G)(2) was enacted as part of Am.Sub.S.B. No. 2 in 1996.

The General Assembly amended R.C. 2953.08(G)(2) four years after it originally

enacted it to expressly add that our standard of review for felony sentences “is not

whether the sentencing court abused its discretion.” See Am.Sub.H.B. No. 331,

effective Oct. 10, 2000. When it did so, it unequivocally intended to make clear to

appellate judges across the state that our review is not extremely deferential.

Otherwise, the legislature would have mandated just the opposite — that our

standard for review is “whether the sentencing court abused its discretion.”

               Before the legislature made wide-sweeping changes to Ohio’s felony

sentencing laws in S.B. 2, “sentencing decisions were generally subjected to an

abuse[-]of[-]discretion standard, and appellate courts rarely disturbed a sentence

imposed within statutory limits.” State v. Shryock, 1st Dist. Hamilton No. C-961111,

1997 Ohio App. LEXIS 3494, 5-6 (Aug. 1, 1997).       A hallmark of S.B. 2, however,

was “meaningful appellate review” of felony sentencing as enacted in R.C.

2953.08(G)(2). State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165, 793 N.E.2d

473, ¶ 10. The Ohio Supreme Court explained that “meaningful review” meant that

a reviewing court “hearing an appeal of a felony sentence may modify or vacate the

sentence and remand the matter to the trial court for resentencing if the court clearly

and convincingly finds that the record does not support the sentence or that the

sentence is otherwise contrary to law.” Id., citing R.C. 2953.08; Griffin & Katz, Ohio
Felony Sentencing Law, Sections 9.19-9.20, at 791-796 (2002).                  As one

commentator explained it, “[T]he most significant aspect of the new sentencing law

was that trial courts no longer had unfettered discretion when sentencing

offenders.”    Painter, Appellate Review Under the New Felony Sentencing

Guidelines: Where Do We Stand?, 47 Cleve.St.L.Rev. 533, 537-538 (1999)

(“Painter”).

               Thus, I cannot agree with the separate opinion, referring to R.C.

2929.11 and 2929.12, that “[a] trial court’s general statement that it considered the

required statutory factors, without more, is sufficient to fulfill its obligations under

the sentencing statutes.” A trial court’s obligation under these statutes is more than

to just mechanically say that it considered them. Although a trial court does not

have to make findings under R.C. 2929.11 and 2929.12, the trial court must actually

consider these statutes and apply them to the facts of each case.

               Further, I disagree with the separate opinion that Marcum, 146 Ohio

St.3d 516, 2016-Ohio-1002, 59 N.E.2d 1231, altered or expanded the appellate

standard of review under R.C. 2953.08(G)(2) when it said at ¶ 23:

      We note that some sentences do not require the findings that R.C.
      2953.08(G) specifically addresses. Nevertheless, it is fully consistent
      for appellate courts to review those sentences that are imposed solely
      after consideration of the factors in R.C. 2929.11 and 2929.12 under a
      standard that is equally deferential to the sentencing court. That is, an
      appellate court may vacate or modify any sentence that is not clearly
      and convincingly contrary to law only if the appellate court finds by
      clear and convincing evidence that the record does not support the
      sentence.
               Instead, it is my view that the Ohio Supreme Court in Marcum was

once again trying to remind appellate courts that when reviewing felony sentences,

we have an obligation to ensure that a sentence is not clearly and convincingly

contrary to law under R.C. 2929.11 and 2929.12 as well as the statutes that require

explicit findings of fact. That means that appellate courts must independently

review the record to determine if the trial court, after considering the seriousness

and recidivism factors in R.C. 2929.12, imposed a sentence that is (1) “reasonably

calculated to achieve” the three overriding purposes of felony sentencing, (2)

“commensurate with and not demeaning to the seriousness of the offender’s conduct

and its impact upon the victim,” and (3) “consistent with sentences imposed for

similar crimes committed by similar offenders.” R.C. 2929.11. If an appellate court

cannot look at the record to determine whether the sentence satisfies these

parameters, can we ever meaningfully review a sentence?

                The separate opinion also states that “Marcum’s expansion of R.C.

2953.08(G)(2)(a) will lead to inconsistent appellate decisions.” First, as I stated,

Marcum did not expand sentencing review. But also, it is my view that if appellate

courts diligently performed their duty when reviewing felony sentences, then

offenders in Ohio would not have to hold their breath at arraignment while waiting

to see if they drew the “judicial short straw.”

               S.B. 2 was enacted, in part, because “there was a notion that offenders

received disparate sentences for the same crime in different sections of the state.”

Painter at 537. We know that is certainly true in Cuyahoga County. Under S.B. 2,
however, appellate review was “intended to ensure that offenders [were] sentenced

consistently.” Painter at 538. Thus, if we actively reviewed felony sentences, there

would be more consistency in sentencing, not less. As I previously stated:

      I believe that there is a troubling trend occurring throughout appellate
      courts in this state that will, if not [reined] in by the Ohio Supreme
      Court, essentially eliminate meaningful review of felony sentences. As
      one appellate judge stated, “‘appellate review of sentencing is under
      assault.’” State v. Beverly, 2d Dist. Clark No. 2015-CA-71, 2016-Ohio-
      8078, ¶ 42, 75 N.E.3d 847 (Donovan, J., dissenting), quoting More
      Than a Formality: The Case for Meaningful Substantive Reasonable
      Review, 127 Harv.L.Rev. 951, 951 (2014). I could not agree more with
      the dissenting judge in Beverly that “[t]his assault is unjustified and
      contrary to legislative intent when we look at the legislative history of
      S.B. 2 and H.B. 86.” Id.

Roberts, 8th Dist. Cuyahoga No. 104474, 2017-Ohio-9014, at ¶ 22.7

               If all an appellate court is required to do is make sure that a sentence

is within the statutory limits set by the legislature and make sure that the trial court

states that it considered R.C. 2929.11 and 2929.12, then we effectively have no

review at all. R.C. 2953.08(G)(2) mandates that appellate courts consider the

record. But if appellate courts cannot consider whether the record comports with

R.C. 2929.11 and 2929.12, then the record — and our review — is meaningless.




      7  This does not mean, however, that Johnson’s argument that his sentence was
contrary to law because his codefendant received a lesser sentence has merit. See State
v. Blackley, 8th Dist. Cuyahoga No. 100574, 2014-Ohio-3140, ¶ 15 (“There is a statutory
mandate for consistency in sentencing, however, consistency does not require that
identical sentences be imposed for co-defendants.”). This is because “‘[a]lthough the
offenses may be similar, distinguishing factors may justify dissimilar treatment.’” State
v. Torres, 8th Dist. Cuyahoga No. 99595, 2013-Ohio-5030, ¶ 82, quoting State v.
Dawson, 8th Dist. Cuyahoga No. 86417, 2006-Ohio-1083.
               With this review in mind and looking at the record in this case, I do

not agree with the lead opinion that it does not support the sentence. Johnson and

two codefendants went to Johnson’s aunt’s home to retrieve a gun that they believed

they were “entitled to.” Johnson and the codefendants robbed Johnson’s aunt and

her son at gunpoint. Johnson’s aunt and her son were home. The aunt spoke at the

sentencing hearing.     She explained that it was “the worst thing” she ever

experienced. She stated that she “had to step in front of [her] son” because she did

not want him to get shot. She grabbed her son, held him, and prayed. She could not

imagine “burying one of [her] kids.” The aunt further explained that she was

thankful that her daughter was not home when it happened. At the time of the

offense, Johnson was on probation for felonious assault.

               In mitigation, Johnson’s attorney explained that Johnson was only

20 years old and that he turned himself in to police. Johnson also sent text messages

to the victims after he robbed them to apologize, telling them “it wasn’t supposed to

happen like that.” Johnson’s defense counsel also explained that Johnson witnessed

his father abuse his mother for many years. Johnson told the court that he did not

have anything to say.

               The trial court explained that Johnson had “violent criminal history,”

including riot, disorderly conduct, assault, attempted assault, breaking and

entering, resisting, aggravated menacing, and several counts of criminal trespass.

      According to the presentence investigation report, Johnson was a
      “moderate” risk to reoffend. The trial court informed Johnson that it
      intended to “remove [him] from society for as long as [it] could.” The
      trial court stated that Johnson was “a monster” and told Johnson, “You
      frankly scare me. Your behavior is inappropriate throughout this case.”
      The judge further stated that this was a “serious felony of the first
      degree offense that was committed while [Johnson was] on community
      control” for felonious assault in another case.

              Therefore, it is my view that this record support the trial court’s

sentence under R.C. 2929.11 and 2929.12, and I would overrule Johnson’s second

assignment of error.
