[Cite as State v. Durham, 2016-Ohio-7394.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                  Nos. 103352 and 103382


                                     STATE OF OHIO

                                                   PLAINTIFF-APPELLEE
                                                   CROSS-APPELLANT

                                             vs.

                              WARREN DURHAM, JR.

                                                       DEFENDANT-APPELLANT
                                                   CROSS-APPELLEE




                              JUDGMENT:
                   AFFIRMED IN PART; REVERSED IN PART
                            AND REMANDED


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                  Case No. CR-13-579929-A

        BEFORE: Jones, A.J., Blackmon, J., and Laster Mays, J.
        RELEASED AND JOURNALIZED: October 20, 2016
ATTORNEYS FOR APPELLANT/CROSS-APPELLEE

Robert L. Tobik
Cuyahoga County Public Defender

BY: Jeffrey Gamso
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE/CROSS-APPELLANT

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Daniel T. Van
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., A.J.:

       {¶1} Defendant-appellant/cross-appellee, Warren Durham, appeals his multiple

convictions in relation to the rape and kidnapping of four women in 1993 and 1995 and

his sentence.    Plaintiff-appellee/cross-appellant, the state of Ohio, also filed an appeal,

and the two appeals have been consolidated.       For the reasons that follow, we affirm in

part, reverse in part, and remand the case.

Procedural History and Facts

       {¶2} In 2013, Durham was charged with ten counts of rape, six counts of

kidnapping, and one count of gross sexual imposition. One rape and one kidnapping

charge included three-year firearm specifications.       The trial court denied a pretrial

motion to dismiss based on preindictment delay and a motion for separate trials. The

matter proceeded to a jury trial at which three of the four victims testified; the fourth

victim died prior to trial.

       {¶3} The jury convicted Durham of five counts of rape, five counts of kidnapping,

one count of gross sexual imposition, and the attendant firearm specifications. The trial

court found that some of the counts were allied offenses of similar import and the state

elected to proceed to sentencing on Count 2, rape; Count 6, rape; Count 13, rape; and

Count 15, rape with a three-year firearm specification.     During the sentencing hearing,

the trial court erroneously stated that Count 15 had a one-year firearm specification.   The

trial court sentenced Durham to a total of 41 years in prison.

       {¶4} Durham filed two appeals, but one appeal was dismissed for failure to file a
timely notice of appeal. See State v. Durham, 8th Dist. Cuyahoga No. 103884 (Feb. 4,

2016), Motion No. 493224. Durham raises two assignments of error for our review and

the state raises one cross-assignment of error.

Durham’s Assignments of Error

       I. The trial court committed error when it imposed consecutive sentences
       without making the findings required by R.C. 2929.14 (C)(4) and, in fact,
       could not have made the findings.

       II. The trial court erred when it denied Mr. Durham’s motion to inspect
       grand jury proceedings.

State’s Cross-Assignment of Error

       I. The trial court imposed a sentence contrary to Ohio law as it was
       required to impose a sentence consistent with the law in effect at the time of
       the offense. In imposing a sentence under H.B. 86, the court imposed a
       sentence contrary to the general assembly’s express intent.

Law and Analysis

Sentencing Considerations

       {¶5} We discuss Durham’s first assignment of error and the state’s cross-

assignment of error together because they both relate to his 41-year sentence.

       {¶6} During the sentencing hearing and on appeal, the state argued that Durham

should have been sentenced under the law that was in effect at the time of his offenses

and not under the law at the time of his conviction; that is, he should have been sentenced

under Section 5 of S.B. 2 and not under H.B. 86.

       {¶7} The Ohio Supreme Court recently decided this issue as it applies to

defendants like Durham and held that a defendant who was convicted and sentenced in
2014 for offenses committed 19 years earlier is entitled to the benefit of the shorter

potential sentences under the law in effect at the time of the sentencing.              State v.

Thomas, Slip Opinion No. 2016-Ohio-5567.1 The court noted that the state legislature

twice enacted substantial changes to Ohio’s criminal-sentencing scheme after Thomas

committed the rape and kidnapping offenses in 1993, but before he was convicted and

sentenced in 2014.    The law in effect in 2014 reduced the potential prison sentences for

Thomas’s convictions as compared with the potential prison sentences for those offenses

under the law in effect in 1993.     The court considered whether Thomas was entitled to

the benefit of the shorter sentences and determined that he was, finding that:

       The amendments to R.C. 2929.14(A) in H.B. 86 reduced the potential

       sentences for Thomas’s offenses, rendering H.B. 86 generally applicable to

       him under its uncodified law and R.C. 1.58. This irreconcilably conflicts

       with the uncodified law of S.B. 2, amended by S.B. 269, which states that

       subsequent sentencing law is inapplicable to offenders who committed their

       crimes prior to July 1, 1996.           Applying the appropriate statutory

       construction provision, we hold that H.B. 86 controls as the later-enacted

       provision.

Id. at ¶ 18.

       {¶8} Durham, like Thomas, committed his offenses prior to the enactment of S.B.


       Thomas was decided after briefing in this case was completed.
       1
                                                                       The state conceded at oral
argument that Thomas was dispositive of its assignment of error.
2, July 1, 1996, but was convicted and sentenced for them after the enactment of H.B. 86.

 Thus, Durham was entitled to be sentenced under H.B. 86 and the trial court correctly

sentenced him under those provisions.          The state’s cross-assignment of error is

overruled.

       {¶9} Having found that the trial court sentenced Durham under the correct

sentencing scheme, we now turn to review the sentence itself. R.C. 2953.08(G)(2)

provides that an appellate court must “review the record, including the findings

underlying the sentence or modification given by the sentencing court.” Id.          If an

appellate court clearly and convincingly finds either that (1) “the record does not support

the sentencing court’s findings under [R.C. 2929.14(C)(4)],” or (2) “the sentence is

otherwise contrary to law,” then “the appellate court may increase, reduce, or otherwise

modify a sentence * * * or may vacate the sentence and remand the matter to the

sentencing court for resentencing.” Id.

Firearm Specification in Count 15 — Contrary to Law

       {¶10} Although not raised by either party, we note that part of Durham’s sentence

is contrary to law.   The jury convicted Durham of Count 15 as indicted — rape with a

three-year firearm specification.   The sentencing journal entry states that Count 15 is a

felony of the first degree with a three-year firearm specification under R.C. 2941.145.

The same sentencing journal entry, however, shows that the trial court sentenced Durham

to only one year in prison for that firearm specification:

       On a former day of court the jury returned a verdict of guilty of rape
       2907.023(A)(2) F1 with firearm specifications - 3 years (2941.145) as
       charged in count(s) 15 * * * of the indictment. On a former day of court
       the jury returned a verdict of guilty of kidnapping 2905.01A(4) F1 with
       firearm specifications — 3 years (2941.145) as charged in count(s) 17 of
       the indictment. * * * State elects to go forward on Count(s) 2, 6, 13, and 15.
       * * * The court imposes a sentence at the Lorain Correction Institution of
       41 year(s). Ct 2 — 10 years, Ct 6 — 10 years, Ct 13 — 10 years, and 1
       year on the firearm spec on Ct 15 prior to an[d] consecutive to 10 years on
       underlying offense. * * *

(Emphasis added.)     During the sentencing hearing the court also indicated that the jury

convicted Durham of Count 15, rape, with a three-year firearm specification but then

orally sentenced Durham to a one-year firearm specification attendant to Count 15.

       {¶11} Former R.C. 2929.14(B)(1)(a)(ii) stated:

       (a) Except as provided in division (B)(1)(e) of this section, if an offender
       who is convicted of or pleads guilty to a felony also is convicted of or
       pleads guilty to a specification of the type described in section 2941.141,
       2941.144, or 2941.145 of the Revised Code, the court shall impose on the
       offender one of the following prison terms:

       (ii)   A prison term of three years if the specification is of the type

       described in section 2941.145 of the Revised Code that charges the offender

       with having a firearm on or about the offender’s person or under the

       offender’s control while committing the offense and displaying the firearm,

       brandishing the firearm, indicating that the offender possessed the firearm,

       or using it to facilitate the offense * * * .

(Emphasis added.)

       {¶12} The jury convicted Durham of rape in Count 15, pursuant to R.C. 2907.02,

with a three-year firearm specification; therefore, the trial court was required to sentence

Durham to three years in prison on the firearm specification prior to and consecutive to
ten years for the rape conviction. See former R.C. 2929.14(B)(2)(d).       The trial court

only sentenced Durham to one year for the firearm specification and to do so was in error.

       {¶13} Thus, we remand to the trial court for resentencing on the firearm

specification attendant to Count 15.

Consecutive Sentences

       {¶14} Durham argues in his first assignment of error that the trial court erred in

sentencing him to consecutive sentences without making the required statutory findings.

       {¶15} R.C. 2929.14(C)(4) requires trial courts to engage in a three-step analysis

when imposing consecutive sentences. First, the trial court must find that “consecutive

service is necessary to protect the public from future crime or to punish the offender.”

Id. 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.” Id. Finally, the trial court must find that at least one of the following applies:

(1) the offender committed one or more of the multiple offenses while awaiting trial or

sentencing, while under a sanction imposed under R.C. 2929.16, 2929.17, or 2929.18, or

while under postrelease control for a prior offense; (2) 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 offenses 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; or (3) 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)(4)(a) - (c).

       {¶16} The Ohio Supreme Court expressly rejected the claim that a trial court must

give a “talismanic incantation of the words of the statute” when imposing consecutive

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

 Indeed, the Supreme Court stated that “a word-for-word recitation of the language of the

statute is not required, and as long as the reviewing court can discern that the trial court

engaged in the correct analysis and can determine that the record contains evidence to

support the findings, consecutive sentences should be upheld.”        Id. at ¶ 29.   A trial

court is required not only to make the statutory findings required for consecutive

sentences at the sentencing hearing, but also to incorporate its findings into its sentencing

entry. Id. at the syllabus.

       {¶17} In sentencing Durham to consecutive sentences, the trial court stated the

following:

       Those four rape counts will run consecutive to one another and those
       consecutive sentences are imposed pursuant to 2929.12 * * * and the
       overriding purposes * * * and the Court’s disposition with respect to
       sentencing, the need to protect the public from future crime as well as to
       punish the offender.

       And the fact that Mr. Durham was convicted of four — well, with four
       different victims and parenthetically, the tragedy in this case is that these
       victims were ignored for 23 years and rapes in the 90’s were considered
       basically a free pass for the rapist. In any event, likely to commit future
       crimes, in light of the fact that there were four victims, I do believe that
       from a female point of view, this is one of the worst forms of the offenses.

       These women did not know one another, it was a stranger rape.           It was

       basically your worst nightmare, so I do believe that consecutive sentences
       are appropriate.

       {¶18} A review of the transcript from the sentencing hearing shows that the trial

court failed to properly sentence Durham to consecutive sentences.      The trial court

considered the sentencing factors and found that consecutive sentences were necessary to

protect the public and punish Durham.        But nothing the trial court said could be

construed to show that the court analyzed whether consecutive sentences were not

disproportionate to the seriousness of his     conduct and one of the factors in R.C.

2929.14(C)(4)(a) - (c).

       {¶19} Thus, we remand this case to the trial court for the limited purpose of

considering whether consecutive sentences are appropriate and, if so, to make the

findings required by R.C. 2929.14(C)(4) on the record and to incorporate those findings

into the sentencing entry.     See State v. Watts, 8th Dist. Cuyahoga No. 103568,

2016-Ohio-4960, ¶ 7-8 (proper procedure is for reviewing court to remand case for

limited purpose of determining whether the sentences already imposed should be run

consecutive).

       {¶20} Durham’s first assignment of error is sustained.

Grand Jury Proceedings

       {¶21} In the second assignment of error, Durham argues that the trial court erred

by not allowing him to inspect the grand jury proceedings.

       {¶22} This issue is not properly before this court. Durham was sentenced on July

15, 2015 and filed his notice of appeal on August 7, 2015 in Appeal No. 103352. He
filed a motion with the trial court to inspect grand jury proceedings on October 20, 2015

— two months after he had appealed his conviction. The trial court denied his motion

on October 27, 2015.     Durham filed a notice of appeal, which was assigned Appeal No.

103884, on December 14, 2015, and in his notice of appeal stated that he intended to

appeal the trial court’s denial of his motion to inspect the grand jury transcripts.

       {¶23} Durham claims that Appeal No. 103884 was consolidated with Appeal No.

103352. That is not the case. Appeal No. 103884 was dismissed by this court because

it was untimely.      It was the state’s appeal, Appeal No. 103382, that this court

consolidated with Appeal No. 103352.

       {¶24} Thus, because the issue of the grand jury transcripts is not within the scope

of this appeal, we cannot review the merits of Durham’s assigned error.

       {¶25} The second assignment of error is overruled.

Remand Instructions

       {¶26} Judgment affirmed in part and reversed in part; case is remanded (1) for

resentencing on the firearm specification on Count 15; and (2) on all counts for the

limited purpose of considering whether consecutive sentences are appropriate and, if so,

to make the findings required by R.C. 2929.14(C)(4) on the record and to incorporate

those findings into the sentencing entry.

       It is ordered that appellee recover of appellant 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.




LARRY A. JONES, SR., ADMINISTRATIVE JUDGE

PATRICIA ANN BLACKMON, J., and
ANITA LASTER MAYS, J., CONCUR
