[Cite as State v. Wells, 2014-Ohio-3032.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 100365




                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                       ELLORD WELLS
                                                    DEFENDANT-APPELLANT




                               JUDGMENT:
                   AFFIRMED IN PART, REVERSED IN PART,
                    AND REMANDED FOR RESENTENCING



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CR-12-568017

        BEFORE: Celebrezze, P.J., E.A. Gallagher, J., and Kilbane, J.

        RELEASED AND JOURNALIZED: July 10, 2014
ATTORNEY FOR APPELLANT

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


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Scott Zarzycki
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.:

       {¶1} Appellant, Ellord Wells, brings the instant appeal challenging his 12-year

sentence that was imposed for the rape of a young woman.             Appellant claims the

sentence is contrary to law and an abuse of discretion, and the trial court improperly

considered uncharged acts when imposing sentence. After a thorough review of the

record and law, we affirm in part, reverse in part, and remand for limited resentencing.

                          I. Factual and Procedural History

       {¶2} Appellant was indicted on January 9, 2013, and charged with the April 15,

2012 rape and kidnapping of P.H. The indictment included one- and three-year firearm

and sexually violent predator specifications. Appellant was declared indigent and was

appointed counsel. The matter proceeded to a June 6, 2013 change of plea hearing where

appellant agreed to plead guilty to rape, a first-degree felony violation of R.C.

2907.02(A)(2).    The other count and specifications were dismissed. The trial court

accepted appellant’s plea after a thorough colloquy, ordered a presentence investigation

report (“PSI”), and set sentencing for July 1, 2013.

       {¶3} At the sentencing hearing, the trial court heard statements from the victim,

the state, appellant, and appellant’s attorney.        The court then imposed an 11-year

sentence for rape. The court ordered that sentence to be served consecutively to a

one-year sentence imposed in a separate criminal case, Cuyahoga C.P. No.

2011-CR-554092. Appellant appeals from this sentence assigning two errors for review:
      I. The sentence imposed by the trial court was contrary to law and an
      abuse of discretion.

      II. The trial court erred by considering other uncharged acts in sentencing
      appellant where appellant objected to the allegations contained in the PSI as
      being inaccurate and the court did not comply with R.C. 2951.03(B)(2) and
      (5).

                                 II. Law and Analysis

                                A. Standard of Review

      {¶4} Appellant argues for this court to review the sentence for an abuse of

discretion, citing to the Ohio Supreme Court’s continued reliance on State v. Kalish, 120

Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. Kalish was a decision meant to fill the

void left by the Ohio Supreme Court’s prior decision in State v. Foster, 109 Ohio St.3d 1,

2006-Ohio-856, 845 N.E.2d 470, which struck down certain sentencing provisions that

required judicial fact-finding. One of those provisions was R.C. 2953.08, which also set

forth the standard for appellate review of felony sentences.1 After the Supreme Court’s

decision in Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009), it was

clear that the trial court could make findings necessary to support consecutive sentences.

The court held,

      [i]n light of historical practice and the States’ authority over administration
      of their criminal justice systems, the Sixth Amendment does not inhibit
      States from assigning to judges, rather than to juries, the finding of facts
      necessary to the imposition of consecutive, rather than concurrent,
      sentences for multiple offenses.

      1  But see Justice Lanzinger’s dissent, where she argues that only certain
portions of R.C. 2953.08 were severed and that the standard of appellate review for
felony sentences remained viable. Kalish at ¶ 61.
       {¶5} In the wake of that holding, the legislature enacted several sentencing

provisions on September 30, 2011, including R.C. 2953.08 and its appellate standard of

review governing felony sentencing. 2011 Am.Sub.H.B. No. 86. As a result, this court

looks to that directive from the legislature rather than the plurality opinion from the Ohio

Supreme Court. Therefore, this court reviews felony sentencing appeals based on the

dictates of R.C. 2953.08(G), which provides in part,

              The court hearing an appeal under division (A), (B), or (C) of this
       section shall review the record, including the findings underlying the
       sentence or modification given by the sentencing court.

              The appellate court may increase, reduce, or otherwise modify a
       sentence that is appealed under this section or may vacate the sentence and
       remand the matter to the sentencing court for resentencing. The appellate
       court’s standard for review is not whether the sentencing court abused its
       discretion. The appellate court may take any action authorized by this
       division if it clearly and convincingly finds either of the following:

       (a) That the record does not support the sentencing court’s findings under
       division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of
       section 2929.14, or division (I) of section 2929.20 of the Revised Code,
       whichever, if any, is relevant;

       (b) That the sentence is otherwise contrary to law.

       {¶6} Stated more plainly, the statute “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).” State v. Conner, 8th Dist. Cuyahoga No. 99557, 2014-Ohio-601, ¶

113.
                   B. Purposes and Principles of Felony Sentencing

       {¶7} Appellant’s claims about consecutive sentences will be separately addressed

below. First, we shall address his concerns that the trial court failed to properly consider

certain factors outlined in R.C. 2929.11 and 2929.12, which set forth the purposes and

principles of felony sentencing.

       {¶8} R.C. 2929.11 defines the overriding purposes and principles of sentencing

that the court must consider when imposing a felony sentence. The factors include the

need for incapacitating the offender, deterring the offender and others from future crime,

rehabilitating the offender, and making restitution to the victim of the offense, the public,

or both. R.C. 2929.11(A). R.C. 2929.11 also directs the court to impose the minimum

sanctions it determines “will accomplish those purposes without imposing an unnecessary

burden on state or local government resources.”         R.C. 2929.12 directs the court to

consider a non-exhaustive list of mitigating and aggravating factors.

       {¶9} Appellant claims, without any support, that the 12-year sentence is “beyond

what is necessary to accomplish the newly effective purposes of sentencing and,

therefore, places an unnecessary drain on state or government resources * * *.”

Appellant does not offer any evidence that the state cannot bear the cost of housing

appellant for 12 years as opposed to 10 or some lesser sentence. This is because “[i]t is

difficult for a defendant to establish a claim that a prison sentence imposes an

unnecessary burden on governmental resources where a prison sentence properly serves

the interests of public protection and punishment.” State v. Parker, 8th Dist. Cuyahoga
No. 100067, 2014-Ohio-1235, ¶ 5, citing State v. Bowshier, 2d Dist. Clark No. 08-CA-58,

2009-Ohio-3429, ¶ 14.

       {¶10} Further, the court stated at sentencing that it

       considered the relevant seriousness and recidivism factors, the overriding
       principles and purposes of felony sentencing, namely to protect the public
       from future crime by the defendant and others, and also to punish the
       defendant using the minimum sanctions the court determines accomplishes
       those purposes without imposing an undue burden on the state and local
       government resources.

The record affirmatively demonstrates that the court considered this factor.

       {¶11} Appellant also argues that his sentence is contrary to law because the court

did not consider proportionality or consistency, as required by R.C. 2929.11. The trial

court stated that it considered these things during the sentencing hearing, and no specific

findings are required. Conner, 8th Dist. Cuyahoga No. 99557, 2014-Ohio-601, ¶ 119.

       {¶12} Additionally, these concepts must be distinguished.         “[C]onsistency is

achieved by weighing the factors enumerated in R.C. 2929.11 and 2929.12 and applying

them to the facts of each particular case.” State v. Lababidi, 8th Dist. Cuyahoga No.

100242, 2014-Ohio-2267, ¶ 16, citing State v. Moon, 8th Dist. Cuyahoga No. 93673,

2010-Ohio-4483, ¶ 21. Here, the trial court did precisely that.

              Although the term “consistency” in R.C. 2929.11(B) has been
       confused with “proportionality,” R.C. 2929.11(B) does not mention the
       word “proportionality.” This court has held that “consistency” in
       sentencing is not the same as uniformity. State v. Bonness, 8th Dist.
       Cuyahoga No. 96557, 2012-Ohio-474, ¶ 27. We have also held that “a
       consistent sentence is not achieved from a case-by-case comparison, but the
       trial court’s proper application of the statutory sentencing guidelines.”
       State v. Sutton, 8th Dist. Cuyahoga No. 97132, 2012-Ohio-1054, ¶ 17.
Lababidi at ¶ 12.

       {¶13} Proportionality analysis is derived from the Eighth Amendment’s

prohibition against sentences that are grossly disproportionate to the seriousness of the

crime. Id. at ¶ 14, quoting State v. Weitbrecht, 86 Ohio St.3d 368, 373, 715 N.E.2d 167

(1999).

              Thus, proportionality review “focus[es] on individual sentences
       rather than on the cumulative impact of multiple sentences imposed
       consecutively.” [State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846
       N.E.2d 824,] ¶ 20. Furthermore, a sentence that falls within the terms of a
       valid sentencing statute is presumptively valid. State v. Williams, 8th Dist.
       Cuyahoga No. 100042, 2014-Ohio-1618, ¶ 14.

Id. at ¶ 15.

       {¶14} To argue that an 11-year sentence for raping a woman is disproportionate

and constitutes a cruel or unusual punishment strains the bounds of credibility. To

further argue that one additional year of incarceration imposed consecutive to that

sentence for an unrelated case goes beyond the bounds of permissible punishment is

similarly incredible.

       {¶15} Also, appellant did not object or seek to demonstrate how his sentence was

disproportionate or inconsistent with other rapists. This is something this court has

determined is required in order to properly preserve this error for review. State v. Spock,

8th Dist. Cuyahoga No. 99950, 2014-Ohio-606, ¶ 37.

       {¶16} Appellant’s sentence is not contrary to law in these respects. The trial court

considered the factors outlined in R.C. 2929.11 and 2929.12.

                               C. Consecutive Sentences
       {¶17} Appellant also complains that the trial court failed to articulate the necessary

findings in order to impose consecutive sentences.        In order to impose consecutive

sentences, the trial court must make three findings:

       that the consecutive service is [(1)] necessary to protect the public from
       future crime or to punish the offender and that consecutive sentences are
       [(2)] not disproportionate to the seriousness of the offender’s conduct and
       to the danger the offender poses to the public, and [(3)] if the court also
       finds any of the following:

       (a) The offender committed one or more of the multiple offenses while the
       offender was awaiting trial or sentencing, was under a sanction imposed
       pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or
       was under post-release control for a prior offense.

       (b) At least two of the multiple offenses were committed as part of one or
       more courses of conduct, and the harm caused by two or more of the
       multiple offenses so committed was so great or unusual that no single
       prison term for any of the offenses committed as part of any of the courses
       of conduct adequately reflects the seriousness of the offender’s conduct.

       (c) The offender’s history of criminal conduct demonstrates that
       consecutive sentences are necessary to protect the public from future crime
       by the offender.

R.C. 2929.14(C)(4); State v. Nia, 8th Dist. Cuyahoga No. 99387, 2014-Ohio-2527.

       {¶18} When imposing sentence and addressing whether the individual sentences

would be served consecutively, the court stated:

       The court further finds that since the crime — he has a long, lengthy record
       and he’s failed to respond positively to prior sanctions. This crime was
       committed while he was under sanctions, and the harm was so great and
       unusual that a single term does not adequately reflect the seriousness of the
       conduct, and his history also shows that consecutive terms need to be put
       into place to protect the public. So in case number 554092-A, I’m going to
       give him one year in prison. On the current case ending in 017 I’m going
       to give him 11 years in prison. I wish it was more. The one year will run
       consecutive to the 11 years.
Here, the court made findings under R.C. 2929.14(C) going to seriousness and protection

of the public. The court also determined that, pursuant to R.C. 2929.14(C)(4)(a), the

offense was committed while appellant was on community control. However, the court

did not address how the sentence would not be disproportionate to the harm caused.

While it is clear to this panel that the harm caused to the victim in this case is great and

would be demeaned by a lesser sentence, the trial court needs to find this. This court

cannot make determinations for the trial court that the statute requires to be made in order

to impose consecutive sentences.

       {¶19} Therefore, this case must be remanded to the trial court so that it can make

the necessary findings to impose consecutive sentences or order those sentences to be

served concurrently. Nia at ¶ 28.

                             D. Sentencing Considerations

       {¶20} Appellant claims the trial court failed to discount statements contained

within the PSI that he claimed were inaccurate and that these inaccuracies constituted

uncharged crimes for which he was punished.

       {¶21} R.C. 2951.03 governs presentence investigation reports. R.C. 2951.03(B)(2)

gives defendants the right to review these reports and affords an opportunity to dispute

any inaccuracies. If such disputes arise, the court shall “(a) [m]ake a finding as to the

allegation; [or] (b) [m]ake a determination that no finding is necessary with respect to the

allegation, because the factual matter will not be taken into account in the sentencing of

the defendant.” R.C. 2951.03(B)(5).
         {¶22} At the outset of the sentencing hearing, the trial court asked appellant if

there were any inaccuracies in the PSI. Appellant’s attorney responded that there were

not. Later, appellant’s attorney indicated that appellant did not state to the victim during

the rape that he was the “one raping everybody on Hough,” as the victim claimed in her

statement to police. Also, while making arguments related to the impending sentence for

appellant’s violation of community control sanctions in another case, the court indicated,

that, according to the victim’s statement to police contained in the PSI, appellant used the

victim’s name during the rape. Appellant’s attorney advised the court that appellant

denied ever using the victim’s name during the rape. The court replied, “[t]he court

believes the report, and the report indicates that he was stalking her, that he said he was a

rapist in that area.”

         {¶23} Here, the trial court considered the alleged inaccuracies and made a finding

that the report was accurate. Just as in State v. Witt, 8th Dist. Cuyahoga No. 94800,

2011-Ohio-336, ¶ 18, “[t]he court considered the allegations of inaccuracy and found

none.”     The court complied with the dictates of R.C. 2951.03 and made a factual

determination contrary to appellant’s position.

         {¶24} Appellant finally argues that the trial court, when imposing sentence,

considered uncharged allegations that he had committed additional rapes and was stalking

the victim. Appellant points to the same statements recited above — that the court found

that appellant told the victim he was raping other women on Hough Avenue. This is not

an indication that the court punished appellant for unindicted crimes. The statements
contained in the police report just as likely could have been cited by the court, not for

their veracity, but to demonstrate a further attempt to terrorize and intimidate the victim

during a horrendous crime.       The harm caused to the victim is a valid sentencing

consideration.

                                     III. Conclusion

       {¶25} Appellant’s sentence is contrary to law in only one sense. The trial court

failed to make the necessary findings to impose consecutive sentences. Therefore, the

case must be remanded for the court to make those findings or impose concurrent

sentences. Appellant’s sentence is not contrary to law in the other ways he argues herein.

       {¶26} Cause affirmed in part, reversed in part, and remanded to the lower court for

resentencing consistent with this opinion.

       It is ordered that appellant and appellee share the 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.



FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

EILEEN A. GALLAGHER, J., and
MARY EILEEN KILBANE, J., CONCUR
