[Cite as State v. Hunter, 2015-Ohio-3498.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :   JUDGES:
                                               :
                                               :   Hon. W. Scott Gwin, P.J.
       Plaintiff-Appellee                      :   Hon. William B. Hoffman, J.
                                               :   Hon. Patricia A. Delaney, J.
-vs-                                           :
                                               :   Case No. 15-CA-18
                                               :
ROBERT C. HUNTER                               :
                                               :
                                               :
       Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Licking County Court of
                                                   Common Pleas, Case No. 14 CR 00673



JUDGMENT:                                          REVERSED, SENTENCE VACATED,
                                                   AND REMANDED



DATE OF JUDGMENT ENTRY:                            August 26, 2015




APPEARANCES:

For Plaintiff-Appellee:                            For Defendant-Appellant:

KENNETH W. OSWALT                                  ASHLEY E. LOYKE
LICKING CO. PROSECUTOR                             REESE, PYLE, DRAKE, et al.
CHRISTOPHER A. REAMER                              36 N. Second St.
20 S. Second St., Fourth Floor                     P.O. Box 919
Newark, OH 43055                                   Newark, OH 43058-0919
Licking County, Case No. 15-CA-18                                                       2

Delaney, J.

       {¶1} Appellant Robert C. Hunter appeals from the March 5, 2015 Judgment of

Conviction of the Licking County Court of Common Pleas. Appellee is the state of Ohio.

                         FACTS AND PROCEDURAL HISTORY

       {¶2} A statement of the facts underlying appellant's criminal convictions is not

necessary to our resolution of this appeal.

       {¶3} Appellant was charged by indictment with one count of aggravated drug

possession (methamphetamine) pursuant to R.C. 2925.11(A)(C)(1)(a), a felony of the

fifth degree [Count I].        Appellant was also charged by bill of indictment with

unauthorized use of a motor vehicle pursuant to R.C. 2913.03(B), a felony of the fifth

degree [Count II]; aggravated drug possession (methamphetamine) pursuant to R.C.

2925.11(A)(C)(1)(a), a felony of the fifth degree [Count III]; and one count of aggravated

drug possession (methamphetamine) pursuant to R.C. 2925.11(A)(C)(1)(a), a felony of

the fifth degree [Count IV].

       {¶4} Appellant entered negotiated pleas of guilty and first appeared before the

trial court for sentencing on February 3, 2015. Sentencing was deferred because the

trial court was not convinced appellant was fully apprised of the charges against him or

the potential penalties thereof.

       {¶5} Appellant came before the trial court again on March 5, 2015. Appellee

and appellant presented the trial court with a joint recommendation of an aggregate

prison term of 18 months. The trial court declined to follow the joint recommendation

and sentenced appellant to four consecutive terms of 9 months each, or an aggregate

term of 36 months.
Licking County, Case No. 15-CA-18                                                     3


      {¶6} Appellant now appeals from the judgment entry of his conviction and

sentence.

      {¶7} Appellant raises one assignment of error:

                              ASSIGNMENT OF ERROR

      {¶8} "I. IT WAS ERROR TO SENTENCE MR. HUNTER, A NONVIOLENT

DRUG OFFENDER WHO WAS INITIALLY ELIGIBLE FOR EIGHTEEN MONTHS IN

PRISON ON JOINT RECOMMENDATION OF BOTH THE STATE AND DEFENSE

COUNSEL,      TO    CONSECUTIVE        SENTENCES       WITHOUT     PROVIDING        THE

STATUTORILY REQUIRED RATIONALE THEREFOR."

                                       ANALYSIS

                                              I.

      {¶9} Appellant argues the trial court failed to make the requisite findings to

impose consecutive prison terms and that the sentence imposed is disproportionate to

the seriousness of the offenses. Appellee concedes the requisite findings were not

made on the record at the sentencing hearing and were not incorporated into the court's

sentencing entry. We agree and thus sustain appellant's assignment of error as to the

absence of required findings in the record.

      {¶10} R.C. 2929.14(C)(4) states:

                    If multiple prison terms are imposed on an offender for

             convictions of multiple offenses, the court may require the offender

             to serve the prison terms consecutively if the court finds that the

             consecutive service is necessary to protect the public from future

             crime or to punish the offender and that consecutive sentences are
Licking County, Case No. 15-CA-18                                                         4


              not disproportionate to the seriousness of the offender's conduct

              and to the danger the offender poses to the public, and if the court

              also finds any of the following:

                     (a) The offender committed one or more of the multiple

              offenses while the offender was awaiting trial or sentencing, was

              under a sanction imposed pursuant to section 2929.16, 2929.17, or

              2929.18 of the Revised Code, or was under post-release control for

              a prior offense.

                     (b) At least two of the multiple offenses were committed as

              part of one or more courses of conduct, and the harm caused by

              two or more of the multiple offenses so committed was so great or

              unusual that no single prison term for any of the offenses

              committed as part of any of the courses of conduct adequately

              reflects the seriousness of the offender's conduct.

                     (c) The offender's history of criminal conduct demonstrates

              that consecutive sentences are necessary to protect the public from

              future crime by the offender.

       {¶11} In State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16 N.E.2d 659,

syllabus, the Supreme Court of Ohio stated: "In order 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, but it has no obligation to state reasons to support its findings." The sentencing

court is not required to recite “a word-for-word recitation of the language of the statute.”
Licking County, Case No. 15-CA-18                                                          5


Id. at ¶ 29. “[A]s 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. A failure to make the findings

required by R.C. 2929.14(C)(4), however, renders a consecutive sentence contrary to

law. Id. at ¶ 34. The findings required by R.C. 2929.14(C)(4) must be made at the

sentencing hearing and included in the sentencing entry. Id. at the syllabus.

       {¶12} Here, appellant was sworn for the plea colloquy with the trial court and the

court observed appellant had been through the court's intensive supervision program

before but was here again after "running from the cops." The trial court also noted

appellant    wore   a     red   jumpsuit   because    he   was   found   in   possession   of

methamphetamine at the jail. The trial court concluded it would not follow the parties'

joint recommendation and imposed consecutive terms of 9 months each, stating the

following:

              * * * *.

                         I find that the presumption in favor of prison--of concurrent

              terms in this case is overcome by the fact that consecutive terms

              are necessary to protect the public and to punish the offender. His

              prior record is terrible.      He has been through virtually every

              potential program we have from probation to the community based

              correctional facility, and he just is not amenable. His supervision

              history is terrible, and so that's why I'm imposing consecutive terms

              on each of the four counts.

              * * * *.
Licking County, Case No. 15-CA-18                                                           6


               T. 25-26.

         {¶13} In the case at bar, the trial court found only that consecutive sentences

are necessary to protect the public and to punish the offender; no findings were made

that consecutive sentences are not disproportionate to the seriousness of appellant's

conduct and to the danger appellant poses to the public. We are thus unable to find the

trial court made all of the findings required by R.C. 2929.14(C)(4) at the time it imposed

consecutive sentences; neither did it incorporate all of the necessary findings into its

judgment entry. State v. Hatfield, 2015-Ohio-2846, ¶ 14 (5th Dist. Muskingum).

         {¶14} Of course this case is distinguishable from Hatfield because we can glean

from the record the trial court found at least one of three additional findings, specifically,

appellant's criminal history demonstrates that consecutive sentences are necessary to

protect the public from future crime by the offender. Id. at ¶ 14. Furthermore, we are

reluctant to reverse and remand for mere recitation of the statutory factors, and Bonnell

explicitly rejects such rigid formalism. Bonnell, supra, at ¶ 29. In this case, however, in

light of appellant's argument regarding sentence proportionality, combined with

appellee's concession the record and entries are devoid of the requisite findings, we

must sustain appellant's sole assignment of error and remand this matter to the trial

court.

         {¶15} We are unable to uphold the consecutive sentences on this record

because we cannot "discern that the trial court engaged in the correct analysis and

can[not] determine that the record contains evidence to support the findings." Hatfield,

supra, 2015-Ohio-2846, ¶ 13 (5th Dist. Muskingum), citing Bonnell at ¶ 29.

         {¶16} Appellant's sole assignment of error is therefore sustained.
Licking County, Case No. 15-CA-18                                                    7


                                     CONCLUSION

       {¶17} Appellant's sole assignment of error is sustained, appellant's sentence is

vacated, and this matter is remanded to the trial court for resentencing.

By: Delaney, J. and

Gwin, P.J.

Hoffman, J., concur.
