[Cite as State v. Roberts, 2017-Ohio-9014.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 104474



                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                  DOUGLAS ROBERTS
                                                    DEFENDANT-APPELLANT




                                       JUDGMENT:
                                  AFFIRMED; REMANDED



                                Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
              Case Nos. CR-12-561797-A, CR-13-578409-A, CR-14-584010-A,
                          CR-14-584791-A, and CR-14-586073-A

        BEFORE: S. Gallagher, J., McCormack, P.J., and Boyle, J.

        RELEASED AND JOURNALIZED:                   December 14, 2017
ATTORNEY FOR APPELLANT

Erin R. Flanagan
Erin R. Flanagan, Esq., Ltd.
75 Public Square, Suite 920
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Anthony Thomas Miranda
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:

          {¶1} Douglas Roberts, also known as Franklin Jenkins, appeals the imposition of

consecutive sentences following a limited remand in State v. Jenkins, 8th Dist. Cuyahoga

No. 101899, 2015-Ohio-2762. Roberts claims that the record does not support the R.C.

2929.14(C)(4) finding that consecutive service of his multiple sentences is proportionate

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

public.     The parties also agree that there is a typographical error in the final sentencing

entry. We affirm the conviction but remand for the limited purpose of issuing a nunc

pro tunc entry to correct the clerical error.

          {¶2}   In Jenkins, the imposition of consecutive sentences, culminating in the

aggregate prison term of 18 years and 11 months, was reversed under the authority of

State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, because the trial

court had not made the second finding under R.C. 2929.14(C)(4) — that the consecutive

sentences would not be “disproportionate to the seriousness of the offender’s conduct and

the danger the offender poses to the public.”       Upon remand, the trial court made the

omitted finding and reimposed the original, aggregate term.

          {¶3} Roberts appeals once again, and accordingly, we adopt the facts as stated

from Jenkins:

          The sentence resulted after [Roberts’s] guilty pleas in five separate cases,
          and included consecutive terms.

                 In the first case, Cuyahoga C.P. No. CR-[12]-561797-A, [Roberts]
          pled to robbery. He was originally sentenced to community control
          sanctions and ordered to participate in a community-based treatment
      program. The trial court informed him that he would be sentenced to a
      four-year prison term if he violated his community control sanctions.

             [Roberts’s] second case was Cuyahoga C.P. No. CR-[13]-578409-A,
      in which he pled to breaking and entering. The trial court sentenced him to
      an 11-month prison term, but suspended the sentence so that he could
      continue to participate in the treatment program. The court continued his
      community control sanctions for 18 months, to run consecutive to the first
      case.

             Several months later, [Roberts] entered guilty pleas in three other
      separate cases. In Cuyahoga C.P. No. CR-14-584010-A, he pled to escape;
      in Cuyahoga C.P. No. CR-14-586073-A, he pled to two counts of burglary;
      and in Cuyahoga C.P. No. CR-14-584791-A, he pled to burglary with a
      notice of prior conviction specification.

             In August 2014, the trial court held a sentencing hearing. The court
      terminated [Roberts’s] community control sanctions in Case Nos.
      CR-[12]-561797-A and CR-[13]-578409-A, and sentenced him to four
      years and 11 months, respectively, on those cases. In Case No.
      CR-14-584010-A, [Roberts] was sentenced to six months; in Case No.
      CR-14-586073-A, he was sentenced to seven years on each of the two
      burglary counts, to be served concurrent to each other; and in Case No.
      CR-14-584791-A, he was sentenced to seven years. With the exception of
      the six-month sentence in Case No. CR-14-584010-A and the concurrent
      terms on the two burglary charges in Case No. CR-14-586073-A, the trial
      court ordered all the other terms to be served consecutively, for an
      aggregate sentence of 18 years and 11 months.

Jenkins at ¶ 2-6.   Thus, the 18-year, 11-month aggregate prison sentence was not the

maximum aggregate term at the trial court’s disposal.

      {¶4}   In his second, third, and fourth assignments of error, Roberts challenges the

validity of the underlying sentences, claiming (1) the prior conviction specification was

contrary to law because the trial court did not rule on or reference the qualifying

conviction at the resentencing hearing; (2) the trial court erred in imposing costs in the

resentencing entry although the costs were properly imposed in the original sentencing;
and (3) the trial court erred in ordering restitution in the resentencing hearing without first

establishing the amounts due through evidence introduced at the resentencing hearing.

       {¶5} We cannot address those three assigned errors, all of which challenge aspects

of the underlying sentence that were not part of the limited remand. Jenkins, 8th Dist.

Cuyahoga No. 101899, 2015-Ohio-2762, at ¶ 12.         “It is well recognized that the doctrine

of res judicata bars claims that were raised or could have been raised on direct appeal.”

State v. Fountain, 8th Dist. Cuyahoga Nos. 92772 and 92874, 2010-Ohio-1202, ¶ 9, citing

State v. Davis, 119 Ohio St.3d 422, 2008-Ohio-4608, 894 N.E.2d 1221. The trial court

was without authority to address anything but the consecutive sentencing findings. State

v. Ferrell, 8th Dist. Cuyahoga No. 100659, 2014-Ohio-4377, ¶ 47; State v. Nia,

2014-Ohio-2527, 15 N.E.3d 892, ¶ 22 (8th Dist.) (“the trial court is limited on remand to

only the question raised regarding the required findings pursuant to R.C. 2929.14(C)(4) to

justify consecutive sentences”). Jenkins remanded the matter solely for “the trial court

to consider whether consecutive sentences are appropriate under R.C. 2929.14(C)(4), and,

if so, to make the required findings on the record.”     Jenkins at ¶ 12, citing Nia at ¶ 22;

State v. Frost, 8th Dist. Cuyahoga No. 100498, 2014-Ohio-2645, ¶ 10; State v. Dennison,

10th Dist. Franklin No. 15AP-592, 2016-Ohio-8361, ¶ 67.

       {¶6} Having said that, the parties agree that there appears to be a typographical

error in the final sentencing entry in Cuyahoga C.P. No. CR-14-586073-A. The trial

court imposed restitution in the amount of $10,280.60 payable to one of the victims.

The state and Roberts believe that amount should have been $1,028.60 as established at
the original sentencing hearing. A trial court retains continuing jurisdiction to correct

clerical errors in a judgment by nunc pro tunc entry to reflect that which actually was

decided. State ex rel. Womack v. Marsh, 128 Ohio St.3d 303, 2011-Ohio-229, 943

N.E.2d 1010, ¶ 13, citing State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353,

2006-Ohio-5795, 856 N.E.2d 263, ¶ 18-19, and Crim.R. 36 (“[c]lerical mistakes in

judgments, orders, or other parts of the record, and errors in the record arising from

oversight or omission, may be corrected by the court at any time”). Although Roberts

failed to address this issue in Jenkins, in light of the state’s concession, we remand for the

limited purpose of issuing a nunc pro tunc sentencing entry to correct the restitution

amount to reflect the restitution demonstrated at the original sentencing hearing. See

State v. McGee, 8th Dist. Cuyahoga No. 104566, 2017-Ohio-1363, ¶ 10.

       {¶7} In his first assignment of error, Roberts claims that the consecutive

sentencing findings are not supported by the record. R.C. 2929.14(C)(4) authorizes the

trial court to order consecutive sentences if, as is pertinent to this case, consecutive

service (1) is necessary to protect the public from future crime or to punish the offender;

(2) is not disproportionate to the seriousness of the offender’s conduct and to the danger

the offender poses to the public; and additionally, (3) if the offender committed the

offense while awaiting trial or sentencing, under community control monitoring, or under

postrelease control for a prior offense. State v. Jones, 8th Dist. Cuyahoga No. 104152,

2016-Ohio-8145, ¶ 5, citing State v. Smeznik, 8th Dist. Cuyahoga Nos. 103196 and

103197, 2016-Ohio-709, ¶ 6.
       {¶8} The trial court made all the required findings, and Roberts is not challenging

that aspect of his sentences. Instead, Roberts claims that the record does not support the

second finding, that consecutive sentences are not disproportionate to the seriousness of

the offender’s conduct and to the danger the offender poses to the public because the trial

court referred to his criminal history collectively as eight “aggravated burglaries.”

Further, Roberts claims that the trial court was required to find that the harm caused by

the offenses was so great or unusual that no single prison term adequately reflected the

seriousness of the offender’s conduct under R.C. 2929.14(C)(4)(b).

       {¶9} In this case, Roberts contends that the consecutive sentences were

disproportionate to his conduct and the danger he poses to the public because the trial

court could not conclude that the multiple offenses he committed while serving

community control sanctions, were “so great and unusual that no single prison term for

any of the offenses committed as part of any of the course of conduct adequately reflects

the seriousness of the offender’s conduct” under R.C. 2929.14(C)(4)(b).               This

conclusion, however, inappropriately combines the proportionality finding with another,

independent finding, one that the trial court was not required to make in this particular

case because it is undisputed that Roberts committed the new crimes while serving

community control sanctions, under R.C. 2929.14(C)(4)(a). Only one of the subdivision

(a)-(c) findings is necessary to support consecutive service of prison terms.

       {¶10} Further, the off-the-cuff generalization of Roberts’s history of criminal

conduct is a minor distinction that does not undermine the trial court’s ultimate
conclusion when the totality of the sentencing hearing is considered.      If the court made

the required findings in order to impose consecutive sentences, we must affirm those

sentences unless we “clearly and convincingly” find that the record does not support the

court’s findings. R.C. 2953.08(G)(2); State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453,

¶ 19 (8th Dist.). The statute is written in the negative; that is, an appellate court does not

need to clearly and convincingly find that the record supports the findings in order to

affirm, but instead must clearly and convincingly find that the record does not support the

findings in order to reverse or modify a sentence. Venes; State v. Higginbotham, 10th

Dist. Franklin Nos. 17AP-147 and 17AP-150, 2017-Ohio-7618, ¶ 11, citing State v.

Moore, 11th Dist. Geauga No. 2014-G-3183, 2014-Ohio-5182, ¶ 29, and State v. Hale,

5th Dist. Perry No. 14-CA-00014, 2014-Ohio-5028; State v. Timpe, 12th Dist. Clermont

No. CA2015-04-034, 2015-Ohio-5033, ¶ 9; State v. Thompson, 9th Dist. Wayne No.

15AP0016, 2016-Ohio-4689, ¶ 45; State v. Creech, 4th Dist. Scioto No. 16CA3730,

2017-Ohio-6951, ¶ 11; State v. Cochran, 2d Dist. Clark No. 2016-CA-33,

2017-Ohio-217, ¶ 7.    This is a deferential standard of appellate review. State v. Rahab,

150 Ohio St.3d 152, 2017-Ohio-1401, 80 N.E.3d 431, ¶ 10.

       {¶11} The record amply reflects that consecutive sentences are not

disproportionate to Roberts’s conduct or the danger he poses to the public. Roberts

committed numerous burglaries, aggravated burglaries, robberies, receiving stolen

property, and breaking and entering crimes against numerous victims over the span of his

criminal career dating back to the mid-1980s. Most of that time was spent in prison.
Tr. 10:21-24. To put this in perspective, at the end of 2004, Roberts pleaded guilty to

burglary and was sentenced to two years in prison. In 2006, Roberts reoffended and

almost a year later was sentenced to five years in prison for two burglaries.     In 2012,

Roberts pleaded guilty to robbery and was sentenced to community control. In 2013,

Roberts pleaded guilty to breaking and entering and was sentenced to an additional term

of community control.      That led to the 2014 cases, which were the result of three more

burglaries.

       {¶12} That the trial court, in an aside, generalized Roberts’s past convictions as

aggravated burglaries does not undermine the proportionality finding because the trial

court was expressly looking at the past offenses as being in the “same genre of conduct”

as the current offenses.   The trial court was not focused on the aggravated nature of the

crimes.   The record supports the trial court’s finding.     More than ten of Roberts’s

convictions involved some form of burglary or theft offense.           As the trial court

explained to Roberts,

       You break into people’s homes. You deprive them of their safety, deprive
       them of their goods, and you continue to engage in the same conduct
       despite the fact you’ve been down to prison before, despite the fact that I
       gave you the opportunity to address that behavior through community
       sanctions. I don’t believe it’s disproportionate given the fact that you now
       have — I think it’s eight aggravated burglaries. You’ve got an escape. You
       know, there’s no changing your behavior.

In context, the trial court’s generalization does not amount to the proportionality finding

not being supported by the record.    There must be more. See, e.g., State v. Spencer, 8th

Dist. Cuyahoga No. 101131, 2014-Ohio-5430, ¶ 12 (criminal nonsupport is not an
inherently violent crime, and when that fact is coupled with several misstated facts

recounting the offender’s criminal history and the lack of any criminal behavior for 24

years, it was clearly and convincingly found that the record did not support the finding

that consecutive sentences imposed for three counts of criminal nonsupport were not

disproportionate to the danger the offender posed to the public).

       {¶13} In this case, we cannot conclude — much less by clear and convincing

evidence find — that the record does not support the second finding that consecutive

sentences are not disproportionate to Roberts’s conduct and the danger he poses to the

public. Roberts’s history of criminal conduct demonstrates the need to prevent Roberts

from harming the public through a lengthy incarceration.            When Roberts is not

incarcerated, he is burglarizing people’s homes.    The purpose of R.C. 2929.14(C)(4) is

to prevent this type of career criminal from perpetuating a cycle of criminality upon the

public. Moreover, R.C. 2929.12 provides that the sentencing court “has discretion to

determine the most effective way to comply with the purposes and principles of

sentencing set forth in section 2929.11 of the Revised Code[,]” including the minimum

sanction necessary to accomplish protecting the public from Roberts and others. In

exercising that discretion, the trial court expressly considered the need to incapacitate

Roberts as a serial burglar and the need to protect the public from being victimized by

Roberts.

       {¶14} In a similar case, a panel from this court affirmed a longer aggregate

sentence for an offender who committed a similar number of burglaries while serving
community control sanctions.        State v. Aniton, 8th Dist. Cuyahoga No. 102440,

2015-Ohio-4080, ¶ 4.        Importantly, Aniton rejected the offender’s argument that

consecutive sentences should be reserved only for the worst offenders who commit

offenses that actually injure the public. Id. at ¶ 15-16.   The defendant had an extensive

criminal history and one of drug dependency, but no violent offenses.    Id. at ¶ 7-8.   The

victim of the home invasion, however, was traumatized and psychologically harmed. Id.

at ¶ 16. The trial court expressed its disappointment in first granting leniency to the

offender, who then committed several crimes while serving community control.         Id. at ¶

8.   On these facts, it was easily concluded that not only did the defendant fail to

demonstrate that the record did not support the findings with respect to his 21-year

aggregate sentence, but that the trial court’s consecutive sentence findings actually were

“clearly and convincingly supported by the record.”    (Emphasis added.) Id. at ¶ 16.

       {¶15} Similar to Aniton, Roberts has an extensive history of criminal conduct,

Roberts traumatized his victims as a result of the home invasions, and the trial court noted

its failed attempt to rehabilitate Roberts by imposing community control sanctions on the

earlier offenses.   More importantly, Roberts could have received a longer aggregate

sentence, but the trial court imposed a shorter, aggregate term than the one affirmed in

Aniton.   Accordingly, we cannot clearly and convincingly find that the aggregate

sentence is disproportionate to Roberts’s criminal conduct in general and the danger he

poses to the public by continually burglarizing homes and robbing victims.        Roberts’s

first assignment of error is overruled.
       {¶16} The dissent maintains that we should modify the consecutively imposed

sentences to concurrent ones because the crimes committed were not inherently egregious

or violent.1 We must caution against this mind-set. Consecutive sentences are not

imposed upon a consideration limited to the offender’s conduct as it relates to the

convictions. In fact, even within the individual sentencing structure, the trial court may

look beyond the offender’s conduct as it relates to the charged crimes. State v. Steele,

8th Dist. Cuyahoga No. 105085, 2017-Ohio-7605, ¶ 10.

       {¶17} For the purpose of consecutive sentencing review, this concept is more

pronounced. “Conduct” under R.C. 2929.14(C)(4) is “understood ‘to encompass more

than just the facts supporting conviction on a particular offense.’”           Dennison, 10th Dist.

Franklin No. 15AP-592, 2016-Ohio-8361, at ¶ 61, quoting State v. Diaz, 8th Dist.

Cuyahoga No. 102582, 2015-Ohio-4382, ¶ 9. The cumulative length of an offender’s

incarceration is “attributable to the number of offenses he committed.”              (Emphasis sic.)


       1
            The dissent’s approach to reviewing consecutive sentences exemplifies the need for a more
defined appellate review process. Nothing distinguishes Roberts’s sentence from that affirmed in
Aniton. The dissent’s review, however, somehow draws a distinction that Roberts is more deserving
of leniency than the defendant in Aniton despite the similarities between the offenders, their conduct,
and the trial court’s conclusions. This instills inconsistency within sentencing. Until the legislature
or the Supreme Court of Ohio steps in with a more definitive review process that ensures consistency,
we should continue to adhere to the unambiguous language of R.C. 2953.08(G). As the dissent
notes, although there may have been an intent under Am.Sub.S.B. No. 2 to create a more expansive
appellate review process, this recognition is decades late and in contravention of R.C. 2929.12 that
affords discretion to the sentencing court to consider R.C. 2929.11. As the Supreme Court of Ohio
has definitively established, appellate courts must defer to the sentencing court based on the
unambiguous language of R.C. 2953.08(G) and R.C. 2929.12. Rahab, 150 Ohio St.3d 152,
2017-Ohio-1401, 80 N.E.3d 431, at ¶ 10. Whatever was the intent of the drafters, we are bound by
the law that has developed. If the legislature took issue with the court’s interpretation of R.C.
2953.08 over the years, the statute could have been amended.
State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073, ¶ 16. Thus,

appellate courts must broadly review the entirety of the offender’s criminal conduct in

reviewing consecutive sentence findings. State v. Moore, 2014-Ohio-5135, 24 N.E.3d

1197, ¶ 33 (8th Dist.). Indeed, R.C. 2929.14(C)(4) provides in part that consecutive

service may be imposed if the trial court finds “that consecutive sentences are not

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

offender poses to the public.” (Emphasis added.)        Id. “Had the legislature intended to

limit appellate review to whether consecutive sentences are not disproportionate to the

seriousness of the crime itself (as opposed to the offender’s conduct and the danger the

offender poses to the public) it could have done so.”    Moore.

       {¶18} Roberts was not sentenced to more than 18 years in prison for stealing a

bottle of Pepsi or for any other trivialized characterization of his individual crimes.

Roberts’s sentences on each of the individual offenses were less than the maximum ones

authorized by law for each offense.   Some of those individual terms were imposed to be

served consecutively, meaning the aggregate term was imposed based on the number of

offenses committed and Roberts’s history of criminal behavior. The fact that the newest

crimes may have been less severe than the ones he committed in the past is not dispositive

— it merely is a factor for consideration. See, e.g., Spencer, 8th Dist. Cuyahoga No.

101131, 2014-Ohio-5430, at ¶ 12.

       {¶19} “Meaningful review” of a sentence does not mean an appellate court

reverses every sentence it disagrees with; it means the appellate panel considers the
arguments advanced as applied through the lens of the law.       On that point, we defer to

the trial court’s discretion unless this court can clearly and convincingly find that the

record does not support the consecutive sentencing findings.            R.C. 2953.08(G)(2);

Rahab, 150 Ohio St.3d 152, 2017-Ohio-1401, 80 N.E.3d 431, at ¶ 10, citing Wasman v.

United States, 468 U.S. 559, 563-564, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984), and

Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949).

       {¶20} Within our standard of review under R.C. 2953.08(G), we must consider the

trial court’s discretion to sentence offenders.    “[T]he sentencing statute [R.C. 2953.08]

and case law reflect this deference.” Rahab at ¶ 10; Hairston, 118 Ohio St.3d 289,

2008-Ohio-2338, 888 N.E.2d 1073, at ¶ 16; State v. Marcum, 146 Ohio St.3d 516,

2016-Ohio-1002, 59 N.E.3d 1231.        Under R.C. 2953.08(G), we can reverse a sentence

only if we clearly and convincingly find that the record does not support the findings.

The trial court made the required findings and concluded that a lengthy incarceration was

necessary and proportionate based on Roberts’s extensive history of criminal conduct, the

harm he caused to the public, and his inability to refrain from reoffending upon release

from prison or while serving community control sanctions — among other considerations.

 The record supports the findings under R.C. 2929.14(C)(4), and the conviction is,

therefore, affirmed.   We affirm the conviction but remand for the limited purpose of

issuing a nunc pro tunc entry to correct the clerical error.

       It is ordered that appellee recover from 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. The defendant's conviction having

been affirmed, any bail pending appeal is terminated.     Case remanded to the trial court

for correction and execution of sentence.

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

the Rules of Appellate Procedure.



SEAN C. GALLAGHER, JUDGE

TIM McCORMACK, P.J., CONCURS;
MARY J. BOYLE, J., CONCURS IN PART AND DISSENTS IN PART WITH
SEPARATE OPINION

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

       {¶21} I respectfully concur in part and dissent in part. I dissent on the first

assignment of error, but concur with the remaining opinion. It is my view that Roberts’s

sentence of almost 19 years in prison is not supported by the record and completely fails

to consider the legislative intent of Ohio’s comprehensive sentencing statutes.

A. Standard of Review

       {¶22} Although the Ohio Supreme Court made clear in State v. Marcum, 146 Ohio

St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, that our review of felony sentences is not an

abuse of discretion, questions still remain as to what the actual scope of our review

should be.   I believe that there is a troubling trend occurring throughout appellate courts

in this state that will, if not reigned 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 (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.

      {¶23} While the majority acknowledges that “there may have been an intent under

Am.Sub.S.B. No. 2 to create a more expansive appellate review process,” it states that

any intent by S.B. 2 has essentially been obliterated by case law that has developed “over

the years.”   The majority claims that if the legislature “took issue with the courts’

interpretation of R.C. 2953.08,” it could have done something about it. It is my view

that the legislature has done something about it, and yet, courts continue to eradicate

meaningful appellate review of felony sentences.            A review of the Ohio’s

comprehensive sentencing scheme is necessary.

      {¶24} Before Am.Sub.S.B. No. 2 (“S.B. 2”) was enacted in 1996, courts had wide

discretion to sentence an offender within the statutory sentencing provisions.    State v.

Johnson, 40 Ohio St.3d 130, 133-134, 532 N.E.2d 1295 (1988).            Because of that,

“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 trial court’s sentencing discretion, however, was “limited and circumscribed

by the parameters imposed by the legislature.” State v. Bowman, 3d Dist. Hancock No.

5-90-11, 1990 Ohio App. LEXIS 3591, 4 (Aug. 6, 1990).

         {¶25} For example, under these limited parameters, appellate courts would find an

abuse of discretion and reverse a sentence if the trial court considered improper factors

when sentencing a defendant. See State v. Smith, 8th Dist. Cuyahoga No. 50145, 1986

Ohio App. LEXIS 5680 (Feb. 20, 1986) (defendant’s sentence reversed because the trial

court considered a conviction that had been previously vacated by the court of appeals).

Appellate courts would also find that a trial court abused its discretion if the trial court

failed to follow a mandatory duty prescribed by the legislature. See State v. Ragland, 17

Ohio App.3d 221, 478 N.E.2d 1014 (2d Dist.1984) (sentence reversed because the trial

court failed to follow a statutory sentencing mandate to give the defendant a choice if he

wanted to be sentenced to the law in effect at the time of sentencing or at the time he

committed the offense).    Finally, appellate courts would reverse consecutive sentences if

the trial court failed to impose them according to the relevant statute at that time. See

Hamilton v. Adkins, 10 Ohio App.3d 217, 461 N.E.2d 319 (12th Dist.1983) (consecutive

sentences reversed because trial court did not specify that the sentences be served

consecutively, as required by former R.C. 2929.41); Bowman (sentence reversed when the

trial court ordered that a sentence for a misdemeanor be served consecutively to a felony

in violation of former R.C. 2929.41(A)).
       {¶26} S.B. 2 was the first major crime reform bill in Ohio since 1974. Griffin &

Katz, Ohio Felony Sentencing Law 1 (2002) (“Griffin & Katz”).         This comprehensive

bill changed the definitions of crimes and the sentencing scheme and provided “precise

guidance for criminal sentencing within clearly defined constraints.” State v. Comer, 99

Ohio St.3d 463, 2003-Ohio-4165, 793 N.E.2d 473, ¶ 10, citing Painter, Appellate Review

Under the New Felony Sentencing Guidelines: Where Do We Stand?, 47 Cleve.St.L.Rev.

533, 537-538 (1999) (“Painter”).

       {¶27} S.B. 2 was enacted in part as a result of the growing concerns about prison

overcrowding.    Painter at 537.   But also, “there was a notion that offenders received

disparate sentences for the same crime in different sections of the state.” Id., citing

Griffin and Katz, Ohio Felony Sentencing Law 1 (1998). Because of this, the Ohio

Criminal Sentencing Commission was created to develop a sentencing policy “designed

to enhance public safety by achieving certainty in sentencing, deterrence, and a

reasonable use of correctional facilities, programs, services,” and to “achieve fairness in

sentencing.” Id.

       {¶28} A “hallmark” of S.B. 2 was appellate review of sentences.      Under S.B. 2,

“the law accords meaningful review of * * * sentencing decisions by the appellate

courts.”   Comer at ¶ 10.    Appellate review was “intended to ensure that offenders

[were] sentenced consistently.”    Painter at 538.   The legislature enacted R.C. 2953.08

to accomplish consistent sentencing through “meaningful appellate review.” Comer at ¶

10 (“‘Meaningful review’ means that an appellate 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.”).        Indeed, the most

significant aspect of the new sentencing law was that trial courts no longer had unfettered

discretion when sentencing offenders. Painter at 537-38.

       {¶29} When the General Assembly first enacted R.C. 2953.08, however, it did not

specify, as it does now, that “[t]he appellate court’s standard for review is not whether the

sentencing court abused its discretion.”      See former R.C. 2953.08. The legislature

initially provided little guidance, and because of this, appellate courts initially struggled

with the degree of review that they needed to give to sentences.      Painter at 540.   The

debate centered around whether appellate courts should apply a “deferential

abuse-of-discretion standard” or “whether the courts should apply a more stringent

standard.”   Id. at 540-541.   “[A]t one time or another, appeals courts from every district

suggested that there was an abuse-of-discretion standard.” Id. at 541.

       {¶30} The legislature finally “settled” the matter, effective October 10, 2000, when

it amended R.C. 2953.08(G)(2) to add: “[t]he appellate court’s standard for review is not

whether the sentencing court abused its discretion.”      In his article, Appellate Review

Under the New Felony Sentencing Guidelines, Painter, then a judge at the First Appellate

District, explained that this amendment was “a key step to ending the inconsistent

treatment that defendants were receiving in appellate districts throughout the state.” Id.

But Painter went on to “predict that appellate courts will continue to take differing
approaches to sentencing review.”    I wonder if Painter now knows how clairvoyant he

actually was back in 1999.

      {¶31} Although S.B. 2 “limited judicial discretion in imposing consecutive

sentences [and other provisions not relevant here] and established a presumption in favor

of concurrent sentences in former R.C. 2929.41(A),” the Ohio Supreme Court, in 2006,

severed the consecutive sentence statute, struck the presumption in favor of concurrent

sentences provided in R.C. 2929.41(A), and held that judges no longer had to make

findings or give reasons for imposing consecutive sentences.   State v. Foster, 109 Ohio

St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 97. It did so after recognizing that requiring

trial judges to engage in judicial fact-finding prior to imposing consecutive sentences

violated the Sixth Amendment right to trial by jury as construed by the United States

Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d

435 (2000); Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); and

Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

      {¶32} But the Ohio Supreme Court later held that Ohio’s consecutive sentencing

statutes under S.B. 2 were not unconstitutional in light of a new United States Supreme

Court case. State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768, ¶

19-20, citing Oregon v. Ice, 555 U.S. 160, 168, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009).

Less than a year after Hodge, the General Assembly enacted Am.Sub.H.B. No. 86 (“H.B.

86”), effective September 30, 2011, “with a legislative purpose to reduce the state’s

prison population and to save the associated costs of incarceration by diverting certain
offenders from prison and by shortening the terms of other offenders sentenced to

prison.” State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 20,

citing Ohio Legislative Service Commission, Fiscal Note & Local Impact Statement to

Am.Sub.H.B. 86. This new legislation revived Ohio’s statutory presumption in favor of

concurrent sentences and further directed courts to make statutorily enumerated findings

prior to imposing consecutive sentences.   See id.

       {¶33} After H.B. 86 became effective, appellate courts again struggled with what

standard of review to apply when reviewing sentences and whether courts should apply an

abuse of discretion standard. But as I stated at the outset, the Ohio Supreme Court

settled that matter in Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231.

In the last couple of years, however, beginning with what appears to be a case from this

district (before Marcum), State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453 (8th Dist.),

courts have begun interpreting R.C. 2953.08 as “an extremely deferential standard of

review.” Venes at ¶ 21. This is highly alarming and somewhat puzzling, considering

the history and purpose behind S.B. 2 and H.B. 86.

       {¶34} There is no question that “‘abuse of discretion’ is the most deferential

standard of review — next to no review at all.”       In re D.T., 212 Ill.2d 347, 356

(Ill.2004).   The General Assembly and the Ohio Supreme Court have made it abundantly

clear that we do not review felony sentences for abuse of discretion.     Rather, when

reviewing a felony sentence, an appellate court must conduct a “meaningful review” of

the trial court’s sentencing decision.   Comer, 99 Ohio St.3d 463, 2003-Ohio-463, 793
N.E.2d 473, at ¶ 10; State v. Daughenbaugh, 3d Dist. Wyandot No. 16-07-07,

2007-Ohio-5774, ¶ 8, citing State v. Carter, 11th Dist. Portage No. 2003-P-0007,

2004-Ohio-1181.

       {¶35} “Meaningful review” means that we must review the entire record, including

“[a]ny presentence, psychiatric, or other investigative report that was submitted to the

court in writing before the sentence was imposed,” the trial record, and any oral or written

statements made to or by the court at the sentencing hearing.       R.C. 2953.08(F)(1)-(3).

And after reviewing the entire record, if we clearly and convincingly determine that “the

record does not support the trial court’s findings under relevant statutes or that the

sentence is otherwise contrary to law,” then we have the power to “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.”               R.C.

2953.08(G)(2); Comer at ¶ 10; Marcum at ¶ 1.

       {¶36} In Venes, 2013-Ohio-1891, 992 N.E.2d 453, this court stated at ¶ 20:

       It is important to understand that the “clear and convincing” standard
       applied in R.C. 2953.08(G)(2) is not discretionary. In fact, R.C.
       2953.08(G)(2) makes it clear that “[t]he 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.

       {¶37} Considering the legislative history and purpose behind S.B. 2 and the

enactment of R.C. 2953.08(G)(2), as well as H.B. 86 reviving R.C. 2929.14(C)(4) and

2953.08(G)(2), this court could not have been more wrong in Venes.         It is the abuse of

discretion standard that prohibits appellate courts from substituting their judgment for that
of the trial judge — a standard explicitly rejected by the legislature and the Ohio Supreme

Court when reviewing felony sentences.          See Pons v. Ohio State Med. Bd., 66 Ohio

St.3d 619, 621, 614 N.E.2d 748 (1993) (“Absent an abuse of discretion on the part of the

trial court, a court of appeals may not substitute its judgment for those of the * * * trial

court.”); Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, at ¶ 1.

          {¶38} In the next paragraph of Venes, we then stated at ¶ 21:

          It is also important to understand that the clear and convincing standard
          used by R.C. 2953.08(G)(2) is written in the negative. It does not say that
          the trial judge must have clear and convincing evidence to support its
          findings. Instead, it is the court of appeals that must clearly and
          convincingly find that the record does not support the court’s findings. In
          other words, the restriction is on the appellate court, not the trial judge.
          This is an extremely deferential standard of review.

          {¶39} This paragraph further interpreting R.C. 2953.08 is just as baffling and

troubling as paragraph 20, if not more so.      There is no “restriction” on appellate courts.

Saying that, however, does not mean that there is a “restriction” on the trial court.          Of

course the “restriction” is not on the trial court — it is the standard of review for appellate

courts.       “Restrictions” on trial courts are set forth in R.C. 2929.11, 2929.12,

2929.14(C)(4) and all of the other sentencing provisions. But the statute is not written in

the “negative” — and even if it is (simply because it contains the word “not”), it certainly

does not mean what Venes (and unfortunately, the many cases following Venes on this

point2) says it means.    If an appellate court clearly and convincingly finds that the record


         See State v. Thompson, 9th Dist. Wayne No. 15AP0016, 2016-Ohio-4689, ¶ 45; State v.
          2

Brandon, 2d Dist. Clark Nos. 2014-CA-143, 2014-CA-144, and 2014-CA-145, 2016-Ohio-227, ¶ 12;
State v. Mason, 12th Dist. Butler No. CA2014-10-217, 2015-Ohio-1931, ¶ 8; State v. Bass, 4th Dist.
does not support the trial court’s findings, we may increase, reduce, modify, or otherwise

reverse a sentence.     That is the same as saying that the record must clearly and

convincingly support the trial court’s findings. But most importantly, this is not an

“extremely deferential review.”

       {¶40} In Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, decided

in March 2016, the Ohio Supreme Court, well aware of Venes and the many cases

following Venes on this point, did not place these “restrictions” or limitations on appellate

courts as Venes claims. Nor did the Supreme Court say anything about R.C. 2953.08

being “extremely deferential.” Marcum explicitly construed R.C. 2953.08 without those

limitations and, thus, it is my view that Marcum effectively overruled paragraphs 20 and

21 of Venes. In construing R.C. 2953.08, the Supreme Court stated in Marcum:

              In the final analysis, we hold that R.C. 2953.08(G)(2)(a) compels
       appellate courts to modify or vacate sentences if they find by clear and
       convincing evidence that the record does not support any relevant 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.”
        See State v. Belew, 140 Ohio St.3d 221, 2014-Ohio-2964, 17 N.E.3d 515,
       ¶ 12 (Lanzinger, J., dissenting from the decision to dismiss the appeal as
       having been improvidently accepted) (“R.C. 2953.08(G)(2) repudiates the
       abuse-of-discretion standard in favor of appellate review that upholds a
       sentence unless the court of appeals clearly and convincingly finds that the
       record does not support the trial court's findings”).

       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,


Washington No. 16CA32, 2017-Ohio-7059, ¶ 6; and State v. St. John, 11th Dist. Lake No.
2015-L-133, ¶ 32.
       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.

              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.

Marcum at ¶ 22-23.

       {¶41} There is nothing in the Supreme Court’s interpretation of R.C.

2953.08(G)(2) to indicate that this is “an extremely deferential review.”         Clear and

convincing does not rise to the level of “beyond a reasonable doubt.”   Maybe if appellate

courts had to find that the record does not support the trial court’s findings “beyond a

reasonable doubt,” I could agree that we could call it “extremely deferential.”   But we do

not.   Under R.C. 2953.08, appellate courts may not modify or reverse a sentence at their

whim or fancy. And there is no question that trial courts have wide discretion to fashion

a sentence within the statutory framework.    That does not mean, however, that appellate

courts should not fulfill their duty to actively review a record to determine if it supports

the trial court’s sentence — to provide meaningful appellate review of a felony sentence.

       {¶42} Painter concluded his article, Appellate Review Under the New Felony

Sentencing Guidelines, by asking “what’s next?” He stated:
              With the recent amendment to the sentencing guidelines that an
       “appellate court’s standard for review is not whether the sentencing court
       abused its discretion,” the debate is over regarding whether abuse of
       discretion remains the standard of review. The legislature has clearly
       indicated that appeals courts must actively review sentences, not merely
       defer to the determinations of trial judges. Because a primary purpose of
       Senate Bill 2 is to eliminate disparate sentencing for similar offenses, it
       seems only logical that appellate courts must take a more active role in
       reviewing sentences than that allowed under the deferential
       abuse-of-discretion standard. A more active review process is the only
       effective way to ensure that trial judges are properly and consistently
       applying the guidelines. Otherwise, Senate Bill 2, which was intended to
       overhaul felony sentencing with appellate courts playing an active role in
       ensuring consistency, would be meaningless.

              But the debate is not necessarily over. Although it is clear that
       abuse-of-discretion is no longer the standard of review, an issue still
       remains regarding how intense the standard of review should be — will it
       be on the deferential end of the continuum, or will it be on the other end,
       such as a de novo review?

Id. at 545-546.

       {¶43} Since Painter wrote his article — nearly 20 years ago — the pendulum has

swung considerably on the “deferential end of the continuum,” so much so that it is

effectively back to pre-S.B. 2 levels.   As one court expressed in reversing a defendant’s

20-year aggregate sentence because the record did not clearly and convincingly support

the trial court’s consecutive sentence findings and did not demonstrate that it was the

minimum sanction to accomplish the purposes of sentencing without imposing an

unnecessary burden on the state:

       “Formalism” has been described as scrupulous or excessive adherence to
       outward form at the expense of inner reality or content. We are concerned
       that our sentencing jurisprudence has become a rubber stamp for rhetorical
       formalism. It appears that consecutive sentences will be upheld on
       appellate review as long as the aggregate sentence is within the arithmetic
      long-addition established by the statutes and the trial judge and the entry
      state that this calculation is (1) necessary to protect the public from future
      crime or to punish the offender, (2) not disproportionate to the seriousness
      of the offender’s conduct and to the danger the offender poses to the public,
      and (3) one or more of the offenses was committed while awaiting trial or
      sentencing.

State v. Adams, 2d Dist. Clark No. 2014-CA-13, 2015-Ohio-1160, ¶ 30.

      {¶44} The “hallmark” of S.B. 2 was sentencing reform that involved a system of

“legislative guidance coupled with strong appellate review” to “achieve consistency in

sentencing, control costs, and incorporate new knowledge about human behavior and

sentencing alternatives in a manner that is less political and more open to an objective

balancing of societal needs.”       (Emphasis added.) Griffin and Katz, Sentencing

Consistency: Basic Principles Instead of Numerical Grids: The Ohio Plan, 53 Case

W.Res.L.Rev. 1, 2 (2002) (“Ohio Plan”).    Indeed, “[t]he capstone of the Ohio Plan [was]

appellate review.” Id. at 3.

      {¶45} Again, when the General Assembly enacted H.B. 86, reviving R.C.

2929.14(C)(4) and 2953.08(G)(2), the purpose, in part, was “to reduce the state’s prison

population and to save the associated costs of incarceration by diverting certain offenders

from prison and by shortening the terms of other offenders sentenced to prison.”

Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at ¶ 20; see also State v.

Limoli, 140 Ohio St.3d 188, 2014-Ohio-3072, 16 N.E.3d 641, ¶ 10; State v. Taylor, 138

Ohio St.3d 194, 2014-Ohio-460, 5 N.E.3d 612, ¶ 17. This is because, as of February 22,

2011, Ohio prisons held 50,461 inmates — 31 percent over capacity or 12,500 more
inmates than our prisons were expected to hold. David J. Diroll, Prison Crowding: The

Long View, With Suggestions, 4 (Mar. 2011).

      {¶46} With this context in mind, R.C. 2929.11(A) now states:

      A court that sentences an offender for a felony shall be guided by the
      overriding purposes of felony sentencing. The overriding purposes of
      felony sentencing are to protect the public from future crime by the offender
      and others and to punish the offender using the minimum sanctions that the
      court determines accomplish those purposes without imposing an
      unnecessary burden on state or local government resources. To achieve
      those purposes, the sentencing court shall consider 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.

(Emphasis added.)

      {¶47} In H.B. 86, the General Assembly added the language, “using the minimum

sanctions that the court determines accomplish those purposes without imposing an

unnecessary burden on state or local government resources” to the original language of

R.C. 2929.11(A). (Emphasis added.) Regarding former R.C. 2929.11(A), Griffin and

Katz had explained that it “operate[d] to impose real control over judicial

decision-making.” Ohio Plan at 6. Thus, R.C. 2929.11(A), as amended by H.B. 86,

arguably imposes even more control over judicial decision-making than it did under S.B.

2.

      {¶48} And under R.C. 2929.11(B), a felony sentence “shall be reasonably

calculated to achieve the two overriding purposes of felony sentencing” and be

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

its impact upon the victim, and consistent with sentences imposed for similar crimes
committed by similar offenders.” With respect to this provision under S.B. 2, Griffin

and Katz explained:

       The effect under the new law of establishing “public protection” and
       “punishment” as overriding purposes of sentencing but not limiting them to
       “considerations” is that every sentence must now be assessed by whether, as
       set forth in R.C. 2929.11(B), it is “reasonably calculated to achieve” those
       overriding purposes. Failure of a sentence to do so causes it to be
       appealable on the ground that the sentence is “contrary to law.”

Ohio Plan at 6.

       {¶49} Under Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231,

appellate courts are “compelled” to “modify or vacate sentences if they find by clear and

convincing evidence that the record does not support any relevant findings under” R.C.

2929.14(C)(4) (and other findings not relevant to this appeal) or are otherwise contrary to

law. Id. at ¶ 22; R.C. 2953.08(G)(2).     A sentence is contrary to law if the trial court

fails to impose a sentence that is proportionate and fair and does not overburden state

prisons or state and local budgets.   Thus, in reviewing a sentence, we must perform our

duty to determine if the trial court has complied with the applicable statutes and imposed

a sentence that is “reasonably calculated to achieve” the overriding purposes of felony

sentencing” and is “commensurate with and not demeaning to the seriousness of the

offender’s conduct and its impact on the victim.” R.C. 2929.11(B). We must also

ensure that the sentence is “consistent with sentences imposed for similar crimes

committed by similar offenders.” Id.     And we must make certain that the trial court, in

exercising its discretion, imposed a sentence that achieves the overriding purposes of

felony sentencing — protecting the public and punishing the offender — “using the
minimum sanctions that the court determines accomplish those purposes without

imposing an unnecessary burden on state or local government resources.”               R.C.

2929.11(A).

B. Consecutive Sentences under R.C. 2929.14(C)(4)

       {¶50} The majority asserts that “[t]he purpose of R.C. 2929.14(C)(4) is to prevent

this type of career criminal [discussing Roberts] from perpetuating a cycle of criminality

upon the public.”   While I agree the majority’s stated purpose for imposing consecutive

sentences is at least one reason to do so, I disagree that is the purpose behind R.C.

2929.14(C)(4).   If that were the case, there would not be a presumption for concurrent

sentences in Ohio, nor would there be any reason to require the trial court to make

findings before imposing consecutive sentences. We could simply go back to pre-S.B. 2

days — when trial courts were free to sentence an offender to consecutive sentences by

simply stating so. A brief review of the history of consecutive sentences is instructive.

       {¶51} The presumption under R.C. 2929.41(A) — that prison sentences for

multiple offenses be served concurrently — was not always the case.      Indeed, it was the

exact opposite. See State v. Lett, 161 Ohio App.3d 274, 2005-Ohio-2665, 829 N.E.2d

1281 (8th Dist.), quoting King v. Maxwell, 173 Ohio St. 536, 538, 184 N.E.2d 380 (1962)

(“‘Concurrent sentences, however, require a positive act by the trial court, and in the

absence of a declaration thereof by the trial court, it is presumed such sentences will run

consecutively.’”); see also Stewart v. Maxwell, 174 Ohio St. 180, 181, 187 N.E.2d 888
(1963) (characterizing the imposition of concurrent sentences as a “reward” because it

meant that the offender had been relieved of “paying a part of the penalty for his crimes”).

       {¶52} As we explained in Lett, the General Assembly “ended the long-standing

presumption that sentences for multiple convictions be served consecutively” in 1974

when it adopted the “approach taken by the American Law Institute’s Model Penal Code”

in enacting former R.C. 2929.41(A), which was in effect until S.B. 2.3 This provision

stated then, as it does now, that aside from an exception set forth in the subsection (B), “a

sentence of imprisonment shall be served concurrently with any other sentence of

imprisonment.”     Lett at ¶ 35, citing former R.C. 2929.41(A).               We referred to this

“change in presumption from consecutive sentences to concurrent sentences” as a “sea

change in the law.” Id. at ¶ 39.        Despite this “sea change in the law,” however, R.C.

2929.41(A) only required that a trial court state that it was imposing consecutive

sentences to make it so.

       {¶53} In Lett, we surmised that the change in presumption in 1974 occurred for

several reasons: “a backlash against prosecutorial overindictment, disparity in the manner

in which consecutive sentences were imposed, frustration with the virtually unreviewable


       Former R.C. 2929.41 stated:
       3



       (A) Except as provided in division (B) of this section, a sentence of imprisonment
       shall be served concurrently with any other sentence of imprisonment. In any case, a
       sentence of imprisonment for misdemeanor shall be served concurrently with a
       sentence of imprisonment for felony served in a state penal or reformatory institution.
       (B) A sentence of imprisonment shall be served consecutively to any other sentence of
       imprisonment, in the following cases:
       (1) When the trial court specifies that it is to be served consecutively.
nature of consecutive sentencing, and economic considerations relating to the long-term

housing of prisoners.”     Id.   Unfortunately, these reasons sound all too familiar.

Because despite the changes made in 1974, as well as S.B. 2 over 20 years later and most

recently H.B. 86, we, as a state, still grapple with these same issues today. Part of the

reason that we still do is because trial courts continue to impose harsh sentences far too

often for nonviolent crimes, and appellate courts continue to refuse to perform their duty

to provide meaningful appellate review.

      {¶54} After review of the sentence imposed in this case, I agree with Roberts that

consecutive sentences are disproportionate to the seriousness of his conduct and the

danger he poses to the public.     This is especially so in light of the principles and

purposes of felony sentencing set forth in R.C. 2929.11, which states that a sentencing

court “shall be guided by the overriding purposes of felony sentencing” — to protect the

public and punish the offender — using “the minimum sanctions that the court determines

accomplish those purposes without imposing an unnecessary burden on state or local

government resources.”       R.C. 2929.11(A).      Additionally, a sentence must be

“reasonably calculated to achieve the two overriding purposes of felony sentencing” and

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

and its impact upon the victim[.]” R.C. 2929.11(B). I agree with Roberts that the

sentence imposed by the trial court does not meet any of these requirements.

      {¶55} The trial court sentenced Roberts to nearly 19 years in prison — for stealing

a bottle of Pepsi and pushing a store security guard, stealing $250 of fishing equipment
from someone’s garage, failing to report for supervision, and breaking and entering (or

attempting to enter) the homes of three victims and stealing less than $2,000 worth of

property. These were not violent crimes.      No one was hurt.   Yet, Roberts received 18

years and 11 months in prison. Without minimizing the emotional distress the burglary

offenses undoubtedly caused the victims, Roberts’s offenses do not reflect such

seriousness and danger to the public that almost 19 years in prison is necessary to protect

the public from him.

       {¶56} Indeed, such a lengthy sentence may demean the seriousness of other crimes

and the harm to other victims.     For example, an offender who murders someone could

get out of prison in less time; the sentence for murder is 15 years to life.          R.C.

2929.02(B)(1). Rape has a maximum sentence of 11 years in prison. R.C. 2907.02(B).

 Offenders who repeatedly beat their significant others or spouses do not get that much

time — even when the offender has multiple domestic violence convictions. See State v.

Russell, 12th Dist. Butler No. CA2012-03-066, 2013-Ohio-1381 (defendant who was

convicted of abduction and domestic violence for beating his girlfriend was sentenced to

36 months in prison; it was his third domestic violence conviction). Those are serious

crimes of violence.

       {¶57} At the time of these offenses here, Roberts was approximately 50 years old.

According to his presentence investigation report, he was found to be barely functioning

within a borderline intellectual level.   He was also addicted to heroin and a lesser form

of heroin.   Consecutive sentences are reserved for the worst offenses and offenders.
State v. Ladson, 8th Dist. Cuyahoga No. 83209, 2004-Ohio-2973, ¶ 23, citing State v.

Boland, 147 Ohio App.3d 151, 162, 2002-Ohio-1163, 768 N.E.2d 1250 (7th Dist.).

There is simply nothing in the record before us to indicate that Roberts’s crimes were so

great or unusual that no single prison term would adequately reflect the seriousness of his

conduct.

       {¶58} The majority compares the facts of this case to the facts in State v. Aniton,

8th Dist. Cuyahoga No. 102440, 2015-Ohio-4080, where this court upheld a 21-year

sentence for multiple crimes.    But in Aniton, one of the defendant’s convictions was

unlawful sexual conduct with a minor, and in another, he committed some of the burglary

offenses with a firearm. Plus, unlike Roberts, the defendant’s prior criminal history in

Aniton included an offense of violence.

       {¶59} In summary, although the court made the findings necessary to order

Roberts to serve his sentences consecutively, I would clearly and convincingly find that

the record does not support the trial court’s finding that consecutive sentences — totaling

nearly 19 years in prison — are necessary to protect the public or punish Roberts and are

not disproportionate to the seriousness of Roberts’s conduct and to the danger he poses to

the public. While I certainly understand the trial court’s frustration with Roberts, the

record does not demonstrate that an 18-year and 11-month prison sentence was

“reasonably calculated to achieve”        the purposes of felony sentencing using the

minimum sanctions without imposing an unnecessary burden on the state.

C. Sentence Modification
          {¶60} In this case, the trial court sentenced Roberts to six months for escape in

Cuyahoga C.P. No. CR-14-584010-A. The court sentenced Roberts to seven years on

each of the two burglary counts in Cuyahoga C.P. No. CR-14-586073-A, to be served

concurrent to each other.       And in Cuyahoga C.P. No. CR-14-584791-A, the court

sentenced Roberts to seven years for burglary. With the exception of the six-month

sentence for escape and the concurrent terms on the two burglary charges in Cuyahoga

C.P. No. CR-14-586073-A, the trial court ordered that all the other prison terms,

including the sentences in Cuyahoga C.P. Nos. CR-12-561797-A and CR-13-578409-A,

be served consecutively, which amounted to a total sentence of 18 years and 11 months in

prison.     I would sustain Roberts’s first assignment of error, vacate the consecutive

portion of his sentence, and modify the sentence to concurrent terms, for an aggregate

sentence of seven years in prison.
