[Cite as State v. Wilson, 2012-Ohio-4159.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 97827




                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                      JOSEPH WILSON
                                                    DEFENDANT-APPELLANT




                               JUDGMENT:
                           SENTENCE REVERSED;
                        REMANDED FOR RESENTENCING


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-505583

        BEFORE: Keough, J., Blackmon, A.J., and Boyle, J.

        RELEASED AND JOURNALIZED: September 13, 2012
ATTORNEY FOR APPELLANT

Ronald A. Skingle
2450 St. Clair Avenue
Cleveland, OH 44114

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Mary H. McGrath
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:

       {¶1} Defendant-appellant, Joseph Wilson, appeals his sentence. He contends

that his sentence is contrary to law because the trial court failed to make the findings

required by R.C. 2929.14(C)(4) to impose consecutive sentences. Finding merit to the

appeal, we reverse the sentence and remand for a new sentencing hearing.

Background

       {¶2} Wilson was tried before a jury and found guilty on three counts: aggravated

robbery, felonious assault, and kidnapping. The offenses arose from an incident in

which Wilson and five or six other people robbed and viciously attacked the victim.

       {¶3} The trial court sentenced Wilson to ten years imprisonment for the

aggravated robbery conviction, eight years for the felonious assault conviction, and seven

years for the kidnapping conviction. The court ordered that the sentences be served

consecutively, for a total of 25 years.

       {¶4} On appeal, this court held that kidnapping and felonious assault, as well as

kidnapping and aggravated robbery, were allied offenses of similar import, and that

Wilson did not have a separate animus for the kidnapping. State v. Wilson, 8th Dist. No.

91971, 2010-Ohio-1196, ¶ 92, 96.          This court also held that felonious assault and

aggravated robbery were not allied offenses and therefore not subject to merger. Id. at ¶

97.
       {¶5} This court reversed Wilson’s sentence and remanded for a new sentencing

hearing at which the prosecutor would elect which of the allied offenses he wanted to

pursue for sentencing. Id. at ¶ 98. It dismissed Wilson’s assignments of error regarding

judicial bias and sentencing dispartity as moot, given its decision to reverse Wilson’s

sentence and remand for a new sentencing hearing, but noted that Wilson could raise the

issues of judicial bias and proportionality of sentencing with the trial court during

resentencing. Id. at ¶ 100-101.

       {¶6} The state appealed to the Ohio Supreme Court, arguing that the trial court’s

authority upon remand was limited only to accepting the state’s election among the allied

offenses, and that res judicata precluded Wilson from requesting the judge’s

disqualification or objecting to the proportionality of the sentence upon remand.

       {¶7} The Ohio Supreme Court affirmed this court’s decision, holding that when a

cause is remanded to a trial court to correct an allied-offenses sentencing error, the trial

court must hold a new sentencing hearing for the offenses that remain after the state

selects which allied offense or offenses to pursue. State v. Wilson, 129 Ohio St.3d 214,

2011-Ohio-2669, 951 N.E.2d 381, paragraph one of the syllabus. The Supreme Court

further held that a defendant is not barred by res judicata from raising objections to issues

that arise in a resentencing hearing, even if similar issues arose and were not objected to

at the original sentencing hearing. Id. at paragraph two of the syllabus.

       {¶8} Upon remand, the matter was transferred to a new judge for resentencing.

The trial court held a resentencing hearing at which the state elected that Wilson be
sentenced on the aggravated robbery and felonious assault convictions. The trial court

sentenced Wilson to ten years imprisonment on the aggravated robbery conviction and six

years on the felonious assault conviction, to be served consecutively for a total of 16

years.

Analysis

         {¶9} In his single assignment of error, Wilson argues that the trial court’s

sentence is contrary to law because the trial court failed to make the findings required by

R.C. 2929.14(C)(4) prior to imposing consecutive sentences.

         {¶10} As of September 30, 2011, the effective date of House Bill 86, a trial court

must make specific findings before imposing consecutive sentences. State v. Calliens,

8th Dist. No. 97034, 2012-Ohio-703, ¶ 28; State v. Jones, 1st Dist. No. C-110603,

2012-Ohio-2075, ¶ 17. Specifically, R.C. 2929.14(C)(4) provides:

         (4) 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 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} The transcript of the resentencing hearing reflects that after hearing from

Wilson and the victim, the trial court imposed the following sentence:

      THE COURT: All right. If no one else has anything to offer, the Court is
      going to impose the sentence as follows: as to Count 3, the state has elected
      to sentence on Counts 3 and 8, as Count 14 merges with both Counts 3 and
      8.

      Count 3, felony of the first degree, 10 years.

      Count 8, felony of the second degree, six years. Counts will be served
      consecutively for a total of 16 years.

      Now that you’ve been sentenced, Mr. Wilson, the Court will advise you.
      You shall be subject to mandatory five years postrelease control on Count 3
      and mandatory three years postrelease control on Count 8.

      Postrelease control is a parole period after incarceration. If you violate the
      terms of postrelease control, you may look at additional time of up to half of
      your original sentence and/or a charge of felony escape if you’re violated by
      the Parole authority of Department of Corrections.

      If you’re violated by a judge, you may look at the imposition of the
      remainder of your term. Do you understand, sir?

      THE DEFENDANT: No, I’m a bit unclear. Does that mean I have to do--

      THE COURT: You will have a parole period after you’re finished with your
      sentence that you will be on that Count 3 overrides, so for five years you’re
      going to be on a mandatory period of parole.

      THE DEFENDANT: After I do 16 years?

      THE COURT: After you do 16. After you do 16, yes. And if you
      violate, you could look [at] up to five years on Count 3, and/or if you
      violate within three years, you could look at an additional three years.
       So you’re looking [at] up to half of your sentence if you violate on parole.
       But you’ve got a long, long sentence.

       I shaved a few years off here because of the parity. Because I guess the
       others got 10 to 15, and the fact that that’s a long time in my view. And I
       accept your expressions — I accept your indications of remorse. I think
       that [the victim] has done the same; however, this was a very serious
       offense.

       {¶12} We agree with Wilson that the trial court failed to make the findings

required by R.C. 2929.14(C)(4) before imposing consecutive prison terms. Although the

court noted that Wilson’s offense was very serious and that his sentence was in parity

with his accomplices, the court did not find on the record that consecutive sentences were

necessary to protect the public from future crime or to punish Wilson, and not

disproportionate to the seriousness of Wilson’s conduct and to the danger he poses to the

public, and that one of the factors set forth in R.C. 2929.14(C)(4)(a) through (c) applied

to Wilson. Accordingly, we are constrained to reverse Wilson’s sentence and remand for

a resentencing hearing.

       {¶13} We are not persuaded by the State’s argument that “a review of the entire

record supports the trial court’s imposition of consecutive sentences.”           Although

consecutive sentences may well be warranted in this case, the trial court’s statement at the

commencement of the resentencing hearing that it was incorporating all prior proceedings

did not relieve the court of complying with R.C. 2929.14(C)(4). Further, despite the

State’s argument otherwise, the trial court’s journal entry of sentencing did not set forth

all of the findings required by R.C. 2929.14(C)(4). And in any event, although trial
courts are not required to use “talismanic words” to comply with the statute, the findings

required by R.C. 2929.14(C)(4) must be made on the record at sentencing prior to

imposing consecutive sentences.          State v. Jones, 1st Dist. No. C-110603,

2012-Ohio-2075, at ¶ 22.

       {¶14} Appellant’s assignment of error is sustained. Sentence reversed; remanded

for resentencing.

       It is ordered that appellant recover from appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

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

the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, JUDGE

PATRICIA A. BLACKMON, A.J., and
MARY J. BOYLE, J., CONCUR
