[Cite as State v. Hodges, 2014-Ohio-4690.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 101145



                                      STATE OF OHIO
                                                   PLAINTIFF-APPELLEE

                                             vs.

                                   JAVONTE HODGES
                                                   DEFENDANT-APPELLANT




                                    JUDGMENT:
                              AFFIRMED AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-12-562692-C

        BEFORE: E.A. Gallagher, P.J., Blackmon, J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED: October 23, 2014
ATTORNEY FOR APPELLANT

Ruth R. Fischbein-Cohen
3552 Severn Road, Suite 613
Cleveland, Ohio 44118

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Anthony Thomas Miranda
         Brian M. McDonough
Assistant County Prosecutors
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, P.J.:

       {¶1} Defendant-appellant Javonte Hodges appeals his resentencing in the

Cuyahoga County Court of Common Pleas following a remand on the issue of

consecutive sentences.    Hodges argues that the trial court failed to make the necessary

findings pursuant to R.C. 2929.14(C) prior to imposing consecutive sentences and that the

trial court improperly relied upon his silence in support of consecutive sentences.   For

the following reasons, we affirm in part and remand.

       {¶2} Hodges plead guilty to murder with a three-year firearm specification,

aggravated robbery with a three-year firearm specification, improperly handling firearms

in a motor vehicle and having weapons while under disability.             For purposes of

sentencing, the murder, aggravated robbery and improperly handling firearms in a motor

vehicle were merged as allied offenses.     The state elected to proceed to sentencing on

the murder conviction.    The trial court sentenced Hodges to three years on the firearm

specification attendant to the murder count, to be served prior to and consecutive with 15

years to life on the underlying charge and 24 months on the having weapons while under

disability conviction, to be served consecutive to the murder sentence.

       {¶3} In State v. Hodges, 8th Dist. Cuyahoga No. 99511, 2013-Ohio-5025

(“Hodges I”), this court described the facts of the case as follows:

       In March 2012, Hodges, along with codefendants John Johnson and Deante
       Kidd, shot and killed the victim, Christopher Johnson, because of a drug
       deal gone bad. Hodges was the shooter; he shot Johnson in the back of the
       head from close range in the vehicle where the drug transaction occurred.
       After being shot, the victim, who had been driving the vehicle, crashed into
        a home. Hodges fled the scene and thereafter fled to Florida, where he was
        eventually apprehended. According to law enforcement officials who
        apprehended him Hodges initially denied being the shooter.

Id. at ¶ 5.

        {¶4} This court reversed Hodges’ consecutive sentences in Hodges I due to the

failure of the trial court to make the necessary findings pursuant to R.C. 2929.14(C)(4)

and remanded for resentencing on that issue.   At resentencing on February 19, 2014, the

trial court again imposed consecutive sentences.         Hodges appeals and his sole

assignment of error states:

        The trial court erred by sentencing Javontae [sic] Hodges to consecutive
        time.

        {¶5} In appeals involving the imposition of consecutive sentences, R.C.

2953.08(G)(2)(a) directs the appellate court to review the record, including the findings

underlying the sentence and to modify or vacate the sentence if it clearly and

convincingly finds that the record does not support the sentencing court’s findings under

R.C. 2929.14(C)(4). State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d

659, ¶ 28.     “The record must contain a basis upon which a reviewing court can

determine that the trial court made the findings required by R.C. 2929.14(C)(4) before it

imposed consecutive sentences.” Id.      R.C. 2929.14(C)(4) authorizes the court to

require an offender to serve multiple prison terms consecutively for convictions on

multiple offenses. Consecutive sentences can be imposed if the court finds that (1) a

consecutive sentence is necessary to protect the public from future crime or to punish the

offender and (2) that consecutive sentences are not disproportionate to the seriousness of
the offender’s conduct and to the danger the offender poses to the public. In addition to

these two factors, the court must find 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.

Id.

       {¶6} “When imposing consecutive sentences, a trial court must state the required

findings as part of the sentencing hearing.” Bonnell at ¶ 29.   “However, a word-for-word

recitation of the language of the statute is not required, and as long as the reviewing court

can discern that the trial court engaged in the correct analysis and can determine that the

record contains evidence to support the findings, consecutive sentences should be

upheld.” Id.

       {¶7} In this instance, it is clear that the trial court made the required findings

pursuant to R.C. 2929.14(C)(4) in a manner that satisfies the standard of Bonnell.      The

trial court found that consecutive sentences were necessary to protect the public from

future crime as well as to punish Hodges.      The court found that consecutive sentences

were not disproportionate to the seriousness of Hodges’ conduct and to the danger he
poses to the public.

       {¶8} The trial court further made findings pursuant to both R.C. 2929.14(C)(4)(b)

and (c).   The court found that at least two of the multiple offenses that were committed

by Hodges were part of one or more courses of conduct and that the harm caused by the

two or more multiple offenses was so great or unusual that no single prison term for any

of the offenses committed would adequately reflect the seriousness of the offender’s

conduct.      The trial court also noted Hodges’ extensive criminal history, which was

documented in the presentence investigation report, and found that “the offender’s history

of criminal conduct demonstrates the need for consecutive sentences.”

       {¶9} The facts of this case as stated above and the record, particularly the

presentence investigation report, support the trial court’s findings. Hodges’ criminal

record includes convictions for disorderly conduct, criminal trespass, riot, attempted

assault, attempted receiving stolen property, drug trafficking and carrying concealed

weapons. Although the trial court did not recite word for word the statutory language of

R.C. 2929.14(C)(4)(c) in regard to Hodges’ history of criminal conduct, demonstrating

that consecutive sentences were necessary to protect the public from future crime by the

offender, the trial court’s findings were sufficiently articulate under the standard set forth

in Bonnell.     See Bonnell at ¶ 32-33.   We conclude that the trial court made the required

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

       {¶10} Finally, Hodges argues that the trial court erred in finding that his silence at

resentencing constituted a lack of remorse and relied on this fact as a reason to impose
consecutive sentences.     A sentencing court cannot use a defendant’s silence at

sentencing against him as the right against self-incrimination follows the defendant to

sentencing. Mitchell v. U.S., 526 U.S. 314, 321, 119 S.Ct. 1307, 143 L.Ed.2d 424

(1999).   However, in Mitchell the United States Supreme Court held that it was

inappropriate to infer facts of the crime from a defendant’s silence at sentencing. The

court noted that “[w]hether silence bears upon the determination of a lack of remorse, or

upon acceptance of responsibility [for sentencing purposes] is a separate question. It is

not before us, and we express no view on it.”   Indeed, the Supreme Court recently noted

that this remains an open question that the court has not directly addressed to date.   See

White v. Woodall, 134 S.Ct. 1697, 1703, 188 L.Ed.2d 698 (2014) (discussing Mitchell and

concluding case law “leaves open the possibility that some inferences might permissibly

be drawn from a defendant’s penalty-phase silence.”)

       {¶11} In any event, Ohio courts, including this court, have consistently held that a

defendant’s silence at sentencing may not be used against him in fashioning a sentence.

State v. Betts, 8th Dist. Cuyahoga No. 88607, 2007-Ohio-5533, ¶ 29. However, lack of

remorse is a sentencing factor under R.C. 2929.12(D)(5).    Thus, even where a defendant

does not speak at sentencing, the court’s statement that the defendant demonstrated a lack

of remorse and an unwillingness to take responsibility, does not demonstrate that a court’s

sentencing decision is based upon the silence but shows only that the court was

considering the statutory sentencing factors. State v. Clunen, 7th Dist. Columbiana No. 12

CO 30, 2013-Ohio-5525, ¶ 21; State v. Moore, 11th Dist. Geauga No. 2011-G-3027,
2012-Ohio-3885, ¶ 47.

       {¶12} In this instance, although Hodges declined to speak at his resentencing on

the issue of consecutive sentences, he did speak at his initial sentencing hearing. “At

sentencing, Hodges maintained that the shooting accidently occurred when he was taking

his money out of his sleeve, where he also had the gun, and the gun jammed; he denied

ever pulling the trigger.” Hodges I, at ¶ 10.    After hearing from Hodges, the trial court

stated, “that story makes me say that you are not remorseful for your actions and that you

are really not even taking responsibility for your actions despite the guilty plea because

you still want us all to believe it was an accident.”        Id. at ¶ 12.    The trial court

concluded that Hodges’ “lack of remorse is palpable.” Id. at ¶ 23.

       {¶13} At resentencing the trial court noted that it incorporated by reference the

points it had made at Hodges’ initial sentencing. Although the court could not hold

Hodges’ silence at resentencing against him, it was not required to pretend that Hodges

had not previously spoken on the matter. Hodges was under no obligation to speak and

was well within his rights to remain silent. However, by doing so the trial court was free

to conclude, based on his prior statements, that he lacked remorse.

       {¶14} Sua sponte, we note that a trial court must incorporate its consecutive

sentence findings into its sentencing entry.             Bonnell, 140 Ohio St.3d 209,

2014-Ohio-3177, 16 N.E.3d 659, ¶ 29.

       A trial court’s inadvertent failure to incorporate the statutory findings in the
       sentencing entry after properly making those findings at the sentencing
       hearing does not render the sentence contrary to law; rather, such a clerical
       mistake may be corrected by the court through a nunc pro tunc entry to
      reflect what actually occurred in open court. Id. at ¶ 30.

      {¶15} Hodges’ sole assignment of error is overruled.

      {¶16} The judgment of the trial court is affirmed in part, and remanded for the trial

court to issue a nunc pro tunc entry to bring the sentencing entry into compliance with the

requirements of Bonnell.

      It is ordered that appellee and appellant 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. The defendant’s conviction having

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

for execution of sentence.

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

the Rules of Appellate Procedure.




EILEEN A. GALLAGHER, PRESIDING JUDGE

PATRICIA A. BLACKMON, J., and
EILEEN T. GALLAGHER, J., CONCUR
