[Cite as State v. Carmel, 2014-Ohio-1209.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                         C.A. No.       26926

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
JACK CARMEL                                           COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 12 09 2527

                                 DECISION AND JOURNAL ENTRY

Dated: March 26, 2014



        MOORE, Presiding Judge.

        {¶1}     Defendant-Appellant, Jack Carmel, appeals from the April 18, 2013 judgment

entry of the Summit County Court of Common Pleas. We reverse.

                                                 I.

        {¶2}     In January of 2013, Mr. Carmel pleaded guilty to five counts of gross sexual

imposition, in violation of R.C. 2907.05(A)(4), felonies of the third degree. The trial court

sentenced him to a definite term of thirty-six months of imprisonment for each count, to be

served consecutively, for a total of fifteen years. The trial court also adjudicated Mr. Carmel as a

Tier II Sexually-Oriented Offender.

        {¶3}     Mr. Carmel appealed, raising one assignment of error for our consideration.
                                                  2


                                                 II.

                                   ASSIGNMENT OF ERROR

       THE TRIAL COURT’S IMPOSITION OF CONSECUTIVE SENTENCES
       MUST BE REVERSED BECAUSE IT FAILED TO MAKE FINDINGS
       REQUIRED BY R.C. 2929.14(C)(4).

       {¶4}    In his sole assignment of error, Mr. Carmel asserts that the trial court erred in

sentencing him to consecutive sentences when, pursuant to R.C. 2929.14(C)(4), it failed to make

the requisite factual findings on the record at the sentencing hearing.

       {¶5}    In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶ 26, the Supreme Court

of Ohio stated that, in reviewing felony sentences, appellate courts must apply a two-step

approach: “[f]irst, they must examine the sentencing court’s compliance with all applicable rules

and statutes in imposing the sentence to determine whether the sentence is clearly and

convincingly contrary to law. If this first prong is satisfied, the trial court’s decision in imposing

the term of imprisonment is reviewed under the abuse-of-discretion standard.”

       {¶6}    R.C. 2929.14(C)(4) states, in pertinent part, that:

       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.
                                                 3


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

“Thus, before a trial court may impose consecutive sentences, it must make three findings: (1)

that consecutive sentences are necessary to protect the public from future crime or to punish the

offender; (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; and (3) that one of the

three particular findings set forth in R.C. 2929.14(C)(4)(a)-(c) applies.” State v. Linde, 9th Dist.

Summit No. 26714, 2013-Ohio-3503, ¶ 25.

       {¶7}    In State v. Brooks, 9th Dist. Summit Nos. 26437, 26352, 2013-Ohio-2169, ¶ 13-

15, this Court addressed whether the factual findings listed in R.C. 2929.14(C)(4) must be made

by the trial court at the sentencing hearing. We stated that “[i]n an environment of prison

overcrowding, funding limitations, and remedial alternatives to prison, the reenactment of R.C.

2929.14(C)(4) evidences the General Assembly’s intent that trial courts carefully consider

certain factors and make certain findings prior to making the decision to impose consecutive

sentences.” Id. at ¶ 13. Further, we stated that “[t]he fact that trial courts do not have to explain

their reasoning behind their findings does not negate the fact that the trial courts still must make

the findings.” Id. We later concluded that “such findings must be made at the sentencing

hearing on the record.” Id. Therefore, because “the sentencing hearing transcript [was] devoid

of the level of detail that would allow this Court to conclude that the trial court engaged in the

appropriate analysis,” we reversed and remanded for resentencing. Id. at ¶ 15.

       {¶8}    In the present matter, the trial court stated as follows at Mr. Carmel’s sentencing

hearing:

       All right. At this time now, Mr. Carmel, unfortunately you are not the first
       grandfather to stand before me in the short four and a half years that I have been a
       judge having molested your grandchildren.
                                                4


       You have pled guilty to five counts, but you have acknowledged in your
       psychosexual evaluation that you did it 15 times. I consider the charges—or the
       number of counts, five, to be a significant reduction upon your own admission,
       and so to those folks who are here today, I will say that I respect the Summit
       Psychological Associates’ description of you, Mr. Carmel, in its report about
       being manipulative and assuming little responsibility for your problems,
       preferring to blame them on others and/or circumstances.

       But I do recognize that you took—my sense is you were honest with them
       because you actually admitted to more contact that you have been charged with,
       and I will say that based on my experience that’s an unusual thing. You have
       spared this family, your granddaughters, the pain, the additional pain of having to
       testify, go through a trial, and there is some, in the sentencing guidelines, some
       consideration to be given to you to a defendant who does that.

       But in reading all of the materials that I received in this case, my sense is that
       this—your family has suffered a serious division that is the result of your, at least
       initial, denial of having done this.

       ***

       So to that end you have caused your family to basically have to choose sides
       when during all of this you knew the girls were telling the truth.

       I find that—you know, as the grandfather, as the male head of the family, to say
       the least you shirked your role in that regard as well.

       So I have—finding you a Tier II sex offender I’m going to remind you again
       about the post-release control period of five years, but on each of these charges I
       am going to sentence you to 36 months. I am going to run those sentences each
       consecutively, one after another, and the total sentence in this case is 15 years.

       ***

       {¶9}    Although the trial court verbally admonished Mr. Carmel for: (1) the pain he

caused his family, (2) being manipulative, and (3) not assuming responsibility for his problems,

it did not make the requisite findings set forth in R.C. 2929.14(C)(4) on the record at the

sentencing hearing. The trial court did, however, make R.C. 2929.14(C)(4) findings in its

sentencing entry, stating:

       The court further finds, pursuant to Ohio Revised Code 2929.14(C)(4), that
       consecutive sentences are necessary to protect the public OR to punish the
       offender; that consecutive sentences are not disproportionate to the seriousness of
                                               5


       the offender’s conduct; to the danger the offender poses to the public; and the
       court further finds that 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.

(Emphasis sic.)

       {¶10} In its brief, the State admits that “the trial court did not make any of the [R.C.

2929.14(C)(4)] findings” at the sentencing hearing. The State also argues that, because the trial

court made the necessary R.C. 2929.14(C)(4) findings in its sentencing entry, this Court should

follow its holding in Linde, 2013-Ohio-3503, at ¶ 26, (Based upon the limited record before us in

Linde, we overruled Mr. Linde’s assignment of error regarding consecutive sentences because

the required R.C. 2929.14(C)(4) findings were set forth in the sentencing entry.) However, we

find the facts in Linde distinguishable from the present matter.      In Linde, this Court was

compelled to comment upon serious and numerous shortcomings of appellant’s merit brief. We

determined that appellant had made a “barebones argument that the [trial] court failed to make

the required statutory findings before imposing consecutive sentences upon him.” Id. at ¶ 26.

As such, our analysis of Mr. Linde’s second assignment of error regarding consecutive sentences

was limited only to the arguments made in his brief. Whereas, here, Mr. Carmel’s brief provided

this Court with a detailed argument as to why the trial court erred in issuing consecutive

sentences without first making the requisite R.C. 2929.14(C)(4) findings at the sentencing

hearing. Further, in support of his argument, Mr. Carmel included case law and transcripts from

both the plea and sentencing hearings. This allowed us to fully analyze Mr. Carmel’s assignment

of error by considering the entire record filed with this Court, instead of just relying upon the

arguments in the brief.
                                                 6


       {¶11} Therefore, having reviewed the record before us, we conclude that, pursuant to

R.C. 2929.14(C)(4), the trial court failed to make the necessary findings at the sentencing

hearing in order to impose consecutive sentences. See Brooks at ¶ 13.

       {¶12} Accordingly, Mr. Carmel’s assignment of error is sustained.

                                                III.

       {¶13} In sustaining Mr. Carmel’s sole assignment of error, the judgment of Summit

County Court of Common Pleas is reversed, and this cause is remanded for further proceedings

consistent with this decision.

                                                                              Judgment reversed,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.



                                                       CARLA MOORE
                                                       FOR THE COURT
                                          7




BELFANCE, J.
CARR, J.
CONCUR.


APPEARANCES:

JAMES L. BURDON, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
