[Cite as State v. Wilson, 2013-Ohio-4035.]




                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 99260


                                      STATE OF OHIO
                                              PLAINTIFF-APPELLEE

                                                vs.

                                      JOSEPH WILSON
                                              DEFENDANT-APPELLANT



                                    JUDGMENT:
                              REVERSED AND REMANDED


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

             BEFORE:           Blackmon, J., Boyle, P.J., and McCormack, J.

             RELEASED AND JOURNALIZED:                   September 19, 2013
                                -i-




ATTORNEY FOR APPELLANT

Steve W. Canfil
Standard Building, Suite 2000
1370 Ontario Street
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Mary H. McGrath
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:

       {¶1} Appellant Joseph T. Wilson appeals from the trial court’s resentencing and

assigns the following errors for our review:

       I. The trial court committed plain error by violating Wilson’s constitutional
       rights and Crim.R. 43 when it conducted a resentencing hearing via video
       conference without obtaining Wilson’s waiver of his right to be physically
       present at all proceedings.

       II. Wilson was denied his constitutional right to effective assistance of
       counsel at the resentencing hearing.

       III. The trial court erred when it “incorporated” a previous proceeding into
       its decision to reimpose the same sentence.

       {¶2} Having reviewed the record and pertinent law, we reverse and remand for a

new sentencing hearing. The apposite facts follow.

       {¶3} On July 18, 2008, a jury convicted Wilson of aggravated robbery, felonious

assault, and kidnapping. The convictions flowed from an incident in which Wilson, along

with five others, robbed and viciously attacked the victim as he walked home following

his evening jog.    The trial court imposed consecutive sentences of ten years for

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

for a total imprisonment of 25 years.

       {¶4} Wilson appealed his convictions and sentence.         In State v. Wilson, 8th

Dist. Cuyahoga No. 91971, 2010-Ohio-1196 (“Wilson I”), we 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. Id. at

¶ 92, 96.

       {¶5} We also held that felonious assault and aggravated robbery were not allied

offenses and, therefore, not subject to merger. Id. at ¶ 97. Consequently, we reversed

Wilson’s sentence and remanded for a new sentencing hearing where the prosecutor

would elect which of the allied offenses he wanted to pursue for sentencing. Id. at ¶ 98.

       {¶6} The state appealed our decision to the Ohio Supreme Court and argued that

the trial court lacked authority on remand to conduct a de novo sentencing hearing. In

State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, paragraph one of

the syllabus (“Wilson II”), the Ohio Supreme Court rejected the state’s argument and

affirmed our decision.    The Ohio Supreme Court specifically held 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 offense to pursue. Id.

       {¶7} On remand from the Ohio Supreme Court, the trial court held a

resentencing hearing, and the state elected to have Wilson sentenced on the aggravated

robbery and felonious assault convictions.     The trial court proceeded to sentence Wilson

to ten years for the aggravated robbery conviction, and six years for the felonious assault

conviction, to be served consecutively for a total of 16 years in prison.

       {¶8} Wilson subsequently appealed and argued that his sentence was contrary to

law because the trial court failed to make the findings required by R.C. 2929.14(C)(4) to
impose consecutive sentences.     In State v. Wilson, 8th Dist. Cuyahoga No. 97827,

2012-Ohio-4159 (“Wilson III”), we were constrained to remand for another resentencing

hearing because the trial court failed to make the findings required by R.C.

2929.14(C)(4). Specifically, the trial 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 his conduct and to the danger he posed to the

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

to Wilson. Id.

      {¶9} On remand, the trial court conducted a resentencing hearing with Wilson

appearing from prison via video conferencing. The trial court sentenced Wilson to ten

years for the aggravated robbery conviction and six years for the felonious assault

conviction, to be served consecutively for a total of 16 years in prison. Wilson now

appeals.

                             Incorporating Prior Findings

      {¶10} We begin with the third assigned error, which is dispositive of the instant

appeal.    Wilson argues the trial court erred when it incorporated findings from the

previous sentencing hearing to impose the same sentence. We are constrained to agree.

      {¶11} 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.

       {¶12} This statutory language directs that the trial court must “find” the relevant

sentencing factors before imposing consecutive sentences. R.C. 2929.14(C)(4). In making

these findings, a trial court is not required to use “talismanic words,” however, it must be

clear from the record that the trial court actually made the findings required by statute.

State v. Marton, 8th Dist. Cuyahoga No. 99253, 2013-Ohio-3430, citing State v. Venes,

8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, ¶ 14, 17. In this matter, the trial court

stated in pertinent part as follows:

       The finding is — yeah, the finding is, number one, this sentence was
       imposed to punish you. It is not disproportionate with the rest, and the
       court would incorporate the prior sentencing hearing with respect to
       proportionality, and the additional finding that the harm was so great that a
       single term does not adequately reflect the seriousness is this court’s
       finding, * * *. Tr. 12.

       {¶13} It is clear from the record that the trial court made two of the findings:

namely that consecutive sentences were necessary to punish the offender and that the
harm caused by two or more of the multiple offenses was so great or unusual that no

single prison term for any of the offenses committed as part of the course of conduct

adequately reflects the seriousness of the offender’s conduct. These two findings satisfy

the first and third prong of the consecutive sentence requirements. Missing is 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. State v. Burt, 8th

Dist. Cuyahoga No. 99097, 2013-Ohio-3525.

       {¶14} In Wilson III, the trial court never made the finding that consecutive

sentences was not disproportionate to the seriousness of Wilson’s conduct and to the

danger he posed to the public.        On remand, the trial court’s only reference to this

requisite finding is the statement that “[i]t is not disproportionate with the rest” and that it

was incorporating the findings from the prior sentencing hearing with regards to

proportionality.    There is no indication from the above excerpt that the trial court

measured the imposition of consecutive sentences to the seriousness of Wilson’s conduct

and to the danger he poses to the public.

       {¶15} In State v. Hill, 8th Dist. Cuyahoga No. 99186, 2013-Ohio-3245, we stated

that a trial court satisfies this statutory requirement when the record reflects that the court

has engaged in the required analysis and has selected the appropriate statutory criteria.

Id., citing State v. Edmonson, 86 Ohio St.3d 324, 326, 1999-Ohio-110, 715 N.E.2d 131.

       {¶16} In Hill, the trial court’s journal entry stated in pertinent part as follows:

       The court finds that consecutive sentences are necessary to protect the
       public and punish the offender; are not disproportionate to similar crimes
       committed by similar [defendants]; that the conduct was so egregious and
       the psychological impact on the victim was so great that a single term of
       incarceration would demean the seriousness of the offense.

Consequently, we found the record in Hill demonstrates that the trial court correctly set

forth the statutory finding.

       {¶17} Here, the trial court used the language: “not disproportionate with the rest”

and we can only surmise that it was referring to Wilson’s codefendants or other

defendants that have committed similar crimes. However, to complicate matters, the

above excerpt reveals that the trial court purported to incorporate, from the previous

sentencing hearing, a finding that we previously found was never made on the record in

Wilson III.

       {¶18} In Wilson III, we specifically stated: “[t]he 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 * * *.

(Emphasis added.) Wilson III at ¶ 12.

       {¶19} This time, the trial court made the first and third findings, but not the second

finding. We are reluctant to return this case to the trial court, but have no choice because

there was no disproportionality finding.   The trial court must state all the findings on the

record even if it means reading verbatim from the statute. Only as such, will we as a

reviewing court feel confident that the trial court gave due consideration to the requisite

findings before imposing consecutive sentences.
       {¶20} Further, given the presumption in Ohio is that sentencing is to run

concurrent, unless the trial court makes the required findings for consecutive sentences

set forth in R.C. 2929.14(C)(4), it is crucial that the trial court states on the record the

requisite findings. State v. Stowes, 8th Cuyahoga Dist. No. 98774, 2013-Ohio-2996. At

this juncture, our primary role is to review the record to determine whether the trial court

made the findings, not whether they are justified by the record.

       {¶21} Accordingly, we sustain the third assigned error, and are constrained, once

again, to reverse Wilson’s sentence and remand for a de novo resentencing hearing.

       {¶22} Our disposition of the third assigned error renders the remaining assigned

errors moot. App.R. 12(A)(1)(c).

       {¶23} Judgment reversed and remanded for resentencing.

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

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said 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.




PATRICIA ANN BLACKMON, JUDGE

TIM McCORMACK, J., CONCURS;
MARY J. BOYLE, P.J., CONCURS IN
JUDGMENT ONLY
