[Cite as State v. Wells, 2017-Ohio-8738.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 105723




                                       STATE OF OHIO
                                                  PLAINTIFF-APPELLEE

                                            vs.

                                      WILLIAM WELLS
                                                  DEFENDANT-APPELLANT




                                    JUDGMENT:
                              REVERSED AND REMANDED


                               Criminal Appeal from the
                        Cuyahoga County Court of Common Pleas
            Case Nos. CR-10-533875-A, CR-10-533876-A, and CR-10-533877-A

        BEFORE: Keough, A.J., E.T. Gallagher, J., and Jones, J.

        RELEASED AND JOURNALIZED: November 30, 2017
ATTORNEYS FOR APPELLANT

Mark Stanton
Cuyahoga County Public Defender
By: Erica B. Cunliffe
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Lisa M. Mahnic
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, A.J.:

       {¶1} Defendant-appellant, William Wells (“Wells”), appeals from the trial

court’s judgment sentencing him to 12 months in prison on each of Case Nos.

CR-10-533875 and CR-10-533876, and 12 months on each of two counts in

CR-10-533877, all to be served consecutively, for an aggregate term of 48 months

incarceration.   Wells contends that the trial court erred in imposing consecutive

sentences because it did not make the required statutory findings under R.C.

2929.14(C)(4).

       {¶2} Consecutive sentences may be imposed only if the trial court makes the

required findings pursuant to R.C. 2929.14(C)(4). State v. Bonnell, 140 Ohio St.3d 209,

2014-Ohio-3177, 16 N.E.3d 659, ¶ 20-22; State v. Trotter, 8th Dist. Cuyahoga No.

100617, 2014-Ohio-3588, ¶ 18.        Under the statute, consecutive sentences may be

imposed if the trial court finds that (1) consecutive sentences are necessary to protect the

public from future crime or to punish the offender, and (2) 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, the court must find that any one of the

following applies:

       (1) the offender committed one or more of the multiple offenses while
       awaiting trial or sentencing, while under a sanction, or while under
       postrelease control for a prior offense;

       (2) at least two of the multiple offenses were committed as part of one or
       more courses of the conduct, and the harm caused by two or more of the
       offenses 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; or

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

      {¶3} In order to impose consecutive terms of imprisonment, a trial court must

both make the statutory findings mandated for consecutive sentences under R.C.

2929.14(C)(4) at the sentencing hearing and incorporate those findings into its sentencing

entry. Bonnell at the syllabus.

      {¶4} The state concedes the trial court’s error in this case. Although the court’s

journal entry of sentencing contains the requisite findings for consecutive sentences, the

state concedes that the trial court did not make the required statutory findings at

sentencing.   Accordingly, the state asks this court to reverse the imposition of

consecutive sentences and remand the case for resentencing 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 and incorporate those findings in the sentencing

journal entry. Wells, on the other hand, asks us to modify his sentence to impose

concurrent sentences pursuant to R.C. 2953.08(G)(2)(a) because, he argues, the record

does not support the imposition of consecutive sentences.

      {¶5} As this court noted in State v. Johnson, 8th Dist. Cuyahoga No. 102449,

2016-Ohio-1536, ¶ 7, there are two ways a defendant can challenge consecutive sentences

on appeal: (1) the defendant can argue that consecutive sentences are contrary to law

because the court failed to make the necessary findings required by R.C. 2929.14(C)(4);
and (2) the defendant can argue that the record does not support the findings made under

R.C. 2929.14(C)(4). Wells makes the first argument, which the state has conceded.        He

cannot make the second argument, however, because the trial court made no findings

under R.C. 2929.14(C)(4) when it imposed consecutive sentences.

         {¶6} R.C. 2953.08(G)(2)(a) directs an 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 * * * [t]hat the record does not support the sentencing

court’s findings under division * * * (C)(4) of section 2929.14 * * * of the Revised

Code.” Johnson at ¶ 23. Thus, an appellate court can modify a sentence imposing

consecutive sentences only if the record does not support the findings made by the trial

court.    The trial court made no such findings in this case, however.            Under R.C.

2953.08(G)(1), if the trial court does not make the findings required by R.C. 2929.14, the

appellate court is directed to “remand the case to the sentencing court to state, on the

record, the required findings.”

         {¶7} Accordingly, Wells’s assignment of error is sustained.         His sentence is

vacated and the matter is remanded 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 and incorporate those findings in the sentencing journal entry.

         {¶8} Judgment reversed and remanded.

         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, ADMINISTRATIVE JUDGE

EILEEN T. GALLAGHER, J., and
LARRY A. JONES, SR., J., CONCUR
