[Cite as State v. Graves, 2013-Ohio-2197.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 98559




                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                      DANNY GRAVES
                                                    DEFENDANT-APPELLANT




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-557800

        BEFORE: Rocco, J., Stewart, A.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: May 30, 2013
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Public Defender
By: Erika B. Cunliffe
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, OH 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Maxwell M. Martin
Assistant County Prosecutor
Justice Center
1200 Ontario Street
Cleveland, OH 44113
KENNETH A. ROCCO, J.:

       {¶1} Defendant-appellant Danny Graves appeals from his consecutive sentences

for domestic violence and for violating a protection order. As the trial court imposed

consecutive sentences without making all of the requisite statutory findings on the record,

we reverse the trial court’s final judgment and remand the case to the trial court for the

limited purpose of resentencing Graves.

       {¶2} Graves was charged on a multiple-count indictment, and ultimately, he

pleaded guilty to two of those counts: one count of domestic violence under R.C.

2919.25(A), a fourth-degree felony, and one count of violating a protection order, under

R.C. 2919.27(A)(1), a fifth-degree felony. The state dismissed the other charges. On

April 25, 2012, the trial court ordered Graves released on bond pending sentencing. The

bond was set at $1,500 and included a no contact order with the victim.

      {¶3} When the parties appeared for sentencing on May 23, 2012, the state
informed the trial court that Graves had recently sent the victim threatening

text messages.1 According to reports at the sentencing hearing, the messages stated:

       Both of y’all bitchez goin’ down smokin’. Watch wait ‘til I get diz tool
       bitch dat playin’ with a nigga feelinz ova with y’all together y’all gone die
       together so keep walkin’ around with dat nigga like shit sweet y’all dead


       The East Cleveland police learned about the text messages in the course of
       1

responding to the scene of a fight where Graves was present. Graves was charged
in East Cleveland with violating probation, and those charges were pending at the
time that the trial court imposed its sentence in the instant case. The East
Cleveland probation-violation charge is not part of this appeal, and our decision will
not impact any sentence Graves may have received in conjunction with that charge
or with any other charge that may have been filed against him in conjunction with
that matter.
       bitch on my mama soul? Watch no promise. Bitch yo bezt bet iz too
       watch yo back cauze I’m lookin fo a tool too buy an when I found 1 bitch u
       gettin pick up in a bag one of y’all gone get caught slippen watch.

Tr. 23-24.

       {¶4} Although Graves alleged that his 17-year-old sister had sent the text

messages, the trial court rejected his claim because Graves did not produce a

corroborating witness. Graves’s defense attorney presented Graves’s version of events,

and then explained that Graves wanted to speak with the trial court directly. Defense

counsel stated that counsel had “nothing better to tell this Court than what my client said

with regard to making his sister the supposed, you know, person responsible for all this.

I, quite candidly, don’t expect you to find it any more plausible than I do.” Tr. 27.

       {¶5} The trial court sentenced Graves to 18 months in prison for the

fourth-degree felony for domestic violence, and to 12 months in prison for the

fifth-degree felony for violating a protection order. The sentences were ordered to run

consecutively. Graves filed a notice of appeal and sets forth three assignments of error

for our review.

       I. The trial court violated Graves’s right to due process by interpreting
       patent ambiguity in a statute strictly against him.

       II. The trial court erred in ordering consecutive sentences without stating
       the requisite statutory findings on the record.

              III. Graves was denied effective assistance of counsel in violation
              of the Sixth and Fourteenth Amendments to the United States
              Constitution and Article I, Section 10 of the Ohio Constitution.
             {¶6} In his first assignment of error, Graves argues that R.C.

      2929.13(B)(1)(a) applied to his conviction for violating a protection order, and that

      this statute precluded the trial court from imposing a prison sentence for this

      conviction. 2 But R.C. 2929.13(B)(1)(a) is inapplicable in this case, and so we

      overrule the first assignment of error.

             {¶7} Under R.C. 2929.13(B)(1)(a), under certain conditions, a trial court is

      required to sentence a defendant to a community control sanction as opposed to a

      prison term.    Id.   However, under R.C. 2929.13(B)(1)(b)(iii) “the court has

      discretion to impose a prison term upon an offender who is convicted of or pleads

      guilty to a felony of the fourth or fifth degree that is not an offense of violence if *

      * * [t]he offender violated a term of the conditions of bond as set by the court.”

      {¶8} In the instant case, the trial court determined at the sentencing hearing that

Graves had violated the no contact order when he sent threatening text messages to the

victim while he was out on bond.         Because the no contact order was one of the

conditions of Graves’s bond, R.C. 2929.13(B)(1)(b)(iii) applies and the trial court had

discretion to impose a prison term on Graves for the fifth-degree felony of violating a

protection order.    See State v. Spencer, 3d Dist. Nos. 6-12-15 and 6-12-16,

2013-Ohio-137, ¶ 21 (applying R.C. 2929.13(B)(1)(b)(iii) and finding no error in trial

court’s imposition of a prison term where the defendant violated a condition of her


             2
                Graves does not argue that this provision applies to his domestic violence
      conviction.
personal recognizance).    Because Graves violated a condition of his bond, R.C.

2929.13(B)(1)(a)(i) is inapplicable, and, therefore, Graves’s first assignment of error is

without merit.

      {¶9} In his second assignment of error, Graves argues that the trial court erred in

imposing consecutive sentences without making the requisite statutory findings on the

record. We agree.

                                   Standard of Review

      {¶10} When a defendant argues that his sentence was imposed erroneously, our

task is to meaningfully review the trial court’s sentencing decision. State v. Goins, 8th

Dist. No. 98256, 2013-Ohio-263, ¶ 6. Am.Sub.H.B. No. 86, effective September 30,

2011, amended R.C. 2953.08(G)(2) and makes clear that “[t]he appellate court’s standard

for review is not whether the sentencing court abused its discretion.” Rather, under the

new provision, if we “clearly and convincingly” find that (1) “the record does not support

the sentencing court’s findings under [R.C. 2929.14(C)(4)]” or (2) that “the sentence is

otherwise contrary to law,” then we “may increase, reduce, or otherwise modify a

sentence * * * or [we] may vacate the sentence and remand the matter to the sentencing

court for resentencing.” Goins at ¶ 6, quoting R.C. 2953.08(G)(2). But see State v.

Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 9-10 (stating that the

appropriate standard of review is to first determine whether the sentencing court complied

with all applicable rules and statutes to determine whether the sentence is clearly and
convincingly contrary to law; and second, if the trial court complies with all applicable

rules and statutes, the sentence is then reviewed for an abuse of discretion).

                  Required Findings for Imposing Consecutive Sentences

       {¶11} H.B. 86 also reinstated the requirement that trial courts make certain

findings before imposing consecutive sentences. These requirements are codified at R.C.

2929.14(C)(4).       State v. Bonner, 8th Dist. No. 97747, 2012-Ohio-2931, ¶ 5.

Specifically, before imposing consecutive sentences, the trial court must first find that the

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

Second, the trial court must find that consecutive sentences are not disproportionate to the

seriousness of the offender’s conduct and are not disproportionate to the danger the

offender poses to the public. Finally, the trial court must find that at least one of the

following applies:

       (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.

R.C. 2929.14(C)(4).
       {¶12} Although a trial court is not required to use “‘talismanic words to comply

with the guidelines and factors for sentencing,’” it must be clear from the record that the

trial court actually made the required statutory findings. State v. Matthews, 8th Dist. No.

97916, 2012-Ohio-5174, ¶ 48, quoting State v. Brewer, 1st Dist. No. C-000148, 2000

Ohio App. LEXIS 5455, *10 (Nov. 24, 2000). The requirements are satisfied “when the

record reflects that the court has engaged in the required analysis and has selected the

appropriate statutory criteria.” Id.

                                         Analysis

       {¶13} In the instant case, the trial court stated on the record that it was imposing

the consecutive sentences because:

       Th[e] text [messages] suggest that you are going to inflict bodily harm on
       another individual in the community, and that cannot happen. That will not
       happen under this Court’s watch. That is one of the problems that I have
       with it. But when I look through your record, since 2003, unruly, unruly,
       unruly, assault, criminal activity on school property, misconduct on public
       transportation, misconduct on public transportation, criminal trespass. You
       were found not guilty on aggravated robbery. Kidnapping, aggravated
       robbery, kidnapping having weapon while under disability. But then in
       East Cleveland in 2011 in November, petty theft and this. Somebody has
       to take care of the community because you don’t seem to care how you
       impact on the lives of other people. Therefore, the sentence will stand as it
       is.

Tr. 36-37.

       {¶14} Applying the statutory requirements to the trial court’s reasoning, we

conclude that the trial court failed to make all of the necessary findings before imposing

the consecutive sentences.      With respect to the first and third prongs of R.C.

2929.14(C)(4), the trial court found that Graves’s history of violence demonstrated that
consecutive sentences were necessary to protect the public from future crime by Graves.

Specifically, the trial court set forth its concern that Graves had threatened a member of

the community with physical harm, and that, because Graves did not care how his conduct

impacted the lives of others, the trial court was responsible for imposing a sentence that

would ensure the community’s safety. A trial court’s discussion of a defendant’s prior

criminal history can satisfy two statutory findings; first, that a consecutive sentence is

necessary to protect the public from future crime or to punish the offender, and second,

that an offender’s criminal history demonstrates that consecutive sentences are necessary

for the public’s protection from future crime by the offender. See State v. Shepherd, 8th

Dist. No. 97962, 2012-Ohio-5415,

¶ 82.

        {¶15} However, the trial court’s stated reasons did not include a finding that

consecutive sentences were not disproportionate to the seriousness of Graves’s conduct

and were not disproportionate to the danger that Graves poses to the public. See State v.

Lebron, 8th Dist. No. 97773, 2012-Ohio-4156, ¶ 15 (consecutive sentences were not

permissible where the trial court failed to make the mandatory finding that consecutive

sentences were not disproportionate to the seriousness of the offender’s conduct and were

not disproportionate to the danger the offender posed to the public); Shepherd at ¶ 82

(same). For this reason, we remand this case to the trial court for the limited purpose of

resentencing. See State v. Huber, 8th Dist. No. 98206, 2012-Ohio-6139, ¶ 17 (“A
sentencing hearing on remand is limited to the issue found to be in error on appeal.”).



       {¶16} In his third assignment of error, Graves asserts that he received ineffective

assistance of counsel at his sentencing. Finding no merit to this argument, we overrule

the third assignment of error.   A criminal defendant has the right to effective assistance

of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984).     To determine whether a defendant received ineffective assistance of

counsel, we first evaluate whether counsel’s performance was deficient, meaning errors

were so serious that counsel was not functioning as “counsel” guaranteed to the defendant

under the Sixth Amendment. Id. at 687. If we determine that counsel’s performance

was deficient under the first prong, we must then determine whether the errors prejudiced

the defendant such that the defendant was deprived of a fair and reliable trial. Id. We

determine prejudice by analyzing whether “there is a reasonable probability that but for

counsel’s unprofessional errors, the result of the proceeding would have been different.”

Id. at 694. “Reasonable probability” is defined as probability sufficient to undermine

confidence in the outcome. Id.

       {¶17} Graves argues that when it came to light that he had sent threatening text

messages to the victim, his counsel did nothing to attempt to mitigate the aggravating

circumstance.   Graves asserts that, if anything, his counsel made matters worse by

castigating his client on the record, by providing additional aggravating factors to

consider, by failing to cross-examine the victim about her allegation, and by failing to ask
the trial court for a continuance so that his client could defend himself against the new

allegations.

       {¶18} We disagree. With regard to the first prong of Strickland, Graves did not

need a continuance so that he could defend himself against the new allegations, as he was

well aware of the allegations before he arrived at the sentencing hearing. Furthermore,

although Graves’s counsel did make a comment about the text messages that was not

necessarily in his client’s best interest,3 counsel did attempt to mitigate the impact of the

text messages by representing to the trial court that Graves “got a job, and * * * did not

test positive which were two of the things that you asked him to do.” Tr. 25.

       {¶19} With regard to the second prong of Strickland, to the extent that counsel’s

comment was harmful, we conclude that Graves was not prejudiced by these comments

because there is not a reasonable probability that, but for counsel’s errors, the result of the

proceeding would have been different. The trial court did not believe Graves when he

asserted that he did not send the text messages, but the trial court’s determination that

Graves was not credible was not based on defense counsel’s comment. Rather, the trial

court based its credibility finding on the fact that Graves had no one to corroborate his

story and on Graves’s lengthy criminal history.




       3
        Graves takes issue with defense counsel’s statement that counsel had
“nothing better to tell this Court than what my client said with regard to making
his sister the supposed, you know, person responsible for [the text messages]. I,
quite candidly, don’t expect you to find it any more plausible than I do.” Tr. 27.
         {¶20} Further, Graves was not prejudiced because the trial court based the length

of Graves’s sentence both on the seriousness of the threats made and on Graves’s record.

The text messages threatened the victim with great bodily harm and/or death. The trial

court expressed its concern for the safety of the victim and the safety of the community at

large. Tr. 36-37. These concerns would have remained regardless of what Graves’s

counsel said or did not say at the sentencing hearing.

         {¶21} With regard to Graves’s argument that defense counsel should have

cross-examined the victim about her allegation, the trial court had the complaining

witness testify on the record, but only after the trial court had imposed its sentence. Tr.

38. The trial court stated, “I want it on the record for Mr. Graves.” Id. As the trial

court did not base its sentence on the victim’s testimony, Graves could not have been

prejudiced at sentencing by his counsel’s failure to cross-examine the victim. Because

Graves cannot demonstrate that he received ineffective assistance of counsel at his

sentencing hearing under either prong of Strickland, we overrule the third assignment of

error.

         {¶22} The trial court’s judgment is reversed to the lower court for resentencing in

conformance with this opinion.

         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 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.



____________________________________
KENNETH A. ROCCO, JUDGE

MELODY J. STEWART, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
