[Cite as State v. Whitaker, 2019-Ohio-2823.]

                               COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                       :

                 Plaintiff-Appellee,                 :
                                                              Nos. 107584 and 107967
                 v.                                  :

JU’VONTAY WHITAKER,                                  :

                 Defendant-Appellant.                :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: REVERSED AND REMANDED
                 RELEASED AND JOURNALIZED: July 11, 2019


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                   Case Nos. CR-17-615971-A and CR-17-618295-A


                                               Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Christine M. Vacha, Assistant Prosecuting
                 Attorney, for appellee.

                 Allison S. Breneman, for appellant.


MICHELLE J. SHEEHAN, J.:

                   Ju’Vontay Whitaker appeals from his sentence of seven years in

prison by the trial court for his conviction of robbery and attempted felonious

assault. Upon review of the record, we find his appeal to be meritorious. The record

reflects that, in sentencing Whitaker to consecutive maximum terms for his
convictions of two third-degree felony offenses, the trial court explicitly relied on

Whitaker’s “prior convictions,” when he had none. As such, we are constrained to

find that Whitaker’s sentence is not supported by the record and remand the matter

to the trial court for resentencing.

Procedural Background

               Whitaker appeals from his sentence in two separate cases. Both cases

were transferred from the juvenile court. In Cuyahoga C.P. No. CR-17-615971-A, he

was charged with two counts of aggravated robbery, two counts of robbery, and two

counts of kidnapping, all accompanied with both one-year and three-year firearm

specifications. The charges stemmed from an incident on September 10, 2015, when

a clerk at “My Way Deli” was robbed at gunpoint by three suspects. Whitaker was

subsequently identified as one of the three suspects, although he stated to the police

that he stayed in the car while the others went inside to rob the store. Under a plea

agreement, he pleaded guilty to robbery, a third-degree felony, accompanied with a

one-year firearm specification.

               In Cuyahoga C.P. No. CR-17-618295-A, Whitaker was charged with

aggravated robbery, felonious assault, and kidnapping. The charges stemmed from

an incident on April 14, 2016, while he was an eleventh grader at the Learning

Center. In a fight after school, he struck a fellow student. When the victim fell to

the ground, Whitaker kicked him repeatedly and walked off. Another fellow student

then came over and took the victim’s phone and belt. Under the plea agreement,

Whitaker pleaded guilty to attempted felonious assault, also a third-degree felony.
As part of the plea agreement, Whitaker agreed to consecutive sentences for the two

cases.

                Before the sentencing hearing, the court ordered a presentence

investigation report for its review. At the sentencing hearing, Whitaker apologized

for his conduct. His counsel also pleaded for leniency on his behalf. Counsel

reported that Whitaker had no prior record of juvenile delinquency and had not

been in trouble with the law until the two instant cases. Counsel also reported that

Whitaker finished high school while in the juvenile detention center, where he has

been held for nearly 21 months for the instant cases. Whitaker’s mother also pleaded

for leniency. She stated that her son had not been in trouble until these two cases

and that she was told by his teacher in the detention center that he helped tutor the

students there.

                In CR-615971, the trial court imposed a maximum prison term of 36

months for robbery, in addition to the one-year term for the gun specification; in

CR-618295, the court also imposed a maximum prison term of 36 months for the

attempted felonious assault. Whitaker received a total prison term of seven years

for his offenses in these two cases.    He was given credit for 21 months for time

served. On appeal, he presents the following assignment of error for our review:

         The trial court abused its discretion by imposing a prison sentence
         contrary to R.C. 2929.14 and the purposes and principles of the felony
         sentencing guidelines.

                Although Whitaker’s assignment of error references R.C. 2929.14

(“Basic Prison Terms”), he argued that the trial court failed to properly weigh the
seriousness and recidivism factors set forth in R.C. 2929.12 or consider the purposes

and principles of the felony sentencing guidelines in R.C. 2929.11 throughout his

assignment of error.

R.C. 2929.11 and 2929.12

               In imposing a sentence for a felony, the trial court is to consider the

sentencing principles and factors set forth in R.C. 2929.11 (“Purposes of felony

sentencing”) and 2929.12 (“Seriousness and recidivism factors”). The applicable

version of R.C. 2929.11 provides that a sentence imposed for a felony shall be guided

by the overriding purposes of protecting the public from future crimes by the

offender and to punish the offender.1 The statute states:

             (A) A court that sentences an offender for a felony shall be
       guided by the overriding purposes of felony sentencing. The
       overriding purposes of felony sentencing are to protect the public
       from future crime by the offender and others and to punish the
       offender using the minimum sanctions that the court determines
       accomplish those purposes without imposing an unnecessary
       burden on state or local government resources. To achieve those
       purposes, the sentencing court shall consider the need for
       incapacitating the offender, deterring the offender and others from
       future crime, rehabilitating the offender, and making restitution
       to the victim of the offense, the public, or both.

                Furthermore, R.C. 2929.11(B) provides that a sentence shall be

reasonably calculated to achieve these two overriding purposes. R.C. 2929.11(B)

states:



       1 There are now three overriding purposes set forth in R.C. 2929.11(A). See S.B. 66,
Section 1, effective October 29, 2018. The third overriding principle is “to promote the
effective rehabilitation of the offender.”
             (B) A sentence imposed for a felony shall be reasonably
       calculated to achieve the three overriding purposes of felony
       sentencing set forth in division (A) of this section, commensurate
       with and not demeaning to the seriousness of the offender’s
       conduct and its impact upon the victim, and consistent with
       sentences imposed for similar crimes committed by similar
       offenders.

                 In determining the most effective way to comply with the purposes

and principles of sentencing set forth in R.C. 2929.11, the sentencing court is to

consider the seriousness and recidivism factors enumerated in R.C. 2929.12. State

v. Hamilton, 8th Dist. Cuyahoga No. 102870, 2016-Ohio-1376, ¶ 14.

                The seriousness factors are enumerated in R.C. 2929.12(B) and (C)

while the recidivism factors are enumerated in R.C. 2929.12(D) and (E). Pertinent

to Whitaker’s appeal, R.C. 2929.12(E) provides that when considering the

“recidivism” factor, the sentencing court should consider whether, prior to

committing the offense, the offender had been adjudicated a delinquent child, R.C.

2929.12(E)(1), whether the offender had been convicted of or pleaded guilty to a

criminal offense, R.C. 2929.12(E)(2), or whether the offender had led a law-abiding

life for a significant number of years, R.C. 2929.12(E)(3).2


       2  R.C. 2929.12(E) states, in pertinent part:
        The sentencing court shall consider all of the following that apply regarding the
offender, and any other relevant factors, as factors indicating that the offender is not likely
to commit future crimes:
        (1) Prior to committing the offense, the offender had not been adjudicated a
delinquent child.
        (2) Prior to committing the offense, the offender had not been convicted of or
pleaded guilty to a criminal offense.
        (3) Prior to committing the offense, the offender had led a law-abiding life for a
significant number of years.
        (Emphasis added.)
               As for our review of felony sentences, as currently interpreted by the

courts, a sentence is “contrary to law” if (1) the sentence falls outside the statutory

range for the particular degree of offense, or (2) the trial court fails to consider the

purposes and principles of felony sentencing set forth in R.C. 2929.11 and the

sentencing factors in R.C. 2929.12. State v. Morgan, 8th Dist. Cuyahoga No.

105682, 2018-Ohio-1834, ¶ 14; State v. Binford, 8th Dist. Cuyahoga No. 105414,

2018-Ohio-90, ¶ 37; State v. Price, 8th Dist. Cuyahoga No. 104341, 2017-Ohio-533,

¶ 14; State v. Maddox, 2017-Ohio-8061, 98 N.E.3d 1158, ¶ 31 (8th Dist.); and State

v. Hinton, 8th Dist. Cuyahoga No. 102710, 2015-Ohio-4907.

               When a sentence is not clearly and convincingly contrary to law, an

appellate court may vacate or modify the sentence only if the appellate court finds

by clear and convincing evidence that the record does not support the sentence.

State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23. See

also State v. McGowan, 147 Ohio St.3d 166, 2016-Ohio-2971, 62 N.E.3d 178, ¶ 1

(“R.C. 2953.08(G)(2) allows an appellate court to increase, reduce, or otherwise

modify a sentence only when it clearly and convincingly finds that the sentence is (1)

contrary to law and/or (2) unsupported by the record”), citing Marcum.

Analysis

               Our reading of the sentencing transcript in this case reflects that,

before sentencing Whitaker to the maximum 36-month sentence for both of the

third-degree felony offenses he pleaded guilty to, the trial court referenced one

factor under R.C. 2929.12 — his criminal history. The court mentioned his “three
prior aggravated robberies” and his “extensive prior,” and also commented that

Whitaker has “a total of six robberies.”

               The trial court had apparently misinterpreted the presentence

investigation report. The report shows Whitaker was charged in three other cases

in addition to the two cases before the court for sentencing. All three cases, however,

showed a date of offense several months after Whitaker’s involvement in the instant

cases: May 3, 2016, July 27, 2016, and September 29, 2016, respectively. The May

3, 2016, and July 27, 2016 cases were transferred from the juvenile court on

September 2, 2016, and June 6, 2017, respectively, and there was no indication in

the presentence investigation report how these cases were disposed. The September

29, 2016 case, which originated in the common pleas court, was dismissed.

               Thus, the trial court was mistaken when it stated that Whitaker had

“three prior aggravated robberies.” The record did not reflect a conviction in any of

the three cases — one case was dismissed while it is unknown how the other two

cases were disposed after their transfer to the common pleas court in September

2016 and June 2017, respectively; more importantly, the alleged criminal incidents

occurred subsequent to the instant cases. In other words, Whitaker had no prior

criminal convictions prior to the instant cases. The sentencing transcript shows

Whitaker’s counsel repeatedly attempted to clarify the court’s misunderstanding,

but to no avail.

                   We are aware that R.C. 2929.11 and 2929.12 are not fact-finding

statutes and, accordingly, the trial court is not required to make any specific findings
on the record regarding its consideration of the statutory factors and principles.

State v. Gay, 8th Dist. Cuyahoga No. 103641, 2016-Ohio-2946, ¶ 16, citing State v.

Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31. The trial court

here stated in its journal entry: “The court considered all required factors of the law.

The court finds that prison is consistent with the purpose of R.C. 2929.11.”

Ordinarily, a trial court’s statement in its sentencing journal entry that it considered

the statutory factors is sufficient to fulfill its obligations under R.C. 2929.11 and

2929.12. See, e.g., State v. Sutton, 8th Dist. Cuyahoga Nos. 102300 and 102302,

2015-Ohio-4074, ¶ 72. “[C]onsideration of the appropriate factors can be presumed

unless the defendant affirmatively shows to the contrary.” State v. Jones, 8th Dist.

Cuyahoga No. 99759, 2014-Ohio-29, ¶ 13, citing State v. Stevens, 1st Dist. Hamilton

No. C-130278, 2013-Ohio-5218, ¶ 12.

               In other words, we can presume from a silent record that the trial

court gave proper consideration of the statutory factors and principles. See, e.g.,

State v. Thompson, 1st Dist. Hamilton Nos. C-140746 and C-140747, 2015-Ohio-

2836, ¶ 9; State v. Smith, 6th Dist. Sandusky No. S-14-037, 2015-Ohio-1867, ¶ 11.

               The record here, however, is not completely “silent.” The sentencing

transcript reflects that the trial court expressly noted a single factor in sentencing

Whitaker to a maximum 36-month prison term for each of his third-degree felony

offenses — his “prior convictions.” Yet, the record shows Whitaker did not have any

prior convictions at the time of the offenses or sentencing. While “[o]rdinarily,

appellate courts defer to trial courts’ broad discretion in making sentencing
decisions,” State v. Rahab, 150 Ohio St.3d 152, 2017-Ohio-1401, 80 N.E.3d 431, ¶ 10,

the record here indicates the trial court relied exclusively on the defendant’s “prior

convictions” in its consideration of the sentencing factors when the record shows the

defendant had no prior criminal convictions at the time of the offenses or at the time

of sentencing. The court’s apparent misunderstanding of the record rebuts the

presumption as guided by R.C. 2953.08(G)(2) that the trial court properly

considered the statutory sentencing factors. Therefore, we are constrained to find

by clear and convincing evidence that the record does not support the sentence and

reverse the sentence and remand the matter for resentencing. Marcum, 146 Ohio

St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, and McGowan, 147 Ohio St.3d 166,

2016-Ohio-2971, 62 N.E.3d 178.

                Appellant’s sentence is reversed, and the matter is remanded for

resentencing.

      It is ordered that appellant recover of said 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.



                  ____ _____
MICHELLE J. SHEEHAN, JUDGE

EILEEN T. GALLAGHER, P.J., CONCURS (WITH SEPARATE CONCURRING
OPINION ATTACHED);
RAYMOND C. HEADEN, J., CONCURS WITH MAJORITY OPINION AND WITH
SEPARATE CONCURRING OPINION


EILEEN T. GALLAGHER, J., CONCURRING:

               I concur in full with the majority’s decision. I write separately only to

state that it is my belief that this case perfectly illustrates the proper application of

Marcum and its expansion of R.C. 2953.08(G)(2)(a) to felony sentences imposed

upon consideration of R.C. 2929.11 and 2929.12. In my view, Marcum did not

intend to disrupt the well-settled law in the state of Ohio that reviewing courts are

not entitled to substitute their judgment for that of the trial court, nor are they

entitled to independently weight the sentencing factors set forth under R.C. 2929.11

and 2929.12. It is therefore my position that, following Marcum, this court has no

basis to reverse a prison sentence imposed within the applicable statutory range for

the felony offense unless there is objective information in the record that the trial

court (1) failed to consider R.C. 2929.11 and 2929.12 in formulating the sentence, or

(2) relied on demonstrably false or inaccurate information when making these

considerations.    In this case, the trial court relied on information that is
demonstrably inaccurate.     Thus, the record clearly and convincingly does not

support the trial court’s sentence.
