[Cite as State v. Pavlina, 2013-Ohio-3620.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 99207




                                       STATE OF OHIO

                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                 MICHAEL J. PAVLINA

                                                              DEFENDANT-APPELLANT



                              JUDGMENT:
                   AFFIRMED IN PART; REVERSED IN PART
                            AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-567544

        BEFORE:           Jones, P.J., Kilbane, J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED:                       August 22, 2013
ATTORNEY FOR APPELLANT

Rick L. Ferrara
2077 East 4th Street
Second Floor
Cleveland, Oio 44114


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Diane Russell
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., P.J.:

      {¶1} Defendant-appellant, Michael Pavlina, appeals from the trial court’s

sentencing judgment, wherein it sentenced Pavlina to a maximum 12-month prison term

in this case, to be served consecutively to a 12-month prison term in another case,

Cuyahoga C.P. Case No. CR-551609.          We affirm in part and reverse in part, and

remand.

      {¶2} In October 2012, Pavlina was indicted by way of information on a single

charge of drug possession, a felony of the fifth degree; he pleaded guilty to the charge.

The charge in this case resulted in a violation of the terms of his community control

sanctions in CR-551609. The trial court sentenced him on the two cases at the same

hearing. The court sentenced him to the maximum term of 12 months on this case, and

ordered that it be served consecutively to the other case.       Pavlina now raises two

assignments of error for our review:

      I. The trial court committed plain error when it failed to make statutorily
      necessitated findings before imposing consecutive sentences.

      II. The trial court abused its discretion in imposing maximum, consecutive
      sentences.

      {¶3} In his first assignment of error, Pavlina contends that the trial court erred in

sentencing him to consecutive terms without making the statutorily mandated findings.

      {¶4} R.C. 2953.08(G)(2) provides two bases for a reviewing court to overturn the

imposition of consecutive sentences: the sentence is “otherwise contrary to law” or the
reviewing court clearly and convincingly finds that “the record does not support the

sentencing court’s findings” under R.C. 2929.14(C)(4).

       {¶5} Under R.C. 2929.14(C)(4), consecutive sentences can be imposed if the court

finds that (1) a consecutive sentence is necessary to protect the public from future crime

or to punish the offender and (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. In addition to these two factors, the court must find 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.

Id.

       {¶6} In sentencing Pavlina, the trial court discussed his prior criminal record,

which dated back to juvenile adjudications in 1988. Pavlina also had numerous adult

convictions, starting in 1989, which included aggravated burglary and domestic violence.

 Pavlina was placed on community control sanctions for some of his convictions, and

violated the terms of those sanctions in most instances. For example, in CR-551609,

Pavlina was placed on community control so that he could get treatment; Pavlina admitted
that he lied to his probation officer, telling the officer that he was getting treatment, when

he was not.

       {¶7} Based on Pavlina’s prior criminal history, the court stated: “Clearly, you have

not benefitted from * * * incarceration, nor have you benefitted from * * * community

control.   You have violated almost every time.”

       {¶8} The court made the following findings:

       The Court finds * * * that this offense was committed while the defendant
       was on a term of community control. The Court finds that the defendant’s
       criminal history as outlined on the record * * * shows that consecutive
       terms * * * are necessary to protect the public based upon this defendant’s
       extensive history and failure to comply with any conditions of probation.

       ***

       Based on the findings necessary under House Bill 86, taking into
       consideration this defendant’s history, the fact he was on probation to this
       Court when the offense was committed, the fact that he blatantly lied to his
       [probation officer] about receiving treatment, which was the sole goal that
       this Court wanted for him, the fact that he has been a constant problem to
       the Strongsville Police Department with regard to being drunk and
       disorderly as outlined in the arrest reports in the probation report, the Court
       finds consecutive sentences are necessary.

       {¶9} The trial court’s judgment entry of conviction and sentence states:

       The court considered all required factors of law. The court finds that
       prison is consistent with the purpose of R.C. 2929.11.

       ***

       The court finds that this defendant has an extensive criminal history, has not
       benefitted from prior incarcerations or community control sanctions,
       committed the instant offense while on community control to this court, and
       intentionally mislead his probation officer about attending drug treatment
       (which was the sole purpose of his community control sanctions).
       The court is of the position that a single sentence would demean the
       seriousness of the defendant’s criminal behavior and that consecutive
       sentences are necessary to fulfill the purposes of felony sentencing.

        {¶10} The court here made all but one — regarding disproportionality — of the

required findings under R.C. 2929.14(C) in sentencing Pavlina to serve the sentence in

this case consecutive to the sentence in CR-551609.         We realize that the trial court is

not required to use “magic” words in imposing consecutive sentences. State v. Gus, 8th

Dist. Cuyahoga No. 85591, 2005-Ohio-6717, ¶ 30. But the trial court has to engage in

the appropriate analysis.         State v. Murrin, 8th Dist. Cuyahoga No. 83714,

2004-Ohio-3962, ¶ 12.

       {¶11} On the record before us, the trial court did not engage in the appropriate

analysis to support a finding that consecutive sentences are not disproportionate to the

seriousness of Pavlina’s conduct and to the danger he poses to the public.

       {¶12} In light of the above, the first assignment is sustained and the case is

remanded to the trial court to consider whether consecutive sentences are appropriate, and

if so, to enter the proper findings on the record.   See State v. Dodson, 8th Dist. Cuyahoga

No. 98521, 2013-Ohio-1344, ¶ 11, citing State v. Walker, 8th Dist. Cuyahoga No. 97648,

2012-Ohio-4274, ¶ 87.

       {¶13} For his second assigned error, Pavlina contends that the trial court erred in

sentencing him to the maximum 12 months for his fifth-degree felony.

       {¶14} A sentencing court must consider the principles and purposes of sentencing

in R.C. 2929.11 and the seriousness and recidivism factors in R.C. 2929.12. State v.
Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38.

        {¶15} Although a sentencing judge was formerly required to engage in detailed

judicial fact-finding in order to justify imposing maximum sentences, this is no longer the

case.   State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, paragraph

seven of the syllabus. Rather, the decision to impose the maximum sentence is simply

part of the trial court’s overall discretion in issuing a felony sentence.

        {¶16} Pavlina contends that his prior criminal record, which the trial court relied

on in sentencing him, did not “speak to either [R.C.] 2929.11 or 2929.12 — except as to

whether [he] should or should not have been granted community control sanctions” and,

therefore, the trial court erred in imposing the maximum sentence.       We disagree.

        {¶17} The trial court considered “all required factors of the law” and found that

“prison is consistent with the purpose of R.C. 2929.11.” R.C. 2929.11 governs the

purposes of felony sentencing, which 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.

R.C. 2929.11(A).

        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.

Id.

        {¶18} The trial court explained that the sentence it imposed on Pavlina was based
on the need to protect the public from future crime by Pavlina, and to punish him. Thus,

the trial court’s findings were relative to R.C. 2929.11.

          {¶19} R.C. 2929.12 governs seriousness and recidivism factors. Pavlina contends

that none of the factors indicating that his crime was more serious applied. But the trial

court did not have to find that any applied; rather, it had to consider them, which we find

it did.    Further, even if none of the factors indicating the offense was more serious were

present, factors indicating that Pavlina was likely to commit future crimes were.

          {¶20} In light of the above, the 12-month maximum sentence was proper.          The

second assignment of error is, therefore, overruled.

          {¶21} The trial court’s judgment is affirmed as it relates to the 12-month sentence,

but reversed as it relates to making it consecutive to the sentence in CR-551609; case

remanded.

          It is ordered that appellant and appellee split the 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.




LARRY A. JONES, SR., PRESIDING JUDGE

MARY EILEEN KILBANE, J., CONCURS;
EILEEN T. GALLAGHER, J., DISSENTS
WITH SEPARATE OPINION


EILEEN T. GALLAGHER, J., DISSENTING:

       {¶22} I agree with the majority opinion insofar as it affirms Pavlina’s 12-month

sentence for his fifth-degree felony.   However, I respectfully dissent from its decision to

reverse Pavlina’s consecutive sentence.

       {¶23} The majority determined the trial court failed to make a finding that

“consecutive sentences are not disproportionate to the seriousness of the offender’s

conduct and to the danger he poses to the public” as required by R.C. 2929.14(C)(4).

Although the court does not use the exact language of the statute, I would find that the

trial court made the requisite finding on the issue of proportionality.

       {¶24} There is no provision in R.C. 2929.14(C)(4) that requires the trial court “use

talismanic words to comply with the guidelines and factors for sentencing” as long as it is

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

State v. Brown, 8th Dist. Cuyahoga No. 99024, 2013-Ohio-3134, ¶ 71. The statutory

language in R.C. 2929.14(C)(4) “does not have magical powers.” State v. Kuykendall,

12th Dist. Clermont No. CA2004-12-111, 2005-Ohio-6872, ¶ 24.                   Rather, the

requirements of R.C. 2929.14(C) are designed to ensure the trial court engaged in the

required analysis. Id.

       {¶25} In this case, the trial court held a lengthy hearing and made many thoughtful

findings on the record. It discussed Pavlina’s lengthy criminal record that included
numerous offenses over the course of twenty-plus years.      The court further found that

despite having numerous chances, Pavlina failed to respond favorably to community

control sanctions. Indeed, the court found Pavlina to be a probation violator as a result

of his drug conviction in this case. The court also found that although it previously gave

Pavlina the opportunity to receive substance-abuse treatment, he failed to follow through

and lied to his probation officer about complying with treatment.             These facts

demonstrate that Pavlina is not a first offender or even someone with just a few prior drug

convictions trying to recover from addiction. Pavlina’s conduct is more serious than

other offenders convicted of one count of drug possession because he has demonstrated

not only an inability to respond positively to rehabilitation but a complete disregard for

the law and the rehabilitative services provided to him. Although the trial court did not

use the exact words: “consecutive sentences are not disproportionate to the seriousness of

the offender’s conduct and to the danger the offender poses to the public,” I would find

that the trial court made those findings on the record.

       {¶26} Therefore, I would affirm the trial court’s judgment.
