[Cite as State v. McClenton, 2017-Ohio-8361.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                   ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                  :        OPINION

                 Plaintiff-Appellee,            :
                                                         CASE NO. 2017-A-0019
        - vs -                                  :

GREGORY L. MCCLENTON,                           :

                 Defendant-Appellant.           :


Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2016
CR 00653.

Judgment: Reversed and remanded.


Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047-1092 (For Plaintiff-Appellee).

Patricia J. Smith, 206 South Meridian Street, Suita A, Ravenna, OH            44266 (For
Defendant-Appellant).



THOMAS R. WRIGHT, J.


        {¶1}     Appellant, Gregory L. McClenton, appeals the imposition of a consecutive

sentence with an unrelated case following his conviction for assault. As the trial court

failed to make necessary findings for consecutive sentences, we reverse and remand

for resentencing.

        {¶2}     In 2015, appellant was convicted of resisting arrest and failure to comply
with a police officer’s signal in the Cuyahoga County Court of Common Pleas. Initially,

he was placed on community control. After being found guilty of violating the terms of

community control, he was sentenced to a three-year prison term.

       {¶3}   While incarcerated in the Lake Erie Correctional Institution, appellant

exited his housing unit without permission. A corrections officer was dispatched to find

him. After locating appellant at a recreational facility, the officer coaxed him to return to

the housing unit. But, as they were walking toward the unit, appellant was disrespectful

to the officer and would not follow his directives. Accordingly, before taking appellant to

the officer’s station in the unit, the officer conducted a pat-down search.

       {¶4}   Appellant was ordered to stand still with his hands on a wall. As the

officer began the search, appellant tried to turn around and face him, but the officer was

able to regain control by placing his hand on appellant’s back. When the officer tried to

resume the search, appellant removed his hands from the wall, made a fist with his right

hand, and threw a punch. The officer easily blocked the punch and pinned appellant

against the wall. Appellant was now facing the officer and grabbed the officer in the

face/throat area.    Since the seriousness of the situation had escalated, a second

corrections officer immediately sprayed a substance in appellant’s face, causing him to

release his hold on the first officer.

       {¶5}   Appellant was indicted on one count of assault, a third-degree felony

pursuant to R.C. 2903.13(A) & (C)(3). Ultimately, appellant pleaded guilty to assault. In

exchange, the state recommended that his sentence be limited to twenty-four months.

       {¶6}   The case immediately proceeded to sentencing. In directly addressing the

trial court, appellant said that he was confused during the entire episode leading to the




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assault, and that he made a good faith effort to comply with the officer’s orders. His trial

counsel also asserted that appellant is an Iraqi War veteran who possibly suffers from

PTSD, and has previously been diagnosed with schizophrenic disorder. Counsel also

noted that, although appellant received medication for his schizophrenia while he was

an inmate at the Richland Correctional Institution, he had not received any treatment at

the Lake Erie Correctional Institution. The state responded that appellant has been

convicted of five criminal offenses between 2009 and 2015, and that he has a history of

refusing to comply with orders of police officers.

       {¶7}   At the close of the hearing, the trial court accepted the state’s sentencing

recommendation and ordered appellant to serve a twenty-four month prison term

consecutive to the three-year term stemming from the Cuyahoga County case.

Appellant timely appeals raising one assignment of error:

       {¶8}   “The trial court erred by sentencing the appellant to serve consecutive

sentences without submitting adequate reasons in support pursuant to R.C. 2929.14(C)

and specifically considering inaccurate factors.”

       {¶9}   In contesting the imposition of consecutive sentences, appellant primarily

argues that the trial court failed to give adequate weight to certain facts tending to show

that the nature of his conduct was not so serious as to justify consecutive terms.

However, it is unnecessary to address appellant’s specific arguments because the trial

court’s failure to make a required statutory finding for imposition of consecutive prison

terms warrants reversal.

       {¶10} As assault is not one of the six crimes governed by R.C. 2929.14(C)(2),

the parties do not dispute that R.C. 2929.14(C)(4) governs.




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       {¶11} Pursuant to R.C. 2929.14(C)(4), a trial court “may” sentence an offender

to consecutive prison terms if it finds that: (1) such terms are “necessary to protect the

public from future crime or to punish the offender”; (2) such terms “are not

disproportionate to the seriousness of the offender’s conduct and to the danger the

offender poses to the public”; and (3) one of three alternative factors exist. The three

alternative factors are:

       {¶12} “(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, and 2929.18 of the Revised Code, or was under post-release

control for a prior offense.

       {¶13} “(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.

       {¶14} “(c) The offender’s history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime by the

offender.”

       {¶15} During the sentencing, the trial court justified consecutive sentences as

follows:

       {¶16} “Because this offense occurred while the defendant was an inmate in a

state prison facility, and that the victim was a corrections officer at the prison, the Court

finds that consecutive sentences are necessary to protect the public from future crimes




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and to punish the offender, and that a consecutive sentence would not be

disproportionate to the seriousness of the offender’s conduct and to the danger the

defendant poses to the public.”

       {¶17} The foregoing findings satisfy the first two criteria. But, as to the third

requirement of R.C. 2929.14(C)(4), the trial court does not expressly state which of the

three alternative factors it is proceeding under. Instead, the trial court only notes that

appellant was an inmate when he committed the assault and that the victim was a

corrections officer.

       {¶18} The trial court did not find that the harm caused by the multiple offenses is

so great that the imposition of a single prison term is inadequate to reflect the

seriousness of the criminal acts or make reference to appellant’s criminal history.

Moreover, the trial court’s reference to the corrections officer as the victim and

appellant’s status as a prison inmate fails to satisfy subsection (a).

       {¶19} In State v. Bittner, 6th Dist. Lucas No. L-04-1240, 2005-Ohio-5251, the

defendant was found guilty of disrupting public services for damaging a sprinkler head

in a state prison. The court imposed a consecutive sentence, in part, because the

defendant was serving a prison term at the facility when he committed that crime. The

Sixth Appellate District concluded that defendant’s status as an inmate is not sufficient

to satisfy alternative (a). Id. at ¶21-31.

       {¶20} Alternative (a) is satisfied when a defendant is: (1) awaiting trial or

sentencing on another offense; (2) under a sanction pursuant to R.C. 2929.16, 2929.17,

or 2929.18; or (3) subject to post-release control. The three statutes under the second

scenario govern the imposition of residential sanctions; nonresidential sanctions, such




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as a drug treatment program; and financial sanctions, none of which are satisfied.

Neither appellant’s status as inmate nor that his victim was a corrections officer satisfies

R.C. 2929.14(C)(4)(a).

       {¶21} The trial court’s findings are insufficient to fulfill any of the alternative

factors.   To this extent, consecutive sentences are contrary to law.            See R.C.

2953.08(G)(2).

       {¶22} Appellant’s sole assignment of error has merit.         The judgment of the

Ashtabula County Court of Common Pleas is reversed, and the case is remanded for

resentencing.



TIMOTHY P. CANNON, J.,

COLLEEN MARY O’TOLLE, J.,

concur.




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