State v. Ferrell , 2016 Ohio 7715 ( 2016 )

[Cite as State v. Ferrell, 2016-Ohio-7715.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104047
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JOHN FERRELL
DEFENDANT-APPELLANT
JUDGMENT:
VACATED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-574239-A
BEFORE: Keough, P.J., E.T. Gallagher, J., and Stewart, J.
RELEASED AND JOURNALIZED: November 10, 2016
ATTORNEY FOR APPELLANT
Brian A. Smith
755 White Pond Drive, Suite 403
Akron, Ohio 44320
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Frank Romeo Zeleznikar
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, P.J.:
{¶1} In State v. Ferrell, 8th Dist. Cuyahoga No. 100659, 2014-Ohio-4377(“Ferrell I”), this court affirmed defendant-appellant John Ferrell’s convictions involving
sexual contact and conduct with two minor females, but reversed his 75.5-year prison
sentence and remanded the case to the trial court. Specifically, this court concluded that
the trial court failed to make the necessary findings to support the imposition of
consecutive sentences. Id. at ¶ 43 and 46.
{¶2} On remand, the trial court again determined that the facts and circumstances
of the case warranted the imposition of consecutive sentences. Accordingly, the trial
court reaffirmed its original 75.5 year prison sentence and made the purported
consecutive sentence findings on the record.
{¶3} Ferrell now appeals this sentence, contending that the trial court again failed
to make the requisite findings pursuant to R.C. 2929.14(C)(4) prior to imposing
consecutive sentences. While the state concedes that the trial court failed to comply with
R.C. 2929.14(C)(4), it contends that the record could support the imposition of
consecutive sentences; thus, urging this court to overrule Ferrell’s second assignment of
error challenging the record. A review of the trial court’s statements during resentencing
demonstrates that the trial court once again failed to make the necessary findings prior to
imposing consecutive sentences.
{¶4} R.C. 2953.08(G)(2) provides that when reviewing felony sentences, a
reviewing court may overturn the imposition of consecutive sentences where the court
“clearly and convincingly” finds that (1) “the record does not support the sentencing
court’s findings under R.C. 2929.14(C)(4),” or (2) “the sentence is otherwise contrary to
law.”
{¶5} R.C. 2929.14(C)(4) provides that in order to impose consecutive sentences,
the trial court must find that consecutive sentences are (1) necessary to protect the public
from future crime or to punish the offender, (2) that such sentences would not be
disproportionate to the seriousness of the conduct and to the danger the offender poses to
the public, and (3) that 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 postrelease 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.
{¶6} Compliance with R.C. 2929.14(C)(4) requires the trial court to make the
statutory findings at the sentencing hearing, which means that “‘the [trial] court must note
that it engaged in the analysis’ and that it ‘has considered the statutory criteria and
specifie[d] which of the given bases warrants its decision.’” State v. Bonnell, 140 Ohio
St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 26, quoting State v. Edmonson, 86 Ohio
St.3d 324, 326, 715 N.E.2d 131 (1999). Further, the reviewing court must be able to
discern that the record contains evidence to support the findings. State v. Davis, 8th Dist.
Cuyahoga No. 102639, 2015-Ohio-4501, ¶ 21, citing Bonnell at ¶ 29. A trial court is not,
however, required to state its reasons to support its findings, nor is it required to give a
rote recitation of the statutory language, “provided that the necessary findings can be
found in the record and are incorporated in the sentencing entry.” Bonnell at ¶ 37.
{¶7} After reviewing the sentencing transcript, we find that the trial court did not
make the requisite R.C. 2929.14(C)(4) findings in support of its imposition of consecutive
sentences. In making the first finding, the court stated “consecutive sentences are
necessary to protect the public from future crime and punish the offender.” (Tr. 928.)
In making the second finding, the court stated, “consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct. And the Court does find
they are necessary to protect the public. The Court finds that consecutive sentences are
not disproportionate to the danger the offender possesses to the public.” (Tr. at id.)
{¶8} However, the trial court again failed to make the third finding supporting the
imposition of consecutive sentences. In attempting to make the finding, the trial court
stated “[A]nd the Court does find there were two victims in this case. * * * the Court
does support its imposition of consecutive sentences in light of the fact that there were
two victims in this case, and they were of a young age. One being his daughter.” (Tr. at
id.) However, these statements alone are insufficient for this court to conclude that the
third finding — “one of the three statutory factors set forth in R.C. 2929.14(C)(4)(a)-(c)”
— was made.
{¶9} Accordingly, we again vacate Ferrell’s consecutive sentences and remand the
case for resentencing for the trial court to again 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 in accordance with
Bonnell. Ferrell’s first assignment of error, as conceded by the state, is sustained.
{¶10} Based on our decision vacating Ferrell’s consecutive sentences and
remanding for resentencing on this issue, Ferrell’s second assignment of error challenging
the consecutive sentence findings the trial court did make is hereby rendered moot. As
we previously stated in Ferrell I, “the possibility exists for the trial court to make another
finding to support the imposition of consecutive sentences, * * * [b]ut the trial court is
free to impose concurrent sentences if it does not find that consecutive sentences are
appropriate.” Id. at ¶ 46.
{¶11} The sentence is vacated, and the case is remanded for resentencing.
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, PRESIDING JUDGE
EILEEN T. GALLAGHER, J., and
MELODY J. STEWART, J., CONCUR