[Cite as State v. Wilkerson, 2014-Ohio-980.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 8-13-06
v.
MARCUS W. WILKERSON, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 8-13-07
v.
MARCUS W. WILKERSON, OPINION
DEFENDANT-APPELLANT.
Appeals from Logan County Common Pleas Court
Trial Court Nos. CR-12-01-0006 and CR-12-06-0132
Judgments Reversed and Causes Remanded
Date of Decision: March 17, 2014
APPEARANCES:
Marc S. Triplett for Appellant
Eric C. Stewart for Appellee
Case Nos. 8-13-06, 8-13-07
WILLAMOWSKI, P.J.
{¶1} Defendant-appellant Marcus W. Wilkerson appeals the judgments of
the Common Pleas Court in Logan County, Ohio, journalizing his convictions by
guilty pleas in two separate criminal cases CR 12-01-0006 and CR 12-06-0132,
and sentencing him to prison terms in each of the cases, to be served consecutively
to each other. Upon Wilkerson’s motion, the separate appeals in these cases were
consolidated and are hereby considered together. For the reasons that follow, we
reverse the trial court’s judgments.
{¶2} On March 27, 2012, in case number CR 12-01-0006, Wilkerson was
indicted on two counts of trafficking in drugs, each a felony of the fourth degree,
and one count of trafficking in drugs, a felony of the fifth degree, all in violation
of R.C. 2925.03(A)(1). (R. 11 at 4.) The three charges were for offenses
committed on October 18, 2011, October 25, 2011, and January 10, 2012, in
Logan County, Ohio. Wilkerson was subsequently arraigned and released on
personal recognizance. (R. 1 at 11.)
{¶3} While released, with his case pending, Wilkerson committed
additional offenses on May 21, 2012, and June 7, 2012, resulting in charges in the
second case at issue here. (R. 2 at 2.) Wherefore, on June 12, 2012, Wilkerson
was indicted in case number CR 12-06-0132, with one count of trafficking in
1
The designation “R. 1” refers to the trial record in case CR 12-01-0006, and “R. 2” refers to the trial
record in case CR 12-06-0132.
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drugs in violation of R.C. 2925.03(A)(1), a felony of the fifth degree; one count of
possession of drugs, in violation of R.C. 2925.11(A), a felony of the fourth degree;
one count of failure to comply with order or signal of police officer in violation of
R.C. 2921.331(B), a felony of the fourth degree; and one count of tampering with
evidence in violation of R.C. 2921.12(A)(1), a felony of the third degree. (R. 2 at
2.)
{¶4} After initially pleading not guilty to all charges in both cases,
Wilkerson entered a plea agreement resolving all charges in both cases on January
29, 2013. (R. 1 at 83; R. 2 at 85.) As a result of the agreement, Wilkerson pled
guilty to two counts in case CR 12-01-0006: Count I, trafficking in drugs, a felony
of the fourth degree, and Count III, trafficking in drugs, a felony of the fifth
degree. In case CR 12-06-0132, he pled guilty to Count I, trafficking in drugs, a
felony of the fifth degree, and Count II, possession of drugs, a felony of the fourth
degree. The remaining charges were each dismissed. (Id.) The trial court
accepted Wilkerson’s pleas in both cases at the same proceeding. (See Tr. of
Proceedings, Jan. 29, 2013; R. 1 at 85; R. 2 at 88.)
{¶5} The consolidated sentencing hearing was held on March 4, 2013. The
prosecutor made a statement, in which he highlighted Wilkerson’s history of
repeated offenses and pointed out that some of them occurred while Wilkerson
was on bond awaiting trial on his previous charges. (Sentencing Tr. at 4-5.) The
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prosecutor recommended consecutive sentences based on Wilkerson’s activities of
continuing trafficking in heroin, and his prior convictions. (Id. at 5.) After
defendant’s counsel, the prosecutor, and the defendant himself each made their
statements, the trial court commented:
The pattern of your conduct here is a concern to the Court. * * *
The number of convictions and the continued pattern that Mr.
Stewart has pointed out here in my mind requires the Court to send
you to the -- to the department of corrections for a substantial period
of time.
(Sentencing Tr. at 7.)
{¶6} The court then sentenced Wilkerson as follows. In case CR 12-01-
0006, the trial court imposed a prison sentence of eighteen months for count one,
and ten months for count three, to run concurrently, for a total of eighteen months.
(Id.) In case CR 12-06-0132, the court imposed a sentence of ten months on count
one, and eighteen months on count two, to run concurrently, for a total of eighteen
months. (Id. at 7, 9.) The eighteen-month sentences from the two cases were
ordered to be served consecutively to each other, for a total of thirty-six months in
prison. (Id.) As the reasons for imposing consecutive sentences in the two cases,
the trial court stated,
The reasons for doing this are stated by the -- stated by the
prosecutor. That you’re out on bond and you continue in this course
of criminal conduct, and the Court finds that because of that it’s
necessary to protect the public and to adequately punish you in a
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Case Nos. 8-13-06, 8-13-07
way that’s not disproportionate with other sentences this Court gives
to impose the consecutive sentences.
(Id. at 8.) At the conclusion of the hearing, the prosecutor asked, “Costs assessed
or waived?” (Id. at 9.) The trial court responded, “Costs is [sic] assessed to the
defendant.” (Id. at 10.)
{¶7} The trial court issued a written Judgment Entry/Sentencing in each of
the cases on March 21, 2013, memorializing the sentences imposed and ordering
Wilkerson “to pay the costs of prosecution and any fees permitted pursuant to
Ohio Revised Code Sections 2929.18(A) and 2947.23.” (R. 1 at 89; R. 2 at 93.)
The written judgment entry did not reiterate the court’s findings in support of
imposing consecutive sentences.
{¶8} Wilkerson filed a timely notice of appeal alleging two assignments of
error for our review.
First Assignment of Error
The Trial Court Acted Contrary to Law When It Ordered That
the Sentences Imposed in Appellant’s Two Cases Be Served
Consecutively.
Second Assignment of Error
The Trial Court Acted Contrary to Law When It Imposed
Financial Sanctions.
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First Assignment of Error
{¶9} Wilkerson argues that the trial court erred by failing to make certain
findings necessary for imposing consecutive sentences under R.C. 2929.14(C)(4).
He urges us to reverse those portions of the trial court’s judgments that require the
sentences to be served consecutively.2
{¶10} Under Ohio law, the general rule is that sentences of imprisonment
shall be served concurrently. R.C. 2929.41(A); State v. Barnhouse, 102 Ohio
St.3d 221, 2004-Ohio-2492, 808 N.E.2d 874, ¶ 11. An exception to this general
rule is found in R.C. 2929.14(C)(4), which authorizes the trial court to impose
consecutive sentences if certain specific findings are made on the record. State v.
Hites, 3d Dist. Hardin No. 6-11-07, 2012-Ohio-1892, ¶ 11; State v. Peddicord, 3d
Dist. Henry No. 7-12-24, 2013-Ohio-3398, ¶ 33. Under R.C. 2929.14(C)(4),
(4) If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the offender
to serve the prison terms consecutively if the court finds that the
consecutive service is necessary to protect the public from future
crime or to punish the offender and that consecutive sentences are
not disproportionate to the seriousness of the offender’s conduct and
to the danger the offender poses to the public, and if the court also
finds any of the following:
2
We notice that in his conclusion, likely by mistake, Wilkerson asks us to “reverse the portions of the
defendant’s sentences that * * * require the sentences be served concurrently.” (App’t Br. at 8-9; Reply Br.
at 7.) We believe his intention was to ask for a reversal of the imposition of consecutive sentences, as the
rest of his brief so indicates. (See, e.g., App’t Br. at 7 (asking us to “sustain Assignment of Error No. 1 and
reverse the consecutive sentences”).)
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(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.
{¶11} Therefore, in order to impose consecutive sentences, the trial court
must find on the record that (1) consecutive sentences are necessary to either
protect the public or punish the offender; (2) the sentences would not be
disproportionate to the offense committed and to the danger posed to the public by
the offender; and (3) the timing of the offense, the harm caused, or the offender’s
criminal history justify the imposition of consecutive sentences. Id.; Peddicord,
2013-Ohio-3398, at ¶ 33. Wilkerson asserts that the trial court failed to find that
consecutive sentences were not disproportionate to the seriousness of his conduct
and to the danger he posed to the public, as required by the statute. He argues that
the trial court’s words “necessary * * * to adequately punish you in a way that’s
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not disproportionate with other sentences this Court gives to impose the
consecutive sentences” are insufficient to satisfy the mandated standard. The State
responds that this language satisfied the statutory requirements and that the record
further shows that the trial court engaged in the correct analysis.
{¶12} The issue for our review is whether the trial court made the necessary
statutory findings to support Wilkerson’s consecutive sentences. “When a statute
directs a court to make findings before imposing a particular sentence, a failure to
make those findings is ‘contrary to law’ ” and the sentence must be overturned.
State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 12 (8th Dist.), quoting State v.
Jones, 93 Ohio St.3d 391, 399, 754 N.E.2d 1252 (2001); accord State v. Hill, 3d
Dist. Henry No. 7-12-11, 2013-Ohio-3873, ¶ 23; State v. Webb, 3d Dist. Marion
No. 9-03-64, 2004-Ohio-3555, ¶ 5. Therefore, if the trial court imposes
consecutive sentences without making the required R.C. 2929.14(C)(4) findings,
the resulting sentence is “clearly and convincingly contrary to law.” Hill, 2013-
Ohio-3873, at ¶ 23.
{¶13} An appellate court must conduct a meaningful review of the
imposition of consecutive sentences by the trial court. State v. Billeg, 3d Dist.
Wyandot No. 16-12-03, 2013-Ohio-219, ¶ 20; State v. Daughenbaugh, 3d Dist.
Wyandot No. 16-07-07, 2007-Ohio-5774, ¶ 8. If the appellate court determines
that the imposed sentence is clearly and convincingly contrary to law, it can
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“modify or vacate the sentence and remand the matter to the trial court for re-
sentencing.” Daughenbaugh, 2007-Ohio-5774, at ¶ 8.
{¶14} “The trial court is not required to recite any ‘magic’ or ‘talismanic’
words when imposing consecutive sentences, as long as it is ‘clear from the record
that the trial court engaged in the appropriate analysis.’ ” State v. Bentley, 3d Dist.
No. 9-12-31, 2013-Ohio-852, ¶ 13, quoting State v. Murrin, 8th Dist. Cuyahoga
No. 83714, 2004-Ohio-3962, ¶ 12. Nevertheless, the trial court is not relieved
from the duty to make the specific findings; therefore implied findings will not
suffice. See State v. Spencer, 8th Dist. Cuyahoga No. 99729, 2014-Ohio-204, ¶ 4;
Venes, 2013-Ohio-1891, at ¶ 14. In order to satisfy the statutory requirement of
making the specific findings, the record must reflect that the trial court engaged in
the analysis called for by the statute and selected the appropriate statutory criteria.
Spencer, 2014-Ohio-204, at ¶ 4; State v. Wills, 2d Dist. Montgomery No. 25357,
2013-Ohio-4507, ¶ 29; State v. Whitaker, 2013-Ohio-4434, 999 N.E.2d 278, ¶ 77
(12th Dist.); State v. Mitchell, 3d Dist. Crawford No. 3-01-20, 2002 WL 468586,
*2 (2002); State v. Moore, 142 Ohio App.3d 593, 597, 756 N.E.2d 686 (4th Dist.
2001). It follows that we will not read the trial court’s comments as implying the
proper findings if the record lacks any indication that those specific findings were
made. The record must reflect “separate and distinct” findings for imposing
consecutive sentences. Spencer, 2014-Ohio-204, at ¶ 2.
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{¶15} The State argues that that the comment made by the trial court
regarding proportionality of Wilkerson’s punishment to other sentences imposed
by the trial court and the statement that the consecutive sentences are necessary to
protect the public show that the trial court engaged in the proper analysis.
Wilkerson disagrees. A review of other cases on point decided by Ohio appellate
courts after the new version of R.C. 2929.14(C)(4) was enacted is instructive in
resolving the argument.
{¶16} In State v. Temple, the Second District Court of Appeals analyzed the
trial court’s statements and held that although the trial court did not use the
statutory language, the record showed that the proper analysis was applied. 2d
Dist. Clark No.2012-CA-65, 2013-Ohio-3843, ¶ 22-26.
The record indicates that the trial court made the first finding
required by R.C. 2929.14(C)(4) when the court referred to the need
to punish the offender and to protect the community from future
crime. Additionally, the trial court noted that Temple showed no
remorse for abusing J.B. “[A]n offender ‘is likely to commit future
crimes’ if ‘[t]he offender shows no genuine remorse for the offense.’
” State v. Newcomb, 10th Dist. Franklin No. 04AP-1223, 2005-Ohio-
4570, ¶ 28, quoting R.C. 2929.12(D)(5). Accordingly, Temple’s lack
of remorse indicates a need to protect the community from future
crimes.
The second required finding is referred to when the trial court
discussed the seriousness of the offender’s conduct, and noted that
Temple’s offenses were the most severe, given their nature and
duration.
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The third finding under section (b) of the statute is satisfied, because
the trial court recognized that Temple’s four convictions were based
on a series of events that occurred over a two and one-half year
period. This indicates that Temple’s offenses were not based on one
course of conduct, but that each offense was based on numerous
courses of conduct that occurred over a long period of time. The trial
court also recognized the negative effect the abuse had on J.B., the
long duration of the abuse, and the disturbing way in which the
abuse was inflicted. This indicates that the court considered the
degree of harm that was caused by Temple’s offenses, and that the
court found it sufficient to warrant consecutive sentences.
Id. at ¶¶ 23-25.
{¶17} The Eleventh District Court of Appeals recently reviewed an issue of
sufficiency of the trial court’s R.C. 2929.14(C)(4) findings in State v. Koeser, 11th
Dist. Portage No. 2013-P-0041, 2013-Ohio-5838. In that case, the trial court
found that the defendant had pled guilty to three distinct counts “each of which
was committed on February 15, 2012, at [the defendant’s] residence,” that the
defendant “was involved in the manufacture of a ‘bus load’ of marijuana and
psilocin mushrooms at that time, and that this activity occurred in the presence of
[the defendant’s] child.” Id. at ¶ 27. The Court of Appeals found these specific
findings sufficient to satisfy the factor that “at least two of the offenses were
committed as part of a course of conduct.” Id. The trial court also commented
that the defendant’s “involvement in these crimes ‘[p]ut her daughter in danger,’ ”
that “there has to be a clear message sent that this is not going to be tolerated,
especially around children this cannot be tolerated,” and “You cannot tell me that
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a normal person would feel that a bus load of mushrooms and pot would be a
minor misdemeanor, or a misdemeanor offense, or something less than that.” Id.
at ¶ 28-29. These statements were sufficient to satisfy the required finding that
“the harm caused by two or more of the offenses was so great or unusual that no
one prison term for any of the offenses adequately reflects the seriousness of [the
defendant’s] conduct.” Id. One of the appellate judges dissented from this
decision criticizing the majority’s holding as one inferring the proper findings “by
piecing together statements made at sentencing.” Id. at ¶ 42, (O’Toole, J.,
dissenting). We note, however, that the findings in Koeser more closely
resembled the requirements of the statute than the findings in the current case
because although the appellate court had to “piece[] together” the trial court’s
statements, the findings sufficient for “piecing together” were present in the
court’s comments on the record.
{¶18} In a case from the Twelfth District Court of Appeals, State v.
Whitaker, the trial court explained that it imposed consecutive sentences “because
of the seriousness of the offense” and that “[c]oncurrent sentences simply would
demean the seriousness of the offense and would not amply protect the public
from future crime by the Defendant.” 2013-Ohio-4434, at ¶ 78. The trial court
further noted that
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the offenses consisted of two separate incidents of kidnapping and
assaulting the same victim, the two incidents were approximately a
week apart and thus did not “just happe[n] at the spur of the
moment,” the offenses were not isolated offenses but rather were
“one of many offenses, at least four in the last twenty years,” and in
fact, appellant had “spent quite a bit of time in prison” for a previous
offense involving another female victim.
The trial court also stated this was “the worst” case it had ever seen
in 30 years of being on the bench, appellant came close to killing the
victim during the December 3, 2011 incident, and based on the two
2011 incidents and appellant’s criminal history, appellant was a
“very dangerous person.” The trial court noted that when appellant
was released in 2006 or 2007 after serving prison time for a previous
offense, he was released against the will of the prosecutors that had
handled the case, and “it wasn’t that long after his release that these
offenses were committed.”
Id. at ¶¶ 79-80. The court of appeals determined that the above comments were
sufficient to prove that the trial court engaged in the required analysis and selected
the appropriate statutory criteria because “the language employed by the trial court
complie[d] with the statutory requisites.” Id. at ¶¶ 78, 81. We note that in that
case the trial court did not expressly engage in the proportionality analysis on the
record, although it noted that the defendant was a “very dangerous person.” Id.at ¶
79-80.
{¶19} In contrast to the above cases, which hold that the record sufficiently
showed that the trial court engaged in the proper R.C. 2929.14(C)(4) analysis,
stand the holdings of the courts below, including this court. We recently reversed
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the trial court’s imposition of consecutive sentences, where the trial court
imposing consecutive sentences stated,
These, the court finds, are ordered to be served consecutively as a
result of these crimes being ones that are multiple in nature, and the
harm committed was so great or unusual that no single prison term
for the offenses as a whole should be imposed by the court
consistent with the seriousness of the defendant’s conduct bringing
about the results of this criminal activity.
State v. Billenstein, 3d Dist. Mercer No. 10-13-10, 2014-Ohio-255, ¶ 69. We held
that although the trial court’s statements satisfied R.C. 2929.14(C)(4)(b), they
were insufficient for “the other two necessary findings.” Id. at ¶¶ 68-69.
Similarly, we reversed the imposition of consecutive sentences in Peddicord,
2013-Ohio-3398, where “the trial court stated that it considered the factors set
forth in R.C. 2929.14,” but “it did not make any of the three statutory findings that
are required by R.C. 2929.14(C).” Id. at ¶ 33. In State v. Upkins, 3d Dist. Shelby
No. 17-12-13, 2012-Ohio-6114, “[t]he trial court specified that it ‘considered the
consecutive factors under R.C. 2929.14(C)(4),’ ” but it did not make “a finding
that 1) consecutive sentences were necessary for the statutory reasons or 2) that
consecutive sentences were not disproportionate.” Id. at ¶ 4. Although the trial
court in Upkins discussed the defendant’s past criminal history, which might
satisfy the third finding required by the statute, the remaining findings were
lacking. Id.
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{¶20} In the Second District’s case, State v. Cade, 2d Dist. Clark No. 2012-
CA-72, 2013-Ohio-5162, the trial court discussed the defendant’s extensive
criminal record when analyzing the seriousness and recidivism factors required
under another section of the Revised Code.3 Id. at ¶ 8. The trial court then found
that the defendant was on post-release control at the time of his offenses and that
“the Defendant’s history of criminal conduct demonstrates that consecutive
sentences are necessary.” Id. at ¶ 11. The Court of Appeals held that the trial
court failed “to find that consecutive sentences were ‘necessary to protect the
public from future crime or to punish the offender’ ” and that they were “ ‘not
disproportionate to the seriousness of the offender’s conduct and to the danger the
offender poses to the public.’ ” Id. at ¶¶ 11-12, quoting R.C. 2929.14(C)(4). In
yet another Second District’s case, State v. Wills, 2013-Ohio-4507, the trial court
made multiple statements emphasizing how outrageous the defendant’s conduct
was. Defending the trial court’s decision to impose consecutive sentences, the
State argued that “the findings necessary for the imposition of consecutive
sentences are ‘implicit’ in the court’s remarks at sentencing.” Id. at ¶ 31. The
appellate court rejected the State’s argument, holding that “[w]hile the trial court
was not required to recite the exact language of R.C. 2929.14(C)(4), the trial court
3
See R.C. 2929.12.
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was nevertheless required to make the specific findings required by the statute,
and we are hesitant to impute our interpretation to the trial court’s comments.” Id.
{¶21} The Eight District Court of Appeals also recently reversed a case on
the grounds that the trial court did not properly make the required findings before
imposing consecutive sentences. Venes, 2013-Ohio-1891. In that case, the trial
court made no specific findings but only stated,
The court has reviewed for purposes of sentencing, and the need to
protect the public, [sic] the court finds that sentencing you on any
less than four counts of this indictment would seriously demean the
crime involved here, which is cyber-porn of children and the court
will impose the sentence that I imposed originally on this case.
I see no reason to deviate downward and I will not deviate upward
even based on the diagnosis of pedophilia because I believe that the
court’s sentence is ample to cover that diagnosis.
Id. at ¶ 23. In reviewing the sentence, the court of appeals noted that some of the
trial court’s statements could possibly “be pieced together and found, however
remotely, to encompass the findings necessary to impose consecutive sentences.
But for us to engage in that kind of review defeats the purpose of R.C.
2929.14(C)(4).” Id.at ¶ 24. Rejecting the State’s invitation to use the trial court’s
comments scattered through five different pages of the trial transcript, the
appellate court stated,
regardless of what the trial judge might say during sentencing
regarding the purposes and goals of criminal sentencing, compliance
with R.C. 2929.14(C)(4) requires separate and distinct findings in
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addition to any findings relating to purposes and goals of criminal
sentencing. Too often, we have been called to examine words or
phrases scattered throughout a sentencing transcript and piece them
together to decide whether the court made the required findings. * *
* If the word “findings” is to have any meaning at all, it means
nothing less than the court must “engage[ ] in the required analysis
and select[ ] the appropriate statutory criteria” before ordering
sentences to be served consecutively. State v. Edmonson, 86 Ohio
St.3d 324, 326, 715 N.E.2d 131 (1999). Only then will the
imposition of consecutive sentences not be contrary to law.
We recognize that this strict approach will likely cause the reversal
of some consecutive sentences. However, a long-view approach will
ultimately result in far fewer appeals of consecutive sentences.
(Alterations in original.) Id. at ¶¶ 17-18.
{¶22} The same court in its recent decision, State v. Spencer, affirmed its
previous holding rejecting an argument that “certain things said by the court were
‘conceptually equivalent’ to the findings required by the statute,” and held that
“the court’s statements in the record that might support a finding were not the
same as making a finding.” 2014-Ohio-204, ¶ 4, citing State v. Cvijetinovic, 8th
Dist. Cuyahoga No. 81534, 2003-Ohio-563. In Spencer, the trial court stated that
the defendant’s crime was “one of the worst examples of criminal nonsupport.”
Id. at ¶ 3. The trial court further commented that it believed that the consecutive
sentences were necessary “as a result of [the defendant’s] continued disrespect for
this law, disrespect for his kids, disrespect for obeying these proceedings.” Id.
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The appellate court held that the trial court’s comments were insufficient to satisfy
“any of the findings necessary to impose consecutive sentences.” Id. at ¶ 5.
{¶23} Moving on to the case at issue and comparing it to the above-cited
decisions, we recognize that this is a close case. But in order to avoid
“frustrat[ing] the purposes underlying the requirement for findings as a predicate
for ordering consecutive sentences,” we must distinguish between findings that are
weak but sufficient and no findings at all. See Venes, 2013-Ohio-1891, at ¶ 14.
Here, the trial court satisfied the first required finding of R.C. 2929.14(C)(4), by
stating that the consecutive sentences were “necessary to protect the public and to
adequately punish you.” (Sentencing Tr. at 8.) The third element, which is one of
the three additional ((a), (b), (c)) factors of R.C. 2929.14(C)(4), might be satisfied
by the trial court’s reference to “[t]he number of convictions,” and being “out on
bond” while continuing “in this course of criminal conduct.” (Id.at 7-8.)
{¶24} We find the greatest problem with the second element of R.C.
2929.14(C)(4), because the trial court did not note that it engaged in any analysis
regarding proportionality of the sentences imposed to Wilkerson’s conduct or to
the danger he posed to the public. While the language “punish you in a way that’s
not disproportionate with other sentences this court gives to impose consecutive
sentences,” might arguably satisfy the part of the statutory analysis that calls for
comparing the consecutive sentences to seriousness of the offender’s conduct, this
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language would require us to engage in a series of inferences suggested by the
State. (See Appellee’s Br. at 7 (“There is no way the trial court could have
analyzed the proportionality of the defendant’s conduct to other cases without
considering the proportionality of the defendant’s sentence with his own conduct
in his own case.”)) Furthermore, this language could not be used to say that the
trial court found the sentence was not disproportionate to the danger Wilkerson
posed to the public. Indeed, the record lacks any reference to the proportionality
of the consecutive sentences to the danger Wilkerson poses to the public.
Accordingly, we hold that no such finding was made on the record.
{¶25} The trial court’s failure to make all of the required specific findings
for imposition of consecutive sentences resulted in Wilkerson’s sentence being
contrary to law. As such, Wilkerson’s first assignment of error is sustained.
Second Assignment of Error
{¶26} In his second assignment of error, Wilkerson challenges the trial
court’s imposition of financial sanctions upon him. In particular, Wilkerson points
to discrepancy between the statement “costs is [sic] assessed to the Defendant,”
made at the sentencing hearing, and the statement in the judgment entry that orders
him “to pay the costs of prosecution and any fees permitted pursuant to Ohio
Revised Code Sections 2929.18(A) and 2947.23.” (Sentencing Tr. at 10; J. Entry
at 2.)
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{¶27} Because our resolution of the first assignment of error requires that
Wilkerson be resentenced, this assignment of error is moot. The trial court can
consider and address imposition of any financial sanctions at Wilkerson’s
resentencing hearing.
Conclusion
{¶28} Having found error prejudicial to Appellant, we reverse the trial
court’s judgments and remand these matters to the trial court for resentencing
consistent with this opinion. The judgments of the Common Pleas Court in Logan
County, Ohio, are thereby reversed.
Judgments Reversed and
Causes Remanded
ROGERS and SHAW, J.J., concur.
/jlr
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State v. Wilkerson
Combined Opinion