[Cite as State v. Snider, 2014-Ohio-2184.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100319
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JOHN SNIDER
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-12-568969
BEFORE: E.A. Gallagher, J., Rocco, P.J., and Keough, J.
RELEASED AND JOURNALIZED: May 22, 2014
ATTORNEYS FOR APPELLANT
Joseph Medici
Jay Milano
Milano Pasch Medici
2639 Wooster Road
Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Brett Kyker
Assistant County Prosecutor
8th Floor, Justice Center
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶1} Defendant-appellant John Snider appeals his sentence that was rendered in
the Cuyahoga County Court of Common Pleas. Snider argues that the trial court erred in
imposing consecutive sentences without making required findings and that the imposition
of consecutive sentences was not supported by the record. Finding merit to the instant
appeal, we reverse and remand.
{¶2} On May 20, 2013, Snider pleaded guilty to three counts of pandering
sexually oriented matter involving a minor in violation of R.C. 2907.322(A)(2), 17 counts
of pandering in violation of R.C. 2907.322(A)(1) and one count of possession of criminal
tools.
{¶3} The trial court imposed two-year prison terms for each of the three
violations of R.C. 2907.322(A)(2) and ordered these terms to be served consecutively.
The trial court also sentenced Snider to two-year prison terms on the remaining counts of
pandering and a one-year prison term for possession of criminal tools. These counts
were ordered to be served concurrently. Snider appeals asserting the following two
assignments of error:
I. The trial court’s sentence was contrary to the law in imposing consecutive
sentences persuant [sic] to ORC 2929.14 & ORC 2953.08.
II. The trial court’s sentence was not supported by the record in the case
persuant [sic] to ORC 2929.14 & ORC 2953.08.
{¶4} When reviewing a felony sentence, we follow the standard of review set
forth in R.C. 2953.08(G)(2), which provides in relevant part:
The court hearing an appeal under division (A), (B), or (C) of this section
shall review the record, including the findings underlying the sentence or
modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a sentence
that is appealed under this section or may vacate the sentence and remand
the matter to the sentencing court for resentencing. The appellate court’s
standard for review is not whether the sentencing court abused its
discretion. The appellate court may take any action authorized by this
division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court’s findings under
division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of
section 2929.14, or division (I) of section 2929.20 of the Revised Code,
whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
Id.
{¶5} A sentence is not clearly and convincingly contrary to law where the trial
court considers the purposes and principles of sentencing under R.C. 2929.11 as well as
the seriousness and recidivism factors listed in R.C. 2929.12, properly applies postrelease
control and sentences a defendant within the permissible statutory range. State v. A.H.,
8th Dist. Cuyahoga No. 98622, 2013-Ohio-2525, ¶ 10, citing State v. Kalish, 120 Ohio
St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124.
{¶6} R.C. 2929.14(C)(4) authorizes the court to require an offender to serve
multiple prison terms consecutively for convictions on multiple offenses. 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.
{¶7} In the present case, the record reflects that the trial court failed to make the
findings required to impose consecutive sentences pursuant to R.C. 2929.14(C)(4). The
state concedes this error.
{¶8} Additionally, Snider argues that certain factual findings referenced by the
trial court at sentencing were incorrect and did not support the imposition of consecutive
sentences or any of the findings under R.C. 2929.14(C)(4). However, this court has
previously refused to review the propriety of hypothetical R.C. 2929.14(C)(4) findings
that a trial court did not, in fact, make. State v. Finney, 8th Dist. Cuyahoga No. 99646,
2014-Ohio-1054, ¶ 5. As we explained in Finney, this would be “putting the cart before
the horse.” The lack of the required findings prior to imposing consecutive sentences is
error, and we must vacate Snider’s sentence and remand for resentencing. State v.
Venes, 2013-Ohio-1891, 992 N.E.2d 453 (8th Dist.).
{¶9} Snider’s first assignment of error is sustained and we find his second
assignment of error to be moot at this time.
{¶10} Snider’s sentence is vacated, and this cause is remanded to the trial court to
consider whether consecutive sentences are appropriate under R.C. 2929.14(C)(4), and if
so, to enter the proper findings on the record.
{¶11} Reversed and remanded to the lower court for resentencing consistent with
this opinion.
It is ordered that appellant recover of 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.
EILEEN A. GALLAGHER, JUDGE
KENNETH A. ROCCO, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR