[Cite as State v. Williams, 2017-Ohio-7461.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 28419
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
MARCELL WILLIAMS COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 2016 02 0513 (B)
DECISION AND JOURNAL ENTRY
Dated: September 6, 2017
HENSAL, Presiding Judge.
{¶1} Marcell Williams appeals his sentences for felonious assault and having weapons
while under disability from the Summit County Court of Common Pleas. For the following
reasons, this Court reverses.
I.
{¶2} Mr. Williams pleaded guilty to two counts of felonious assault, which included
firearm specifications, and one count of having weapons while under disability. The trial court
sentenced him to three years for each felonious assault count and three years for each
specification. It ordered those sentences to run consecutive to each other, but concurrent to a
three year sentence it imposed for the having weapons while under disability offense, for a total
prison term of twelve years. Although the court included the reasons consecutive sentences were
necessary in its sentencing entry, it did not state them on the record at the sentencing hearing.
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Mr. Williams has appealed his sentence, arguing that the trial court failed to make the required
findings before imposing consecutive sentences.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO
MAKE REQUIRED FINDINGS ON THE RECORD PRIOR TO SENTENCING
MR. WILLIAMS TO SERVE CONSECUTIVE TERMS IN PRISON.
{¶3} Mr. Williams argues that the trial court failed to make the findings required to
impose consecutive sentences under Revised Code Section 2929.14(C)(4). In reviewing a felony
sentence, “[t]he appellate court’s standard for review is not whether the sentencing court abused
its discretion.” R.C. 2953.08(G)(2). “[A]n appellate court may vacate or modify a felony
sentence on appeal only if it determines by clear and convincing evidence” that: (1) “the record
does not support the trial court’s findings under relevant statutes[,]” or (2) “the sentence is
otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1. Clear
and convincing evidence is that “which will produce in the mind of the trier of facts a firm belief
or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469
(1954), paragraph three of the syllabus.
{¶4} Section 2929.14(C)(4) provides that, “[i]f multiple prison terms are imposed on
an offender for convictions of multiple offenses,” the sentencing court may require the offender
to serve the 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[.]” The court must also 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
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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(C)(4)(a-c).
{¶5} In State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, the Ohio Supreme
Court held that Section 2929.14(C)(4) “requires the trial court to make statutory findings prior to
imposing consecutive sentences,” and that Criminal Rule 32(A)(4) “directs the court to state
those findings at the time of imposing sentence.” Id. at ¶ 26. It explained, however, that a
“word-for-word recitation of the language of the statute is not required[.]” Id. at ¶ 29. Instead,
“as long as the reviewing court can discern that the trial court engaged in the correct analysis and
can determine that the record contains evidence to support the findings, consecutive sentences
should be upheld.” Id.
{¶6} At the sentencing hearing, the trial court imposed a three year sentence on Mr.
Williams for one of the felonious assault counts and three years for the accompanying firearm
specification. Because those sentences were required to be served consecutively, the court told
him that “[t]hey run consecutive to each other.” After imposing three years for the other
felonious assault count and three years for its specification, the court stated: “They run
consecutive. Those run consecutive with each other. It’s a total of 12 years.” The trial court did
not explicitly make any of the findings required under Section 2929.14(C)(4) on the record or
state anything that could be construed as a finding under that section to explain why Mr.
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Williams had to serve the six total years he received for each felonious assault count consecutive
to the other. The State agrees that the court failed to make the required findings.
{¶7} Upon review of the record, we conclude that there is clear and convincing
evidence that the trial court did not make the findings required to impose consecutive sentences
on the record at the sentencing hearing and that its sentence, therefore, is contrary to law. See id.
Mr. Williams’s assignment of error is sustained.
III.
{¶8} Mr. Williams’s assignment of error is sustained. The judgment of the Summit
County Court of Common Pleas is reversed, and this matter is remanded for resentencing
consistent with this decision.
Judgment reversed,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
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Costs taxed to Appellee.
JENNIFER HENSAL
FOR THE COURT
CARR, J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
KRISTEN KOWALSKI, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.