State v. Bryan

2017 Ohio 1532

• Court: Ohio Court of Appeals
• Decided: April 24, 2017
• Docket: CT2016-0056
• Status: Published

Opinion

[Cite as State v. Bryan, 2017-Ohio-1532.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. John W. Wise, J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : -vs- : : Case No. CT2016-0056 MICHAEL S. BRYAN : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Muskingum County Court of Common Pleas, Case No. CR2016-0234

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT ENTRY: April 24, 2017

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

GERALD ANDERSON II ERIC J. ALLEN Assistant Prosecuting Attorney 4605 Morse Road 27 North Fifth Street Suite 201 Box 189 Gahanna, OH 43230 Zanesville, OH 43702 Muskingum County, Case No. CT2016-0056 2

Gwin, P.J.

{¶1} Appellant Michael Bryan appeals from the October 11, 2016 judgment

entry/sentencing of the Muskingum County Court of Common Pleas. Appellee is the

State of Ohio.

Facts & Procedural History

{¶2} Appellant was involved in multiple drug transactions with a confidential

informant working with the Central Ohio Drug Enforcement Task Force between

November 16, 2015 and April 6, 2016, culminating in a raid of his residence on April 7,

2016.

{¶3} Appellant was indicted on one count of trafficking drugs (cocaine) and four

counts of trafficking drugs (methamphetamine) in violation of R.C. 2925.03(A)(1). Two of

these offenses were elevated due to school specifications. On September 21, 2016,

appellant pled guilty to the five counts of trafficking in drugs and appellee dismissed the

two school specifications. There was no joint recommendation as to appellant’s

sentence. Appellant waived a pre-sentence investigation and thus the trial court

sentenced appellant following the plea hearing. Appellant signed a plea of guilty on

September 21, 2016, acknowledging that even if consecutive sentences were not

mandatory, they may be imposed by the court. Further, that appellee would be

recommending an aggregate ten year sentence.

{¶4} At the sentencing hearing, counsel for appellant requested an aggregate

four year sentence, while counsel for appellee requested an aggregate ten year sentence.

Appellee argued appellant’s pattern of conduct was such that no single sentence would

adequately punish him or protect the public. Muskingum County, Case No. CT2016-0056 3

{¶5} The trial court stated at the sentencing hearing, “after reviewing the

defendant’s record, considering the seriousness and recidivism factors, and the purposes

and principles statutes, this Court finds that it would demean the seriousness of the

offense and not adequately protect the public to place the defendant on community

control.” The trial court then found a sentence of twenty-four months on each count was

appropriate. The trial court continued, “said sentences shall be served consecutive to

each other as not to demean the seriousness of the offenses and to protect the public, as

concurrent sentences would not adequately address the crimes committed herein.”

{¶6} The trial court issued a judgment entry of conviction on October 21, 2016.

As to consecutive sentences, the judgment entry stated the “periods of incarceration

imposed herein shall be served consecutive to one another for an aggregate prison

sentence of ten (10) years.”

{¶7} Appellant appeals from the judgment entry of his conviction and assigns the

following as error:

{¶8} “I. THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO

CONSECUTIVE SENTENCES AS THE COURT FAILED TO ENGAGE IN THE

REQUISITE THREE PART ANALYSIS REQUIRED TO SENTENCE A DEFENDANT TO

CONSECUTIVE SENTENCES BY FAILING TO FIND THAT ANY OF THE THREE

FACTORS LISTED IN 2929.14(C)(4)(a)-(c) APPLIED.”

I.

{¶9} Appellant contends the trial court failed to make the requisite findings to

impose consecutive prison terms. Appellee concedes the third requisite finding, a finding

that any of the three factors listed in R.C. 2929.14(C)(4)(a)-(c), was not made on the Muskingum County, Case No. CT2016-0056 4

record at the sentencing hearing and was not incorporated into the court’s sentencing

entry.

{¶10} R.C. 2929.24(C)(4) states:

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:

(a) The offender committed one or more of the multiple offenses while

the offender was awaiting trial or sentencing * * * 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 the

consecutive sentences are necessary to protect the public from future crime

by the offender.

{¶11} In State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.2d 659,

the Ohio Supreme Court held, “in order to impose consecutive terms of imprisonment, a Muskingum County, Case No. CT2016-0056 5

trial court is required to make the findings mandated by R.C. 2929.14(C)(4) at the

sentencing hearing and incorporate its findings into the sentencing entry, but has no

obligation to state reasons to support its findings.” The sentencing court is not required

to give a “word-for-word” recitation of the language of the statute. Id. “[A]s 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. A failure to make the findings required by R.C.

2929.14(C)(4), however, renders a consecutive sentence contrary to law. Id. The

findings required by R.C. 2929.14(C)(4) must be made at the sentencing hearing and

included in the sentencing entry. Id.

{¶12} In this case, the trial court found that consecutive sentences are necessary

to protect the public or to punish the offender and found that consecutive sentences are

not disproportionate to the seriousness of the conduct and the danger posed to the public,

as evidenced in the sentencing colloquy by the trial court. However, the trial court did not

make a finding as to any of the three options set forth in R.C. 2929.14(C)(4)(a)-(c). We

are thus unable to find the trial court made all of the findings required by R.C.

2929.14(C)(4) at the time it imposed consecutive sentences; neither did it incorporate all

of the necessary findings into its judgment entry. See State v. Hunter, 5th Dist. Licking

No. 15-CA-18, 2015-Ohio-3498. The state, in its appellate brief, concedes this error in

sentencing.

{¶13} We are unable to uphold the consecutive sentences on this record because

we cannot “discern that the trial court engaged in the correct analysis and can[not] Muskingum County, Case No. CT2016-0056 6

determine that the record contains evidence to support the findings.” Id., citing State v.

Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.2d 659.

{¶14} Appellant’s assignment of error is sustained. Appellant’s sentence is

vacated, and this matter is reversed and remanded to the trial court for resentencing.

By Gwin, P.J.,

Wise, John J., and

Baldwin, J., concur