[Cite as State v. Hammond, 2013-Ohio-3727.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 99117
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
PARIS J. HAMMOND DEFENDANT-APPELLANT
JUDGMENT: REVERSED AND REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-558346
BEFORE: Kilbane, J., Celebrezze, P.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: August 29, 2013 ATTORNEYS FOR APPELLANT
Robert L. Tobik Chief Public Defender John T. Martin Assistant Public Defender 310 Lakeside Avenue Suite 200 Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor Edward Fadel Assistant County Prosecutor The Justice Center - 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 MARY EILEEN KILBANE, J.:
{¶1} Defendant-appellant, Paris Hammond (“Hammond”), appeals his sentence for
two counts of felonious assault. For the reasons set forth below, we reverse and remand
for resentencing.
{¶2} In January 2012, Hammond was charged in a ten-count indictment.1 Count
1 charged him with attempted murder. Counts 2-7 charged him with felonious assault.
Count 8 charged him with improperly discharging a firearm into a habitation. Count 9
charged him with the discharge of a firearm on or near a prohibited premises. Count 10
charged him with having a weapon while under disability. Each of Counts 1-9 carried
one- and three-year firearm specifications.
{¶3} Pursuant to a plea agreement, Hammond pled guilty to two amended counts
of felonious assault (Counts 2 and 4) with a three-year firearm specification. The
one-year firearm specification on both counts was deleted and Counts 1, 3, and 5-10 were
nolled. The trial court sentenced Hammond to three years in prison on the firearm
specification in Count 2, to be served prior to seven years in prison on the amended
felonious assault charge, and three years in prison on the firearm specification in Count 4,
to be served prior to eight years in prison on the base felonious assault charge. The trial
Hammond was a juvenile at the time of the offense and was bound over from juvenile court. 1 court merged the firearm specifications in both counts and ordered the base charges be
served consecutively for a total of 18 years in prison.
{¶4} Hammond now appeals, raising the following sole assignment of error for
review.
Assignment of Error
The trial court erred by imposing consecutive sentences when it failed to make findings required by R.C. 2929.14(C)(4).
{¶5} In the sole assignment of error, Hammond argues that the trial court erred in
sentencing him to consecutive sentences without making the required findings under R.C.
2929.14(C)(4).
{¶6} Recently, this court addressed the standard of review used by appellate courts
when reviewing challenges to the imposition of consecutive sentences in State v. Venes,
8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891. In Venes, we held that the standard of
review set forth by the Ohio Supreme Court in State v. Kalish, 120 Ohio St.3d 23,
2008-Ohio-4912, 896 N.E.2d 124, was no longer valid. We stated:
In [Kalish], the supreme court considered the relevant standard of review in the post-Foster era in which the findings necessary to impose consecutive sentences under former R.C. 2929.14(E)(4) had been declared unconstitutional. A plurality of the court held that R.C. 2953.08(G)(2) was inapplicable because it expressly related to “findings” that had been abrogated as unconstitutional. Instead, the plurality set forth the following method of reviewing criminal sentences: (1) is the sentence contrary to law and (2) if not, was it an abuse of discretion. Id. at ¶ 14-19.
Kalish, as is any plurality opinion, is of “questionable precedential value.” See Kraly v. Vannewkirk, 69 Ohio St.3d 627, 633, 635 N.E.2d 323 (1994). Nevertheless, panels of this court have found it persuasive, at least insofar as it was applied to sentencing in the post-Foster era. See, e.g., State v. Martinez, 8th Dist. No. 96222, 2011-Ohio-5832, ¶ 6, fn. 1.
The post-Foster era ended with the enactment of H.B. 86 and the revival of statutory findings necessary for imposing consecutive sentences under R.C. 2929.14(C)(4). By reviving the requirement for findings as a predicate for imposing consecutives, the ground offered by Kalish for rejecting the standard of review set forth in former R.C. 2953.08 — that it could not stand as a standard of review for a statute that improperly required findings of fact before imposing consecutive sentences — was nullified. With the basis for the decision in Kalish no longer valid, and given that Kalish had questionable precedential value in any event, we see no viable reasoning for continuing to apply the standard of review used in that case. Henceforth, we review consecutive sentences using the standard of review set forth in R.C. 2953.08.
Venes at ¶ 8-10.
{¶7} R.C. 2953.08(G)(2) provides two bases for a reviewing court to overturn the
imposition of consecutive sentences: the sentence is “otherwise contrary to law,” or the
reviewing court clearly and convincingly finds that “the record does not support the
sentencing court’s findings” under R.C. 2929.14(C)(4).
{¶8} R.C. 2929.14(C)(4) now requires that a trial court engage in a three-step
analysis in order to impose consecutive sentences. First, the trial court must find the
sentence is necessary to protect the public from future crime or to punish the offender.
Second, the trial court must find that consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender poses to the public.
Third, the trial court must find that at least one of the following applies: (a) the offender
committed one or more of the multiple offenses while awaiting trial or sentencing, while
under a sanction imposed pursuant to R.C. 2929.16, 2929.17, or 2929.18, or while 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 offenses 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; or (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. at 2929.14(C)(4)(a)-(c).
{¶9} “In making these findings, a trial court is not required to use ‘talismanic
words,’ however, it must be clear from the record that the trial court actually made the
findings required by statute.” State v. Marton, 8th Dist. Cuyahoga No. 99253,
2013-Ohio-3430, citing Venes at ¶ 14, 17; State v. Pierson, 1st Dist. Hamilton No.
C-970935, 1998 Ohio App. LEXIS 3812 (Aug. 21, 1998).
{¶10} In the instant case, the trial court reviewed the presentence investigation
report and heard from the victim through an impact letter and the victim’s mother. The
15-year-old victim was sitting on a porch when he was struck by a bullet from a gun fired
by Hammond. The victim is paralyzed, has damage to his liver and kidney, and a
shattered tailbone. At the hearing, the trial court spoke about Hammond’s criminal
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[Cite as State v. Hammond, 2013-Ohio-3727.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 99117
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
PARIS J. HAMMOND DEFENDANT-APPELLANT
JUDGMENT: REVERSED AND REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-558346
BEFORE: Kilbane, J., Celebrezze, P.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: August 29, 2013 ATTORNEYS FOR APPELLANT
Robert L. Tobik Chief Public Defender John T. Martin Assistant Public Defender 310 Lakeside Avenue Suite 200 Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor Edward Fadel Assistant County Prosecutor The Justice Center - 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 MARY EILEEN KILBANE, J.:
{¶1} Defendant-appellant, Paris Hammond (“Hammond”), appeals his sentence for
two counts of felonious assault. For the reasons set forth below, we reverse and remand
for resentencing.
{¶2} In January 2012, Hammond was charged in a ten-count indictment.1 Count
1 charged him with attempted murder. Counts 2-7 charged him with felonious assault.
Count 8 charged him with improperly discharging a firearm into a habitation. Count 9
charged him with the discharge of a firearm on or near a prohibited premises. Count 10
charged him with having a weapon while under disability. Each of Counts 1-9 carried
one- and three-year firearm specifications.
{¶3} Pursuant to a plea agreement, Hammond pled guilty to two amended counts
of felonious assault (Counts 2 and 4) with a three-year firearm specification. The
one-year firearm specification on both counts was deleted and Counts 1, 3, and 5-10 were
nolled. The trial court sentenced Hammond to three years in prison on the firearm
specification in Count 2, to be served prior to seven years in prison on the amended
felonious assault charge, and three years in prison on the firearm specification in Count 4,
to be served prior to eight years in prison on the base felonious assault charge. The trial
Hammond was a juvenile at the time of the offense and was bound over from juvenile court. 1 court merged the firearm specifications in both counts and ordered the base charges be
served consecutively for a total of 18 years in prison.
{¶4} Hammond now appeals, raising the following sole assignment of error for
review.
Assignment of Error
The trial court erred by imposing consecutive sentences when it failed to make findings required by R.C. 2929.14(C)(4).
{¶5} In the sole assignment of error, Hammond argues that the trial court erred in
sentencing him to consecutive sentences without making the required findings under R.C.
2929.14(C)(4).
{¶6} Recently, this court addressed the standard of review used by appellate courts
when reviewing challenges to the imposition of consecutive sentences in State v. Venes,
8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891. In Venes, we held that the standard of
review set forth by the Ohio Supreme Court in State v. Kalish, 120 Ohio St.3d 23,
2008-Ohio-4912, 896 N.E.2d 124, was no longer valid. We stated:
In [Kalish], the supreme court considered the relevant standard of review in the post-Foster era in which the findings necessary to impose consecutive sentences under former R.C. 2929.14(E)(4) had been declared unconstitutional. A plurality of the court held that R.C. 2953.08(G)(2) was inapplicable because it expressly related to “findings” that had been abrogated as unconstitutional. Instead, the plurality set forth the following method of reviewing criminal sentences: (1) is the sentence contrary to law and (2) if not, was it an abuse of discretion. Id. at ¶ 14-19.
Kalish, as is any plurality opinion, is of “questionable precedential value.” See Kraly v. Vannewkirk, 69 Ohio St.3d 627, 633, 635 N.E.2d 323 (1994). Nevertheless, panels of this court have found it persuasive, at least insofar as it was applied to sentencing in the post-Foster era. See, e.g., State v. Martinez, 8th Dist. No. 96222, 2011-Ohio-5832, ¶ 6, fn. 1.
The post-Foster era ended with the enactment of H.B. 86 and the revival of statutory findings necessary for imposing consecutive sentences under R.C. 2929.14(C)(4). By reviving the requirement for findings as a predicate for imposing consecutives, the ground offered by Kalish for rejecting the standard of review set forth in former R.C. 2953.08 — that it could not stand as a standard of review for a statute that improperly required findings of fact before imposing consecutive sentences — was nullified. With the basis for the decision in Kalish no longer valid, and given that Kalish had questionable precedential value in any event, we see no viable reasoning for continuing to apply the standard of review used in that case. Henceforth, we review consecutive sentences using the standard of review set forth in R.C. 2953.08.
Venes at ¶ 8-10.
{¶7} R.C. 2953.08(G)(2) provides two bases for a reviewing court to overturn the
imposition of consecutive sentences: the sentence is “otherwise contrary to law,” or the
reviewing court clearly and convincingly finds that “the record does not support the
sentencing court’s findings” under R.C. 2929.14(C)(4).
{¶8} R.C. 2929.14(C)(4) now requires that a trial court engage in a three-step
analysis in order to impose consecutive sentences. First, the trial court must find the
sentence is necessary to protect the public from future crime or to punish the offender.
Second, the trial court must find that consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender poses to the public.
Third, the trial court must find that at least one of the following applies: (a) the offender
committed one or more of the multiple offenses while awaiting trial or sentencing, while
under a sanction imposed pursuant to R.C. 2929.16, 2929.17, or 2929.18, or while 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 offenses 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; or (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. at 2929.14(C)(4)(a)-(c).
{¶9} “In making these findings, a trial court is not required to use ‘talismanic
words,’ however, it must be clear from the record that the trial court actually made the
findings required by statute.” State v. Marton, 8th Dist. Cuyahoga No. 99253,
2013-Ohio-3430, citing Venes at ¶ 14, 17; State v. Pierson, 1st Dist. Hamilton No.
C-970935, 1998 Ohio App. LEXIS 3812 (Aug. 21, 1998).
{¶10} In the instant case, the trial court reviewed the presentence investigation
report and heard from the victim through an impact letter and the victim’s mother. The
15-year-old victim was sitting on a porch when he was struck by a bullet from a gun fired
by Hammond. The victim is paralyzed, has damage to his liver and kidney, and a
shattered tailbone. At the hearing, the trial court spoke about Hammond’s criminal
record, noting that new charges were filed against Hammond and his membership with
the “Heartless Felons” gang. The court also spoke about the seriousness of the crime
and the impact on the victim, the victim’s family, and the community. {¶11} Hammond contends that the trial court’s discussion was insufficient to
satisfy the findings under R.C. 2929.14(C)(4) with respect to that trial court finding that
consecutive sentences are not disproportionate to the seriousness of the offender’s
conduct and to the danger the offender poses to the public. While we acknowledge that
the trial court gave thorough consideration of the factors regarding the purposes and goals
of criminal sentencing, we agree with Hammond in that the trial court must make separate
and distinct findings when it imposes consecutive sentences. Venes at ¶ 17.
{¶12} The record in the instant case does not reflect that the trial court conducted
the appropriate analysis required under R.C. 2929.14(C) in sentencing Hammond to
consecutive terms. The trial court made no reference or mention of the findings
necessary to support consecutive sentences.2 The term “consecutive” was not discussed
by the trial court until the court imposed the sentence. Thus, the trial court erred in
imposing consecutive sentences without making the requisite findings.
{¶13} Accordingly, the sole assignment of error is sustained.
{¶14} Judgment is reversed and the matter remanded to the trial court for a
resentencing hearing.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
2 This court has previously stated that “[t]rial courts can ensure compliance with the sentencing statutes by utilizing a worksheet and memorializing their findings from that worksheet on both the record and in the court’s journal entry.” State v. Alexander, 8th Dist. Cuyahoga No. 98762, 2013-Ohio-1987, ¶ 13, fn. 2. 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.
MARY EILEEN KILBANE, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and EILEEN A. GALLAGHER, J., CONCUR