State v. Holmes

2021 Ohio 3807

• Court: Ohio Court of Appeals
• Decided: October 27, 2021
• Docket: C-210194, C-210195, C-210196
• Status: Published

Opinion

[Cite as State v. Holmes, 2021-Ohio-3807.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NOS. C-210194 C-210195 Plaintiff-Appellee, : C-210196 TRIAL NOS. B-2002940A vs. : B-2003296A B-2003982 RUSSELL HOLMES, : O P I N I O N. Defendant-Appellant. :

Criminal Appeals Appeal From: Hamilton County Court of Common Pleas

Judgments Appealed From Are: Affirmed in Part, Sentences Vacated in Part, and Cause Remanded

Date of Judgment Entry on Appeal: October 27, 2021

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Keith Sauter, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Angela J. Glaser, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

MYERS, Judge.

{¶1} Defendant-appellant Russell Holmes pled guilty to breaking and

entering in the cases numbered B-2002940 and B-2003296 and to possession of a

fentanyl-related compound in the case numbered B-2003982. All offenses were

felonies of the fifth degree. The trial court imposed a sentence of sixth months in

prison for each charge, and ordered that the sentences be served consecutively,

resulting in an aggregate sentence of 18 months of imprisonment.

{¶2} Holmes now appeals, arguing in a single assignment of error that the

trial court erred in imposing consecutive sentences without making the findings

required by R.C. 2929.14(C)(4) during the sentencing hearing. The state concedes

that the trial court committed this error.

{¶3} Pursuant to R.C. 2953.08(G)(2)(a), we may modify or vacate a

defendant’s sentence only if we clearly and convincingly find that the record does not

support the trial court’s findings under relevant statutes (specifically

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) or that the sentence is

contrary to law. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d

1231, ¶ 22-23; State v. White, 2013-Ohio-4225, 997 N.E.2d 629, ¶ 5 (1st Dist.).

{¶4} When imposing consecutive sentences, the 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 its sentencing entry.” State v. Bonnell, 140 Ohio St.3d

209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus; State v. Arnold, 1st Dist. Hamilton

Nos. C-180664 and C-180670, 2020-Ohio-2706, ¶ 80. Holmes contends that

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although the trial court included all the necessary findings to support the imposition

of consecutive sentences in the sentencing entries, it failed to make the required

proportionality finding at the sentencing hearing. We agree.

{¶5} Former R.C. 2929.14(C)(4) provided that:

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, 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.

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(c) The offender’s history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future

crime by the offender.

{¶6} At the sentencing hearing, the trial court found that consecutive

sentences were necessary to protect the public and that Holmes was on community

control when these charges were incurred. While the trial court made two of the

required consecutive-sentencing findings, it failed to make the proportionality

finding under R.C. 2929.14(C)(4) that “consecutive sentences are not

disproportionate to the seriousness of the offender’s conduct and to the danger the

offender poses to the public.” See State v. Abdullaev, 1st Dist. Hamilton No. C-

200339, 2021-Ohio-2195, ¶ 6.

{¶7} Although the trial court made all required findings, including the

proportionality finding, in the sentencing entries, because the proportionality finding

was not made at the sentencing hearing and could not be discerned from the record,

we sustain Holmes’s assignment of error. Id. at ¶ 7. The consecutive nature of the

sentences is vacated, and this cause is remanded for a new sentencing hearing on

that issue. Id. The judgments of the trial court are otherwise affirmed.

Judgments affirmed in part, sentences vacated in part, and cause remanded.

ZAYAS, P.J., and BOCK, J., concur.

Please note: The court has recorded its own entry on the date of the release of this opinion.