[Cite as State v. Kenney, 2022-Ohio-2977.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio Court of Appeals No. L-21-1239
Appellee Trial Court No. CR0202002336
v.
Brian Keith Kenney DECISION AND JUDGMENT
Appellant Decided: August 26, 2022
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.
Laurel. A. Kendall, for appellant.
MAYLE, J.
{¶ 1} Defendant-appellant, Brian Kenney, appeals the October 29, 2021 judgment
of the Lucas County Court of Common Pleas, convicting him of two counts of attempted
felonious assault and sentencing him to 24 months’ imprisonment on each count, to be
served consecutively. For the following reasons, we affirm the trial court’s judgment. I. Background
{¶ 2} Brian Kenney was indicted on two counts of felonious assault, violations of
R.C. 2903.11(A)(1) and (D), second-degree felonies (Counts 1 and 4); rape, a violation of
R.C. 2907.02(A)(2) and (B), a first-degree felony (Count 2); and kidnapping, a violation
of R.C. 2905.01(A)(3) and (C), a first-degree felony (Count 3).
{¶ 3} On October 7, 2021, Kenney entered into a plea agreement with the state,
pursuant to which he would enter a plea of guilty under North Carolina v. Alford, 400
U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) to amended Counts 1 and 4, attempt to
commit felonious assault, violations of R.C. 2923.02 and 2903.11(A)(1) and (D), third-
degree felonies. In exchange, the state agreed to dismiss Counts 2 and 3 and to
recommend concurrent sentences. The trial court accepted Kenney’s plea, made a
finding of guilty, ordered a presentence investigation, and continued the matter for
sentencing.
{¶ 4} The sentencing hearing took place on October 28, 2021. The court imposed
prison terms of 24 months on each count, to be served consecutively for a total of 48
months, and up to three years’ mandatory postrelease control. The conviction and
sentence were memorialized in a judgment journalized on October 29, 2021.
{¶ 5} Kenney appealed. He assigns one error for our review:
2. The trial court erred to the prejudice of appellant by imposing
consecutive sentences over the state’s recommendation for concurrent
sentences, without to promote [sic] effective rehabilitation of the offender
using the minimum sanctions necessary to protect the public and punish the
offender.
II. Law and Analysis
{¶ 6} Kenney’s single assignment of error challenges the trial court’s imposition
of consecutive sentences. Kenney acknowledges that we review challenges to felony
sentences under R.C. 2953.08(G)(2). R.C. 2953.08(G)(2) provides that an appellate court
may increase, reduce, or otherwise modify a sentence or may vacate the sentence and
remand the matter to the sentencing court for resentencing 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.
{¶ 7} Because Kenney’s challenge concerns the trial court’s imposition of
consecutive sentences—imposed under R.C. 2929.14(C)(4)—R.C. 2953.08(G)(2)(a)
applies. To modify or vacate consecutive sentences under R.C. 2953.08(G)(2)(a), we
3. must clearly and convincingly find that the record does not support the sentencing court’s
findings under R.C. 2929.14(C)(4).
{¶ 8} Under R.C. 2929.14(C)(4), where a trial court imposes multiple prison terms
for convictions of multiple offenses, it may require the offender to serve the prison terms
consecutively if it finds that “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 it 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.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the offender.
4. {¶ 9} In other words, this statute requires the trial court to make three statutory
findings before imposing consecutive sentences. State v. Beasley, 158 Ohio St.3d 497,
2018-Ohio-493, 108 N.E.3d 1028, ¶ 252; State v. Bonnell, 140 Ohio St.3d 209, 2014-
Ohio-3177, 16 N.E.3d 659, ¶ 26. It must find that (1) consecutive sentences are
necessary to protect the public or to punish the offender; (2) consecutive sentences are
not disproportionate to the seriousness of the offender’s conduct and to the danger that
the offender poses to the public; and (3) R.C. 2929.14(C)(4)(a), (b), or (c) is applicable.
Beasley at ¶ 252. “[T]he trial court must make the requisite findings both at the
sentencing hearing and in the sentencing entry.” (Emphasis in original.) Id. at ¶ 253,
citing Bonnell at ¶ 37. While “a word-for-word recitation of the language of the statute is
not required,” a reviewing court must be able to discern that the trial court engaged in the
correct analysis and the record must contain evidence to support the trial court’s
findings. Bonnell at ¶ 29.
{¶ 10} The trial court made all three findings at both the sentencing hearing and in
the judgment entry. It found that consecutive sentences are necessary to protect the
public or to punish the offender, consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct and to the danger that the offender poses to the
public, and both R.C. 2929.14(C)(4)(b) and (c) applied.
{¶ 11} According to the record, as to Count 1, on September 24, 2020, Kenney
smashed a glass bottle over the head of his on-again-off-again girlfriend, R.D., then
5. stabbed her in the arm and shoulder with an unknown object, resulting in her being
transported by life squad to St. Vincent Hospital for medical treatment. As to Count 4,
on August 23, 2020, R.D. awoke in the hospital and remembered only that Kenney had
strangled her several times, over the course of days, to the point of her losing
consciousness. The victim ultimately refused to cooperate with the state in prosecuting
Kenney.
{¶ 12} Given the violent nature of Kenney’s conduct and the injuries he inflicted
on the victim, the record supports the trial court’s findings that consecutive service is
necessary to protect the public from future crime or to punish Kenney and that
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[Cite as State v. Kenney, 2022-Ohio-2977.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio Court of Appeals No. L-21-1239
Appellee Trial Court No. CR0202002336
v.
Brian Keith Kenney DECISION AND JUDGMENT
Appellant Decided: August 26, 2022
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.
Laurel. A. Kendall, for appellant.
MAYLE, J.
{¶ 1} Defendant-appellant, Brian Kenney, appeals the October 29, 2021 judgment
of the Lucas County Court of Common Pleas, convicting him of two counts of attempted
felonious assault and sentencing him to 24 months’ imprisonment on each count, to be
served consecutively. For the following reasons, we affirm the trial court’s judgment. I. Background
{¶ 2} Brian Kenney was indicted on two counts of felonious assault, violations of
R.C. 2903.11(A)(1) and (D), second-degree felonies (Counts 1 and 4); rape, a violation of
R.C. 2907.02(A)(2) and (B), a first-degree felony (Count 2); and kidnapping, a violation
of R.C. 2905.01(A)(3) and (C), a first-degree felony (Count 3).
{¶ 3} On October 7, 2021, Kenney entered into a plea agreement with the state,
pursuant to which he would enter a plea of guilty under North Carolina v. Alford, 400
U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) to amended Counts 1 and 4, attempt to
commit felonious assault, violations of R.C. 2923.02 and 2903.11(A)(1) and (D), third-
degree felonies. In exchange, the state agreed to dismiss Counts 2 and 3 and to
recommend concurrent sentences. The trial court accepted Kenney’s plea, made a
finding of guilty, ordered a presentence investigation, and continued the matter for
sentencing.
{¶ 4} The sentencing hearing took place on October 28, 2021. The court imposed
prison terms of 24 months on each count, to be served consecutively for a total of 48
months, and up to three years’ mandatory postrelease control. The conviction and
sentence were memorialized in a judgment journalized on October 29, 2021.
{¶ 5} Kenney appealed. He assigns one error for our review:
2. The trial court erred to the prejudice of appellant by imposing
consecutive sentences over the state’s recommendation for concurrent
sentences, without to promote [sic] effective rehabilitation of the offender
using the minimum sanctions necessary to protect the public and punish the
offender.
II. Law and Analysis
{¶ 6} Kenney’s single assignment of error challenges the trial court’s imposition
of consecutive sentences. Kenney acknowledges that we review challenges to felony
sentences under R.C. 2953.08(G)(2). R.C. 2953.08(G)(2) provides that an appellate court
may increase, reduce, or otherwise modify a sentence or may vacate the sentence and
remand the matter to the sentencing court for resentencing 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.
{¶ 7} Because Kenney’s challenge concerns the trial court’s imposition of
consecutive sentences—imposed under R.C. 2929.14(C)(4)—R.C. 2953.08(G)(2)(a)
applies. To modify or vacate consecutive sentences under R.C. 2953.08(G)(2)(a), we
3. must clearly and convincingly find that the record does not support the sentencing court’s
findings under R.C. 2929.14(C)(4).
{¶ 8} Under R.C. 2929.14(C)(4), where a trial court imposes multiple prison terms
for convictions of multiple offenses, it may require the offender to serve the prison terms
consecutively if it finds that “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 it 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.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the offender.
4. {¶ 9} In other words, this statute requires the trial court to make three statutory
findings before imposing consecutive sentences. State v. Beasley, 158 Ohio St.3d 497,
2018-Ohio-493, 108 N.E.3d 1028, ¶ 252; State v. Bonnell, 140 Ohio St.3d 209, 2014-
Ohio-3177, 16 N.E.3d 659, ¶ 26. It must find that (1) consecutive sentences are
necessary to protect the public or to punish the offender; (2) consecutive sentences are
not disproportionate to the seriousness of the offender’s conduct and to the danger that
the offender poses to the public; and (3) R.C. 2929.14(C)(4)(a), (b), or (c) is applicable.
Beasley at ¶ 252. “[T]he trial court must make the requisite findings both at the
sentencing hearing and in the sentencing entry.” (Emphasis in original.) Id. at ¶ 253,
citing Bonnell at ¶ 37. While “a word-for-word recitation of the language of the statute is
not required,” a reviewing court must be able to discern that the trial court engaged in the
correct analysis and the record must contain evidence to support the trial court’s
findings. Bonnell at ¶ 29.
{¶ 10} The trial court made all three findings at both the sentencing hearing and in
the judgment entry. It found that consecutive sentences are necessary to protect the
public or to punish the offender, consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct and to the danger that the offender poses to the
public, and both R.C. 2929.14(C)(4)(b) and (c) applied.
{¶ 11} According to the record, as to Count 1, on September 24, 2020, Kenney
smashed a glass bottle over the head of his on-again-off-again girlfriend, R.D., then
5. stabbed her in the arm and shoulder with an unknown object, resulting in her being
transported by life squad to St. Vincent Hospital for medical treatment. As to Count 4,
on August 23, 2020, R.D. awoke in the hospital and remembered only that Kenney had
strangled her several times, over the course of days, to the point of her losing
consciousness. The victim ultimately refused to cooperate with the state in prosecuting
Kenney.
{¶ 12} Given the violent nature of Kenney’s conduct and the injuries he inflicted
on the victim, the record supports the trial court’s findings that consecutive service is
necessary to protect the public from future crime or to punish Kenney and that
consecutive sentences are not disproportionate to the seriousness of Kenney’s conduct
and to the danger he poses to the public.
{¶ 13} The record also supports the trial court’s findings under R.C.
2929.14(C)(4)(b) and (c). As to (b), Kenney assaulted the victim multiple times over the
course of a month and the victim twice required medical treatment for the injuries he
inflicted. As to (c), the PSI reveals that Kenney has an extensive criminal history
consisting of eight felony convictions and 50 misdemeanor convictions as an adult.
Among those convictions are numerous offenses of violence. Accordingly, the record
supports the trial court’s findings that two of the multiple offenses were committed as
part of a course of conduct, and that the harm caused was so great or unusual that no
single prison term adequately reflects the seriousness of Kenney’s conduct and that
6. Kenney’s history of criminal conduct demonstrates that consecutive sentences are
necessary to protect the public from future crime.
{¶ 14} Kenney emphasizes that the general rule is that multiple prison sentences
should be served concurrently. However, this general rule is subject to exception under
R.C. 2929.14(C). The trial court properly imposed consecutive sentences under R.C.
2929.14(C)(4).
{¶ 15} Kenney also complains that the trial court ignored the state’s
recommendation that his sentences be served concurrently. But the trial court clearly
advised Kenney at his plea hearing that it was not obligated to accept the state’s
recommendation. This is consistent with Ohio law. See State v. Michalak, 6th Dist.
Lucas No. L-19-1170, 2020-Ohio-4543, ¶ 9, quoting State v. Harder, 6th Dist. Ottawa
No. OT-14-005, 2015-Ohio-795, ¶ 7 (“It is well-accepted that ‘[a] trial court is not bound
to accept the state’s recommended sentence in a plea agreement,’ and ‘[a] trial court does
not err in imposing a sentence greater than that recommended by the state under a
negotiated plea agreement where the trial court forewarns the defendant of the applicable
penalties, including the possibility of imposing a greater sentence than that recommended
by the prosecutor.’”). The record in this case reflects the trial court informed the
appellant at the plea hearing that it was not bound by the parties’ sentencing
recommendation.
7. {¶ 16} Finally, Kenney contends that there were numerous other factors that
weighed against the imposition of consecutive sentences, such as (1) the victim’s mental
health problems; (2) that fact that the victim recanted and refused to cooperate with the
state; (3) Kenney’s mental health problems, including his diagnoses of schizophrenia and
depression; (4) the fact that he has maintained his innocence; and (5) the difficulty the
state would have had to meet its burden had the matter proceeded to trial. While some of
these factors may be pertinent to the trial court’s considerations under R.C. 2929.11 and
2929.12—considerations that are not raised in Kenney’s assignment of error and are not
reviewable on appeal under State v. Jones, 163 Ohio St.3d, 2020-Ohio-6729, 169 N.E.3d
649—they are not pertinent to the trial court’s decision to impose consecutive sentences.
See State v. Watson, 6th Dist. Lucas No. L-19-1126, 2020-Ohio-4705, ¶ 20 (“R.C.
2929.11 and 2929.12 are not applicable to a review of consecutive sentences.”). The trial
court made the required findings under R.C. 2929.14(C)(4) and those findings are
supported by the record.
{¶ 17} We find Kenney’s single assignment of error not well-taken.
III. Conclusion
{¶ 18} The trial court made all the required findings and properly imposed
consecutive sentences under R.C. 2929.14(C)(4). Kenney has failed to show that the
court’s findings were clearly and convincingly not supported by the record. We find
Kenney’s sole assignment of error not well-taken and affirm the October 29, 2021
8. judgment of the Lucas County Court of Common Pleas. Kenney is ordered to pay the
costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. ____________________________ JUDGE Christine E. Mayle, J. ____________________________ Gene A. Zmuda, J. JUDGE CONCUR. ____________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
9.