[Cite as State v. Percy, 2024-Ohio-664.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 112861 v. :
SURFIN PERCY, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: February 22, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-630140-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Kristen Hatcher, Assistant Prosecuting Attorney, for appellee.
Allison S. Breneman, for appellant.
FRANK DANIEL CELEBREZZE, III, J.:
Appellant Surfin Percy (“appellant”) brings this appeal challenging the
imposition of consecutive sentences by the Cuyahoga County Court of Common
Pleas. After a thorough review of the applicable law and facts, we affirm the
judgment of the trial court. I. Factual and Procedural History
This court previously reviewed appellant’s direct appeal from his
convictions and sentence arising from his sexual abuse of his daughter. State v.
Percy, 8th Dist. Cuyahoga No. 109502, 2021-Ohio-1876 (“Percy I”). The opinion set
forth the procedural history of the case as follows:
Percy pleaded guilty to two counts of rape, one count of gross sexual imposition, and one count of child endangering. The charges were filed after B.P., a minor child, revealed that Percy had raped and assaulted her on multiple occasions.
At sentencing, the state asked the court to order consecutive sentences on the two rape convictions, to be served concurrently with the sentences on the gross sexual imposition and child endangering counts. (Tr. 25.) Defense counsel asked for the two rape convictions to be served concurrently with each other and with the sentences imposed on the other convictions, but acknowledged that Percy’s sentence was ultimately within the court’s discretion. (Tr. 25.)
The court sentenced Percy to 60 months on the gross sexual imposition conviction, eight years on the child endangering conviction, and 11 years on each of the rape convictions. The court ordered the 11-year prison terms on the two rape convictions to be served consecutively to each other but concurrently with the child endangering and gross sexual imposition convictions, for an aggregate 22-year prison sentence. * * *
Id. at ¶ 3-5.
In Percy I, appellant argued, inter alia, that the trial court erred in
imposing consecutive sentences in this matter. Upon review of the sentencing
transcript, we determined that the trial court had not made one of the findings under
R.C. 2929.14(C)(4) to support the imposition of consecutive sentences:
The trial court found that consecutive sentences were necessary to protect the public and to punish Percy. The court also found that consecutive sentences were not disproportionate to the seriousness of Percy’s conduct and to the danger he poses to the public. However, the trial court failed to make the third finding.
The third finding may be one of three alternatives. Because Percy had no prior criminal history and was not under supervision when the alleged crimes occurred, the only possible alternative was a finding under R.C. 2929.14(C)(4)(b). As previously stated, that section provides:
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.
R.C. 2929.14(C)(4)(b). “The statute requires the trial court to find both that (1) the offenses were committed as one or more courses of conduct, and (2) the harm caused was so great or unusual that a single prison term is not an adequate reflection on the seriousness of the conduct.” State v. McKinney, 8th Dist. Cuyahoga No. 106377, 2019-Ohio-1118, ¶ 60.
Although the court found that the “danger that was imposed” on the victim “was so great that it warranted consecutive sentences[,]” the court failed to also find that the offenses were committed as one or more courses of conduct as required by R.C. 2929.14(C)(4)(b). Therefore, the trial court failed to make the third finding required for the imposition of consecutive sentences.
Id. at ¶ 12-14.
We remanded the matter to the trial court for “the limited purpose of
addressing the consecutive-sentence requirements set forth in R.C. 2929.14(C)(4).”
Id. at ¶ 28.
On remand, the trial court held a limited resentencing hearing and
stated as follows: Each rape will be sentenced consecutively. And the Court makes the following findings with reference to this sentence: The Court finds that consecutive sentences are necessary to protect the public from future crimes; the Court finds that consecutive sentences are not disproportionate to the seriousness of the offender’s conduct; the Court finds that consecutive sentences are necessary to protect — to punish the offender; and the Court finds that consecutive sentences are not disproportionate to the danger the offender poses to the public and to his family.
The Court further finds that 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 multiple offenses so committed were 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.
In arriving at the necessity to impose consecutive sentences[,] the Court further finds that the danger that was imposed to this young person was so great that it warranted consecutive sentences.
Appellant then filed the instant appeal, raising one assignment of error
for our review:
The trial court erred by imposing consecutive sentences.
II. Law and Analysis
In his sole assignment of error, appellant argues that the trial court
erred by failing to support the statutory findings made at the resentencing hearing,
in particular the finding that the multiple offenses were committed as part of one or
more courses of conduct.
The state notes that facts were placed on the record at the original
sentencing hearing, including statements by the prosecutor, the victim, and her
mother, that fully support the imposition of consecutive sentences. This court has held that the proper remedy for correcting an error
during the imposition of consecutive sentences is not a de novo hearing; rather, it is
a limited remand for the purpose of determining whether consecutive sentences
should be imposed and to make those findings, if warranted. State v. Matthews, 8th
Dist. Cuyahoga No. 102217, 2015-Ohio-4072, ¶ 18, citing State v. Frost, 8th Dist.
Cuyahoga No. 100498, 2014-Ohio-2645, ¶ 10.
As discussed in Percy I, consecutive sentences may be imposed if the
trial court makes the findings under R.C. 2929.14(C)(4). A trial court is not required
to recite the statutory language verbatim, nor is it required to state its reasons to
support its findings “‘“provided that the necessary findings can be found in the
record and are incorporated in the sentencing entry.”’” State v. Saxon, 8th Dist.
Cuyahoga No. 111493, 2023-Ohio-306, at ¶ 17, quoting State v. Sheline, 8th Dist.
Cuyahoga No. 106649, 2019-Ohio-528, ¶ 176, quoting State v. Bonnell, 140 Ohio
St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. If the findings are made, our review
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[Cite as State v. Percy, 2024-Ohio-664.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 112861 v. :
SURFIN PERCY, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: February 22, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-630140-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Kristen Hatcher, Assistant Prosecuting Attorney, for appellee.
Allison S. Breneman, for appellant.
FRANK DANIEL CELEBREZZE, III, J.:
Appellant Surfin Percy (“appellant”) brings this appeal challenging the
imposition of consecutive sentences by the Cuyahoga County Court of Common
Pleas. After a thorough review of the applicable law and facts, we affirm the
judgment of the trial court. I. Factual and Procedural History
This court previously reviewed appellant’s direct appeal from his
convictions and sentence arising from his sexual abuse of his daughter. State v.
Percy, 8th Dist. Cuyahoga No. 109502, 2021-Ohio-1876 (“Percy I”). The opinion set
forth the procedural history of the case as follows:
Percy pleaded guilty to two counts of rape, one count of gross sexual imposition, and one count of child endangering. The charges were filed after B.P., a minor child, revealed that Percy had raped and assaulted her on multiple occasions.
At sentencing, the state asked the court to order consecutive sentences on the two rape convictions, to be served concurrently with the sentences on the gross sexual imposition and child endangering counts. (Tr. 25.) Defense counsel asked for the two rape convictions to be served concurrently with each other and with the sentences imposed on the other convictions, but acknowledged that Percy’s sentence was ultimately within the court’s discretion. (Tr. 25.)
The court sentenced Percy to 60 months on the gross sexual imposition conviction, eight years on the child endangering conviction, and 11 years on each of the rape convictions. The court ordered the 11-year prison terms on the two rape convictions to be served consecutively to each other but concurrently with the child endangering and gross sexual imposition convictions, for an aggregate 22-year prison sentence. * * *
Id. at ¶ 3-5.
In Percy I, appellant argued, inter alia, that the trial court erred in
imposing consecutive sentences in this matter. Upon review of the sentencing
transcript, we determined that the trial court had not made one of the findings under
R.C. 2929.14(C)(4) to support the imposition of consecutive sentences:
The trial court found that consecutive sentences were necessary to protect the public and to punish Percy. The court also found that consecutive sentences were not disproportionate to the seriousness of Percy’s conduct and to the danger he poses to the public. However, the trial court failed to make the third finding.
The third finding may be one of three alternatives. Because Percy had no prior criminal history and was not under supervision when the alleged crimes occurred, the only possible alternative was a finding under R.C. 2929.14(C)(4)(b). As previously stated, that section provides:
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.
R.C. 2929.14(C)(4)(b). “The statute requires the trial court to find both that (1) the offenses were committed as one or more courses of conduct, and (2) the harm caused was so great or unusual that a single prison term is not an adequate reflection on the seriousness of the conduct.” State v. McKinney, 8th Dist. Cuyahoga No. 106377, 2019-Ohio-1118, ¶ 60.
Although the court found that the “danger that was imposed” on the victim “was so great that it warranted consecutive sentences[,]” the court failed to also find that the offenses were committed as one or more courses of conduct as required by R.C. 2929.14(C)(4)(b). Therefore, the trial court failed to make the third finding required for the imposition of consecutive sentences.
Id. at ¶ 12-14.
We remanded the matter to the trial court for “the limited purpose of
addressing the consecutive-sentence requirements set forth in R.C. 2929.14(C)(4).”
Id. at ¶ 28.
On remand, the trial court held a limited resentencing hearing and
stated as follows: Each rape will be sentenced consecutively. And the Court makes the following findings with reference to this sentence: The Court finds that consecutive sentences are necessary to protect the public from future crimes; the Court finds that consecutive sentences are not disproportionate to the seriousness of the offender’s conduct; the Court finds that consecutive sentences are necessary to protect — to punish the offender; and the Court finds that consecutive sentences are not disproportionate to the danger the offender poses to the public and to his family.
The Court further finds that 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 multiple offenses so committed were 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.
In arriving at the necessity to impose consecutive sentences[,] the Court further finds that the danger that was imposed to this young person was so great that it warranted consecutive sentences.
Appellant then filed the instant appeal, raising one assignment of error
for our review:
The trial court erred by imposing consecutive sentences.
II. Law and Analysis
In his sole assignment of error, appellant argues that the trial court
erred by failing to support the statutory findings made at the resentencing hearing,
in particular the finding that the multiple offenses were committed as part of one or
more courses of conduct.
The state notes that facts were placed on the record at the original
sentencing hearing, including statements by the prosecutor, the victim, and her
mother, that fully support the imposition of consecutive sentences. This court has held that the proper remedy for correcting an error
during the imposition of consecutive sentences is not a de novo hearing; rather, it is
a limited remand for the purpose of determining whether consecutive sentences
should be imposed and to make those findings, if warranted. State v. Matthews, 8th
Dist. Cuyahoga No. 102217, 2015-Ohio-4072, ¶ 18, citing State v. Frost, 8th Dist.
Cuyahoga No. 100498, 2014-Ohio-2645, ¶ 10.
As discussed in Percy I, consecutive sentences may be imposed if the
trial court makes the findings under R.C. 2929.14(C)(4). A trial court is not required
to recite the statutory language verbatim, nor is it required to state its reasons to
support its findings “‘“provided that the necessary findings can be found in the
record and are incorporated in the sentencing entry.”’” State v. Saxon, 8th Dist.
Cuyahoga No. 111493, 2023-Ohio-306, at ¶ 17, quoting State v. Sheline, 8th Dist.
Cuyahoga No. 106649, 2019-Ohio-528, ¶ 176, quoting State v. Bonnell, 140 Ohio
St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. If the findings are made, our review
of consecutive sentences is limited to whether the record clearly and convincingly
does not support the findings. R.C. 2953.08(G)(2)(a).
It is clear from the record that on remand at the limited resentencing
hearing, the trial court made all of the required statutory findings, and appellant
does not argue otherwise. As noted above, the court was not required to state any
further reasoning or support its findings. Consequently, our only consideration is
whether the record clearly and convincingly supports the findings. Appellant makes no argument on this point, and our independent review of the record does not lead
us to the conclusion that the record does not support the findings.
III. Conclusion
The trial court made the required statutory findings for the imposition
of consecutive sentences. Appellant’s sole assignment of error is overruled, and the
judgment of the trial court is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
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.
FRANK DANIEL CELEBREZZE, III, JUDGE
EILEEN A. GALLAGHER, P.J., and MICHELLE J. SHEEHAN, J., CONCUR