State v. Williamson

2024 Ohio 327

• Court: Ohio Court of Appeals
• Decided: January 31, 2024
• Docket: CT2023-0049
• Status: Published

Opinion

[Cite as State v. Williamson, 2024-Ohio-327.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES: : Hon. Patricia A. Delaney, P.J. Plaintiff - Appellee : Hon. Craig R. Baldwin, J. : Hon. Andrew J. King, J. -vs- : : SHAWN L. WILLIAMSON : Case No. CT2023-0049 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2023-0174

JUDGMENT: Affirmed in part; Reversed and Remanded in part

DATE OF JUDGMENT: January 31, 2024

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RONALD L. WELCH CHRIS BRIGDON Prosecuting Attorney 8138 Somerset Rd Muskingum County, Ohio Thornville, Ohio 43076

By: John Connor Dever Assistant Prosecuting Attorney Muskingum County, Ohio 27 North Fifth Street., P.O. Box 189 Zanesville, Ohio 43702 Muskingum County, Case No. CT2023-0049 2

Baldwin, J.

{¶1} The appellant appeals his sentence after pleading guilty to multiple

offenses. Appellee is the State of Ohio.

STATEMENT OF THE FACTS AND THE CASE

{¶2} On or about February 23, 2023, the appellant stole a motor vehicle from

victim #1; law enforcement officers observed the appellant driving the stolen vehicle, and

a chase ensued. Officers subsequently located the stolen vehicle, abandoned. The

appellant was not apprehended at that time.

{¶3} In the early morning hours of March 2, 2023, the appellant walked into the

home of victim #2, asked to see a woman who did not live there, and left after victim #2

demanded he leave. The appellant returned and attempted to regain entry into victim #2’s

home, but was unable to do so. Later that same morning, law enforcement officers

received a call from victim #3, who heard banging on her door and discovered that her

car keys were missing from the table in her living room. She heard her vehicle “peel out”

of the driveway, and reported it stolen. Officers later learned that her car keys on the table

were attached to her wallet, the cash on her table was missing, and her back door had

been kicked in and the door frame broken.

{¶4} Later that morning, victim #4 called law enforcement and reported that he

was sitting on his couch when the appellant attempted to force his way into his home,

broke the door frame, and then threw a brick through the front window. The appellant was

yelling for a woman named Jessica Ross as he was forcefully trying to enter the victim’s

home. Ross left victim #4’s home with the appellant in the car that had been stolen from

victim #3. Muskingum County, Case No. CT2023-0049 3

{¶5} The appellant was subsequently spotted by law enforcement driving a

stolen Mercedes-Benz at a high rate of speed. It was later learned that the Mercedes-

Benz belonged to victim #5, and was stolen when the appellant broke into her garage. A

high speed chase ensued, at times reaching speeds in excess of 120 miles per hour.

During the chase the appellant ran vehicles off the road, failed to stop or yield at stop

signs, and the debris from the vehicle he was operating caused damage to a vehicle

owned by victim #6.

{¶6} Ultimately the appellant abandoned the Mercedes-Benz and ran off on foot.

Law enforcement officers located the appellant, and as they approached him he removed

a black hand-gun from his waistband and held it to his own head. Officers attempted to

persuade the appellant to drop his weapon, but he got away and proceeded to trespass

onto the property of yet another victim, enter a Ford Explorer in which the keys were

located, and steal the Ford. He was cut off by law enforcement when he tried to flee the

area, and again fled on foot. The Ohio State Highway Patrol Aviation Unit was called in

to assist, but to no avail.

{¶7} Law enforcement officers thereafter received reports that the appellant was

knocking on doors asking for water and a ride. The appellant was, finally, apprehended

by a deputy sheriff and his K-9 partner.

{¶8} The appellant was indicted on March 15, 2023, on nineteen counts in

connection with this crime spree, to which he pleaded not guilty at his March 22, 2023

arraignment. The parties negotiated a plea agreement, and the matter came before the

trial court on May 15, 2022, for a change of plea hearing at which the appellant pleaded

guilty to the following: Muskingum County, Case No. CT2023-0049 4

• Count one, receiving stolen property in violation of R.C. 2913.51(A),

a felony of the fourth degree;

• Count three, trespass in a habitation, as amended, in violation of

R.C. 2911.12(B), a felony of the fourth degree;

• Count four, burglary, with a repeat violent offender specification, in

violation of R.C. 2911.12(A)(1), a felony of the second degree;

• Counts five and nine, grand theft of a motor vehicle in violation of

R.C. 2913.02(A)(1), a felony of the fourth degree;

• Count twelve, failure to comply risk of harm, as amended, in violation

of R.C. 2921.331(B), a felony of the third degree;

• Count thirteen, obstruction of official business with a firearm

specification in violation of R.C. 2921.31(A), a felony of the fifth

degree;

• Count fifteen, having weapons under disability, as amended, in

violation of R.C. 2923.13(A)(2), a felony of the third degree;

• Count seventeen, grand theft of a motor vehicle, as amended, in

violation of R.C. 2913.02(A)(1), a felony of the fourth degree; and,

• Count eighteen, robbery, as amended, with a one-year firearm

specification and a repeat violent offender specification, in violation

of R.C. 2911.02(A)(2), a felony of the second degree.

{¶9} The appellee moved to dismiss the remaining charges pursuant to the terms

of the parties’ plea agreement, which the trial court granted. Muskingum County, Case No. CT2023-0049 5

{¶10} The sentencing hearing took place on June 26, 2023, at which the following

exchange took place between the trial court and the appellant:

THE COURT: In looking at your history, I have seen histories like this

before. Your criminal history goes back to age 8 when you were sent to

Avondale for setting a pharmacy on fire. From that time on, you’ve been the

system, Juvenile, DYS, everywhere. Some would say the system failed.

Some would say you failed. I would say there’s a little bit if each in there,

but the system did not help you.

Since becoming an adult you have felonies also. One in 2016, which

is attempted felonious assault on a peace officer, failure to comply, a fleeing

charge, and a misdemeanor history throughout your entire adult life, then

this crime spree.

And it’s also my understanding you’re on post-release control right

now. Is that correct?

THE DEFENDANT: Yes, sir

THE COURT: But you know better. You know that anything that I give you

on PRC must be served consecutively to everything else.

So what’s an appropriate sentence? 10 years, 20 years, 40 years?

All that is in the range in here. But you’ve been in and out of the system so

much that there’s no little amount or large amount that’s going to make

much difference at this point in time until you maybe see a light and get

some help and get out of this rotating wheel that you’re on of going to prison,

getting out, going to prison, getting out, going to jail, getting out. Muskingum County, Case No. CT2023-0049 6

In regards to the Counts 1, 3, 5, 9, and 17, which is your felonies of

the fourth degree, the Court would impose an 18-month sentence on each

to be served concurrently with each other. And Count 4 is a felony of the

second degree and a RVO spec is on that count. The Court will impose a

6-year sentence on the felony of the second degree in that count.

In Count 12, which is a felony of the third degree, the Court will

impose a 24-month sentence which is a 2-year sentence, which must be

served consecutively to any other sentence you receive. And the Court will

impose a 5-year license suspension.

In regards to Count 13, the Court will impose a 12-month sentence,

impose a 1-year mandatory consecutive sentence for the firearm

specification which will be consecutive to all sentences and mandatory time.

Count 15, the Court will impose a 36-month sentence. And in Count

18, the Court will impose an 8-year sentence with an indefinite term of up

to 4 - - well, we'll get in to the indefinite term here in a second. The Court

will impose 2 years on the mandatory consecutive which will make that a

total of 10 years on that case. That's on the RVO specification. There is a

1-year mandatory consecutive sentence on the gun specification.

The Court having sentenced you to 8 years on the indefinite

sentence, that makes the indefinite sentence to a possible 12 years with the

4-year leeway. There's also, then, two mandatory consecutive 1 year

sentences which will make that a total of 14 at this point in time. There's

also a consecutive sentence for the 6 years imposed on the Count 4 which Muskingum County, Case No. CT2023-0049 7

will make it up to a 20 possible sentence or 20 -- excuse me -- that's 23

years, I believe. My math's screwing up here -- 22 years.

{¶11} The trial court did not make any specific findings with regard to the repeat

violent offender specifications contained in counts four and eighteen.

{¶12} The appellant filed a timely appeal and sets forth the following three

assignments of error:

{¶13} “I. SHOULD THIS HONORABLE COURT REMAND THIS MATTER FOR

RE-SENTENCING BECAUSE THE TRIAL COURT ERRED WHEN SENTENCING THE

APPELLANT TO THE MAXIMUM ALLOWABLE SENTENCE IN CONTRAVENTION OF

FACTORS FOUND IN OF R.C. §2929.14.”

{¶14} “II. SHOULD THIS HONORABLE COURT REMAND THIS MATTER FOR

RE-SENTENCING BECAUSE THE TRIAL COURT ERRED BY NOT MAKING THE

APPROPRIATE FINDING REGARDING THE REPEAT VIOLENT OFFENDER

SPECIFICATIONS AND DID NOT DISCUSS REASONS FOR CONSECUTIVE

SENTENCES.”

{¶15} “III. SHOULD THIS HONORABLE COURT REMAND THIS MATTER FOR

RE-SENTENCING BECAUSE THERE WAS NO SPECIFIC FINDING REGARDING

COUNT 13 REGARDING THE NON-MANDATORY PORTION OF THE COUNT

(OBSTRUCTING OFFICIAL BUSINESS F4), RATHER ONLY A FINDING REGARDING

THE FIREARM SPECIFICATION.”

STANDARD OF REVIEW

{¶16} Felony sentences are reviewed under R.C. 2953.08(G)(2). State v. Goings,

6th Dist. Lucas No. L-13-1103, 2014-Ohio-2322, 2014 WL 2480615, ¶ 20. An appellate Muskingum County, Case No. CT2023-0049 8

court may increase, modify, or vacate and remand a judgment only if it clearly and

convincingly finds either “(a) 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” or

“(b) the sentence is otherwise contrary to law.” State v. Yeager, 6th Dist. Sandusky No.

S-15-025, 2016-Ohio-4759, 2016 WL 3573887, ¶ 7, citing R.C. 2953.08(G)(2).

ANALYSIS

Assignment of Error Numbers One and Three

{¶17} We will address assignments of error numbers one and three together, as

they are interrelated. The appellant argues in assignment error number one that the trial

court erred because it did not discuss the required findings regarding the imposition of

consecutive sentences and state the reasons for doing so. He argues in assignment of

error number three that the trial court did not clearly pronounce that the prison time

imposed for count 13 was to run concurrently.

{¶18} R.C. 2929.11 provides in pertinent part:

(A) A court that sentences an offender for a felony shall be guided by the

overriding purposes of felony sentencing. The overriding purposes of felony

sentencing are to protect the public from future crime by the offender and

others, to punish the offender, and to promote the effective rehabilitation of

the offender using the minimum sanctions that the court determines

accomplish those purposes without imposing an unnecessary burden on

state or local government resources. To achieve those purposes, the

sentencing court shall consider the need for incapacitating the offender, Muskingum County, Case No. CT2023-0049 9

deterring the offender and others from future crime, rehabilitating the

offender, and making restitution to the victim of the offense, the public, or

both.

(B) A sentence imposed for a felony shall be reasonably calculated to

achieve the three overriding purposes of felony sentencing set forth in

division (A) of this section, commensurate with and not demeaning to the

seriousness of the offender's conduct and its impact upon the victim, and

consistent with sentences imposed for similar crimes committed by similar

offenders.

{¶19} R.C. 2929.12 provides:

(A) Unless otherwise required by section 2929.13 or 2929.14 of the

Revised Code, a court that imposes a sentence under this chapter upon an

offender for a felony has discretion to determine the most effective way to

comply with the purposes and principles of sentencing set forth in section

2929.11 of the Revised Code. In exercising that discretion, the court shall

consider the factors set forth in divisions (B) and (C) of this section relating

to the seriousness of the conduct, the factors provided in divisions (D) and

(E) of this section relating to the likelihood of the offender's recidivism, and

the factors set forth in division (F) of this section pertaining to the offender's

service in the armed forces of the United States and, in addition, may

consider any other factors that are relevant to achieving those purposes and

principles of sentencing. Muskingum County, Case No. CT2023-0049 10

(B) The sentencing court shall consider all of the following that apply

regarding the offender, the offense, or the victim, and any other relevant

factors, as indicating that the offender's conduct is more serious than

conduct normally constituting the offense:

(1) The physical or mental injury suffered by the victim of the offense

due to the conduct of the offender was exacerbated because of the physical

or mental condition or age of the victim.

(2) The victim of the offense suffered serious physical, psychological, or

economic harm as a result of the offense.

(3) The offender held a public office or position of trust in the community,

and the offense related to that office or position.

(4) The offender's occupation, elected office, or profession obliged the

offender to prevent the offense or bring others committing it to justice.

(5) The offender's professional reputation or occupation, elected office,

or profession was used to facilitate the offense or is likely to influence the

future conduct of others.

(6) The offender's relationship with the victim facilitated the offense.

(7) The offender committed the offense for hire or as a part of an

organized criminal activity.

(8) In committing the offense, the offender was motivated by prejudice

based on race, ethnic background, gender, sexual orientation, or religion.

(9) If the offense is a violation of section 2919.25 or a violation of section

2903.11, 2903.12, or 2903.13 of the Revised Code involving a person who Muskingum County, Case No. CT2023-0049 11

was a family or household member at the time of the violation, the offender

committed the offense in the vicinity of one or more children who are not

victims of the offense, and the offender or the victim of the offense is a

parent, guardian, custodian, or person in loco parentis of one or more of

those children.

(C) The sentencing court shall consider all of the following that apply

regarding the offender, the offense, or the victim, and any other relevant

factors, as indicating that the offender's conduct is less serious than conduct

normally constituting the offense:

(1) The victim induced or facilitated the offense.

(2) In committing the offense, the offender acted under strong

provocation.

(3) In committing the offense, the offender did not cause or expect to

cause physical harm to any person or property.

(4) There are substantial grounds to mitigate the offender's conduct,

although the grounds are not enough to constitute a defense.

(D) The sentencing court shall consider all of the following that apply

regarding the offender, and any other relevant factors, as factors indicating

that the offender is likely to commit future crimes:

(1) At the time of committing the offense, the offender was under release

from confinement before trial or sentencing; was under a sanction imposed

pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code; was

under post-release control pursuant to section 2967.28 or any other Muskingum County, Case No. CT2023-0049 12

provision of the Revised Code for an earlier offense or had been

unfavorably terminated from post-release control for a prior offense

pursuant to division (B) of section 2967.16 or section 2929.141 of the

Revised Code; was under transitional control in connection with a prior

offense; or had absconded from the offender's approved community

placement resulting in the offender's removal from the transitional control

program under section 2967.26 of the Revised Code.

(2) The offender previously was adjudicated a delinquent child pursuant

to Chapter 2151. of the Revised Code prior to January 1, 2002, or pursuant

to Chapter 2152. of the Revised Code, or the offender has a history of

criminal convictions.

(3) The offender has not been rehabilitated to a satisfactory degree after

previously being adjudicated a delinquent child pursuant to Chapter 2151.

of the Revised Code prior to January 1, 2002, or pursuant to Chapter 2152.

of the Revised Code, or the offender has not responded favorably to

sanctions previously imposed for criminal convictions.

(4) The offender has demonstrated a pattern of drug or alcohol abuse

that is related to the offense, and the offender refuses to acknowledge that

the offender has demonstrated that pattern, or the offender refuses

treatment for the drug or alcohol abuse.

(5) The offender shows no genuine remorse for the offense. Muskingum County, Case No. CT2023-0049 13

(E) The sentencing court shall consider all of the following that apply

regarding the offender, and any other relevant factors, as factors indicating

that the offender is not likely to commit future crimes:

(1) Prior to committing the offense, the offender had not been

adjudicated a delinquent child.

(2) Prior to committing the offense, the offender had not been convicted

of or pleaded guilty to a criminal offense.

(3) Prior to committing the offense, the offender had led a law-abiding

life for a significant number of years.

(4) The offense was committed under circumstances not likely to recur.

(5) The offender shows genuine remorse for the offense.

(F) The sentencing court shall consider the offender's military service

record and whether the offender has an emotional, mental, or physical

condition that is traceable to the offender's service in the armed forces of

the United States and that was a contributing factor in the offender's

commission of the offense or offenses.

{¶20} The appellant’s arguments are unpersuasive and do not establish that the

trial court failed to comply with R.C. 2929.11(A) or properly weigh the factors set forth in

R.C. 2929.12, particularly since the appellant has a criminal history containing a

significant number of criminal offenses committed prior to the offenses herein, and had

not led a law-abiding life for many years prior to the offenses herein. Furthermore, the

offenses committed by the appellant were not committed under circumstances not likely

to recur. Muskingum County, Case No. CT2023-0049 14

{¶21} This court recently addressed sentencing issues in State v. Worden, 5th

Dist. Muskingum No. CT2022-0030, 2022-Ohio-4648:

R.C. 2953.08(G)(2)(b) does not provide a basis for an appellate court

to modify or vacate a sentence based on its view that the sentence is not

supported by the record under R.C. 2929.11 and 2929.12. State v. Jones,

163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶39. The Ohio

Supreme Court further elucidated in State v. Toles, 166 Ohio St.3d 397,

2021-Ohio-3531, 186 N.E.3d 784, ¶10, “R.C. 2953.08, as amended,

precludes second-guessing a sentence imposed by the trial court based on

its weighing of the considerations in R.C. 2929.11 and 2929.12.’’

Id. at ¶27.

{¶22} The appellant argues that the trial court erred because it did not engage in

factfinding on the record before imposing the maximum prison terms. We disagree. As

set forth by the Ohio Supreme Court in State v. Mathis, 109 Ohio St. 3d 54, 2006-Ohio-

855, 846 N.E.2d 1, “. . . trial courts have full discretion to impose a prison sentence within

the statutory range and are no longer required to make findings or give their reasons for

imposing maximum, consecutive, or more than the minimum sentences.” Id. at ¶ 37.

Further, this Court stated in State v. Hobby, 5th Dist. Ashland No. 11 COA 41, 2012-Ohio-

2420:

Under Ohio law, judicial fact-finding is no longer required before a

court imposes consecutive or maximum prison terms. See State v. Foster,

109 Ohio St.3d 1, 2006–Ohio–856, 845 N.E.2d 470; State v. Mathis, 109

Ohio St.3d 54, 2006–Ohio–855, 846 N.E.2d 1. Instead, the trial court is Muskingum County, Case No. CT2023-0049 15

vested with discretion to impose a prison term within the statutory range.

See Mathis, at ¶ 36. In exercising its discretion, the trial court must “carefully

consider the statutes that apply to every felony case [including] R.C.

2929.11, which specifies the purposes of sentencing, and R.C. 2929.12,

which provides guidance in considering factors relating to the seriousness

of the offense and recidivism of the offender [and] statutes that are specific

to the case itself.” Id. at ¶ 37, 846 N.E.2d 1. Thus, post-Foster, “there is no

mandate for judicial fact-finding in the general guidance statutes. The court

is merely to ‘consider’ the statutory factors.” Foster at ¶ 42. State v. Rutter,

5th Dist. No .2006–CA–0025, 2006–Ohio–4061, 2006 WL 2257068; State

v. Delong, 4th Dist. No. 05CA815, 2006–Ohio–2753, 2006 WL 2257068, ¶

7–8. Therefore, post-Foster, trial courts are still required to consider the

general guidance factors in their sentencing decisions.

Id. at ¶ 34.

{¶23} In the case sub judice, the sentence imposed by the trial court on the

charges to which the appellant pleaded guilty complies with the applicable sentencing

statutes. The sentence was within the statutory sentencing range. The appellant has not

shown that the trial court imposed the sentence based on impermissible considerations,

for example, considerations that fall outside those that are contained in R.C. 2929.11 and

R.C. 2929.12. The record contains evidence supporting the trial court's findings based

upon the applicable law, and the trial court is not required to engage in judicial fact-finding

or list the statutory factors in support if its sentence so long as the sentence is within the

applicable statutory range. The trial court did not err in imposing sentence upon the Muskingum County, Case No. CT2023-0049 16

appellant, and we find no basis for concluding that the trial court’s decision constitutes an

abuse of discretion.

{¶24} The overriding purposes of felony sentencing are, inter alia, to punish the

offender and to protect the public from future crime by the offender. The appellant’s

presentence investigation established that he had a significant criminal history. The

sentence imposed by the trial court achieves the aforesaid statutory purposes, as it

punishes the appellant for his offenses and protects the public from future crime by the

appellant. To achieve those purposes, the trial court properly considered the need for

incapacitating the offender, deterring the offender and others from future crime. The

appellant engaged in a crime-spree that resulted in an indictment on sixteen felony

charges and three misdemeanor charges. In addition, the appellant has a significant

history of criminal behavior. R.C. 2929.12 gives the trial court discretion to determine the

most effective way to comply with the purposes and principles of sentencing set forth in

R.C. 2929.11. In this case the trial court considered the general guidance factors in its

sentencing decision; it is not required to make findings or give their reasons for imposing

maximum, consecutive, or more than the minimum sentences.

{¶25} Furthermore, the appellant’s argument that the matter should be reversed

and remanded because the trial court did not clearly pronounce that the prison time for

count thirteen was to run concurrently to the other counts must also fail; when a person

is sentenced for having committed multiple offenses, the presumption is that those

sentences will be imposed concurrently, not consecutively. See, R.C. 2929.41(A).

{¶26} The appellant’s assignments of error numbers one and three are therefore

overruled. Muskingum County, Case No. CT2023-0049 17

Assignment of Error Number Two

{¶27} In his second assignment of error the appellant argues that the trial court

erred when it did not make the appropriate finding regarding the repeat violent offender

specifications and did not discuss reasons for consecutive sentences. We agree in part

and disagree in part.

{¶28} R.C. 2929.14(B)(2) authorizes trial courts to impose repeat-violent offender

prison time, and states in pertinent part:

(2)(a) If division (B)(2)(b) of this section does not apply, the court may

impose on an offender, in addition to the longest prison term authorized or

required for the offense or, for offenses for which division (A)(1)(a) or (2)(a)

of this section applies, in addition to the longest minimum prison term

authorized or required for the offense, an additional definite prison term of

one, two, three, four, five, six, seven, eight, nine, or ten years if all of the

following criteria are met:

(i) The offender is convicted of or pleads guilty to a specification of the

type described in section 2941.149 of the Revised Code that the offender

is a repeat violent offender.

(ii) The offense of which the offender currently is convicted or to which

the offender currently pleads guilty is . . . any felony of the second degree

that is an offense of violence and the trier of fact finds that the offense

involved an attempt to cause or a threat to cause serious physical harm to

a person or resulted in serious physical harm to a person. Muskingum County, Case No. CT2023-0049 18

(iii) The court imposes the longest prison term for the offense or the

longest minimum prison term for the offense, whichever is applicable, that

is not life imprisonment without parole.

(iv) The court finds that the prison terms imposed pursuant to division

(B)(2)(a)(iii) of this section and, if applicable, division (B)(1) or (3) of this

section are inadequate to punish the offender and protect the public from

future crime, because the applicable factors under section 2929.12 of the

Revised Code indicating a greater likelihood of recidivism outweigh the

applicable factors under that section indicating a lesser likelihood of

recidivism.

(v) The court finds that the prison terms imposed pursuant to division

(B)(2)(a)(iii) of this section and, if applicable, division (B)(1) or (3) of this

section are demeaning to the seriousness of the offense, because one or

more of the factors under section 2929.12 of the Revised Code indicating

that the offender's conduct is more serious than conduct normally

constituting the offense are present, and they outweigh the applicable

factors under that section indicating that the offender's conduct is less

serious than conduct normally constituting the offense.

(b) The court shall impose on an offender the longest prison term authorized

or required for the offense or, for offenses for which division (A)(1)(a) or

(2)(a) of this section applies, the longest minimum prison term authorized

or required for the offense, and shall impose on the offender an additional Muskingum County, Case No. CT2023-0049 19

definite prison term of one, two, three, four, five, six, seven, eight, nine, or

ten years if all of the following criteria are met:

(i) The offender is convicted of or pleads guilty to a specification of the type

described in section 2941.149 of the Revised Code that the offender is a

repeat violent offender.

(ii) The offender within the preceding twenty years has been convicted of

or pleaded guilty to three or more offenses described in division (CC)(1) of

section 2929.01 of the Revised Code, including all offenses described in

that division of which the offender is convicted or to which the offender

pleads guilty in the current prosecution and all offenses described in that

division of which the offender previously has been convicted or to which the

offender previously pleaded guilty, whether prosecuted together or

separately.

(iii) The offense or offenses of which the offender currently is convicted or

to which the offender currently pleads guilty is aggravated murder and the

court does not impose a sentence of death or life imprisonment without

parole, murder, terrorism and the court does not impose a sentence of life

imprisonment without parole, any felony of the first degree that is an offense

of violence and the court does not impose a sentence of life imprisonment

without parole, or any felony of the second degree that is an offense of

violence and the trier of fact finds that the offense involved an attempt to

cause or a threat to cause serious physical harm to a person or resulted in

serious physical harm to a person. Muskingum County, Case No. CT2023-0049 20

(c) For purposes of division (B)(2)(b) of this section, two or more offenses

committed at the same time or as part of the same act or event shall be

considered one offense, and that one offense shall be the offense with the

greatest penalty.

(d) A sentence imposed under division (B)(2)(a) or (b) of this section shall

not be reduced pursuant to section 2929.20, division (A)(2) or (3) of section

2967.193 or 2967.194, or any other provision of Chapter 2967. or Chapter

5120. of the Revised Code. The offender shall serve an additional prison

term imposed under division (B)(2)(a) or (b) of this section consecutively to

and prior to the prison term imposed for the underlying offense.

(e) When imposing a sentence pursuant to division (B)(2)(a) or (b) of this

section, the court shall state its findings explaining the imposed sentence.

{¶29} In this case, the appellant pleaded guilty to burglary with a repeat violent

offender specification in violation of R.C. 2911.12(A)(1), a felony of the second degree

(count four); and, robbery as amended, with a one-year firearm specification and a repeat

violent offender specification, in violation of R.C. 2911.02(A)(2), a felony of the second

degree (count eighteen). The trial court did not, however, establish on the record the

requisite facts relating to whether these offenses involved an “attempt to cause or a threat

to cause serious physical harm to a person” or “resulted in serious physical harm to a

person.” With regard to this portion of the appellant’s assignment of error number two, we

reverse the trial court’s imposition of repeat-violent-offender prison time and remand the

matter in order for the trial court to make the requisite findings of fact regarding the repeat

violent offender specifications. Muskingum County, Case No. CT2023-0049 21

{¶30} The appellant also submits in assignment of error number two that the trial

court erred when it did not discuss its reasons for consecutive sentences. For the reasons

set forth in our discussion of assignments of error numbers one and three, we disagree

with this portion of appellant’s assignment of error number two and find it to be without

merit.

CONCLUSION

{¶31} Based upon the foregoing, we find that appellant’s assignments of error

numbers one and three are without merit and are overruled.

{¶32} Further, we find that the second portion of appellant’s assignment of error

number two, that the trial court erred in not discussing its reasons for consecutive

sentences, is without merit and is overruled.

{¶33} Finally, we find that the first portion of appellant’s second assignment of

error, that the trial court erred when it did not make the required findings of fact regarding

serious physical harm in connection with the imposition of repeat violent offender prison

time, to have merit. We therefore remand this matter to the trial court for the narrow

purpose of addressing the serious physical harm issue as it relates to the appellant’s

guilty plea to the repeat violent offender specifications contained in counts four and

eighteen. Muskingum County, Case No. CT2023-0049 22

{¶34} Based upon the foregoing, the judgment of the Muskingum County Court of

Common Pleas is affirmed in part, and is reversed and remanded in part for proceedings

consistent with this opinion.

By: Baldwin, J.

Delaney, P.J. and

King, J. concur.