COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72121 STATE OF OHIO : : ACCELERATED DOCKET : Plaintiff-Appellee : : JOURNAL ENTRY v. : AND : OPINION KYLE BANKS : : : PER CURIAM Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 20, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-346166 JUDGMENT: Affirmed in Part, and Reversed and Remanded in Part. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. MYRON P. WATSON, ESQ. Cuyahoga County Prosecutor 310 Lakeside Avenue, N.W. 595 Courthouse Square Bldg. GEORGE M. GEORGE, ESQ. Cleveland, Ohio 44113 Assistant Prosecuting Attorney The Justice Center 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 PER CURIAM: Defendant appeals from the sentence of the trial court after his plea of guilty to one count of attempted possession of drugs and one count of receiving stolen property. On appeal, defendant argues that the sentence imposed by the trial court on the receiving stolen property charge was contrary to law. Specifically, defendant claims that the trial court did not make the requisite findings under Ohio's new sentencing law before imposing the maximum prison term. For the reasons that follow, we find the trial court did not err in sending defendant to prison. We further find, however, that the court failed to make the requisite finding before imposing the maximum sentence. At the plea hearing defendant pled guilty, inter alia, to receiving stolen property, a fourth degree felony. On the stolen property charge, the court sentenced defendant to eighteen months in jail. At the sentencing, the trial judge stated the following on the record: Now, with respect to the fourth degree felony, RSP, motor vehicle charge, in 346166, I am directed to 2929.13(B)(1) of the Ohio Revised Code and told to consider whether any of the following eight factors are present. And if so, I have statutory authority to sentence you to a prison term. None of those necessarily apply although I think a couple may apply. No. 1 physical harm to person. I have no information that there was actual physical harm suffered by a person by reason of the this [sic] incident. But No. 2, you take another look at that. You attempted to cause physical harm so to make an actual threat of physical harm with a weapon. I think your conduct in driving that automobile may well qualify under the attempt or actual threat of physical harm to a person with a weapon, weapon being the 1992 Jimmy vehicle. The next factor is the attempt or actual threat of physical harm to a person and a prior conviction for causing such harm. You might well be able to qualify there too, except I don't know if the prior adjudication of delinquency would qualify for a conviction. The other factors, offenses related to your performance in a public office, that doesn't apply. Whether this was done for hire or was organized criminal activity. Well, this was certainly disorganized criminal activity. I don't think that qualifies. This is not a sex offense. You have not previously served a prison term, not committed, while you were on a community control sanction. I think that second one may count. Now, if any of these factors are present, I must impose a prison term under 29239.13(B)(2)[sic] of the Ohio Revised Code. When none of the two factors are present Revised Code 2929.13(B)(2)(B) [sic] tells me that I can still impose a prison term, if I have a reason. And so my reasons are as stated; a long juvenile record, a very ugly, aggressive series of felony crimes. This crime jeopardized the health and safety of the community. You were racing a stolen vehicle through a residential neighborhood on the westside of Cleveland. The police in chasing you were under control and jeopardizing the community. I am going to send a very quick message to you, sir, that we will not tolerate that behavior. I wish you well. Impose a sentence of 18 months at the Lorain Correctional Institute in the indictment in 363166 [sic]. Sentencing transcript at 13-15. Defendant timely appealed this sentence and raised the following assignments of error. I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY IMPOSING A PRISON TERM, ALTHOUGH IT HAD FAILED TO FIND THAT ANY OF THE EIGHT SENTENCING FACTORS IN R.C. OF OHIO, [SECTION] 2929.12(B) WERE PRESENT. Defendant was sentenced under Ohio's new sentencing law, commonly referred to as Senate Bill 2. This new sentencing framework was enacted to ensure truth in sentencing. For some offenses, the new law requires the trial judge to make certain findings before imposing jail time. In both of these assignments, defendant argues that the trial court failed to make any of the requisite findings in order to send defendant to jail. Defendant's argument lacks merit. Because receiving stolen property is a fourth degree felony, defendant was sentenced pursuant to R.C. 2929.13, which states as follows: (B)(1) Except as provided in division (B)(2), (E), (F), or (G) of this section, in sentencing an offender for a felony of the fourth or fifth degree, the sentencing court shall determine whether any of the following apply: (a) In committing the offense, the offender caused physical harm to a person. (b) In committing the offense, the offender attempted to cause or made an actual threat of physical harm to a person with a deadly weapon. (c) In committing the offense, the offender attempted to cause or made an actual threat of physical harm to a person, and the offender previously was convicted of an offense that caused physical harm to a person. (d) The offender held a public office or position of trust and the offense related to that office or position; the offender's position obliged the offender to prevent the offense or to bring those committing it to justice; or the offender's professional reputation or position facilitated the offense or was likely to influence the future conduct of others. (e) The offender committed the offense for hire or as part of an organized criminal activity. (f) The offense is a sex offense that is a fourth or fifth felony violation of section 2907.03, 2907.04, 2907.05, 2907.22, 2907.31, 2907.321 [2907.32.1], 2907.322 [2907.32.2], 2907.323 [2907.32.3], or 2907.34 of the Revised Code. (g) The offender previously served a prison term. (h) The offender previously was subject to community control sanction, and the offender committed another offense while under the sanction. (2)(a) Except as provided in division (E), (F), or (G) of this section, if the court makes a finding described in division (B)(1)(a), (b), (c), (d), (e), (f), (g), or (h) of this section and if the court, after considering the factors set forth in section 2929.12 of the Revised Code and finds that the offender is not amenable to an available community control sanction, the court shall impose a prison term upon the offender. (b) If the court does not make a finding described in division (B)(1)(a), (b), (c), (d), (e), (f), (g), or (h) of this section and if the court, after considering the factors set forth in section 2929.12 of the Revised Code, finds that a community control sanction or combination of community control sanctions is consistent with the purposes and principles of sentencing set forth in section 2929.11 of the Revised Code, the court shall impose a community control sanction or combination of community control sanctions upon the offender. Katz and Griffin have described this scheme for fourth and fifth degree felonies as follows: RC 2929.13(B) establishes a different system of guidance for fourth and fifth degree felonies and for drug felonies covered by the section than is provided for first, second, or third degree felonies. For first and second degree nondrug felonies, RC 2929.13(D) creates presumptions for a prison sentence. RC 2929.13(C) provides no presumptions for third degree nondrug felonies. But RC 2929.13(B) does not establish presumptions; nor does it refrain, like RC 2929.13(C), from giving any detailed guidance. Rather, the section obliges the judge to impose either prison or community control sanctions if certain combinations of factors are found. If the particular combinations are not found, the judge is simply guided by the general principles of sentencing, as occurs with third degree nondrug felonies. This hybrid situation has resulted from a legislative compromise. The draft legislation submitted to the General Assembly from the Sentencing Commission with respect to fourth and fifth degree felonies provided that a prison sentence would be presumed not to be necessary unless certain factors were found on the record to exist. Those factors are now enumerated in RC 2929.13(B)(1). Some prosecutors and legislators were strongly opposed to a presumption against imprisonment. The compromise that resulted is the language of RC 2929.13(B)(2)(a) and (b) which makes prison mandatory if certain factors are found and a community control sanction mandatory if a different combination of factors found. At the same time, those sections leave an in- between area where neither prison nor community control sanctions are mandated. For those cases falling in the in-between area, the judge's sentencing discretion is similar to that for third degree, nondrug felonies under RC 2929.13(C). Katz and Griffin, Ohio Felony Sentencing Law (1996-1997 Edition) 389, Section 6.13. (Emphasis added.) In the case at bar, the trial court did not err in sentencing defendant to prison. The court first considered the factors outlined in R.C. 2929.13(B)(1) and concluded that two of the factors may have been satisfied. The court found that R.C. 2929.13(B)(1)(h), which describes committing an offense while under a community control sanction, may have been satisfied by his prior juvenile delinquency adjudications, which show that he committed some of these crimes while on probation.1 The fact that the prior juvenile adjudica- tions were committed in successive years satisfies the R.C. 2929.13(B)(1)(h) criterion.2 Therefore, because at least one of the factors listed in R.C. 2929.13(B)(1) was found by the trial court, the trial court did not err in imposing a prison sentence. As stated supra, R.C. 2929.13(B)(2) requires a trial court to consider the general sentencing factors of R.C. 2929.12, in addition to the factors of R.C. 2929.13(B)(1). Even if none of the factors in R.C. 2929.13(B)(1) were found, however, a court still has the discretion to sentence the defendant to prison under R.C. 2929.13(B)(2)(b). Two of the factors to be considered under R.C.2929.12(D) regarding the likelihood to commit future crimes are relevant in the case at bar and state as follows: DEFENDANT'S PRIOR JUVENILE RECORD INCLUDES THE FOLLOWING: THEFT, UNRULY CHILD, SEXUAL IMPOSITION, SEXUAL BATTERY, AGGRAVATED TRAFFICKING IN DRUGS, CARRYING A CONCEALED WEAPON, AND THREE SEPARATE BURGLARY CHARGES. SEE R.C. 2151.358(H), WHICH STATES IN PART AS FOLLOWS: *** THE DISPOSITION OF A CHILD UNDER THE JUDGMENT RENDERED OR ANY EVIDENCE GIVEN IN COURT IS ADMISSIBLE AS EVIDENCE FOR OR AGAINST THE CHILD IN ANY ACTION OR PROCEEDING IN ANY COURT IN ACCORDANCE WITH THE RULES OF EVIDENCE AND ALSO MAY BE CONSIDERED BY ANY COURT AS TO THE MATTER OF SENTENCE OR TO THE GRANTING OF PROBATION. (2) The offender previously was adjudicated a delinquent child pursuant to Chapter 2151. 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, or the offender has not responded favorably to sanctions previously imposed for criminal convictions. Accordingly, even if the trial court had not found any of the R.C. 2929.13 criteria satisfied, the court did not abuse its discretion in sentencing defendant to prison, because defendant's extensive juvenile record satisfied the alternative criteria of R.C. 2929.12(D). Defendant further argues that the trial court erred by not making certain findings under R.C. 2929.12. This argument fails. Revised Code 2929.13(B)(2)(b) requires a court merely to consider R.C. 2929.12, not to make specific findings. In discussing defen- dant's lengthy record and actions in the case at bar, the court did consider the factors of R.C. 2929.12. Accordingly, the court did not abuse its discretion in sentencing defendant to a jail term for the charge of receiving stolen property. II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY IMPOSING THE MAXIMUM SENTENCE OF INCARCERATION ON THE APPELLANT. In this assignment, defendant argues that the trial court erred by imposing the maximum sentence of incarceration. Under Senate Bill 2, an appellate court must review a trial court's determination and its reasons for imposing the maximum sentence. Katz and Griffin, supra, at 264, Section 1.30. Prior to Senate Bill 2, a silent record was construed by appellate courts to support the judge's sentence. Now, however, R.C. 2953.08(G)(1) requires the record to affirmatively support the judge's sentence. M supra Revised ode 2929.14(C) specifically states the circumstances, furthermore, under which the maximum prison sentence for an offense should be imposed: Except as provided in division (G) of this section or in Chapter 2925. of the Revised Code, the court imposing a sentence upon an offender for a felony may impose the longest prison term authorized for the offense pursuant to division (A) of this section only upon offenders who committed the worst forms of the offense, upon offenders who pose the greatest likelihood of committing future crimes, upon certain major drug offenders under division (D)(3) of this section, and upon repeat violent offenders in accordance witoreover, under R.C. 2 division (D)(2) of this section. In the case at bar the trial court imposed the maximum sentence but made no explicit finding on the record that (1) defendant committed the worst form of the crime of receiving stolen property, or (2) defendant posed the greatest likelihood of committing future crimes, or (3) defendant was a major drug offender or repeat ) STATES AS FOLLOWS:R.C. 2929.19(B)(2)(D ( THE COURT SHALL IMPOSE A SENTENCE AND SHALL MAKE A FINDING THAT GIVES ITS REASONS FOR SELECTING THE SENTENCE IMPOSED IN ANY OF THE FOLLOWING CIRCUMSTANCES:2) * * * (D) IF THE SENTENCE IS FOR ONE OFFENSE AND IT IMPOSES A PRISON TERM FOR THE OFFENSE THAT IS THE MAXIMUM PRISON TERM ALLOWED FOR THAT OFFENSE BY DIVISION (A) OF SECTION 2929.14 OF THE REVISED CODE, ITS REASONS FOR IMPOSING THE MAXIMUM PRISON TERM ***. F OR A DISCUSSION OF WHEN FINDINGS ARE REQUIRED AND WHAT CONSTITUTES A FINDING, SEE KATZ AND GRIFFIN, SUPRA, AT 253-255, SECTION 1.20. violent offender as defined in sections (D)(3) and (D)(2) of R.C. 2929.14. We, therefore, reverse the sentence imposed by the trial court and remand the case to allow the court to make the requisite finding and re-sentence defendant consistent with this opinion. It is ordered that appellee and appellant shall share the costs equally. 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. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DIANE KARPINSKI, PRESIDING JUDGE JOHN T. PATTON, JUDGE KENNETH A. ROCCO, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .