COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73493 STATE OF OHIO : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION CHRISTOPHER JORDAN : : DEFENDANT-APPELLANT : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 12, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas, Case No. CR-347314. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Richard A. Bell Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Paul Mancino, Jr., Esq. 75 Public Square, Suite 1016 Cleveland, Ohio 44113-2098 -2- SWEENEY, JAMES D., J.: Defendant-appellant Christopher Jordan, aka Rayshawn Lindsey, appeals the trial court's sentence of six months incarceration imposed in the Cuyahoga County Court of Common Pleas case number 347314. The appellant received this sentence subsequent to his guilty plea to one count of theft, in violation of R.C. 2913.02. In order to receive this plea, the record reveals that the prosecutor agreed to nolle count one, having a weapon while under a disability; count three, kidnapping; count five, intimidation; and count six, intimidation. The prosecutor agreed to delete the firearm specification and to amend count four and permit the appellant to enter a plea to theft, a fifth degree felony, rather than aggravated robbery. The State agreed to nolle case number 352721. At the time of sentencing, the trial judge began by indicating that the appellant was before it for two cases, this case (Common Pleas case number 347314); Common Pleas case number 346391A; and possible probation violations on Common Pleas case numbers 321550 and 327526 (T. 1256).1 The probation officer indicated that the court had previously imposed a sentence of 24 months on case number 321550, and 18 months on case number 327526, both of which were suspended. The appellant was granted probation which was to begin subsequent to the appellant serving a one-year sentence on Common 1See State v. Jordan (Nov. 12, 1998), Cuyahoga App. No. 73478, unreported. -3- Pleas case number 329537. According to the appellant's counsel, this one-year sentence was completed (T. 1258-1259, 1260). The probation officer reminded the court that in Common Pleas case number 346391, a jury found the appellant guilty of aggravated murder, aggravated robbery and having a weapon under a disability, all with firearm specifications. The court merged counts one and two and imposed a sentence of life imprisonment and imposed three years for the firearm specification. On count three the court imposed a 12 month sentence to run consecutively with count one. The court then imposed a six-month sentence on the case before this court, Common Pleas case number 347314. The journal entry memorializing this sentence reads as follows: DEFENDANT IN COURT WITH COUNSEL. THE COURT CONSIDERED ALL REQUIRED FACTORS UNDER LAW. ATTORNEY PAUL MANCINO PRESENT. ON A FORMER DAY DEFENDANT ENTERED A PLEA OF GUILTY TO THEFT RC 2913.02 F-5 (SENATE BILL 2) AS AMENDED IN COUNT 4 OF THE INDICTMENT. PROSECUTOR SPEAKS. THE COURT FINDS, BASED UPON A CONSIDERATION OF FACTORS, THAT PRISON IS CONSISTENT WITH THE PURPOSES OF R.C. 2929.11. THE COURT IMPOSES A PRISON TERM OF 6 MONTHS. THE SENTENCE INCLUDES ANY EXTENSION PROVIDED BY LAW. DEFENDANT TO RECEIVE 0 DAYS JAIL TIME CREDIT. DEFENDANT ORDERED TO PAY COSTS. DEFENDANT ORDERED CONVEYED TO LORAIN CORRECTIONAL INSTITUTION. The appellant asserts one assignment of error: THE COURT COMMITTED PREJUDICIAL ERROR IN SENTENCING DEFENDANT TO A TERM OF IMPRISONMENT FOR A FIFTH DEGREE FELONY WITHOUT FOLLOWING THE STATUTORY CRITERIA. The appellant argues that when the court imposed sentence, it did so without making a determination under R.C. 2929.13(B)(1) as -4- to the t sserts furthexistence of the factors listed therein. The appellana was required to weigh the seriousness and recidivism factor and determine whether prison was consistent with the purposes/principles of the statute, and determine whether or not the appellant was amenable to an available community sanction as mandated under R.C. 2929.13(B)(2)(a). The appellee cites to State v. Williams (1977), 51 Ohio St.2d 112, for the proposition that the appellant failed to object at the time of sentencing and has waived any error. In State v. Banks (Nov. 20, 1997), Cuyahoga App. No. 72121, unreported, this court cited to Katz and Griffin, Ohio Felony Sentencing Law (1996-1997 Edition) 389, Section 6.13, and noted that R.C. 2929.13(B) does not establish a presumption for either for or against a prison sentence for fourth and fifth degree felonies. 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. One of the factors the court is permitted to consider is the appellant's past incarcerations under R.C. 2929.13(B)(1)(g).2 On the record in the present case, at the sentencing hearing, it was obvious that the appellant had previously served a 12 month 2The indictment indicates the date of the offense was December 19, 1996. Thus, the version of R.C. 2929.13 which applies is that effective on July 1, 1996. The legislature has since enacted a new version, effective January 1, 1997. -5- sentence on Common Pleas case number 329537. Having found that the appellant met the criteria under R.C. 2929.13(B)(1)(g), the trial court was required to next consider R.C. 2929.13(B)(2)(a), which directs the trial court to consider the factors set forth in R.C. 2929.12. R.C. 2929.12 gives the trial court discretion to sentence a felony offender in the most effective way to comply with the purposes and principles of sentencing set forth in R.C. 2929.11. The factors listed in R.C. 2929.12 take into account the seriousness of the crime and the recidivism of the appellant. After consideration of those factors, the trial court is permitted to impose incarceration after considering the general sentencing factors in R.C. 2929.11. The legislature stated in R.C. 2929.11: (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 and to punish the offender. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the pubic or both. (B) A sentence imposed for a felony shall be reasonably calculated to achieve the two 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. (C) A court that imposes a sentence upon an offender for a felony shall not base the sentence upon the race, ethnic background, gender, or religion of the offender. -6- In the case sub judice, the trial court stated in its order that it considered: 1) all the required factors under the law; 2) considered the factors in R.C. 2929.11; and 3) found incarceration to be consistent with the purposes of R.C. 2929.11. This court agrees with the statement made in footnote one of State v. Fincher, (Oct. 14, 1997), Franklin County App. No. 97APA03-352, unreported, that the better practice is for the trial court to state its reasons for imposing a prison term in the judgment entry, not simply reference the statutory provisions. However, while the court here did not specifically delineate the factors considered under either R.C. 2929.13, R.C. 2929.12, or R.C. 2929.11, given the number of cases the appellant had pending before the same trial judge, and his lengthy criminal record, we find this lack of specificity has worked no prejudice on the appellant. The appellant's assignment of error is overruled. Judgment affirmed. It is ordered that appellee recover of appellant its 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. 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. JOHN T. PATTON, J., CONCURS; DIANE KARPINSKI, P.J., CONCURS IN JUDGMENT ONLY, WITH CONCURRING OPINION ATTACHED. ______________________________ JAMES D. SWEENEY 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73493 STATE OF OHIO : -1- : : Plaintiff-Appellee : : CONCURRING v. : : OPINION CHRISTOPHER JORDAN : : : Defendant-Appellant : DATE: NOVEMBER 12, 1998 KARPINSKI, J., CONCURRING IN JUDGMENT ONLY: While I concur with the majority in affirming the sentence, I write separately to emphasize the importance of trial judges giving their reasons in sentencing. The failure of defense counsel to object to this omission, however, prevents a reversal of this sentence. For a fourth or fifth degree felony, a trial court may take two different routes when imposing a prison term. If the court finds that one of eight factors of R.C. 2929.13(B)(1) applies, the court can then, under R.C. 2929.13(B)(2)(a), look to R.C. 2929.12 (factors to consider in felony sentencing) and R.C. 2929.11 (overriding purposes of felony sentencing) to determine whether defendant is not amendable to community control sanctions and prison is warranted. If the court does not determine that one of the eight enumerated factors of R.C. 2929.13(B)(1)(a) through (h) applies, the court still has the ability to sentence the defendant to a prison term under R.C. 2929.13(B)(2)(b) if, after reviewing the principles of R.C. 2929.12 and R.C. 2929.11, the court finds that a community control sanction is not consistent with the factors and principles to felony sentencing in Ohio. -2- Under either route, however, the court must state its reasons for imposing prison on the fourth or fifth degree felon. R.C. 2929.19(B)(2) states, in relevant part, as follows: (2) 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: (a) Unless the offense is a sexually violent offense for which the court is required to impose sentence pursuant to division (G) of section 2929.14 of the Revised Code, if it imposes a prison term for a felony of the fourth or fifth degree or for a felony drug offense that is a violation of a provision of Chapter 2925. of the Revised Code and that is specified as being subject to division (B) of section 2929.13 of the Revised Code for purposes of sentencing and, if the term is not a mandatory prison term imposed pursuant to division (G)(2) of section 2929.13 of the Revised Code for a felony OMVI offense, its reasons for imposing the prison term, based upon the overriding purposes and principles of felony sentencing set forth in section 2929.11 of the Revised Code, and any factors listed in divisions (B)(1)(a) to (h) of section 2929.13 of the Revised Code that it found to apply relative to the offender. (Emphasis added.) While we note that the statute as written is a grammatical jumble, it is clear enough that the legislature intended the trial judge to make a finding and give reasons for the sentence it imposes, even for fourth and fifth degree felonies. In their book Katz and Griffin explain reasons as follows: Reasons are statements of fact and analysis which support the legal conclusions. Reasons are also the explanation for selecting a particular sentence because of the existence of certain facts or certain subsidiary legal conclusions. Reasons are the explanation of how the overriding purposes and basic principles of sentencing, the required considerations of sentencing, and the statutory guidance concerning imprisonment and nonimprisonment link togther to produce a particular sentence that, as required by RC 2929.11(B), is reasonably calculated to achieve the two overriding purposes of felony sentencing. Ohio Felony Sentencing Law, ante, Section 1.20, at 299. -3- In the case at bar, the court generally stated in its journal entry: THE COURT FINDS, BASED UPON A CONSIDERATION OF FACTORS, THAT PRISON IS CONSISTENT WITH THE PURPOSES OF R.C. 2929.11. This general statement is not an adequate reason, under R.C. 2929.19, to impose a prison term on defendant. Merely stating that a prison term is consistent with the purposes of an applicable code section does not reach the Ohio legislature's goal of requiring the trial court to explain how the required considerations of sentencing and statutory guidance link together to achieve the overriding purposes of felony sentencing. This error does not warrant a reversal in the case at bar, however, because the defense counsel did not object to the lack of any finding. Moreover, as the majority points out, the record clearly shows that defendant's past record of incarceration would have satisfied the requirement of R.C. 2929.13(B)(1)(g). This past record would have been additionally relevant to the factors to be considered under R.C. 2929.12. Accordingly, since the record contains evidence that would have satisfied one of the factors of R.C. 2929.13(B)(1) and the principles of R.C. 2929.12, there is no .