COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74382 STATE OF OHIO : ACCELERATED DOCKET : Plaintiff-appellee : : : -vs- : JOURNAL ENTRY : AND KENNETH BROOKS : OPINION : Defendant-appellant : : PER CURIAM : DATE OF ANNOUNCEMENT : NOVEMBER 5, 1998 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Common Pleas Court Case : No. CR-358425 JUDGMENT: Reversed and remanded. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Mark J. Mahoney, Esq. Assistant County Prosecutor 1200 Ontario Street - 8th Floor Cleveland, Ohio 44113 For defendant-appellant: Craig T. Weintraub, Esq. 620 Terminal Tower 50 Public Square Cleveland, Ohio 44113 -2- PER CURIAM: This cause came on to be heard upon the accelerated calender pursuant to App.R. 11.1 and Loc.App.R. 25, the record from the Cuyahoga County Court of Common Pleas, and the briefs of counsel. Kenneth Brooks, defendant-appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas, Criminal Division, Case No. CR-358425, in which defendant-appellant was sentenced to the statutory maximum sentence on the offense of aggravated robbery. Defendant-appellant assigns two errors for this court's review. Defendant-appellant's appeal is well taken. On March 2, 1998, defendant-appellant entered a plea of guilty to the offense of aggravated robbery, in violation of R.C. 2911.01, with a firearm specification and receiving stolen property, in violation of R.C. 2913.51. The offenses constituted felonies of the first and fourth degree respectively. At the time of the plea, the trial court ordered that the Cuyahoga County Probation Department prepare a pre-sentence investigation and report. On March 26, 1998, the trial court conducted a sentencing hearing during which defense counsel as well as defendant-appellant addressed the trial court. The state also appeared at the sentencing hearing as did the victim. After allowing all parties present to make relevant statements on the record, the trial court sentenced defendant-appellant to a ten-year term of incarceration on the offense of aggravated robbery along with a one year consecutive sentence on the firearm specification. The trial court sentenced defendant-appellant to eighteen months on the offense of -3- receiving stolen property to be served concurrently with the aggravated robbery sentence. On April 24, 1998, defendant-appellant filed a timely notice of appeal from the sentence of the trial court. The instant appeal now follows. Defendant-appellant's first assignment of error states: THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED BY SENTENCING APPELLANT TO THE MAXIMUM SENTENCE CONTRARY TO LAW. Defendant-appellant's second assignment of error states: THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED BY FAILING TO COMPLY WITH R.C. 2929.13(B). Having a common basis in both law and fact, this court shall consider defendant-appellant's first and second assignments of error simultaneously. Defendant-appellant argues, through his first and second assignments of error, that the trial court failed to properly consider on the record the presence of mitigating factors as well as the low probability of recidivism when it sentenced defendant-appellant to the maximum sentence on the offense of aggravated robbery. Specifically, defendant-appellant maintains that the trial court ignored the fact that he had no previous felony record, had been gainfully employed during his adult life as a heating and air conditioning contractor and was attempting to obtain his high school equivalency diploma at the time of the incident. In addition, defendant-appellant admitted to a life long drug addiction for which he had recently sought assistance and maintained that he expressed genuine remorse -4- regarding the incident. It is defendant-appellant's position that the trial court's failure to consider these factors on the record during the sentencing hearing combined with the trial court's failure to make the required findings for imposition of the maximum sentence, as required by R.C. 2929.14(C), resulted in the imposition of a sentence that is contrary to law and which should be modified on appeal. Pursuant to Senate Bill 2, an appellate court must review a trial court's sentencing determination and the trial court's reasons for imposing the maximum sentence. State v. Banks (Nov. 20, 1997), Cuyahoga App. No. 72121, unreported. Prior to Senate Bill 2, a silent record was construed by appellate courts to support the inference that the trial court considered all necessary factors in sentencing a defendant. Now, however, R.C. 2953.08(G)(1) requires the record to affirmatively support the trial court's sentence. Accordingly, the trial court must make a finding that supports its reasons for imposing the maximum sentence for a single offense. Banks, supra. R.C. 2929.14(C) sets forth the circumstances under which a maximum sentence should be imposed on a felony offense. The statute provides: 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 commit 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 certain repeat violent offenders in accordance with division (D)(2) of this section. -5- In the case sub judice, a review of the sentencing transcript demonstrates that while the trial court engaged in a dialogue with defendant-appellant that touched upon a number of reasons for the ultimate sentence in the case, i.e., use of a weapon to commit the offense, drug addiction and past criminal history, the trial court failed to make the explicit findings required by R.C. 2929.14(C) for imposition of the maximum sentence. Specifically, the trial court failed to find that: (1) defendant-appellant committed the worst form of the crime of aggravated robbery; or (2) defendant- appellant posed the greatest likelihood of committing future crimes; or (3) defendant-appellant was a major drug offender or repeat violent offender as defined in sections (D)(3) and (D)(4) of R.C. 2929.14. In addition, a review of the trial court's sentencing journal entry reveals that, while the trial court attempted to comply with the mandates of R.C. 2929.14 through the blanket assertion that it had considered all of the required factors of the law , the trial court still failed to make necessary findings in its journal entry for imposition of the maximum sentence as required by the statute. Banks, supra. For the foregoing reasons, the sentence of the trial court is reversed and the case remanded for the specific purpose of allowing the trial court to make the requisite findings on the record and re-sentence defendant-appellant accordingly. Defendant-appellant's first and second assignments of error are well taken. -6- Judgment of the trial court is reversed and remanded for re- sentencing consistent with this opinion. -7- It is ordered that appellant recover of appellee his 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 Cuyahoga County 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. KENNETH A. ROCCO, PRESIDING JUDGE JAMES D. SWEENEY, JUDGE MICHAEL J. CORRIGAN, 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 .