COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74589 STATE OF OHIO : ACCELERATED DOCKET : Plaintiff-Appellee : JOURNAL ENTRY : -vs- : AND : MARTIN HART : OPINION : Defendant-Appellant : : PER CURIAM Date of Announcement of Decision: NOVEMBER 5, 1998 Character of Proceeding: Criminal appeal from Court of Common Pleas Case No. CR-358744 Judgment: Sentence vacated; remanded for resentencing. Date of Journalization: Appearances: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor MARK R. MAJER, Assistant Prosecuting Attorney 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JAMES A. DRAPER Cuyahoga County Public Defender CARLOS WARNER, Assistant Public Defender 1200 West Third St., N.W. 100 Lakeside Place Cleveland, Ohio 44113-1569 -2- PER CURIAM: This appeal is before the Court on the accelerated docket pursuant to App.R. 11.1 and Loc.App.R. 25. Defendant-appellant Martin Hart appeals from the maximum sentence imposed upon him following his guilty plea to attempted robbery, a fourth degree felony, pursuant to R.C. 2911.02(A)(3). Defendant contends the maximum sentence of eighteen months was unwarranted because the trial court never made findings that defendant committed the worst form of the offense or posed the greatest likelihood of committing future crimes pursuant to R.C. 2929.14(C). We find merit to the appeal1, vacate the sentence and remand for resentencing. This case arose from the attempted robbery of Reese Watson. On February 13, 1997, Watson parked his mini-van in front of a store at 10123 Superior Avenue. Before entering the store, Watson was approached by four males, one of whom was brandishing a revolver. The male with the gun asked his colleagues whether he should pop Watson. One of the males replied that the armed individual should pop Watson. Watson made a break for the store, abandoning his vehicle and telephoned the Cleveland Police Department. The group drove off with Watson's car. Defendant Hart was never identified as the individual who threatened to pop 1 Although counsel advised at oral argument that defendant was released on shock probation, we do not find the appeal moot because his sentence may again become relevant in the event of a probation violation. -3- Watson, although he was in the group that made off with Watson's car. According to defendant Hart, who was age sixteen at the time, he and his three friends took Watson's keys as he exited from the store. According to the trial court, the police report indicated that defendant stated he and his friends intended to steal a car so they could purchase marijuana. In a related case, Nathaniel Morrison, another member of the group, pled guilty to and was sentenced to the maximum eighteen month sentence by the trial court. By all indications, Morrison was the other passive member of the group in the attempted robbery of Watson. When it sentenced Morrison, the trial court stated that it is obvious [Morrison] as well as his co-defendant Martin Hart did cooperate with the authorities. In sentencing defendant to the maximum sentence of 18 months, the trial court stated: a lesser sentence would demean the seriousness of the offense and would not adequately protect the public from future crime by the offender or others. Defendant filed a timely notice of appeal from his sentence. Defendant's sole assignment of error states as follows: I. THE TRIAL COURT ERRED IN IMPOSING THE MAXIMUM SENTENCE PURSUANT TO R.C. S2929.14(C) WHERE IT DID NOT EXPLICITLY OR IMPLICITLY FIND THE APPELLANT COMMITTED THE WORST FORM OF THE OFFENSE OR THAT THE APPELLANT POSED THE GREATEST LIKELIHOOD OF COMMITTING FUTURE CRIMES. The issue before this Court is whether the trial court must make specific findings under new S.B.2 before imposing the maximum sentence for certain crimes. -4- Specifically, R.C. 2929.14(C) provides: (C) Except as provided 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 posed the greatest likelihood for 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. When it sentenced defendant Hart, the trial court stated why the maximum eighteen month sentence was being imposed: [M]y view of the situation compels me to remark [that] this as [sic] a tragic situation, and not only does the victim suffer in these situations but also the family of the defendant. Particularly anytime we have a youthful defendant. Nevertheless, this is a car-jacking situation at gunpoint, the defendant is a frequent user of drugs, and the motive for the car jacking was tied to drugs. The offense was committed at gunpoint. There were words that the person wielding the weapon brandishing the weapon was asking his companions if he should Pop the victim. The Court is also taking into account the plea bargaining which took place, which is to the advantage of this defendant, and while I have no criticism of the plea bargain situation the Court feels the maximum sentence of 18 months is in order. The Court feels that for the following reasons this situation presents a danger to society and society should be protected. A lesser sentence would demean the seriousness of the offense and would not adequately protect the public from future crime by the offender or others. I find as a matter of law this sentence is necessary to protect the public from future crimes of this sort and also to punish the offender. Car-jacking at gunpoint is an act of violence which must be treated in such a manner as to discourage its future occurrence. -5- Therefore, I sentence you to the maximum term of 18 months in the penitentiary. (Tr. at 38-40). In sum, the trial court appears to have sentenced defendant Hart to the maximum because: (1) the defendant received an advantageous plea bargain; and (2) a lesser sentence would demean the seriousness of the offense and would not protect the public from future crimes by the offender and others. The fact that defendant received an advantageous plea bargain is irrelevant to determining whether the maximum sentence should be imposed pursuant to R.C. 2929.14(C). The court's stating that a lesser sentence would demean the seriousness of the offense and would not adequately protect the public from future crime is the exact language in R.C. 2929.14(B) for determining whether a minimum sentence should be imposed. This suggests that the trial court confused the statutory requirements of R.C. 2929.14(B) instead of what was required by R.C. 2929.14(C). R.C. 2929.14(B) provides: (B) Except as provided in division (C), (D)(2), or (D)(3) of this section or in Chapter 2925. of the Revised Code if the court imposing a sentence upon an offender for a felony elects or is required to impose a prison term on the offender and if the offender previously has not served a prison term, the court shall impose the shortest prison term authorized for the offense pursuant to division (A) of this section, unless the court finds on the record that the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public from future crime by the offender or others. -6- The court did not make any specific finding, nor does the record necessarily imply, that defendant Hart committed the worst form of the offense or that he was likely to be a repeat offender. As this Court in State v. Banks (Nov. 20, 1997), Cuyahoga App. No. 72121, unreported recently held: 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. Moreover, under R.C. 2929.19(B)(2), unlike R.C. 2929.13(B)(2)(b), supra, the trial court must make a finding that gives its reasons for imposing the maximum sentence for a single offense. Revised Code 2929.14(C) specifically states the circumstances, furthermore, under which the maximum prison sentence for an offense should be imposed ***. 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 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. See, also, State v. Kimmie (July 2, 1998), Cuyahoga App. No. 72904, unreported; State v. Beasely (June 11, 1998), Cuyahoga App. No. 72853, unreported; State v. Collins (Dec. 11, 1997), Cuyahoga App. No. 71717, 71718, unreported. -7- Accordingly, because there is a significant risk here that the trial court inadvertently applied the standards of R.C. 2929.14(B) rather than (C), we will remand the matter for resentencing. Defendant's sole assignment of error is sustained. Sentence vacated; remanded for resentencing. -8- 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 Court of Common Pleas 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. JAMES M. PORTER, PRESIDING JUDGE ANN DYKE, JUDGE TIMOTHY E. McMONAGLE, 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 .