COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 75505 STATE OF OHIO : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION ROBERT OSBORNE : : DEFENDANT-APPELLANT : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 23, 1999 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas, Case No. CR-363021. JUDGMENT: REVERSED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: WILLIAM D. MASON Cuyahoga County Prosecutor BLAISE D. THOMAS Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: TODD J. McKENNA, Esq. 55 Public Square, Suite 1260 Cleveland, Ohio 44113-1992 -2- SWEENEY, JAMES D., J.: Defendant-appellant Robert Osborne appeals from his conviction for two counts of aggravated arson in violation of R.C. 2909.02. The appellant pled guilty and was sentenced to a term of incarceration of six years on each count, to run concurrently. The appellant contests his sentence. At the sentencing hearing, the court heard arguments from both the appellant's counsel and from the prosecution. The appellant's counsel informed the court that the appellant, then not quite nineteen years old, was a first-time offender who was not the main actor in the crime. The appellant was influenced by trusted family and friends and was not involved in the planning of this crime. The appellant admitted that he broke into the building and stayed after he knew the fire would be lit. Counsel stated that a co- defendant had admitted to setting the fire. Appellant's counsel placed on the record the fact that appellant is learning disabled. The appellant stated his remorse. The state argued that the appellant did nothing to distance himself from the crime after it was committed and that by his subsequent actions he adopted and ratified the events of the conspiracy. While acknowledging that the appellant's culpability was not necessarily on the same exact level as the co-defendant, the prosecution argued that the appellant's culpability was very close to it. (T. 8-9). The court also heard a statement from Cleveland Fire Department Captain John Colleran of the fire investigation unit. -3- Captain Colleran stressed that the appellant substantially cooperated with the investigation. The appellant was slow to make the right decision, but ultimately did make the decision and did accept responsibility. Captain Colleran stated that the appellant was led into this crime by two other individuals, Lloyd Maynard whom the appellant admired, and by Seid Ibrahim. Captain Colleran stated: And according to Seid Ibrahim's testimony or statements given to us, the reason Robert Osborne was brought into this was, first of all, Seid Ibrahim was reluctant to take this action on his own and he sought the help of Robert Osborne with the idea that if they had been discovered, Seid Ibrahim would be able to flee and Robert Osborne would be left responsible for this act. He made the wrong decision and he was misled by those individuals . . . . (T. 10). The court noted that the fire in which the appellant participated caused extensive damage. The trial court also noted that it presided over the trial and heard all of the relevant testimony. The court considered the remarks of counsel and the seriousness of the offense. The court continued: the seriousness of the offense is, I guess, all the time that was taken, over a period of several hours or a day that there was this plan in the works, and, of course, again the damage to the building, the cost to raze the building, which totals about $280,000. * * * You absolutely did make a stupid decision and you're going to have to pay dearly for it. This was a serious offense, and I feel my obligation is to protect the community. Your lack of discretion or your lack of ability to make the right decision leads me to arrive at this conclusion. -4- (T. 11). The appellant's convictions for aggravated arson pursuant to R.C. 2909.02 are first degree felonies. R.C. 2929.14(A)(1) provides that the sentence for a first degree felony shall be three, four, five, six, seven, eight, nine, or ten years imprisonment. The trial court imposed a sentence of six years incarceration on each count, to be served concurrently. It is from this sentence the appellant filed this appeal. The appellant sets forth one assignment of error: WHERE THERE IS ONLY A PRESUMPTION OF PRISON, AND WHERE SEVERAL STRONG MITIGATING FACTORS ARE PRESENT IN A RECORD WHICH FAILS TO CONTAIN FINDINGS BY THE SENTENCING COURT THAT A SENTENCE OF MORE THAN THE MINIMUM PRISON TERM WOULD DEMEAN SERIOUSNESS OF CONDUCT, OR FAIL TO ADEQUATELY PROTECT PUBLIC FROM FUTURE CRIME, SENTENCE SHOULD BE REDUCED, OR MATTER REMANDED FOR RESENTENCING. The appellant places before this court various arguments that the trial court erred in failing to consider the principles of felony sentencing when it imposed such a lengthy prison term. The appellant asserts that there are mitigating factors which should have lead the trial court to impose a less lengthy prison term. In addition, the appellant asserts that the court failed to follow the provisions of R.C. 2929.14(B). R.C. 2929.14(B) states in pertinent part: (B) [I]f 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 -5- 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. (Emphasis added.) In the recent case of State v. Edmonson (1999), 86 Ohio St.3d 324, at the syllabus, the Supreme Court set forth the requirements of R.C. 2929.14(B): R.C. 2929.14(B) does not require that the trial court give its reasons for its finding that the seriousness of the offender's conduct will be demeaned or that the public will not be adequately protected from future crimes before it can lawfully impose more than the minimum authorized sentence. (Emphasis original.) In its discussion, the court construed this statute to mean that unless the court imposed the shortest term authorized on a felony offender who has never served a prison term, the record of the sentencing hearing must reflect that the court found that either or both of the two statutorily sanctioned reasons for exceeding the minimum term warranted the longer sentence. Edmonson at 326. More explicitly, the court deduced that the verb finds as used in this statute means that the court must note that it engaged in the analysis and that it varied from the minimum for at least one of the two sanctioned reasons. Id. at 326. The Edmonsoncourt concluded its analysis by finding that the trial court had failed to specify either reason listed in R.C. 2929.14(B) as support for its deviation from the minimum sentence. The Supreme Court then stated With this record, there is no confirmation that the court first considered imposing the three- year minimum sentence and then decided to depart from the -6- statutorily mandated minimum based on one or both of the permitted reasons. Edmonson at 328. In the case sub judice, there is no dispute that the appellant is a first-time offender who has never served a prison term. Thus, the provisions of R.C. 2929.14(B) are applicable. The trial court, in its statement made at the time of sentencing, did recite that the sentence was being imposed to protect the community (T. 11). However, there is no indication that the court considered the minimum three-year sentence and then found that the minimum sentence would not protect the public. Since the trial court failed to comply with the dictates of Edmonson, supra, the appellant's assignment of error is well taken. Judgment reversed and remanded for resentencing. -7- This cause is reversed. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said 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. Exceptions. JAMES M. PORTER, A.J., and PATRICIA A. BLACKMON, J., CONCUR. ______________________________ 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. 22. 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 .