COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 77455 STATE OF OHIO : ACCELERATED DOCKET : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION ALBERT ROSE : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION : AUGUST 24, 2000 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-379,695 JUDGMENT : REVERSED AND REMANDED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: WILLIAM D. MASON Cuyahoga County Prosecutor MAUREEN E. CLANCY, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: RICHARD AGOPIAN Attorney at Law 1750 Standard Building 1370 Ontario Street Cleveland, Ohio 44113-1735 KENNETH A. ROCCO, J.: -2- This case came to be heard upon the accelerated calendar pur- suant to App.R. 11.1 and Loc.R. 25, the record from the lower court, the briefs and the oral arguments of counsel. Defendant-appellant Albert Rose appeals from the trial court's imposition of consecutive sentences following his guilty plea to one count of possession of drugs and one count of unauthorized use of a motor vehicle. Appellant originally was indicted on one count of extortion, R.C. 2905.11, and one count of grand theft of a motor vehicle, R.C. 2913.02. After several pretrial hearings, the trial court con- ducted a plea hearing. Although the transcript of the plea hearing is not included in the record on appeal, the record reflects the state amended the indictment against appellant pursuant to Crim.R. 7(D); thus, appellant entered guilty pleas to a charge of posses- sion of drugs, R.C. 2925.11, and a charge of unauthorized use of a motor vehicle, R.C. 2913.03.1 Following a presentence investigation and report, the trial court held a sentencing hearing. The trial court mentioned the recidivism and seriousness factors it found relevant to appel- lant's case, then stated it found under the sentencing factors that [appellant] previously served a prison term and that the offense was committed while under a community controlled (sic) sanction. The trial court thereupon imposed consecutive sentences of eleven months on each count and further ordered appellant to pay 1This court presumes regularity in the absence of an adequate record; moreover, appellant raises no challenge to the amendment of the indictment. -3- a fine of $500 plus costs [b]ecause of the gravity of the impact and because this is one of the worst kind (sic) of offenses against the elderly. Appellant has filed a timely appeal of the trial court's order of sentence. He presents the following assignment of error for review: THE SENTENCE IMPOSED BY THE TRIAL COURT WAS CONTRARY TO LAW. Appellant argues the trial court failed to make the requisite findings prior to ordering his sentences to be served consecu- tively. This court agrees. R.C. 2929.14(E)(4) and R.C. 2929.19(B)(2) set forth the statu- tory requirements to be followed in imposing consecutive sentences. The former statute contains the phrase "if the court finds." Focusing on this precise statutory language, the supreme court has stated: We construe this *** to mean that *** the record of the sentencing hearing must reflect that the court found that either or both of the two statutorily sanctioned reasons *** warranted the *** sentence. * * * *** [I]n enacting the new sentencing laws, the General Assembly only sought to confirm that courts considered the statutory requirements by stating that a defendant may obtain certain relief if "the court did not specify in the finding it makes at sentencing that it found one or more of the factors specified." (Em- phasis added.) The structure of the various sentencing statutes suggests that the General Assembly approached felony sentencing by mandating a record reflecting that judges considered certain factors and presumptions to confirm that the court's decision-making process included all of the statutorily re- quired sentencing considerations. -4- State v. Edmonson (1999), 86 Ohio St.3d 324 at 326-327. (Emphasis in original; underscoring added.) Additionally,however, unlike the fact situation addressed by the supreme court in Edmonson, a trial court is mandated by R.C. 2929.19(2)(c) also to give its reasons for imposing consecutive sentences. The record of the sentencing hearing in this case, as in Edmonson, fails to reflect statutory compliance. The trial court stated neither that consecutive terms were "necessary [either] to protect the public from future harm or to punish the offender" nor that the terms were "not disproportionate to the seriousness of [appellant's] conduct and to the danger [appellant] poses to the public." Rather, this initial statutory duty imposed by R.C. 2929.14(E)(4) was overlooked. It can be gleaned from reading the trial court's comments it was presenting some reasons for imposing consecutive terms pur- suant to R.C. 2929.19(B)(2). Without stated findings regarding the necessary statutory criteria, however, Edmonson requires this court to reverse appellant's sentence and remand this case for re- sentencing. It is not unreasonable to require trial courts in this state to follow the directives of Edmonson by simply tracking clear statutory language when pronouncing sentence. To do so simplifies both the defendant's understanding of his punishment and potential later appellate review of the matter. -5- Since the record reflects the trial court did not fully comply with its statutory duties in imposing consecutive sentences, appellant's assignment of error is sustained.2 The trial court's order of sentence is reversed. This case is remanded in order for the trial court to follow statutory mandates set forth in R.C. 2929.14(E)(4) and R.C. 2929.19(B)(2) if it deems consecutive sentences to be appropriate. This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. 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. JAMES M. PORTER, J. CONCURS ANN DYKE, A.J. DISSENTS (See separate Opinion) JUDGE KENNETH A. ROCCO 2Appellant's alternate argument with respect to his assignment of error is rendered moot. See App.R. 12(A)(1)(c). 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 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. 77455 STATE OF OHIO : : Plaintiff-Appellee : : D I S S E N T I N G -vs- : O P I N I O N : ALBERT ROSE : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 24, 2000 DYKE, A.J., DISSENTING: Because I conclude that the trial court made the statutorily required findings before imposing consecutive sentences, I respectfully dissent. R.C. 2929.14(E)(4) governs the imposition of consecutive sentences and provides in relevant part as follows: If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require -1- the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not dispro- portionate to the seriousness of the offender's conduct and to the danger the offender poses to the public, and if the court finds any of the following: (a) The offender committed the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense. (b) The harm caused by the multiple offenses was so great or unusual that no single prison term for any of the offenses committed as part of a single course of conduct adequately reflects the seriousness of the offender's conduct. (c) The offender's history of criminal conduct demon- strates that consecutive sentences are necessary to protect the public from future crimes by the offender. R.C. 2929.19(B)(2) provides that: 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: * * * * * * (c) If it imposes consecutive sentences under section 2929.12 of the Revised Code, its reasons for imposing the consecutive sentences. This Court, in State v. Albert (1997), 124 Ohio App.3d 225, 230, concluded that a trial court must explicitly engage in the analysis set forth in the statute when ordering consecutive sentences: R.C. 2929.14 requires the court to make a finding that the consecutive sentences are necessary to protect the public from future crime or to punish the offender and that such consecutive sentences are not disproportionate to the seriousness of the offender's conduct and the -2- danger posed to the public and that the harm caused by the multiple offenses was so great or unusual that no single prison term for any of the offenses adequately reflects the seriousness of the conduct. In this case, the trial court stated as follows: On the recidivism factors, the Court finds the offender was out on bail before trial or sentencing, under Court sanction or under post-release control or parole. And when the offense was committed, the sanction would be that the defendant was on parole when the offense was committed. There had been a prior adjudication of delinquency or criminal convictions. The Court notes that there have been seven prior convictions. There has been a failure to respond favorably in the past to sanctions imposed for criminal convictions, and he shows no remorse for the offense. Under the seriousness factors, the Court does find it to be more serious that the injury to the victim was worsened by the physical or mental condition or age of the victim. The explanation would be that the victim is 71 years of age. The Court further finds that the victim suffered serious physical, psychological or economic harm as a result of the offense, and the explanation would be that the victim indicated that she had to borrow money from her children as a result from the impact this crime had on her, and that the relationship with the victim facilitated the offense. * * * Court further finds under the sentencing factors that the offender previously served a prison term and that the offense was committed while under a community controlled sanction. In accordance with the foregoing, the trial court determined that consecutive sentences are necessary to protect the public from future crime or to punish defendant because he had an extensive record and had not responded favorably to his past sanctions. The court also stated that defendant had committed one of the worst -3- forms of offenses because the victim was an elderly woman who suffered psychological and financial hardship as the result of the offenses. In my view, therefore, the trial court fully complied with its statutory duties in imposing consecutive sentences. In accordance with the foregoing, I would conclude that the trial court properly imposed consecutive sentences in this instance. .