COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 78625 STATE OF OHIO : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION KIM GIVNER : : DEFENDANT-APPELLANT : : DATE OF ANNOUNCEMENT OF DECISION: JULY 5, 2001 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas, Case No. CR-385575. JUDGMENT: SENTENCE VACATED, REMANDED FOR RE-SENTENCING. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: WILLIAM D. MASON, Esq. Cuyahoga County Prosecutor RICHARD J. BOMBIK, Esq. Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: JAMES A. DRAPER, Esq. Cuyahoga County Public Defender DARIN THOMPSON, Esq. Assistant Public Defender 1200 West Third Street, N.W. 100 Lakeside Place Cleveland, Ohio 44113-1569 -2- SWEENEY, JAMES D., P.J.: Defendant-appellant Kim Givner (d.o.b. May 16, 1974; Givner ) appeals from the imposition of consecutive four-year terms of imprisonment following his plea of no contest to the following: (1) one count of aggravated vehicular homicide with a driving under the influence specification, a felony of the third degree; and, (2) one count of aggravated vehicular assault with a driving under the influence specification, a felony of the fourth degree. For the reasons adduced below, we vacate the sentence and remand for complete re-sentencing. A review of the record on appeal indicates that Givner was operating his 1989 Ford Escort automobile at a high rate of speed going westbound along Cedar Avenue in the City of Cleveland at approximately11:40 p.m. on November 2, 1999. Seated in the front passenger seat was Ms. Nicole Bush. Seated in the back seat was Ms. Tamara Forman. Givner, who had purchased adulterated marijuana known as Wet 1a short time prior to the accident herein and which controlled substance was being ingested by Givner and Ms. Bush that night, and while operating his vehicle at a high rate of speed, struck a parked pick-up truck occupied by two individuals, causing Givner to lose control of his own vehicle. Givner's vehicle spun into a wooden utility pole adjacent to the northbound curb lane of 1 Wet is marijuana which has been adulterated with phencyclidine, a hallucinogen commonly referred to as PCP. -3- the roadway, causing the death of Ms. Bush and serious and permanent injuries to Ms. Forman.2 Givner was indicted on December 27, 1999, and pled not guilty on February 23, 2000. On May 19, 2000, Givner withdrew his plea of not guilty and entered a plea of no contest. After taking the change in plea and finding Givner guilty of the offenses, the trial court referred Givner to the probation department for the preparation of a pre-sentence investigation report. Sentencing was originally scheduled for July 18, 2000, but Givner failed to appear at that time and the matter was continued subsequent to the issuance of a capias. On August 21, 2000, the trial court conducted a sentencing hearing in this case. At this hearing the court heard from Mr. Zachary Will, the brother of the decedent (Nicole Bush). Mr. Will informed the court that the decedent was a twenty-one-year-old single mother with a two-year-old son, and expressed his forceful belief that Givner deserved the maximum sentence so as to impress upon him the enormity and permanency of the loss to the decedent's family. Mr. Will was particularly outraged because drug use and drinking were involved in the accident. Next, the court heard from the decedent's step-mother, Ms. Tina Byers, who reiterated Mr. Will's commentary, and also expressed her thought that Ms. Bush died because of the involvement of drinking and drugs in Givner's operation of the vehicle. The court then heard from the decedent's 2Ms. Forman sustained two broken arms, a broken leg, and a fractured pelvis. -4- grandmother, Ms. Martha Nala, who expressed her hope that Givner free himself of drug and alcohol usage, turn his life around, and find forgiveness through praying to the Lord while in prison. With that, the State rested. The court then heard from Givner, whose entire statement to the court is the following, I would like to apologize to the family, loved ones of Nicole and Tamera. And if it was in my power to take the whole night back, I would, but I can't. And that's all, your Honor. Tr. 20. Next, the court heard from Givner's mother, who apologized for the actions of her son and expressed regret to the victims' families. The defense then offered the oral statement of a Givner family friend, Ms. Darlene Ramsey, who stated that Givner was very remorseful for what had happened, and did not deliberately kill the decedent. Ms. Ramsey also stated that Givner is the father of a little girl and asked that they all pray for the victims and their families, and Givner. Finally, the court heard from defense counsel who stressed to the court that Givner was taking responsibility for his actions, as evidenced by pleading to the indictment, and asked the court to consider all the circumstancesof the case in determining the appropriate sentence. The court then addressed Givner: THE COURT: Thank you. First all, to Nichole's family, my sincere condolences. It's difficult to tell a child, we now have a child who won't have a mother. We have a mother who doesn't have a daughter, grandmother doesn't have a granddaughter. Tamera's family, I hope her recovery goes well. -5- Mr. Givner, I look at your presentence investigative report and there is not one redeeming factor that I can gather from it. You have a juvenile criminal history, you have an adult criminal history. You tested positive for marijuana when you were sent down to the probation department. That's after your plea, that's well after this accident. So in terms of accepting responsibility, I don't believe you have. You are continuing with the same pattern of behavior which caused this accident in the first place. More importantly, however, you don't show up for sentencing. That is not accepting responsibility. It's offensive to the victims, the family, and it's offensive to this court. You know, fortunately, somebody called the victim's family and told you told them where you were hanging out. You were riding your motorcycle, you were hanging out with your girlfriend, and you're partying. I was told by the deputy sheriff that when they picked you up, you were under the influence. So you're not accepting responsibility. Mr. Martin is correct. This proceeding is not about revenge. But what it is about is protecting the public from future criminal acts which you could commit, which I believe you would commit, because as of now, I've seen no change in your behavior. None. I made it a personal mission when I got that call to make sure they got you. I called the deputy myself and said get this guy off the street. I want him here now. We're lucky you didn't run somebody else over. Do you understand what I'm saying, Mr. Givner? THE DEFENDANT: Yes. THE COURT: Do you understand my perception here? THE DEFENDANT: Yes, sir. THE COURT: I'm going to give you four years on the felony three, and I'm going to give you 17 months on the felony four, I'm going to run -6- those consecutive. Reason why I'm running them consecutive is that it's one of the worst forms of the offense that could have been committed, based on your prior criminal history, based upon your behavior subsequent to this event. In my mind, we need to protect the public from future criminal acts and future harm that you could commit. You have a right to appeal this sentence. If you cannot afford an attorney for the purposes of appealing the sentence, the court will appoint one to represent you for the purposes of appeal. Sheriff to transport, LCI. In addition, there is a lifetime suspension of all driving privileges. In its August 30, 2000 journal entry from the sentencing hearing, the trial court stated the following, in pertinent part: *** Defendant and victim/representative address the court. The court considered all of the required factors of the law. The court finds this offense to be one of the worst forms of the offense. Defendant has a prior criminal history. Defendant failed to appear at the original sentencing date. The public needs to be protected from future crime. The defendant caused serious physical harm to a victim and a death of another. The court finds that prison is consistent with the purpose of R.C. 2929.11. The court imposes a prison term at Lorain Correctional Institution of 4 years as to count 1 and 17 months as to count 2. Counts to run consecutive to each other for a total confinement of 5 years and 5 months. The sentence includes any extensions provided by law. Defendant is to pay court costs. -7- Defendant's driver's license is suspended3 for life. *** Givner's lone assignment of error provides: THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO CONSECUTIVE TERMS OF INCARCERATION WITHOUT SETTING FORTH THE MANDATORY FINDINGS REQUIRED BY R.C. SS2929.14(E)(4) AND 2929.19(B)(2)(c). This court recently addressed a similar consecutive sentence assignment, stating: R.C. 2929.19(B)(2)(c) requires the trial court to make a finding that gives its reasons for selecting the sentence if it imposes consecutive sentences under R.C. 2929.14. Further, R.C. 2929.14(E)(4) provides in part: If multiple terms are imposed on an offender for convictions of multiple offenses, the court may require 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 disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public, and if the court also finds any of the following: * * * (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 3The penalty for a felony of the third degree is one, two, three, four, or five years imprisonment. R.C. 2929.14(A)(3). The penalty for a felony of the fourth degree is six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, or eighteen months imprisonment. R.C. 2929.14(A)(4). The sentence imposed on Givner was not the maximum sentence for either offense. -8- adequately reflects the seriousness of the offender's conduct. (c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender. The court imposed consecutive sentences for each count of sexual battery, stating that it believed Mr. Durden would re-offend in the future. The court did not, however, make the statutorily mandated findings for imposing consecutive sentences in accordance with R.C. 2929.14(E), either at the time of sentencing or in its sentencing entry. In State v. Albert, 124 Ohio App. 3d 225, 705 N.E.2d 1274 (1997), we stated at page [124 Ohio App. 3d at] 230: *** R.C. 2929.19(B)(2)(c) requires the trial court to make a finding that gives its reasons for selecting the sentence imposed if it imposes consecutive sentences. (Emphasis added.) State v. Durden (May 17, 2001), Cuyahoga App. No. 78068, unreported, 2001 Ohio App. LEXIS 2180 at 5-7. See, also, State v. Edmonson (1999), 86 Ohio St.3d 324 ; State v. Gonzalez (Mar. 15, 2001), Cuyahoga App. No. 77338, unreported, 2001 Ohio App. LEXIS 1185 at 23-29 (when imposing a consecutive sentence, the trial court must [1] make a category finding under R.C. 2929.14[E][4][a]- [c], and [2] set forth its reasons for that finding as required by R.C. 2929.19[B][2][c]; mere recitation of the defendant's prior criminal record by the trial court is not sufficient to satisfy the statement of reasons under R.C. 2929.19[B][2][c]; reasons mean the trial court's basis for its findings). -9- In the case sub judice, and contrary to the appellant's argument, the trial court made a category finding, specifically under R.C. 2929.14(E)(4)(c) when it stated in its journal entry that, The public needs to be protected from future crime. However, making the finding that one or more of paragraphs (a), (b), or (c) of R.C. 2929.14(E)(4) apply is not sufficient to comply with the mandatory findings required by R.C. 2929.14(E)(4) and the imposition of consecutive sentences. R.C. 2929.14(E)(4) also requires the following additional findings in the record: 1) That consecutive sentences are necessary to protect the public from future crime or to punish the offender; 2) that the sentences are not disproportionate to the seriousness of the offender's conduct; 3) that the sentences are not disproportionate to the danger the offender poses to the public; *** State v. DeAmiches (Mar. 1, 2001), Cuyahoga App. No. 77609, unreported, 2001 Ohio App. LEXIS 768 at 26; see also, State v. Gonzalez, supra, 2001 Ohio App. LEXIS 1185 at 26. Arguably, the trial court addressed the first additional finding when it referenced protecting the public from future criminal acts committed by Givner. However, the second and third additional findings (dealing with a proportionality review of the sentences in regard to the offender's conduct and the danger the offender poses to the public), required by R.C. 2929.14(E)(4) and DeAmiches, are not in the record, either at the time of sentencing or in the sentencing journal entry. The lack of the second and third additional findings alone mandates vacating the sentence and -10- remanding the matter for re-sentencing for inclusion of these absent findings. See R.C. 2953.08(G). Appellant further maintains that the trial court did not fulfill its duty to state its reasons for the R.C. 2929.14(E)(4)(a)-(c) category finding, as well as the additional second and third DeAmiches findings, as required by R.C. 2929.19(B)(2)(c). As previously detailed above, the trial court's reasons for the imposition of a consecutive sentence was premised, in part, on Givner having a prior criminal record and his failure to appear at the time of the original sentencing hearing (which was continued due to his absence). A passing reference to Givner's criminal record, without detailing that record and explaining how that record relates to, or impacts, the four specific findings required by R.C. 2929.14(E)(4) and DeAmiches, is not sufficient to satisfy the statement of reasons under R.C. 2929.19(B)(2)(c). State v. Gonzalez, supra, 2001 Ohio App. LEXIS 77338 at 28, citing State v. Albert, supra, 124 Ohio App.3d at 230. Finally, the trial court arguably cites to the remaining reasons in support of consecutive sentences, namely, to protect the public from future crime and the fact that there was serious physical harm or death involved in the offenses. These reasons, are not ascribed to the second or third additional findings required by R.C. 2929.14(E)(4) and De Amiches; the record contains no reasons to explain the (missing) second and third additional findings. Therefore, we vacate the sentence imposed by the trial court in its entirety, and remand the matter for complete re-sentencing. -11- See, State v. Bolton (May 3, 2001), Cuyahoga App. No. 78034, unreported, 2001 Ohio App. LEXIS 1980. We further instruct the trial court that if it chooses to impose consecutive sentences at the re-sentencing, that it must state, on the record, the four findings required by R.C. 2929.14(E)(4), including its reasons for said findings. See R.C. 2953.08(G); Edmonson, supra. The assignment of error is affirmed. Sentence vacated, and case remanded for re-sentencing. -12- 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 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 re-sentencing. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA A. BLACKMON, J., and COLLEEN CONWAY COONEY, J., CONCUR. ______________________________ JAMES D. SWEENEY PRESIDING 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). .