COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 84037 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION ALF PERKINS, JR. : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : JULY 14, 2005 : CHARACTER OF PROCEEDINGS : Criminal appeal from : Common Pleas Court : Case No. CR-420816 : JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: WILLIAM D. MASON, ESQ. Cuyahoga County Prosecutor BY: MAUREEN E. CLANCY, ESQ. Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: ROBERT L. TOBIK, ESQ. Cuyahoga County Public Defender BY: ROBERT M. INGERSOLL, ESQ. Assistant Public Defender 1200 West Third Street N.W. 100 Lakeside Place Cleveland, Ohio 44113 -2- FRANK D. CELEBREZZE, JR., P.J.: Appellant, Alf Perkins, appeals from the trial court 's imposition of maximum and consecutive sentences after he entered guilty pleas for attempted aggravated robbery and felonious assault. Perkins claims the trial court did not adhere to the applicable sentencing statutes by failing to make the requisite findings and state reasons for those findings. After reviewing the sentencing record and for the reasons set forth below, we affirm Perkins' sentence. On March 13, 2002, Perkins was indicted by the Cuyahoga County Grand Jury on a charge of aggravated robbery, in violation of R.C. 2911.01, two counts of felonious assault, in violation of R.C. 2903.11, and carrying a concealed weapon, in violation of R.C. 2923.12. The aggravated robbery and felonious assault counts included one- and three-year firearm specifications, pursuant to R.C. 2941.141 and R.C. 2941.145. Perkins pleaded not guilty to the entire indictment. On May 22, 2002, Perkins entered into a plea agreement with the state whereby the indictment was amended to charge him with one count of attempted aggravated robbery and one count of felonious assault; both counts included a three-year firearm specification. The remaining counts were nolled. In addition, two separate drug cases against Perkins (CR-419893 and CR-421725) were dismissed. Perkins pleaded and was found guilty by the trial court of the -3- charges as amended. The trial court ordered a presentence investigation report. The following facts were adduced from the sentencing hearing. The victim stated that Perkins observed him as he put money back into his pocket after a purchase at a local market. Perkins then followed him out into the parking lot of the market where he pulled out a firearm and fired at least five rounds at the victim. As the victim tried to run away, he was shot twice in the back, with a third bullet grazing his head. Perkins then approached the victim as he was lying on the ground, kicked him, and took his money. The victim was unarmed at the time of the shooting. Perkins claimed he was at the market to play the lottery when he exchanged heated words with the victim; he further claims the victim stated he "wanted to have a shoot out." Based on this statement, Perkins thought the victim had a firearm. Perkins admitted to shooting the victim, but denied shooting him in the back. His claims were contrary to the victim 's medical reports that stated the bullets entered from the victim's back. Perkins also denied taking the victim's money. The trial court noted that Perkins had previously been convicted of and served time in prison for violent crimes, including assault and battery with an attempt to kill, burglary of an inhabited dwelling, and domestic violence. Perkins had also been convicted of possession of drugs. -4- The trial court ordered Perkins to serve the maximum sentence of eight years for attempted aggravated robbery. The trial court then sentenced Perkins to three years for felonious assault and ordered this sentence to run consecutive with the sentence for attempted robbery. Last, the trial court merged the firearm specifications and ordered the mandatory three-year sentence to run prior to and consecutively with the sentences previously imposed. Perkins received a total of fourteen years of incarceration. Perkins appealed his prison sentence to this court in State v. Perkins, Cuyahoga App. No. 81547, 2003-Ohio-656, claiming the trial court failed to state the requisite statutory findings and state reasons for those findings before imposing maximum and consecutive sentences. Finding error, we reversed his sentence and remanded the matter back to the trial court to conduct a new sentencing hearing. On April 1, 2003, the trial court conducted another sentencing hearing. The trial court ordered Perkins to serve the maximum sentence of eight years for attempted aggravated robbery and three years for felonious assault; these sentences were ordered to run consecutively. The trial court then ordered the mandatory three- year sentence for the firearm specification to run prior to and consecutively with the sentences imposed for attempted aggravated robbery and felonious assault. Perkins again received a total of fourteen years of incarceration. -5- The appellant brings this appeal alleging one assignment of error for review: "Alf Perkins has been deprived due process of law by the maximum and consecutive sentences imposed on him as said sentences do not comport with Ohio's new sentencing structure." Before we address the appellant's sole assignment of error, we must first decide whether the holding of Blakely v. Washington (2004), U.S. , 124 S.Ct. 2531, 159 L.Ed.2d 403, raised in the appellant's supplemental brief, requires the reversal of his prison sentence. The appellant argues that under Blakely, his maximum sentence of eight years for aggravated robbery and the subsequent imposition of consecutive sentences would be invalid without additional findings made by the jury. Blakely involved the constitutionality of a prison sentence that was imposed under the state of Washington's sentencing scheme. The United States Supreme Court reversed the trial court 's imposition of a sentence above the standard statutory range holding that, "other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Blakely, supra at 2536, quoting Apprendi v. New Jersey (2000), 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed. 2d 435. The Court further held that the "statutory maximum" for purposes of Blakely and Apprendi is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or -6- admitted by the defendant. In other words, the relevant"statutory maximum" is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. Blakely, supra at 2537. The United States Supreme Court subsequently reaffirmed the holding in Apprendi, invalidating and severing section 3553(b)(1) from the United States Code, which makes it mandatory for federal district courts to follow the Federal Sentencing Guidelines. United States v. Booker (2005), 543 U.S. . The Court held that this section was incompatible with the United States Supreme Court's constitutional holding that the Sixth Amendment requires juries, not judges, to make findings of fact relevant to sentencing. If a state makes an increase in a defendant 's authorized punishment contingent on the finding of a fact, that fact -- no matter how the state labels it -- must be found by a jury beyond a reasonable doubt. Ring v. Arizona (2002), 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed. 2d 556. The result of the Supreme Court's decision rendered the Federal Guidelines merely advisory. A sentencing court still must consider the Guideline ranges, 18 U.S.C.S. §3553(a)(4), but it permits the court to tailor the sentence in light of other statutory concerns as well. However, if the Federal Guidelines as currently written could be read as merely advisory provisions that recommend, rather than require, the selection of particular sentences in response to -7- differing sets of facts, their use would not implicate the Sixth Amendment. Id. The U.S. Supreme Court further stated that they have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range. Id., citing Apprendi, supra; Williams v. New York (1949), 337 U.S. 241, 246, 69 S.Ct. 1079, 93 L.Ed. 1337. Moreover, the U.S. Supreme Court noted that all parties in Booker agreed that the Sixth Amendment issues presented in Apprendi and Blakely would have been entirely avoided if the provisions were omitted that make the Guidelines mandatory and binding on all district judges. When a trial judge exercises his/her discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant. Id. Unlike the Federal Guidelines, Ohio's sentencing structure does not require judges to impose mandatory sentences when certain facts are present. A federal judge was required to impose a certain prison sentence when a defendant committed a certain crime; Ohio does not use such a "grid" system. The Ohio trial judge has broad discretion on whether to impose a prison term, sentence the defendant to a fine and/or community control sanctions, or to run a defendant's sentences concurrently or consecutively with sentences for other crimes the defendant may have committed. Ohio also allows the trial judge to grant an offender judicial release from prison after the eligible offender has served a set amount of -8- prison time and/or his mandatory prison sentence. R.C. 2929.20. The "findings" required under R.C. 2929.14, which are actually considerations, may be mandatory under Ohio law; however, unlike the statutes in question in Booker and Blakely, the imposition of a definite prison sentence is not. As in the recent case of State v. Lett (May 31, 2005), Cuyahoga App. Nos. 84707 and 84729, we decline to accept the proposition forwarded by the appellant that Blakely, when applied to Ohio's sentencing structure, requires that a jury make additional factual determinations in order for the trial court to impose a maximum sentence on an offender. In Lett, we held that R.C. 2929.14(C) and (E), which govern the imposition of maximum and consecutive sentences, do not implicate the Sixth Amendment as construed in Blakely. Having disposed of the Blakely issue, we will now address the argument that the appellant's prison sentence is contrary to Ohio sentencing law. In his sole assignment of error, the appellant claims the trial court again failed to make the required findings before imposing the maximum sentence for attempted aggravated assault. The appellant also claims the trial court failed to make the required findings and give reasons for those findings before imposing a consecutive prison term. -9- MAXIMUM SENTENCE The trial court is not required to announce its underlying reasons for finding that a prison term greater than the minimum authorized sentence should be imposed upon the offender. State v. Edmonson, 86 Ohio St.3d 324, 1999-Ohio-110, 715 N.E.2d 131, syllabus. Rather, the trial court must have engaged in the statutory analysis and determined that one or both of the exceptions under R.C. 2929.14(B) are present. Edmonson, supra. R.C. 2929.14(B) states: "*** if the court imposing a sentence upon an offender for a felony elects or is required to impose a prison term on the offender, the court shall impose the shortest prison term authorized for the offense pursuant to division (A) of this section, unless one or more of the following applies: "(1) The offender was serving a prison term at the time of the offense, or the offender previously had served a prison term. "(2) 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." In order for the trial court to impose a maximum sentence it must make the required findings set forth in R.C. 2929.14(C), which provides: -10- "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 committed 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." It is not necessary for the trial court to use the exact language of R.C. 2929.14(B), as long as it is clear from the record that the court made the required findings. See State v. Jackson, Cuyahoga App. No. 79871, 2002-Ohio-2137; State v. Williams, Cuyahoga App. No. 79273, 2002-Ohio-503; State v. Hollander (2001), 144 Ohio App. 3d 565, 760 N.E.2d 929. In the instant matter, in accordance with R.C. 2929.14(B), the trial court found that the minimum sentence would not be appropriate in this case given the appellant has served a prior prison term. The trial court further stated that the shortest term would not adequately protect the public from the appellant and would demean the seriousness of his conduct. Before imposing the maximum sentence for attempted aggravated robbery, the trial court stated, in accordance with R.C. 2929.14(C), that the appellant has committed the absolutely worst -11- form of the offense by shooting an unarmed man in the back to rob him of his money. The trial court also stated that, given the appellant's previous criminal record, mostly convictions for violent crimes including assault and battery with an attempt to kill, burglary of an inhabited dwelling, and domestic violence, the maximum sentence was required to protect the public from future crimes that may be committed by the appellant. Furthermore, although not required to do so, the trial court also specified many reasons for its findings. After reviewing the sentencing transcript, we find that the trial court fully complied with both R.C. 2929.14(B) and (C) by stating the required findings before sentencing the appellant to the maximum sentence for attempted aggravated robbery. CONSECUTIVE SENTENCES In regard to the imposition of consecutive sentences, R.C. 2929.14(E)(4) governs and states in relevant part: "(4) If multiple prison 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: -12- "*** "(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 demonstrates that consecutive sentences are necessary to protect the public from future crime 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." Thus, R.C. 2929.14(E)(4) requires the trial court to make at least three findings prior to sentencing an offender to consecutive sentences. Pursuant to R.C. 2929.19(B)(2), the trial court must also give the reasons behind its findings. In the instant matter, we find that the trial court complied with R.C. 2929.14 when imposing consecutive sentences on the appellant. First, the trial court found consecutive sentences were required in this case to protect the public from crime and to -13- punish the offender. Second, the trial court made a finding that a consecutive sentence of fourteen years is not disproportionate to the seriousness of the appellant's conduct. Third, the trial court made a finding that the proposed consecutive sentence is not disproportionate to the danger that the defendant poses to the public. Last, the trial court specified that the appellant 's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crimes committed by the appellant. R.C. 2929.14(E)(4)(c). The trial court stated that to sentence the appellant otherwise would seriously demean the nature of these offenses given the extreme seriousness of the defendant's conduct. In addition to making the above findings, the trial court is also required to give the reasons for its findings. Failure to sufficiently state the reasons for imposing consecutive sentences for convictions of multiple offenses constitutes reversible error. State v. Hoole (Nov. 8, 2001), Cuyahoga App. No. 79515. Merely reciting or tracking the statutory language in R.C. 2929.14 is not sufficient to comply with the mandate set forth in R.C. 2929.19(B)(2) for consecutive sentences. Id. We find that the trial court complied with the requirements of R.C. 2929.19(B)(2) and provided a litany of reasons to support its findings. The trial court found that the appellant had a prior history of committing violent crimes, he showed no remorse for -14- shooting the victim, he caused serious physical and psychological injuries to the victim, and he shot an unarmed person in the back for his money. The trial court could not find any reasons to mitigate the appellant 's sentence. The trial court stated that people have the right to walk around the community and go into stores without worrying that they will be shot for the money in their pockets. Accordingly, appellant's single assignment of error is overruled. Judgment affirmed. -15- It is ordered that appellee recover from appellant 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 execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. FRANK D. CELEBREZZE, JR. PRESIDING JUDGE ANTHONY O. CALABRESE, JR., J., CONCURS; DIANE KARPINSKI, J., CONCURS (WITH SEPARATE CONCURRING OPINION). 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. 84037 STATE OF OHIO : : Plaintiff-Appellee : : CONCURRING v. : : OPINION ALF PERKINS, JR. : : Defendant-Appellant : DATE: JULY 14, 2005 KARPINSKI, J., CONCURRING: I concur separately to note that I believe the en banc procedure this court used in Lett is unconstitutional and dissented for that reason, as well as on the merits. See my dissent inState v. Lett, ante, and State v. Atkins-Boozer (May 31, 2005), Cuyahoga App. No. 84151. However, in conformity with this court's en banc decision in those opinions, I concur, albeit reluctantly, with the majority in overruling this assigned error, while I await a ruling from the Ohio Supreme Court on the issue. .