State v. Sour, Unpublished Decision (11-22-2002)
State v. Sour, Unpublished Decision (11-22-2002)
Opinion of the Court
{¶ 2} We agree with the State. Accordingly, the judgment of the trial court is Reversed, and this cause is Remanded for re-sentencing.
{¶ 4} Sour pled guilty to five counts of Aggravated Robbery and four counts of Robbery. The State dismissed all of the firearm specifications and the Kidnapping charge.
{¶ 5} Following a sentencing hearing, the trial court imposed sentences of three years on each of the five Aggravated Robbery counts, to be served consecutively. The trial court imposed a sentence of one year on each of three of the Robbery counts. These three, one-year sentences were to be served concurrently with one another, but consecutively to the Aggravated Robbery sentences. Finally, the trial court imposed a sentence of two years on the remaining Robbery count, to be served consecutively with the other sentences. The sentences aggregated 18 years. The trial court specified that this aggregate 18-year sentence was to run concurrently with a sentence imposed by the Commonwealth of Kentucky.
{¶ 6} Sour has appealed from his conviction and sentence. His original assigned counsel filed a brief pursuant to Anders v. California
(1967),
{¶ 8} "THE TRIAL COURT ERRED PREJUDICIALLY BY IMPOSING CONSECUTIVE SENTENCES ON DAVID SOUR WITHOUT STATING ITS REASONS IN CONTRAVENTION OF R.C.
2929.19 (B)(2)(c)."
{¶ 9} Sour contends that although the trial court made the requisite statutory findings for the imposition of consecutive sentences, it did not satisfy the separate requirement of R.C.
{¶ 10} The State confesses error in this regard, noting that pursuant to State v. Edmonson (1999),
{¶ 11} Sour's Second Assignment of Error is sustained.
{¶ 13} "CONSECUTIVE SENTENCES ARE UNWARRANTED SINCE THE SENTENCE IS DISPROPORTIONATE TO THE OFFENSE AND SINCE THERE IS A LACK OF RISK TO THE PUBLIC."
{¶ 14} "THE APPELLATE COURT SHOULD MODIFY DAVID SOUR'S SENTENCES TO RUN CONCURRENTLY AS PERMITTED BY R.C.
2953.08 (G)(1)(a)."
{¶ 15} Although what we have set forth above as Sour's Third Assignment of Error is set forth in his brief either as part of his Second Assignment of Error, or in connection with that assignment of error, we conclude that it more appropriately belongs here, in juxtaposition with his First Assignment of Error.
{¶ 16} The State argues, in its brief confessing error, that the trial court's error in failing to set forth, on the record, its reasons for making the statutory findings, requires reversal and remand of this cause to the trial court for re-sentencing. We agree.
{¶ 17} R.C.
{¶ 18} Sour argues that we should "clearly and convincingly" find that the record does not support the requisite statutory findings for the imposition of consecutive sentences. In connection with this assertion, Sour contends that the recitation, in the bill of particulars, that one of the perpetrators displayed a handgun during the commission of the offense, was inaccurate with respect to all but one of the ten counts, as reflected by police reports. This is an issue of fact that should be considered by the trial court. Upon the record before us, we are not prepared to find, by the clear and convincing standard set forth in R.C.
WOLFF, P.J., and BROGAN, J., concur.
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