[Cite as State v. Davis,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION Nos. 97689, 97691, and 97692

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

EDDIE DAVIS DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-553823, CR-554690, and CR-555904

BEFORE: Cooney, J., Blackmon, A.J., and E. Gallagher, J.

RELEASED AND JOURNALIZED: August 30, 2012 ATTORNEY FOR APPELLANT

Mark R. Marshall P.O. Box 451146 Westlake, Ohio 44145

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor

By: Mark D. Bullard T. Allan Regas Assistant County Prosecutors 8th Floor, Justice Center 1200 Ontario Street Cleveland, Ohio 44113 COLLEEN CONWAY COONEY, J.:

{¶1} In this consolidated appeal, defendant-appellant, Eddie Davis (“Davis”),

appeals his sentences in three cases. We find no merit to the appeal and affirm the

sentences.

{¶2} Davis pled guilty to numerous offenses in three separate cases in November

2011. In CR-554690, he pled guilty to burglary and grand theft. The court sentenced

him to six years’ imprisonment for burglary and twelve months for grand theft, to run

concurrent to each other but consecutive to the sentences in his other two cases.

{¶3} In CR-555904, Davis pled guilty to burglary and theft. The State

dismissed a third charge of vandalism. The court sentenced him to three years’

imprisonment for burglary and six months for theft, to run concurrent to each other but

consecutive to the sentences in his other two cases.

{¶4} In CR-553823, Davis pled guilty to breaking and entering and grand theft.

The State dismissed the remaining charges of criminal damaging and receiving stolen

property. The court sentenced him to concurrent twelve-month prison terms, to be

served consecutive to the sentences issued in his other two cases. In total, the court

sentenced Davis to an aggregate ten-year prison term. This appeal followed.

{¶5} In his sole assignment of error, Davis argues the trial court erred by

imposing consecutive sentences without making the specific findings required by R.C.

2929.14(E)(4). {¶6} House Bill 86, which became effective on September 30, 2011, revived the

language provided in former R.C. 2929.14(E) and moved it to R.C. 2929.14(C)(4). The

revisions to the felony sentencing statutes under H.B. 86 now require a trial court to make

specific findings when imposing consecutive sentences. R.C. 2929.14(C)(4) provides, 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:

(a) The offender committed one or more of 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) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses 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. {¶7} In Section 11 of House Bill 86, the legislature explained that in amending

former R.C. 2929.14(E)(4), it intended “to simultaneously repeal and revive the amended

language in those divisions that was invalidated and severed by the Ohio Supreme Court’s

decision in State v. Foster (2006),

.” The General Assembly further

explained that the amended language in those divisions “is subject to reenactment under the United States Supreme Court’s decision in Oregon v. Ice (2009),

, and

the Ohio Supreme Court’s decision in State v. Hodge (2010), ___ Ohio St.3d ___, Slip

Opinion No.

.” Thus, it is the legislature’s intent that courts interpret

the language in R.C. 2929.14(C)(4) in the same manner as the courts did prior to State v.

Foster,

,

,

.

{¶8} Under R.C. 2929.14(C)(4), the trial court must state its findings in support of

consecutive sentences on the record at the sentencing hearing. State v. Comer,

,

,

, paragraph one of the syllabus. However, it

is not required to recite any “magic” or “talismanic” words when imposing consecutive

sentences provided it is “clear from the record that the trial court engaged in the

appropriate analysis.” State v. Murrin, 8th Dist. No. 83714,

. An

appellate court may only sustain an assignment of error challenging the imposition of

consecutive sentences under R.C. 2929.14 if the appellant shows that the judgment was

clearly and convincingly contrary to law. R.C. 2953.08(G).

{¶9} The trial court articulated the appropriate findings required by R.C.

2929.14(C)(4) both on the record at the sentencing hearing and in the judgment entry of

conviction and sentence. At the sentencing hearing, the court recounted Davis’s

extensive criminal record beginning with a burglary conviction in 1985. He was

convicted of breaking and entering and grand theft in 2002, violated probation, and went

to prison. He was convicted of another burglary in 2005 and breaking and entering in

2006. The court also commented on the harm he caused his victims. Davis’s convictions included a burglary of a private residence and burglaries of two churches in

which he stole two tabernacles, a chalice, and a cross. The court noted that the pastor at

one of the churches stated that it was one of the worst things that ever happened to him in

his 30 years as a priest.

{¶10} Our review of the transcript reveals that the trial court considered not only

the impact of Davis’s actions on the churches and their parishioners for purposes of

punishment, but also the fact that prior attempts at rehabilitation had been unsuccessful.

The court found that the seriousness of the crimes coupled with Davis’s failure to be

rehabilitated required a longer term of incarceration to punish him and to protect the

public from future crime. In a similar case, this court recently found the trial court fully

met the requirements of newly enacted R.C. 2929.14(C)(4). State v. Parrish, 8th Dist.

No. 97482,

.

{¶11} We find the trial court made the necessary statutory findings to impose

consecutive sentences. Therefore, the sole assignment of error is overruled.

{¶12} Judgment affirmed.

It is ordered that appellee recover of 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.

______________________________________________ COLLEEN CONWAY COONEY, JUDGE

EILEEN A. GALLAGHER, J., CONCURS; PATRICIA ANN BLACKMON, A.J., CONCURS IN JUDGMENT ONLY (WITH SEPARATE OPINION ATTACHED)

PATRICIA ANN BLACKMON, A.J., CONCURRING IN JUDGMENT ONLY:

{¶13} I concur in judgment only and write separately to discuss the standard of

review. I believe that the two-step analysis set forth in State v. Kalish,

,

,

, regarding appellate court review of a felony sentence

should be applied in reviewing imposition of consecutive sentences under H.B. 86.

Thus, the reviewing court should determine whether the consecutive sentence is clearly

and convincingly contrary to the law under the first-step. If the first step of Kalish is met

by the appellant, then our review is whether the record supports the findings. If the

record is void of evidence to support the findings, then the trial court has abused its

discretion. The majority opinion sets forth the first prong of Kalish and goes through the

record and determines that the record supports the findings. But, the majority opinion

does not specifically invoke Kalish, and I think it should.

{¶14} I would go further and require the trial court to be more specific in terms of

its findings, especially when it comes to the R.C. 2929.14(C)(4)(a), (b), or (c). We

should not have to guess as to which of the three findings the court is referencing. {¶15} I am not suggesting that the trial court has to use the exact wording of the

statute or state reasons for its findings. State v. Brown, 8th Dist. No. 82298,

.

{¶16} I agree that State v. Comer,

,

,

, is instructive. The trial court should state on the record its findings as required by

H.B. 86. I agree with the majority opinion that this is not a silent-mental exercise. By

stating the findings on the record, the reviewing court will not have to guess as to the

trial court’s thought process or impose its own. This helps the reviewing court to

understand whether the trial court made the appropriate analysis. I believe this is a good

approach because there is a presumption in Ohio that all sentencing is to run concurrent.

See State v. Stanley, 2d Dist. No. 11CA0069,

.

{¶17} Finally, by not stating the necessary findings on the record, there is a

tendency to forget that there are several findings that must be made. They are the

necessary or punishment finding, the proportionality and danger to public findings, and

the “any of the three additional findings.”

{¶18} There is always the fear that H.B. 86 will result in the same checklist

approach that was used under S.B. 2; however, when the trial court states on the record its

findings, we are in a far better position to determine whether the appropriate analysis was

made because the appropriate findings were made.