[Cite as State v. Barnett,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 99419

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

CHARLES D. BARNETT

DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-563550

BEFORE: Boyle, P.J., S. Gallagher, J., and E.T. Gallagher, J.

RELEASED AND JOURNALIZED: October 17, 2013 ATTORNEY FOR APPELLANT

Richard Agopian The Hilliard Building 1415 West 9th Street, 2nd Floor Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor Brian R. Radigan Assistant County Prosecutor Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 MARY J. BOYLE, P.J.:

{¶1} Defendant-appellant, Charles Barnett, appeals his 17-year sentence for

attempted rape, aggravated burglary, and felonious assault. He raises two assignments

of error for our review:

1. Imposition of consecutive sentences was contrary to law.

2. Mr. Barnett failed to receive effective assistance of counsel during the sentencing phase.

{¶2} We find no merit to his appeal and affirm the trial court.

Procedural History

{¶3} In June 2012, Barnett was indicted on six counts, including one count of

rape, aggravated burglary, aggravated robbery, and felonious assault, and two counts of

kidnapping. All counts carried several specifications, including sexually violent

predator, notice of prior conviction, repeat violent offender, and sexual motivation.

{¶4} In November 2012, Barnett withdrew his former plea of not guilty and

pleaded guilty to an amended indictment of attempted rape in violation of R.C. 2923.02

and 2907.02(A)(2); aggravated burglary in violation of R.C. 2911.11(A)(1); and

felonious assault in violation of R.C. 2903.11(A)(1). The remaining counts and

specifications were nolled by the trial court.

{¶5} The trial court sentenced Barnett to an aggregate of 17 years in prison:

seven years for attempted rape, five years for aggravated burglary, and five years for

felonious assault, all to run consecutive to one another. The trial court further notified Barnett that he would be subject to a mandatory term of five years of postrelease control

upon his release from prison, and he would be labeled a Tier III sex offender.

Consecutive Sentences

{¶6} In his first assignment of error, Barnett argues that the trial court’s

imposition of consecutive sentences was contrary to law. Barnett argues that the trial

court failed to make the necessary findings under R.C. 2929.14(C).

{¶7} R.C. 2953.08(G)(2) states that when reviewing felony sentences, “[t]he

appellate court’s standard for review is not whether the sentencing court abused its

discretion.” Rather, the statute states that if we “clearly and convincingly” find that (1)

“the record does not support the sentencing court’s findings under [R.C.

2929.14(C)(4)],” or that (2) “the sentence is otherwise contrary to law,” then we “may

increase, reduce, or otherwise modify a sentence * * * or [we] may vacate the sentence

and remand the matter to the sentencing court for re-sentencing.” State v. Goins, 8th

Dist. Cuyahoga No. 98256,

, quoting R.C. 2953.08(G)(2).

{¶8} R.C. 2929.14(C)(4) requires trial courts to engage in a three-step analysis

in order to impose consecutive sentences. First, the trial court must find that

“consecutive service is necessary to protect the public from future crime or to punish the

offender.”

Next, the trial court must find that “consecutive sentences are not

disproportionate to the seriousness of the offender’s conduct and to the danger the

offender poses to the public.”

Finally, the trial court must find that at least one of

the following applies: (1) the offender committed one or more of the multiple offenses while awaiting trial or sentencing, while under a sanction, or while under postrelease

control for a prior offense; (2) 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

offenses 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; or (3) the offender’s history of criminal conduct demonstrates

that consecutive sentences are necessary to protect the public from future crime by the

offender.

{¶9} In each step of this analysis, the statutory language directs that the trial

court must “find” the relevant sentencing factors before imposing consecutive sentences.

R.C. 2929.14(C)(4). In making these findings, a trial court is not required to use

“‘talismanic words to comply with the guidelines and factors for sentencing.’” Goins at

¶ 10, quoting State v. Brewer, 1st Dist. Hamilton No. C-000148,

(Nov. 24, 2000). But it must be clear from the record that the trial court actually

made the findings required by statute.

citing State v. Pierson, 1st Dist. Hamilton

No. C- 970935,

(Aug. 21, 1998). A trial court satisfies

this statutory requirement when the record reflects that the court has engaged in the

required analysis and has selected the appropriate statutory criteria.

citing State v.

Edmonson,

,

(1999).

{¶10} In imposing consecutive sentences, however, a trial court is no longer

required to state their reasons for imposing consecutive sentences on the record. Id. at ¶ 11. Accordingly, a trial court is not required to articulate and justify its findings at the

sentencing hearing. A trial court is free to do so, of course. But where, as here, there is

no statutory requirement that the trial court articulate its reasons, it does not commit

reversible error if it fails to do so, as long as it has made the required findings. Id.

{¶11} At Barnett’s sentencing hearing, the state indicated for the record that the

victim was a 61-year-old blind woman who lives by herself. The state showed photos to

the court that were taken in the common areas inside the victim’s apartment building, but

not actually inside the victim’s apartment. The photos showed that Barnett rode the

elevator with the victim in her apartment building, followed her off of the elevator, hid

behind a wall and waited for her to open her apartment door, and then pushed her into

her apartment when she opened the door. The photos then showed Barnett “after he

committed the acts” against the victim, and when he was “arrested on the scene.” The

state indicated that the photos were how police identified Barnett as the perpetrator.

{¶12} The state also told the trial court that the offenses that Barnett pleaded

guilty to were not allied offenses of similar import. The state explained that there were

three separate acts: (1) attempted penetration on the victim with an unknown object, (2)

going into the victim’s apartment, and (3) attempting to strangle the victim.

{¶13} The victim informed the court that as she was entering her apartment,

Barnett jumped her from behind and put her in a “choke hold.” Barnett forced her into

her apartment and pushed her “straight back to the bedroom.” He forced her onto her

bed and kept asking her, “where is your money,” and “where is your jewelry?” The victim told him that she did not have any. Barnett rifled through all of her dresser

drawers. He then pushed her down on the bed and pulled off her underwear and shorts.

He took “some kind of device” out of a bag and he “kept pushing and progressed it to get

it to penetrate me, and after a little while, he got frustrated because he couldn’t do it.”

She said that the unknown “device” was “too big.” Barnett then grabbed the victim’s

arm, pulled her up into a sitting position, and told her to stand up. He began choking

her again, “much more severe than the first time.” The victim said that she remained

calm, but she passed out from the choking. When she woke up, she reported the

incident to the office in her building.

{¶14} Defense counsel indicated that she read the presentence investigation

report. She stated, “the only — the mitigating factors here are the fact that my client has

had a history of mental health issues, schizophrenia, bipolar as well as depression.”

Defense counsel informed the court that on the day of this incident, Barnett was not

taking his medication, which was a contributing factor. Defense counsel further stated

that Barnett had a history of substance abuse; he smokes crack, uses marijuana, and

consumes alcohol daily. Since Barnett has been incarcerated and not using drugs or

alcohol, he has “accepted full responsibility for the matters” and articulated that he is

remorseful for what he did. Defense counsel further explained that Barnett did not have

family members who could offer him support. Defense counsel requested the court to

run Barnett’s sentences concurrently. {¶15} Barnett’s brother spoke on his behalf. He apologized to the victim for his

brother’s actions. He explained that Barnett had a history of drug problems, and he was

“sure [his] brother was under the influence when this happened because he’s not that

type of person.”

{¶16} Barnett apologized to the victim for what he did. He stated that he was not

just saying that because he was in court; he said he was “truly sorry for the actions I

committed under the influence of drugs and alcohol.” Barnett stated that he needed

treatment for drugs and alcohol; substance abuse had ruined his life. Barnett said that

he was not trying to make excuses, but said that he was an addict.

{¶17} The trial court indicated that it read the presentence investigation report and

Barnett’s sanity evaluation. The trial court stated that it considered the overriding

purposes and principles of sentencing. It also found, under R.C. 2929.12(B), that

Barnett’s conduct was “more serious” due to the fact that the victim’s injuries were

exacerbated by the victim’s physical or mental condition or age. The court explained

that the victim was 61 years old and had been blind since birth. The court further noted

that the victim suffered serious physical and psychological harm; the victim continues to

have problems with her vocal cords due to the choking. The court did not find that any

of the “less serious” factors under R.C. 2929.12(C) existed; it stated that “his drug use

may be an explanation, but it is not mitigating evidence.” The court further found that

the fact that Barnett was mentally ill and refused to take his medication did not mitigate

his conduct. {¶18} Under R.C. 2929.12(D), the court found that Barnett had a prior criminal

history and “had not responded favorably to sanctions imposed on him.” The court

reviewed his extensive criminal history dating back to 1992 and continuing through

2012, including petty theft, aggravated assault in 1992 and 2007, aggravated burglary,

theft, robbery, forgery, attempted abduction, and a series of misdemeanor convictions.

The trial court did find, however, that Barnett showed genuine remorse for his actions,

based on his plea and his statements at the sentencing hearing.

{¶19} Reviewing the facts, the court found that “this is one of the worst offenses

it has seen perpetrated on an innocent victim.” It further explained:

This is a victim that the offender did not know. They had no relationship at the time prior to — or prior to the incident.

The photographs are clear that the defendant must have ridden the elevator with the victim up to her apartment. He exited the elevator with the victim.

The photographs in the building are clear that he stood and waited for her to open the door to the apartment and then they are clear that he did follow her into the apartment at that time.

Then in addition to what is stated in the presentence report, which oftentimes reflects what is put into the police report, [the victim] did come in here and give a very detailed description of what happened.

{¶20} The court then stated that although the law presumes that concurrent

sentences be imposed, it had the discretion to impose consecutive sentences “if

necessary, to protect and/or punish and that is not disproportionate.” The court made

the following findings: I find that the defendant is an individual who has been addicted to drugs and/or alcohol for the larger part, if not the entire part, of his adult life.

I find that although he does have a mental illness, he is in the status that he refuses to be med compliant.

All of those things led to the incident that occurred at this — in this case.

And that I find that he had in some fashion, premeditated what he was going to do to the victim; that he did wait for her to go into the apartment, and he followed her into the apartment. I find that the harm in this case is so great, that a single sentence would not be appropriate. It would not adequately reflect the seriousness of the conduct based on my prior comments.

I do find that his history of criminal convictions, being released from prison and picking up cases as soon as he’s released, both felonies and misdemeanors, show that consecutive terms are needed to protect the public.

{¶21} After reviewing the transcript in its entirety, we conclude that the trial court

held a lengthy hearing, after which it made thoughtful and extensive findings. It

discussed the seriousness of Barnett’s crimes and the need to protect the public and

punish Barnett. The trial court further considered the emotional and physical harm to

the victim, as well as the fact that the victim was 61 years old and blind. The court also

discussed Barnett’s extensive criminal history and the fact that he had not responded

well to sanctions in the past, evidenced by the fact that he continued to commit new

crimes soon after he was released from prison. Thus, we find that the trial court fully

engaged in the required analysis and fulfilled the statutory requirements of R.C.

2929.14(C)(4) to impose consecutive sentences. {¶22} Barnett argues that the trial court “made a brief statement about consecutive

sentences,” and specifically only “used the term ‘disproportionate,’” rather than make the

“correct finding.” While we agree with Barnett that the trial court failed to recite the

exact statutory language, it is clear from the record in this case that when the trial court

stated that consecutive sentences were not disproportionate, the court was referring to its

obligation pursuant to R.C. 2929.14(C)(4).

{¶23} Again, as this court has repeatedly held, “the statutory language in R.C.

2929.14(C)(4) itself ‘does not have magical powers.’” State v. Wilson, 8th Dist.

Cuyahoga No. 99331,

, citing State v. Kuykendall, 12th Dist.

Clermont No. CA2004-12-111,

. Rather, “the requirements of R.C.

2929.14(C)(4) are designed to ensure that the trial court engaged in the required

analysis.”

The trial court thoroughly did that here.

{¶24} Accordingly, Barnett’s first assignment of error is overruled.

Effective Assistance of Counsel

{¶25} In his second assignment of error, Barnett argues that he failed to receive

effective assistance of counsel during his sentencing hearing. Barnett maintains that his

counsel failed to “educate the court on the complexities of consecutive sentencing” and

failed to “advocate” for him.

{¶26} For a defendant to succeed on an ineffective assistance of counsel claim, he

or she must establish a two-prong test: (1) that counsel’s performance was deficient; and (2) the deficient performance prejudiced the defense. Strickland v. Washington,

,

,

(1984).

{¶27} After review of the sentencing hearing, we find defense counsel’s

performance to be effective. The trial court had a clear grasp of the sentencing

parameters, including the law on consecutive sentences. Thus, there was no need to

educate the court. Further, defense counsel reviewed the presentence investigation

report with the court, informing the court of the fact that Barnett was mentally ill and

addicted to substance abuses. Indeed, Barnett does not point to any specific mitigating

factor that his defense counsel failed to highlight to the court, nor do we find any in the

record.

{¶28} Barnett implies that the fact that his defense counsel did not know that his

brother was in the courtroom somehow establishes that she was ineffective. We

disagree. If Barnett had known that his brother was in the courtroom, he should have

informed his attorney. Regardless, even if Barnett’s counsel should have known that his

brother was there, there was no harm. Barnett’s brother informed the trial court that he

was there, and Barnett’s brother was able to speak on Barnett’s behalf at the sentencing

hearing.

{¶29} Accordingly, Barnett’s second assignment of error is overruled.

{¶30} Judgment affirmed.

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 be sent to said 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.

MARY J. BOYLE, PRESIDING JUDGE

EILEEN T. GALLAGHER, J., CONCURS; SEAN C. GALLAGHER, J., CONCURS IN JUDGMENT ONLY WITH SEPARATE OPINION

SEAN C. GALLAGHER, J., CONCURRING IN JUDGMENT ONLY:

{¶31} I concur with the majority’s disposition of the second assigned error. I

am compelled to concur in judgment only with the majority’s decision as it relates to

Barnett’s first assignment of error. There is a growing disconnect between this court’s

two distinct approaches, derived from State v. Goins, 8th Dist. Cuyahoga No. 98256,

, and State v. Venes, 8th Dist. Cuyahoga

, in

reviewing whether the trial court made the requisite findings pursuant to R.C.

2929.14(C)(4) before imposing consecutive sentences. I write separately in the attempt

to quell this growing disconnect, which I believe is unduly complicating consecutive

sentence review and needs some clarification if trial courts and litigants are to apply the

correct standards moving forward. {¶32} The Venes/Goins differences culminated in one of this court’s latest

iterations of consecutive sentence review in State v. Wilson, 8th Dist. Cuyahoga No.

99331,

. Succinctly summarized, in Venes, this court required distinct

findings separate from any other recitations to satisfy R.C. 2929.14(C)(4), while Wilson

stated that reviewing courts may detect findings from a trial court’s recitation of facts.

{¶33} In this case, the majority relies on Goins in reviewing the facts of the case

to determine whether the trial court’s findings are supported by the record. While the

majority opinion on this issue is well written and well reasoned, I believe the majority’s

review is beyond the scope of Barnett’s first assignment of error, in which he claims the

trial court erred in imposing consecutive sentences by failing to make the R.C.

2929.14(C)(4) findings.

{¶34} Appellate courts are limited to reviewing the imposition of consecutive

sentences to determine whether the sentence is “otherwise contrary to law” or whether

the record clearly and convincingly supports the sentencing court’s findings under R.C.

2929.14(C)(4). Venes, 8th Dist. Cuyahoga No. 98682,

. The

majority is correct in that

[c]onsecutive sentences can be imposed if the court finds that (1) a consecutive sentence is necessary to protect the public from future crime or to punish the offender and (2) 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 the court also finds at least one of the three additional factors in

R.C. 2929.14(C)(4)(a)-(c) is present. Id. at ¶ 6. However, the court’s reliance on

Goins and its review is misplaced in the context of this appeal.

{¶35} In Goins, upon which the majority relies to the exclusion of Venes, the

defendant was not appealing the lack of findings to satisfy R.C. 2929.14(C)(4) per se;

rather, the defendant’s appeal focused on a claim that the record did not clearly and

convincingly support the trial court’s findings or was contrary to law. Goins at ¶ 1

(Goins’s assignment of error provided, “[t]he trial court erred by sentencing the

defendant-appellant to a term of imprisonment contrary to statute and where its findings

were not supported by the record”).1 In reviewing whether the trial court’s findings are

not supported by the record, this court must undertake a review of the factual record in

order to determine whether the facts support the findings.2 See State v. Jarrett, 8th

Dist. Cuyahoga No. 98759,

(affirming on the basis that the trial court’s

succinct findings were supported by the record). The Goins court did not articulate

whether its factual review was pertinent to whether the record supported the findings or

1 In retrospect, it appears that the arguments, that the trial court failed to make findings in support of the imposition of consecutive sentences, but in the alternative, the record did not support the findings the defendant claimed to not exist, are mutually exclusive. 2 According to the plain language of R.C. 2953.08(G)(2), a reviewing court may overturn the imposition of consecutive sentences if the sentence is “otherwise contrary to law” or the reviewing court clearly and convincingly finds that “the record does not support the sentencing court’s findings” under R.C. 2929.14(C)(4). whether the trial court made the requisite findings in the first. This court simply

combined both standards for the purposes of resolving Goins’s arguments.

{¶36} This court’s decision in Venes resolved any ambiguity from Goins and

determined that a trial court’s findings must be separate and distinct from any factual

recitation by the trial court at sentencing when reviewing whether the sentence is

contrary to law because of the failure to make the statutorily required findings. Venes

at ¶ 14, 17.3 In Venes, in part relying on Goins, this court held that the trial court

satisfied its statutory requirement before imposing consecutive sentences through

announcing the court’s separate and distinct findings. Venes, 8th Dist. Cuyahoga No.

98682,

; Goins, 8th Dist. Cuyahoga No. 98256,

. Unlike in Goins, this court in Venes limited its focus to the existence of findings,

in light of the assigned error addressing whether the sentence was contrary to law, and

not the reasons in support of those findings — as would be the standard of review to

determine whether the facts support the record. See Venes at ¶ 12, 16; Goins at ¶ 18.

{¶37} The Goins approach is simply inapplicable to reviewing the single issue of

whether the trial court made the requisite findings prior to the imposition of consecutive

3 Venes implicitly distinguished the import of the Goins decision and noted the difference between reviewing the lack of findings from the lack of facts to support the findings. See State v. Battle, 8th Dist. Cuyahoga No. 98294,

(reversing because the trial court’s statement that it considered all relevant statutory provisions was insufficient to satisfy R.C. 2929.14(C)(4)); State v. Simonoski, 8th Dist. Cuyahoga No. 98496,

(affirming because the trial court’s findings restated R.C. 2929.14(C)(4) verbatim); but see State v. Grier, 8th Dist. Cuyahoga No. 98637,

(relying on Goins despite the fact that the appellant in Grier appealed the lack of findings while the appellant in Goins appealed the lack of support for the findings). sentences. The factual review, as demonstrated by the Goins analysis, is specific to

situations where the defendant argues that the consecutive sentence is contrary to law

because the trial court failed to make the required findings and, in the alternative, the

findings are not supported by the record. This court’s Goins and Venes decisions, thus,

exist harmoniously.

{¶38} More recently, however, this court in Wilson, 8th Dist. Cuyahoga

No. 99331,

, held that a reviewing court may “detect” findings in the

trial court’s “discussion of relevant facts at the sentencing hearing * * *.”4 Wilson at ¶

7. In Wilson, the only issue was whether the trial court’s imposition of consecutive

sentences was contrary to law, based on an alleged failure to make the required findings.

Id. at ¶ 4. In Wilson, the appellant did not include a claim requiring the appellate court

to determine whether the facts clearly and convincingly supported the trial court’s

findings. Reconcilable with this court’s Venes decision, this court in Wilson affirmed

the consecutive sentences in light of the fact that the trial court made the three express

findings:

4 In reaching that conclusion, the Wilson court heavily relied on State v. Walker, 8th Dist. Cuyahoga No. 97648,

. In Walker, reconcilable with Venes, this court held that the trial court failed to “make [one] express finding under R.C. 2929.14(C)(4)” and remanded the case in order for the trial court “to enter the proper findings on the record.” Id. at ¶ 86. (Emphasis added.) In reaching its conclusion, however, the Walker court opined that a trial court’s factual recitation may “equate to two findings,” but the trial court there nonetheless failed to make the last finding. Id. at ¶ 87. This dicta created confusion. Nonetheless, nothing detracts from the holding that the trial court failed to make one finding, and the case was remanded in order for the trial court to enter the proper, and multiple, “findings.” Id. I am able to impose consecutive sentences, if necessary, [(1)]to

protect the public or punish the offender and [(2)] not

disproportionate—and I need to make the following findings: * * * I find

that the harm was so great or unusual that a single term does not

adequately reflect [the] seriousness of the conduct. * * * And [(3)] I do

find that your criminal history shows the consecutive terms are needed to

protect the public.

Id. at ¶ 11. Thus, any potential conflict between this court’s Wilson and Venes

decisions stems from the recitation of the legal standards.

{¶39} Inasmuch as I acknowledge two differing standards of review emerging,

that of Wilson offering leeway to our review and Venes requiring a more bright-line

approach, in the current case, the trial court satisfied its obligations to make findings

under the more stringent Venes standard. Thus, this court need not delve into the

minutia of any potential conflicts for the purposes of resolving Barnett’s first assignment

of error. At this point, the emerging diametric standards of review are purely academic.

{¶40} At the sentencing hearing in this case, the trial court made the required

separate and distinct findings:

[(1)] I find that the harm in this case is so great, that a single sentence

would not be appropriate. It would not adequately reflect the seriousness

of the conduct based on my prior comments. [(2)] I do find that his

history of criminal convictions, being released from prison and picking up cases as soon as [Barnett is] released, both felonies and misdemeanors,

[(3)] show that consecutive terms are needed to protect the public.

Tr. 47:7-16. In short, the trial court made the necessary separate and distinct findings,

satisfying its obligation under R.C. 2929.14(C)(4) and this court’s Venes decision, before

imposing consecutive sentences upon Barnett. The inquiry ends here. The majority’s

review of the factual basis for the findings was therefore unnecessary in resolving

Barnett’s assignment of error. Barnett felt that the trial court failed to articulate the

consecutive sentencing findings, and therefore, any review of the factual basis for the

findings was beyond the scope of the appeal.

{¶41} Accordingly, I would affirm the judgment of the trial court premised,

however, on a different standard than employed by the majority. I would have confined

the review, based on this court’s Venes decision, to whether the court made the required

separate and distinct findings. Because the majority perpetuates a standard of review

allowing the appellate court to glean a recitation of facts as findings, contrary to this

court’s Venes decision, I must concur in judgment only.