[Cite as State v. Hawkins,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 102185

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

FRED HAWKINS DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-13-579397-A, CR-13-579974-C, CR-14-584521-A, CR-14-584630-A, and CR-14-586261-A

BEFORE: Stewart, J., Jones, P.J., and E.T. Gallagher, J.

RELEASED AND JOURNALIZED: August 6, 2015 ATTORNEY FOR APPELLANT

Jerome M. Emoff Dworken & Bernstein Co., L.P.A. 1468 West 9th Street, Suite 134 Cleveland, OH 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

Yosef M. Hochheiser Zachary Humphrey Assistant County Prosecutors Justice Center, 9th Floor 1200 Ontario Street Cleveland, OH 44113 MELODY J. STEWART, J.:

{¶1} Defendant-appellant Fred Hawkins requested that this appeal be placed on

this court’s accelerated calendar pursuant to App.R. 11.1 and Loc.R.11.1. By doing so, he

has agreed that we may render a decision in “brief and conclusionary form” consistent

with App.R. 11.1(E).

{¶2} Hawkins is appealing his convictions of three counts of breaking and

entering, attempted drug possession, and drug possession. For the following reasons, we

reverse and remand for resentencing.

{¶3} The Cuyahoga County Grand Jury indicted Hawkins in five separate cases.

In Cuyahoga C.P. No. 13-579397-A, Hawkins was charged with breaking and entering,

petty theft, and possessing criminal tools. Hawkins was charged with drug possession in

Cuyahoga C.P. No. 13-579974-C. He was charged with breaking and entering and theft

in Cuyahoga C.P. No. 14-584630-A, and possession of a controlled substance in

Cuyahoga C.P. No. 14-584521-A. Lastly, in Cuyahoga C.P. No. 14-586261-A, Hawkins

was charged with breaking and entering, vandalism, and possessing criminal tools.

{¶4} On May 20, 2014, Hawkins pleaded guilty to amended indictments in four of

the cases; CR-13-579397-A; CR-13-579974-C; CR-14-584521-A; and CR-14-584630-A.

Following the plea, the court ordered a presentence investigation report as well as a

psychiatric assessment for mitigation of penalty purposes. The psychiatric evaluation established that Hawkins suffered from multiple psychiatric problems, including auditory

and visual hallucinations, and paranoid delusions. The assessment also revealed that

Hawkins suffers from bipolar disorder, schizoaffective disorder, and antisocial

personality disorder.

{¶5} On October 8, 2014, Hawkins entered a guilty plea to breaking and entering

in the fifth case, CR-14-586261-A. Afterwards, the court proceeded to sentence

Hawkins on all five cases.

{¶6} The court ordered Hawkins to serve a one-year prison term on the breaking

and entering charge in CR-13-579397-A; six months on the attempted drug possession

charge in CR-13-579974-C; one year on the breaking and entering charge in case

CR-14-584630-A; one year on the drug possession charge in CR-14-584521-A; and one

year on the breaking and entering charge in CR-14-586261-A. The court ordered the

one year prison term on CR-14-584630-A to run consecutive to the one-year prison term

in CR-13-579397-A and ordered all other cases to run concurrent, for an aggregate

two-year prison term. The court also terminated Hawkins’s probation on two other

cases, CR-12-568208-A and CR-13-572807-A, but did not impose additional prison time

for the violations.

{¶7} Hawkins first contends that he was denied the effective assistance of counsel

because his trial counsel failed to investigate the possibility of an insanity defense before

he pled guilty to the crimes. He argues that while he was referred to a psychiatric clinic

for an assessment regarding mitigating circumstances after entering his guilty pleas and prior to sentencing, he was never referred in any of his cases for an evaluation of his

sanity at the time of his criminal acts.

{¶8} A trial counsel’s failure to seek a competency evaluation or to pursue an

insanity defense does not always constitute deficient performance. State v. Smith, 9th

Dist. Summit No. 24382,

, citing State v. Decker,

,

(1986). Rather, failure to pursue such a defense strategy is only

deficient performance when the facts and circumstances show that a plea of not guilty by

reason of insanity would have had a reasonable probability of success.

citing State

v. Brown,

,

(1992).

{¶9} Hawkins has presented no evidence that would allow us to conclude that his

mental state at the time of the offenses would support a viable insanity defense. Without

this, or similar evidence, we cannot evaluate whether trial counsel’s performance was

deficient, and if so, whether the deficiency caused Hawkins to enter a guilty plea rather

than proceed to trial on the affirmative defense. We therefore overrule this assigned

error.

{¶10} Hawkins next contends that the trial court erred by failing to make the

required findings under R.C. 2929.14(C)(4) before imposing consecutive sentences. We

agree.

{¶11} R.C. 2929.14(C)(4) states:

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.

{¶12} When imposing consecutive sentences, the trial court must make the R.C.

2929.14(C)(4) findings on the record at sentencing, and incorporate the statutory findings

into the sentencing entry. State v. Bonnell,

,

,

.

{¶13} At sentencing, prior to imposing consecutive sentences, the trial court

stated:

Now the reason for the consecutive sentencing in the case is that there — the multiple prison terms are imposed for the convictions of multiple offenses, to protect the public from any future crimes or to punish the offender, they’re not disproportionate to the seriousness of the conduct and the danger that is posed to the public. You know, these multiple offenses and the violations.

{¶14} Although the above language establishes that the trial court found that

consecutive sentences were necessary to protect the public from future crime or to punish the offender, and that consecutive sentences were not disproportionate to the seriousness

of Hawkins’s conduct, it is clear that the trial court did not consider the factors in (a), (b),

or (c) of the statute. The statute requires that the trial court find one of these factors in

order to impose consecutive sentences. As the trial court did not, we reverse the

sentence.

{¶15} Lastly, Hawkins argues that the trial court erred by failing to fully inform

him of postrelease control. We agree.

{¶16} Hawkins was subject to up to three years of postrelease control after his

release from prison for his fifth-degree felony violations. See R.C. 2967.28(C). The

trial court never informed Hawkins of this.

{¶17} Because the court failed to properly impose postrelease control and make all

the necessary findings to impose consecutive sentences, we reverse and remand to the

trial court for resentencing for the limited purpose of considering whether consecutive

sentences are appropriate, and if so, to make the statutory findings and incorporate them

in the sentencing journal entry. The trial court is also instructed to properly impose

postrelease control.

{¶18} Judgment affirmed in part, reversed in part, and remanded.

It is ordered that appellant and appellee share the 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. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

______________________________________________ MELODY J. STEWART, JUDGE

LARRY A. JONES, SR., P.J., and EILEEN T. GALLAGHER, J., CONCUR