[Cite as State v. Goins,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 103874

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

IDALE GOINS DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-15-594492-B and CR-15-592669-K

BEFORE: McCormack, P.J., Blackmon, J., and Celebrezze, J.

RELEASED AND JOURNALIZED: September 22, 2016 ATTORNEYS FOR APPELLANT

Robert L. Tobik Cuyahoga County Public Defender

By: Paul Kuzmins Assistant Public Defender 310 Lakeside Avenue, Suite 200 Cleveland, OH 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

By: Carl Mazzone Assistant County Prosecutor 8th Floor, Justice Center 1200 Ontario Street Cleveland, OH 44113 TIM McCORMACK, P.J.:

{¶1} Defendant-appellant Idale Goins appeals from his sentence for criminal

gang activity, felonious assault, having weapons while under disability, firearm

specification, and gang activity specification. For the reasons that follow, we affirm.

{¶2} In January 2015, Goins was charged in a multiple count indictment along

with several codefendants in Cuyahoga C.P. No. CR-15-592669. Goins was charged

with criminal gang activity, engaging in a pattern of corrupt activity, conspiracy,

attempted murder, felonious assault, improperly handling firearms in a motor vehicle,

discharge of firearms on or near prohibited premises, improper discharge of firearm at or

into habitation or school, criminal damaging, and having weapons while under disability,

along with several specifications. In March 2015, Goins was charged in a multiple count

indictment along with one codefendant in Cuyahoga C.P. No. CR-15-594492. In this

case, Goins was charged with trafficking, drug possession, possessing criminal tools, and

illegal use or possession of drug paraphernalia. Both indictments stem from Goins’s

participation as an active member of the Cutthroat gang.

{¶3} In September 2015, Goins entered into a plea agreement in both cases. In

CR-15- 592669, he pleaded guilty to an amended indictment as follows: participating in

a criminal gang in violation of R.C. 2923.42(A) (a felony of the second degree); felonious

assault in violation of R.C. 2903.11(A)(2) (a felony of the second degree); criminal gang

activity specification in violation of R.C. 2941.142(A); a firearm specification in violation of R.C. 2941.145(A); and having a weapon under disability in violation of R.C.

2923.13(A)(2)(a felony of the third degree). In exchange, the state agreed to nolle the

remaining charges and specifications.

{¶4} In CR-15-594492, Goins pleaded guilty to drug trafficking in violation of

R.C. 2925.03(A)(2)(a felony of the second degree). The state agreed to nolle the

remaining counts.

{¶5} On October 15, 2015, the trial court sentenced Goins to five years in prison

on the drug trafficking charge in CR-15-594492. In CR-15-592669, the court sentenced

Goins to seven years on the criminal gang activity, seven years on the felonious assault,

and 36 months on having a weapon under disability, to be served concurrently. The

court ordered the sentences in CR-15-594492 and CR-15-592669 to be served

concurrently. The court also sentenced Goins to three years on the firearm specification

and three years on the gang activity specification, to be served “prior to and consecutive

with” the seven years for the base charge of felonious assault. The aggregate sentence

imposed was 13 years.

{¶6} Goins now appeals his sentence, assigning one error for our review: The

sentence is contrary to law because the court imposed a consecutive sentence without

making the necessary findings.

{¶7} R.C. 2953.08(G)(2) provides that when reviewing felony sentences, the

appellate court may overturn the imposition of consecutive sentences where the reviewing

court “clearly and convincingly” finds that (1) “the record does not support the sentencing court’s findings under R.C. 2929.14(C)(4),” or (2) “the sentence is otherwise contrary to

law.”

{¶8} In Ohio, there is a presumption that prison sentences should be served

concurrently, unless the trial court makes the findings outlined in R.C. 2929.14(C)(4) to

justify consecutive service of the prison terms. State v. Cox, 8th Dist. Cuyahoga No.

102629,

; R.C. 2929.41(A). R.C. 2929.14(C)(4) provides that in order

to impose consecutive sentences, the trial court must find that consecutive sentences are

necessary to protect the public from future crime or to punish the offender, that such

sentences would not be disproportionate to the seriousness of the conduct and to the

danger the offender poses to the public, and that one of the following applies:

(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 postrelease 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.

State v. Bonnell,

,

,

.

{¶9} An exception to this general rule concerns the imposition of consecutive

sentences for certain firearm specifications. R.C. 2929.14(C)(1)(a) requires that a trial court impose a prison term for a firearm specification consecutively to the prison term

imposed for the underlying felony. State v. A.H., 8th Dist. Cuyahoga No. 98622,

. Because the statute mandates the imposition of consecutive

sentences for the firearm specifications, the trial court is therefore not required to make

R.C. 2929.14(C)(4) findings before imposing a consecutive sentence.

{¶10} Here, the trial court ordered Goins’s underlying offenses to be served

concurrently; however, it ordered the firearm specification and the gang activity

specification to be served consecutively. Because the statute required the trial court to

impose a consecutive sentence on the firearm specification, the court was not required to

make consecutive sentence findings as it related to that specification. The only

remaining issue, therefore, is whether the trial court’s imposition of a consecutive

sentence on the gang specification, without findings, was contrary to law.

{¶11} This court has held that R.C. 2929.14(C)(4) consecutive sentence findings

do not apply to specifications. See State v. Robinson, 8th Dist. Cuyahoga No. 103559,

(repeat violent offender specifications); State v. James, 8th Dist.

Cuyahoga No. 102604,

(third discretionary firearm specification);

see also State v. Nitsche, 8th Dist. Cuyahoga No. 103174,

.

{¶12} The consecutive sentencing statute applies to “multiple prison terms [that]

are imposed on an offender for convictions of multiple offenses[.]” (Emphasis added.)

R.C. 2929.14(C)(4). A specification is a sentencing enhancement; it is not a separate

criminal offense. State v. Ford,

,

,

, ¶ 16-17 (a specification is a sentencing enhancement that attaches to a predicate offense).

“By its own terms, R.C. 2929.14(C)(4) does not apply to penalty enhancing

specifications.” James at ¶ 47. Thus, where a defendant is sentenced to concurrent

sentences on the underlying charges, the trial court is not required to make R.C.

2929.14(C)(4) findings when it orders the specification to be served consecutively.

Robinson at ¶ 22.

{¶13} Here, Goins was sentenced to three years on the gang activity specification

in accordance with R.C. 2941.142 and 2929.14(G), to be served consecutively to the

underlying offense of felonious assault.1 Because R.C. 2929.14(C)(4) does not apply to

a penalty enhancement specification and, therefore, consecutive sentence findings are not

required and where Goins was sentenced to concurrent sentences on the underlying

offenses, the court’s consecutive sentence as it related to the gang activity specification

was not clearly and convincingly contrary to law.

{¶14} Goins’s assignment of error is overruled.

{¶15} Judgment affirmed.

It is ordered that appellee recover of appellant costs herein taxed.

R.C. 2941.142 provides for the imposition of a mandatory prison term of one, two, or three 1

years pursuant to [R.C. 2929.14(G)] upon an offender who committed a felony that is an offense of violence while participating in a criminal gang.

R.C. 2929.14(G) states that “[i]f an offender who is convicted of or pleads guilty to a felony that is an offense of violence also is convicted of or pleads guilty to a specification of the type described in [R.C. 2941.142, criminal gang activity], that charges the offender with having committed the felony while participating in a criminal gang, the court shall impose upon the offender an additional prison term of one, two, or three years.” 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.

_________________________________________ TIM McCORMACK, PRESIDING JUDGE

PATRICIA ANN BLACKMON, J., and FRANK D. CELEBREZZE, JR., J., CONCUR