[Cite as State v. Jackson,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 104991

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

EDWARD R. JACKSON DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-15-601757-A, CR-16-603688-A, and CR-16-605053-A

BEFORE: McCormack, P.J., Laster Mays, J., and Jones, J.

RELEASED AND JOURNALIZED: August 10, 2017 ATTORNEYS FOR APPELLANT

Mark A. Stanton Cuyahoga County Public Defender

Erika B. Cunliffe Assistant Public Defender 310 Lakeside Avenue, Suite 200 Cleveland, OH 44113

ATTORNEYS FOR APPELLEE

Michael C. O’Malley Cuyahoga County Prosecutor

By: Zachary M. Humphrey Assistant County Prosecutor Justice Center, 9th Floor 1200 Ontario Street Cleveland, OH 44113 TIM McCORMACK, J.:

{¶1} Defendant-appellant Edward R. Jackson appeals a judgment of the

Cuyahoga County Court of Common Pleas that imposed consecutive sentences for

Jackson’s multiple burglary convictions. After a careful review of the record and

applicable law, we affirm his consecutive sentences but remand the case for the trial court

to incorporate into the journal entry the statutory findings it made at the sentencing

hearing.

Background

{¶2} In October 2015, Jackson trespassed into a Cleveland Clinic office and stole

credit cards and other items from an employee’s briefcase located underneath her desk.

He later used the credit cards in several stores throughout Cleveland. In December

2015, he trespassed into a VA building and stole a Samsung Galaxy S6 cell phone and

other items from the office of an employee. Jackson was caught when, two weeks later,

he trespassed into Attorney Ian Friedman’s law office and tried to steal from the purse of

an employee there.

{¶3} Jackson pleaded guilty to burglary, F4, and identity fraud, F5, in the

Cleveland Clinic case (CR-15-601757-A). He pleaded guilty to burglary, F3, in the

VA case (CR-16-605053-A) and the law office burglary (CR-16-603688-A).

{¶4} The presentence investigation report revealed Jackson had an extensive

criminal history. Over 44 years, he had 22 felony cases involving burglary and theft

offenses, going back to a burglary he committed in 1973 when he was a juvenile. {¶5} The trial court sentenced Jackson to three years in prison in the law office

burglary and three years in the VA burglary, to run consecutively. The court also

sentenced him to 18 months in the Cleveland Clinic case, to run concurrently to the other

two cases.

{¶6} Jackson now appeals, raising the following assignment of error for our

review: “The trial court imposed a sentence that is contrary to law and violated Mr.

Jackson’s right to due process when it imposed consecutive sentences without stating the

requisite statutory finding on the record.”

Analysis

{¶7} H.B. 86, enacted in 2011, revived a presumption of concurrent sentences. In

order to impose consecutive sentences, the trial court must make findings set forth in R.C.

2929.14(C)(4) and incorporate those findings into the journal entry of sentence. State v.

Bonnell,

,

,

. Pursuant to R.C.

2929.14(C)(4), 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 “are not disproportionate to the seriousness of the

offender’s 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.

{¶8} Generally, when reviewing felony sentences, a reviewing court “may vacate

or modify a felony sentence on appeal only if it determines by clear and convincing

evidence that the record does not support the trial court’s findings under relevant statutes

or that the sentence is otherwise contrary to law.” State v. Marcum,

,

,

, ¶ 22, citing R.C. 2953.08(G)(2).

{¶9} “When imposing consecutive sentences, a trial court must state the required

findings as part of the sentencing hearing, and by doing so it affords notice to the offender

and to defense counsel.”

, citing Crim.R. 32(A)(4). However, when

making the findings, “a word-for-word recitation of the language of the statute is not

required, and as long as the reviewing court can discern that the trial court engaged in the

correct analysis and can determine that the record contains evidence to support the

findings, consecutive sentences should be upheld.”

. The trial court is

not required to give a “talismanic incantation” of the words of the statute, provided the

necessary findings can be found in the record.

.

{¶10} The trial court, when imposing sentences on Jackson, placed great weight on

Jackson’s lengthy criminal history. The record reflects the trial court’s remark that “[n]o one needs a crystal ball to tell that you’re never going to stop stealing other people’s stuff.

You have going on five decades of criminal activity.” The trial court specifically made

the following findings for imposing consecutive sentences on two of the three cases:

Lastly, I find that consecutive sentences are needed on Cases 605053 and 603688 as your criminal history shows that consecutive terms are necessary to protect the public. Six years on these two cases is not disproportionate to the amount of harm that you’ve caused. These were three separate burglary cases. People have a right to have a sense of security when they go to work. They are going to work, not for fun, not for pleasure, they are going to work to support their families, to support themselves, to make the community a better place. They should not have to worry about where they put their purse, where they put their phone, where they put anything.

Mr. Jackson, you, through your 40-year history cannot — you’ve demonstrated you cannot stop taking other people’s belongings. As a result, a six-year sentence is necessary to protect the public. It s not disproportionate to the harm here.

(Emphasis added.)

{¶11} While the trial court did not recite the R.C. 2929.14(C) statutory findings

word for word, upon a review of the record, we are able to discern the court engaged in

the correct analysis and can determine that the record contains evidence to support the

findings. Regarding the first finding, the court specifically stated, twice, that Jackson’s

criminal history showed that consecutive sentences were necessary to protect the public.

{¶12} Regarding the second finding, although the court did not recite verbatim that

consecutive sentences are “not disproportionate to the seriousness of the offender’s

conduct and to the danger the offender poses to the public,” we are able to discern the

trial court engaged in the correct analysis.

. {¶13} The trial stated consecutive sentences were not disproportionate to the

amount of harm caused by Jackson and further elaborated on the proportionality finding

by observing that over a 40-year period of time, Jackson could not stop taking others’

belongings. The court emphasized that people have a right to be free from a fear of their

property being stolen while in their workplace. Although the statutory words “the

seriousness of the offender’s conduct” and “the danger the offender poses to the public”

were not recited verbatim, the court’s remarks, viewed in its entirety, reflects that it

engaged in the appropriate analysis and placed the finding on the record. See, e.g., State

v. Blevins, 8th Dist. Cuyahoga No. 105023,

(viewing the trial

court’s statements in their entirety, this court can discern the trial court found that

consecutive sentences are not disproportionate to the seriousness of appellant’s conduct

and to the danger appellant poses to the public); State v. Amey, 8th Dist. Cuyahoga Nos.

103000 and 103001,

(although the trial court only stated

consecutive sentences “would not be disproportionate,” this court was able to discern the

required finding when viewing the trial court’s remarks in their entirety).

{¶14} Finally, regarding the R.C. 2929.14(C)(4)(c) finding, the court specifically

stated that “I find that consecutive sentences are needed on Cases 605053 and 603688 as

your criminal history shows that consecutive terms are necessary to protect the public.”

{¶15} We may reverse Jackson’s consecutive sentences if we clearly and

convincingly find either that the record does not support the trial court’s findings or that

the sentence is otherwise contrary to law. Marcum,

,

,

, citing R.C. 2953.08(G). However, because we are able to discern that

the trial court engaged in the correct analysis under R.C. 2929.14(C)(4) and determine

that the record contains evidence regarding Jackson’s lengthy and extensive criminal

history to support the findings, we uphold Jackson’s consecutive sentences. Bonnell,

,

,

. Jackson’s assignment of

error is without merit.

{¶16} Judgment affirmed; however, we remand the matter to the trial court for the

court to issue a new sentencing journal entry, nunc pro tunc, to incorporate into the

journal entry the statutory findings made by the trial court at the sentencing hearing.

State v. Holiday, 8th Dist. Cuyahoga No. 105070,

, citing Bonnell at

syllabus.1

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.

Upon remand, the trial court should also correct, nunc pro tunc, an error in the sentencing 1

entry in CR-15-601757-A. At the sentencing hearing, the trial court imposed consecutive terms in CR-16-605053-A and CR-16-603688-A only, but the sentencing entry in CR-15-601757-A erroneously stated that the sentence in that case is consecutive to CR-16-695053-A and CR-16-603688-A. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

________________________________________ TIM McCORMACK, PRESIDING JUDGE

ANITA LASTER MAYS, J., and LARRY A. JONES, SR., J., CONCUR