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State v. Clark

Court of Appeals of Ohio, Eighth District

June 20, 2013

STATE OF OHIO PLAINTIFF-APPELLEE
v.
UMAR CLARK, JR. DEFENDANT-APPELLANT

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-550542

ATTORNEY FOR APPELLANT Britta M. Barthol

ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor John R. Kosko Assistant County Prosecutor The Justice Center

BEFORE: E.A. Gallagher, J., Jones, P.J., and Keough, J.

JOURNAL ENTRY AND OPINION

EILEEN A. GALLAGHER, JUDGE.

{¶1} Defendant-appellant Umar Clark, Jr., appeals his sentencing in the Cuyahoga County Court of Common Pleas. For the following reasons, we affirm.

{¶2} Clark pled guilty to one count of kidnapping in violation of R.C. 2905.01(A)(1) with a three-year firearm specification, one count of aggravated robbery in violation of R.C. 2911.01(A)(1) and one count of involuntary manslaughter in violation of R.C. 2903.04.

{¶3} The state stipulated that Clark's aggravated robbery and involuntary manslaughter charges were allied offenses and elected to proceed with sentencing on the involuntary manslaughter. The trial court sentenced Clark to prison terms of four years on the count of kidnapping, a consecutive three-year sentence for the attached firearm specification and seven years for involuntary manslaughter. The trial court ordered the sentences for the two convictions to be served consecutively. This appeal followed.

{¶ 4} In his sole assignment of error, Clark argues that the trial court erred by imposing consecutive sentences without making the specific findings required by R.C. 2929.14(C)(4).

{¶ 5} We review consecutive sentences using the standard of review set forth in R.C. 2953.08. State v. Venes, 8th Dist. No. 98682, 2013-Ohio-1891, 10. 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); State v. Davis, 8th Dist. Nos. 97689, 97691, and 97692, 2012-Ohio-3951, 8.

{¶ 6} Clark argues that the trial court failed to make the necessary statutory findings pursuant to R.C. 2929.14(C) before imposing consecutive sentences. Am. Sub. H.B. No. 86, which became effective on September 30, 2011, "revive[d]" R.C. 2929.14(C)(4) and reinstated the requirement that trial courts make factual findings on specified issues before imposing consecutive sentences. State v. Matthews, 8th Dist. No. 97916, 2012-Ohio-5174, 45.

{¶ 7} R.C. 2929.14(C)(4) provides:

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 ...

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