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State v. Richmond

Court of Appeals of Ohio, Eighth District

July 3, 2013

STATE OF OHIO, PLAINTIFF-APPELLEE
v.
DEMETRIUS RICHMOND, DEFENDANT-APPELLANT

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-540291.

ATTORNEY FOR APPELLANT Paul Mancino, Jr.

ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor By: William Leland Daniel T. Van Assistant Prosecuting Attorneys.

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

JOURNAL ENTRY AND OPINION

SEAN C. GALLAGHER, P.J.

ON RECONSIDERATION[1]

{¶ 1} Appellant Demetrius Richmond appeals from the sentence that was imposed by the trial court following a remand for merger of offenses in State v. Richmond, 8th Dist. No. 96155, 201 l-Ohio-6450 (Richmond I). For the reasons stated herein, we affirm Richmond's sentence, except with regard to the repeat violent offender specification, which we remand for a limited sentencing hearing.

{¶2} In July 2010, Richmond was charged under an 11-count indictment with offenses that arose from Richmond's physical and sexual abuse of his girlfriend's son over a period of several years. The charges included domestic violence, multiple counts of endangering children, felonious assault, rape, and kidnapping. The indictment also included sexually violent predator, repeat violent predator, and sexual motivation specifications. Richmond was found guilty of all counts and sentenced to an aggregate term of 28 years in prison.

{¶ 3} On direct appeal in Richmond I, this court affirmed in part, reversed in part, and remanded for a limited sentencing hearing to address the issues of merger of allied offenses and court costs. The underlying facts of the case are detailed in Richmond I and incorporated herein.

{¶ 4} Richmond also filed a petition for postconviction relief relating to his speedy trial rights that was denied by the trial court. This court affirmed that ruling in State v. Richmond, 8th Dist. No. 97616, 2012-Ohio-2511.

{¶ 5} Upon remand from Richmond I, the state elected to merge Counts 1 through 3 into Count 1, Counts 4 through 7 into Count 7, and Counts 8 through 11 into Count 8. The trial court sentenced Richmond to eight years on Count 1, felonious assault, plus an additional ten years for the repeat violent offender specification; a consecutive ten-year sentence on Count 8, rape; and a concurrent five-year sentence on Count 7. The court imposed an aggregate term of 28 years in prison, included mandatory 5 years of postrelease control, imposed court costs, and classified Richmond as a Tier III sex offender.

{¶ 6} Richmond timely filed this appeal from the sentence imposed upon remand. He raises nine assignments of error for our review. His first assignment of error provides as follows:

I. Defendant was denied due process of law when the court imposed consecutive sentence in violation of statutory law.

{¶ 7} Richmond asserts that the trial court was statutorily precluded from imposing consecutive sentences. He asserts that none of the provisions that authorize consecutive sentences are applicable and, therefore, his sentence is not authorized by law. At the time of Richmond's sentencing in August 2012, R.C. 2929.41(A), provided as follows:

Except as provided in division (B) of this section, division (E) of section 2929.14, or division (D) or (E) of section 2971.03 of the Revised Code, a prison term, jail term, or sentence of imprisonment shall be served concurrently with any other prison term, jail term, or sentence of imprisonment imposed by a court of this state, another state, or the United States. Except as provided in division (B)(3) of this section, a jail term or sentence of imprisonment for misdemeanor shall be served concurrently with a prison term or sentence of imprisonment for felony served in a state or federal correctional institution.

{¶8} This court has previously found the statute's failure to reflect the renumbering of the judicial fact-finding requirements for consecutive sentencing from R.C. 2929.14(E) to R.C. 2929.14(C) is a typographical error. State v. Simonoski, 8th Dist. No. 98496, 2013-Ohio-1031, ¶ 6; State v. Walker, 8th Dist. No. 97648, 2012-Ohio-4274, ¶ 81, fn. 2; State v. Ryan, 8th Dist. No. 98005, 2012-Ohio-5070, 980 N.E.2d 553. "In fact, the legislature made its intent clear by recently amending the section in September 2012, to change the (E) to (C)." Simonoski at ¶ 7.

{¶9} Accordingly, we overrule Richmond's first assignment of error.

10} Richmond's second assignment of error provides as follows:

II. Defendant was denied due process of law when the court imposed consecutive sentences without appropriate findings.

11} Richmond claims that the trial court failed to comply with H.B. 86 when it imposed consecutive sentences and asserts that the trial court was required to make specific findings pursuant to R.C. 2929.14(C)(4). R.C. 2929.14(C)(4) provides that a court may issue consecutive prison terms if the court finds (1) "the consecutive service is necessary to protect the public from future crime or to punish the offender, " (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 (3) one of three enumerated factors applies to the offender. R.C. 2929.14(C)(4)(a)-(c).

{¶ 12} Richmond acknowledges that the trial court found the requirements for consecutive sentences were met, but complains that the court failed to articulate specific findings. We find no merit to this argument. Although R.C. 2929.14(C)(4), as amended by H.B. 86, requires the court to make certain findings before issuing consecutive prison terms, "a sentencing judge need only make the required statutory findings under R.C. 2929.14(C)(4) — there is no need for the court to state the reasons underlying those findings." State v. Jarrett, 8th Dist. No. 98759, 2013-Ohio-1663 ¶ 5. As this court recognized in Simonoski, 8th Dist. No. 98496, 2013-Ohio-1031, at ¶ 20:

There was no reason for the court to state its reasons for the findings. The General Assembly deleted R.C. 2929.19(B)(2)(c) in H.B. 86. This was the provision in S.B. 2 that had required sentencing courts to state their reasons for imposing consecutive sentences on the record. Accordingly, a trial court is not required to articulate and justify its findings at the sentencing hearing. Thus, although a trial court is free to articulate or justify its ...

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