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State v. Bryant

Court of Appeals of Ohio, Eighth District

July 25, 2013

STATE OF OHIO PLAINTIFF-APPELLEE
v.
MARQUESE R. BRYANT DEFENDANT-APPELLANT

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-560302

ATTORNEYS FOR APPELLANT Robert L. Tobik Chief Public Defender By: John T. Martin Assistant Public Defender

ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor By: Adam Chaloupka Assistant County Prosecutor

BEFORE: McCormack, J., S. Gallagher, P.J., and Blackmon, J.

JOURNAL ENTRY AND OPINION

TIM McCORMACK, J.:

{¶ 1} Marquese Bryant appeals from a judgment of the Cuyahoga County Court of Common Pleas that sentenced him to consecutive prison terms for his domestic violence conviction and community control violation in a prior case. He committed domestic violence within a day of being convicted of drug possession and placed on community control for that conviction. After a careful review of the record and applicable law, we reverse the court's judgment ordering the sentence for domestic violence to be served consecutively to the sentence for the probation violation in the prior case, because the court did not make the requisite statutory findings before imposing a consecutive sentence. We remand this case to the trial court for the limited purposes of resentencing consistent with R.C. 2929.14(C).

Substantive Facts and Procedural History

{¶ 2} On March 1, 2012, Bryant pleaded guilty to drug possession, a fifth-degree felony. The trial court imposed a 12-month prison term, but suspended execution of the sentence and, instead, imposed five years of community control (formerly probation). It is undisputed that, at the sentencing hearing, the trial court advised Bryant that a violation of the community control would result in more restrictive sanctions, or a prison term of up to one year. The trial court journalized the sentencing entry a day after the hearing, on March 2.

{¶ 3} Within 24 hours of the sentencing hearing in the drug possession case, in the early morning of March 2, an incident occurred while Bryant and his wife, Angela Pennington, were at a third person's house. During the incident, Bryant assaulted his wife and was thrown out of the house. He then returned to the house, kicked in the front door, grabbed his wife by the hair, strangled her, then dragged her by her head through the kitchen and attempted to drag her out of the back door.

{¶ 4} On March 14, 2012, the grand jury indicted Bryant for aggravated burglary, kidnapping, vandalism, domestic violence, and attempted felonious assault. On March 19, 2012, he pleaded not guilty. The court set a bond of $75, 000 and required Bryant to have no contact with the victim.

{¶5} On August 8, 2012, the court held a hearing on the domestic violence charge. Bryant pleaded guilty to domestic violence and attempted vandalism, and the state dismissed the remaining charges. The trial court allowed him to be free on bond until sentencing and ordered him to have no contact with the victim during the court-supervised release. At this hearing, Bryant's counsel alluded to Bryant's violation of his community control, contending that Bryant was not in violation because the sentencing entry placing him in community control was not journalized until after the domestic violence incident.

{¶6} On September 6, 2012, the trial court held a sentencing hearing. The prosecutor reported to the court that 20 days after the August 8, 2012 plea hearing, Bryant beat the same victim, although he has not been indicted on the incident. Detective Vowell provided some detail relating to that incident. He stated the police learned that, on August 28, 2012, Bryant and Pennington went out drinking, and, when they returned to their house after midnight, Pennington wanted to take Bryant's son back to the child's mother. Bryant became angry, and began swinging at Pennington's face. When she tried to go down a staircase, he kicked her in the back of her neck, causing her to slide down the steps. The police were called, but when the officers arrived, Bryant was already gone from the house.

{¶ 7} Detective Vowell further reported that another detective, Detective Sardon, went to Pennington's house to investigate the incident afterward. Detective Sardon spoke with her son, who related that Bryant had been staying at the house since he was released from the county jail in August. Detective Sardon then saw Bryant and Pennington return home and go inside the house. Detective Sardon walked to the house and asked Pennington for Bryant. Pennington became highly agitated and demanded to see a search warrant.

{ΒΆ8} Despite Detective Vowell's account of the police's knowledge of the new domestic violence incident and what Detective Sardon had observed at the house, Bryant insisted he had no contact with Pennington since the August 8 plea hearing. The trial ...


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