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State v. Holiday

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 15, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
STACEY HOLIDAY DEFENDANT-APPELLANT

         AFFIRMED AND REMANDED Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-603909-A

          ATTORNEYS FOR APPELLANT Mark Stanton Cuyahoga County Public Defender By: John T. Martin Assistant Public Defender

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Oscar Albores Assistant Prosecuting Attorney The Justice Center,

          BEFORE: Keough, A.J., E.A. Gallagher, J., and Boyle, J.

          JOURNAL ENTRY AND OPINION

          KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE

         {¶1} Defendant-appellant, Stacey Holiday, [1] appeals his sentence following a guilty plea. For the reasons that follow, we affirm, but remand for the issuance of a nunc pro tunc sentencing journal entry

         {¶2} In February 2016, Holiday was named in a nine count indictment charging him with four counts of rape, three counts of kidnapping, and one count each of gross sexual imposition and robbery. Most counts contained sexual motivation and sexually violent predator specifications. These charges stemmed from incidents that occurred in March 2003 and October 2007.

         {¶3} Holiday withdrew his not guilty plea and pleaded guilty to two amended charges - one count of sexual battery, a felony of the third degree, stemming from the 2003 incident, and one count of rape, a felony of the first degree, stemming from the 2007 incident. The trial court imposed a total sentence of 13 years - three years on the sexual battery count ordered to run consecutively to ten years on the rape offense.

         {¶4} Holiday now appeals, raising as his sole assignment of error that the trial court erred by imposing consecutive sentences when the court's findings, specifically the third finding, were not supported by the record.

         {¶5} R.C. 2953.08(G)(2) provides that when reviewing felony sentences, a reviewing court may overturn the imposition of consecutive sentences where the 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."

         {¶6} R.C. 2929.14(C)(4) provides that in order to impose consecutive sentences, the trial court must find that (1) consecutive sentences are necessary to protect the public from future crime or to punish the offender, (2) such sentences would not be disproportionate to the seriousness of the conduct and to the danger the offender poses to the public, and (3) 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 ...

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