[Cite as State v. Barajas-Anguiano, 2018-Ohio-3440.]

IN THE COURT OF APPEALS 

ELEVENTH APPELLATE DISTRICT 

GEAUGA COUNTY, OHIO 

STATE OF OHIO, : O P I N I O N 

 Plaintiff-Appellee, : 

 CASE NO. 2017-G-0112

 - vs - : 

DANIEL S. BARAJAS-ANGUIANO, : 

 Defendant-Appellant. : 

Criminal Appeal from the Geauga County Court of Common Pleas, Case No. 2016 C 

000147. 

Judgment: Affirmed in part, reversed in part, and remanded. 

James R. Flaiz, Geauga County Prosecutor, and Nicholas A. Burling, Assistant 

Prosecuting Attorney, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH 

44024 (For Plaintiff-Appellee). 

Eric C. Nemecek, 1360 East Ninth Street, Suite 650, Cleveland, OH 44114 (For 

Defendant-Appellant). 

DIANE V. GRENDELL, J. 

{¶1} Defendant-appellant, Daniel Barajas-Anguiano, appeals his sentence for 

Endangering Children. The issue before this court is whether a trial court may impose 

consecutive sentences for crimes committed in separate cases where the court did not 

make an express finding regarding the harm suffered by the victim in the separate case. 

For the following reasons, we affirm in part, reverse in part, and remand this case for 

the trial court to issue a new sentencing entry. 
 2

{¶2} On August 25, 2016, the Geauga County Grand Jury returned an 

Indictment against Barajas-Anguiano charging him with five counts of Rape, felonies of 

the first degree in violation of R.C. 2907.02(A)(1)(b); one count of Gross Sexual 

Imposition, a felony of the third degree in violation of R.C. 2907.05(A)(4); one count of 

Endangering Children, a felony of the second degree in violation of R.C. 2919.22(B)(1) 

and (E)(2)(d); and one count of Displaying Matter Harmful to Juveniles, a misdemeanor 

of the first degree in violation of R.C. 2907.311(A). 

{¶3} On September 9, 2016, Barajas-Anguiano entered a plea of not guilty to 

the charges. 

{¶4} On December 27, 2016, Barajas-Anguiano was sentenced in Geauga 

County Court of Common Pleas Case No. 16-C-0012 following convictions for Gross 

Sexual Imposition and Voyeurism involving his biological daughter. Barajas-Anguiano 

received an aggregate prison term of 58 months for the charges in that case. 

{¶5} On January 10, 2017, Barajas-Anguiano entered a written plea of guilty to 

Endangering Children as charged in the Indictment. At the change of plea hearing, the 

State proffered the following: 

I believe that we would have been able to prove that * * * his 

biological son was isolated by Mr. Barajas-Anguiano, he was 

neglected by him to the point where he was suicidal. He spoke 

about committing suicide. Mr. Barajas-Anguiano has choked him 

and handed him a knife and said, go ahead and do it, and quit 

talking about it and kill yourself. The young man is 15 years of age 
 3

at this point * * * and is now living in a children’s home and 

attending therapy and has been for quite some time. 

{¶6} On February 22, 2017, a sentencing hearing was held. Counsel for 

Barajas-Anguiano argued that the majority of the charges in the Indictment had no basis 

in fact, “these sex offenses did not happen,” although conceding “he had some sexual 

interaction with his daughter, and he admitted that.” 

{¶7} The victim in the present case, Barajas-Anguiano’s biological son, 

addressed the court and detailed physical, sexual, and psychological abuse. After 

being committed to a youth center for being suicidal, his sister “made the allegation of 

abuse against my dad” and family services took custody. The victim explained further: 

“And me and my sister got split up. So I feel like I don’t have a family either. I love my 

sister, but just feel neutral toward her. I can’t even trust my sister because of what 

happened to me.” 

{¶8} The prosecutor urged the court to impose a prison sentence to be served 

consecutively with the sentence in the case involving Barajas-Anguiano’s daughter: 

“The fact that you have two separate victims, the prior case involving his daughter, this 

case involving his son, does demonstrate that in fact that the harm caused was so great 

that consecutive sentences are necessary in this case.” 

{¶9} In pronouncing sentence, the trial court stated that it had “reviewed the 

presentence investigation, both the one associated with 16C12, as well as the one 

associated with this case, 16C147,” and “letters from the victim, and letters from various 

other people.” These included letters from the victim’s sister, his primary case worker, 
 4

his independent living coordinator, the sister’s foster parents, and a police officer 

assigned to the case. 

{¶10} The court made the following findings: 

I find that a consecutive sentence is necessary to protect the 

public from future crime and to punish the offender. 

I find that a consecutive sentence is not disproportionate to 

the seriousness of the conduct and that the danger that the 

defendant poses to the public. 

I find that the acts you committed were a course of conduct, 

and that the harm that was caused to your victim, that a single term 

does not adequately reflect the seriousness of that conduct. 

{¶11} The court ordered Barajas-Anguiano to serve a prison sentence of 72 

months consecutively with the sentence in Case No. 16-C-0012. 

{¶12} On February 28, 2017, Barajas-Anguiano’s sentence was memorialized in 

a Judgment of Conviction. 

{¶13} On March 27, 2018, Barajas-Anguiano filed a Notice of Appeal. On 

appeal, Barajas-Anguiano raises the following assignments of error: 

{¶14} “[1.] The trial court erred when it imposed consecutive sentences without 

making the required findings pursuant to R.C. § 2929.14(C)(4).” 

{¶15} “[2.] The trial court’s findings under R.C. § 2929.14(C)(4) are not 

supported by the record.” 

{¶16} “[3.] The trial court violated Barajas’ constitutional right to due process by 

imposing a sentence that exceeds the statutory maximum.” 
 5

{¶17} The Ohio Revised Code provides, in relevant part, as follows regarding 

consecutive felony sentences: 

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 Code, or was under post-release 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. 
 6

 (c) The offender’s history of criminal conduct demonstrates 

that consecutive sentences are necessary to protect the public from 

future crime by the offender. 

R.C. 2929.14(C)(4). 

{¶18} Under R.C. 2929.14(C)(4), a sentencing court is required to make three 

distinct findings in order to require an offender to serve consecutive prison terms: (1) 

that consecutive sentences are “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”; (3) “and * * * also” that one of the circumstances described in subdivision (a) to 

(c) is present. 

{¶19} In reviewing a felony sentence, “[t]he appellate court may increase, 

reduce, or otherwise modify a sentence that is appealed under this section or may 

vacate the sentence and remand the matter to the sentencing court for resentencing * * 

* if it clearly and convincingly finds * * * [t]hat the sentence is otherwise contrary to law.” 

R.C. 2953.08(G)(2). The failure to make the required findings to impose consecutive 

sentences at the sentencing hearing renders the sentence contrary to law. State v. 

Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 36-37. 

{¶20} There are two preliminary matters to consider before addressing the 

assignments of error. 

{¶21} First, the State argues that, by failing to object to the imposition of 

consecutive sentences at the sentencing hearing, Barajas-Anguiano has forfeited his 

right to challenge his sentence absent plain error. Barajas-Anguiano counters that 
 7

failing to make the requisite findings under R.C. 2929.14(C)(4) renders the sentence 

contrary to law which is plain error. Barajas-Anguiano’s position has been adopted by 

this court. State v. Dickerson, 11th Dist. Ashtabula No. 2013-A-0046, 2015-Ohio-938, ¶ 

64. We note that the Ohio Supreme Court has recently reversed the imposition of 

consecutive sentences where the sentencing court failed to make the requisite findings 

in the absence of an objection as well as plain error analysis, suggesting that the issue 

of whether an offender objects to imposition of consecutive sentences is irrelevant for 

the purposes of reviewing the imposition of consecutive sentences. State v. Beasley, 

__ Ohio St.3d __, 2018-Ohio-493, __ N.E.3d __, ¶ 269-280 (DeWine, J., concurring in 

part and dissenting in part). Inasmuch as we find no error in the imposition of 

consecutive sentences in the present case, the issue is one we need not resolve. 

{¶22} Second, Barajas-Anguiano points out that the sentencing entry states that 

he “committed one or more of the multiple offenses while [he] 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 post-release control for a prior offense,” 

none of which is accurate.1 The State concedes that this finding is not supported by the 

record. Accordingly, we remand this case for the limited purpose of having the trial 

court issue a new sentencing entry omitting the finding that Barajas-Anguiano satisfied 

the conditions of R.C. 2929.14(C)(4)(a). 

{¶23} Barajas-Anguiano argues that the trial court failed to make proper findings 

under R.C. 2929.14(C)(4)(b). The court failed to find that he “committed two (2) or more 

separate offenses that constituted a ‘course of conduct,’” but, rather, found that “the 

acts [he] committed were a course of conduct.” Acknowledging that “acts” as used by 

 

1. No such finding was made by the trial court at the sentencing hearing. 
 8

the court could refer to “multiple offenses,” Barajas-Anguiano argues such a conclusion 

is precluded by the fact that “the court’s focus was entirely on the offense that [he] 

committed against [his son]” and it failed to “mention or discuss the conduct at issue in 

Case No. 16 C 12 or the resultant harm to the victim in that proceeding (i.e. [his 

daughter]).” Appellant’s brief at 15-16. Stated otherwise, “[b]y focusing solely on 

Barajas’ conduct against [his son], which resulted in a conviction for a single count of 

Endangering Children, the trial court failed to make a determination that Barajas 

committed multiple offenses constituting a course of conduct sufficient to justify the 

imposition of consecutive sentences under R.C. § 2929.14(C)(4)(b).” Reply brief at 4. 

{¶24} We hold that the trial court’s findings were sufficient to satisfy the 

requirements of R.C. 2929.14(C)(4)(b). With respect to this subsection, the trial court 

stated at the sentencing hearing: “the acts you committed were a course of conduct, 

and that the harm that was caused to your victim, that a single term does not 

adequately reflect the seriousness of that conduct.”2 Admittedly, the court referred to 

“acts” rather than “multiple offenses” and included a reference to the harm “caused to 

your [Barajas-Anguiano’s] victim.” “However, 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.” Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at ¶ 29; State v. 

Hairston, 10th Dist. Franklin No. 17AP-416, 2017-Ohio-8719, ¶ 7 (“appellate courts 

 

2. The trial court’s February 28, 2017 Judgment of Conviction more precisely reflects that statutory 

language: “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.” 
 9

have been ‘fairly deferential to the trial court’ in reviewing R.C. 2929.14(C)(4) 

challenges and will determine the trial court made the requisite findings if reasonably 

able to ‘glean’ such findings from the record”) (citation omitted); State v. Elmore, 2016-

Ohio-890, 60 N.E.3d 794, ¶ 51 (7th Dist.) (“post-Bonnell, we may liberally review the 

entirety of the sentencing transcript to discern the findings”). 

{¶25} In the present case, it is readily discernible that the trial court engaged in 

the correct analysis and its findings are supported by the record. The issue of whether 

Barajas-Anguiano’s prison sentence for Endangering Children in the present case 

would be served consecutively with the sentences for Gross Sexual Imposition and 

Voyeurism in Case No. 16-C-0012 was argued directly before the court by both the 

defense and the prosecution. It is not reasonable to interpret the court’s use of the word 

“acts” as referring to conduct for which Barajas-Anguiano was not convicted and for 

which no sentence was imposed. At this point in the hearing the court was stating its 

findings to support the imposition of consecutive sentences. 

{¶26} Barajas-Anguiano would also have this court interpret the reference to 

“your victim” to mean that the trial court only considered the harm caused to his son, 

without any regard for the harm caused by the acts of Gross Sexual Imposition and 

Voyeurism committed against his daughter, and imposed the consecutive sentences to 

circumvent the eight-year maximum sentence for Endangering Children, i.e., that the 

court believed that the harm solely caused by the Endangering Children merited a 

prison term beyond the eight-year maximum. Such an interpretation, however, is not 

supported by the record of the proceedings. 
 10

{¶27} It would be exceedingly difficult to disentangle the harm caused to the two 

victims in this case and to their sibling relationship as Barajas-Anguiano suggests the 

court did. The trial court stated that it considered both the pre-sentence investigation 

report from the case involving the daughter as well as the letters including those written 

by the daughter and her foster parents. These letters were also included in the presentence investigation report for the present case. The son’s own testimony before the 

court at sentencing likewise bore witness to how he was harmed by Barajas-Anguiano’s 

conduct in Case No. 16-C-0012: as a result of his sister’s allegations he and his sister 

were “split up” and their sibling relationship effectively destroyed.3

{¶28} Assuming, arguendo, that the trial court focused solely on the harm 

caused the son in the present case, we find no error. It had already been determined in 

Case No.16-C-0012 that the harm caused the daughter was sufficient to impose 

consecutive sentences based on the multiple charges in that case. Nothing the court 

could do in sentencing Barajas-Anguiano for the crime against his son would invalidate 

the finding of harm in the companion case, and the court described the acts underlying 

the charges in both cases as “a course of conduct.” Thus, it was not necessary for the 

court to find that the harm suffered by each victim individually was so great or unusual 

that a single prison term would be inadequate to reflect the seriousness of his conduct. 

{¶29} The assignments of error are without merit. 

{¶30} For the foregoing reasons, Barajas-Anguiano’s sentence for Endangering 

Children is affirmed in part, reversed in part, and this case is remanded with instructions 

 

3. The import of this harm should not be underestimated inasmuch as the siblings’ mother is deceased 

and their father along with the step-mother perpetrated the abuse. For practical purposes, brother and 

sister were the family unit and Barajas-Anguiano’s crimes were against a family as much as against 

distinct individuals. Barajas-Anguiano misspeaks by referring to Case No. 16-C-0012 as an “unrelated 

proceeding.” Reply brief at 7. 
 11

for the trial court to issue a new sentencing entry consistent with this opinion. Costs to 

be taxed against appellant. 

THOMAS R. WRIGHT, P.J., concurs, 

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion. 

___________________________________ 

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion. 

{¶31} The majority finds appellant’s assignments of error without merit. For the 

reasons stated, I respectfully dissent. 

{¶32} In his first assignment of error, appellant argues the trial court erred in 

imposing consecutive sentences without making the required R.C. 2929.14(C)(4) 

findings. In his second assignment of error, appellant asserts the trial court’s findings 

under R.C. 2929.14(C)(4) are not supported by the record. Because both assignments 

challenge appellant’s consecutive sentence, I will address them together. 

{¶33} “‘(T)his court utilizes R.C. 2953.08(G) as the standard of review in all 

felony sentencing appeals.’ State v. Hettmansperger, 11th Dist. Ashtabula No. 2014-A0006, 2014-Ohio-4306, ¶14. R.C. 2953.08(G) provides, in pertinent part: 
 12

{¶34} “‘(2) The court hearing an appeal under division (A), (B), or (C) of this 

section shall review the record, including the findings underlying the sentence or 

modification given by the sentencing court. 

{¶35} “‘The appellate court may increase, reduce, or otherwise modify a 

sentence that is appealed under this section or may vacate the sentence and remand 

the matter to the sentencing court for resentencing. The appellate court’s standard for 

review is not whether the sentencing court abused its discretion. The appellate court 

may take any action authorized by this division if it clearly and convincingly finds either 

of the following: 

{¶36} “‘(a) That the record does not support the sentencing court’s findings 

under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 

2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is 

relevant; 

{¶37} “‘(b) That the sentence is otherwise contrary to law.’ 

{¶38} “R.C. 2929.14(C)(4) governs the imposition of consecutive felony 

sentences. It provides: 

{¶39} “‘(4) 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: 
 13

{¶40} “‘(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 post-release 

control for a prior offense. 

{¶41} “‘(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. 

{¶42} “‘(c) The offender’s history of criminal conduct demonstrates that 

consecutive sentences are necessary to protect the public from future crime by the 

offender.’ 

{¶43} “In State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶37, the court 

held: 

{¶44} “‘In order to impose consecutive terms of imprisonment, a trial court is 

required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing 

hearing and incorporate its findings into its sentencing entry, but it has no obligation to 

state reasons to support its findings. Nor is it required to give a talismanic incantation of 

the words of the statute, provided that the necessary findings can be found in the record 

and are incorporated into the sentencing entry.’ 

{¶45} “Failure to make the R.C. 2929.14(C)(4) findings at the sentencing hearing 

and incorporate them in the judgment entry of sentence renders the sentence contrary 
 14

to law. See, e.g., id.” State v. Purtilo, 11th Dist. Lake No. 2015-L-003, 2015-Ohio-2985, 

¶5-17. 

{¶46} The presumption in Ohio is that sentencing is to run concurrent, unless the 

trial court makes the required findings for imposing consecutive sentences set forth in 

R.C. 2929.14(C)(4). State v. Wells, 8th Dist. Cuyahoga No. 98428, 2013-Ohio-1179, 

¶11; R.C. 2929.41(A). “The imposition of consecutive sentences in Ohio is thus an 

exception to the rule that sentences should be served concurrently. And there is no 

doubt that the provisions of H.B. 86, like those of S.B. 2 before it, were intended, among 

other things, to alleviate overcrowding in the prison system.” State v. Venes, 8th Dist. 

Cuyahoga No. 98682, 2013-Ohio-1891, ¶15. 

{¶47} “Pursuant to R.C. 2929.41(A), therefore, the trial court has the duty to 

make the statutory findings when imposing consecutive sentences, even when one of 

the terms had already been imposed in a separate proceeding in an unrelated case.” 

State v. Howard, 8th Dist. Cuyahoga No. 100094, 2014-Ohio-2176, ¶44. A trial court’s 

failure to make the statutorily-required findings under R.C. 2929.14(C) constitutes plain 

error. State v. Hargrove, 10th Dist. Franklin No. 15AP-102, 2015-Ohio-3125, ¶5. 

{¶48} At the sentencing hearing, appellant did not wish to say anything prior to 

sentencing. Appellant’s counsel, however, advised the court that appellant had a 

difficult childhood and that his experiences have translated into an unorthodox way of 

dealing with his children. Also, the victim in this case, M.B., took the podium and spoke 

to the court. 

{¶49} M.B. indicated the following: he was 15 and a half years old at the time of 

sentencing; M.B. was abused by appellant beginning at six years old; appellant would 
 15

pay M.B. for sex; the sexual abuse lasted around two years; physical and mental abuse 

happened later and lasted about five years; M.B. was rarely allowed to take showers or 

wash his clothes; M.B. was ridiculed at school and lost friends; M.B. did not feel safe; 

M.B. felt exposed and vulnerable; M.B. had trouble sleeping and was diagnosed with 

PTSD; in 2015, M.B. made 16 suicide attempts in three days and was told by appellant 

to “just do it” as it would be one less mouth to feed; things have gotten better for M.B. 

after he was sent to Ohio Guidestone in 2016; however, M.B. has a hard time trusting 

people, has anxiety, and blames appellant; and M.B. asked the court to give appellant 

the maximum sentence. (Sentencing T.p. 7-11). 

{¶50} Thereafter, the trial court stated the following: 

{¶51} “THE COURT: Thank you. Okay. Mr. Barajas Anguiano, the Court has 

considered the purposes and principals of felony sentencing under Revised Code 

2929.11, as well as the seriousness and recidivism factors under 2929.12, including the 

seriousness of your conduct and the factors which make your conduct more serious, as 

well as factors which may make your conduct less serious. 

{¶52} “I specifically find that under 2929.12, some of the factors which make the 

conduct more serious, which occurred in this case, is that the injury to the victim was 

exacerbated by his age. 

{¶53} “I further find that the victim suffered serious physical and emotional harm 

and psychological harm. And I find that your relationship with the victim facilitated the 

offense. 

{¶54} “I have reviewed the presentence investigation, both the one associated 

with 16C12, as well as the one associated with this case, 16C147. 
 16

{¶55} “I have also reviewed letters from the victim, and letters from various other 

people. I have reviewed the plea agreement. I have listened to the statement from your 

counsel, and I have reviewed the entire record in this case. 

{¶56} “I order a prison sentence, and I am going to impose a prison sentence of 

72 months. I do find that this will be consecutive to the sentence imposed under Case 

No. 16C12. 

{¶57} “I find that a consecutive sentence is necessary to protect the public from 

future crime and to punish the offender. 

{¶58} “I find that a consecutive sentence is not disproportionate to the 

seriousness of the conduct and that the danger that the Defendant poses to the public. 

{¶59} “I find that the acts that you committed were a course of conduct, and that 

the harm that was caused to your victim, that a single term does not adequately reflect 

the seriousness of that conduct. 

{¶60} “I understand you had a difficult childhood, but you are the adult in this 

case. And you have admitted to leaving your son out of the family. You have admitted 

to the serious punishment, and I have seen nothing in any of the evidence to show you 

to be supportive of your son. 

{¶61} “In addition to your sentence, you will be subject to post release control. 

You will be subject to a three year post release control term under Revised Code 

2967.28.” (Sentencing T.p. 14-16). 

{¶62} In its February 28, 2017 sentencing entry, the trial court stated: 

{¶63} “Pursuant to R.C. 2929.14(C)(4), the Court finds that consecutive 

sentences are necessary to protect the public from future crime or to punish [t]he 
 17

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 that, 

pursuant to R.C. 2929.14(C)(4)(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 post-release control for a prior offense, and that pursuant to R.C. 

2929.14(C)(4)(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.” (Sentencing Entry pp. 2-3). 

{¶64} The trial court’s ordering of appellant’s sentence in this case to be served 

consecutively to the sentence imposed in Case No. 16 C 000012 does not alter or affect 

the court’s duty to make the requisite statutory findings. Howard, supra, at ¶44. There 

is no dispute that the trial court made the findings in R.C. 2929.14(C)(4), relating to 

protecting the public, punishing appellant, and whether the sentence was 

disproportionate. The court stated these findings at the sentencing hearing and in the 

sentencing entry. The issue, then, is whether the court made the necessary finding 

under R.C. 2929.14(C)(4)(a)-(c). 

{¶65} At the sentencing hearing, it appears the trial court relied upon R.C. 

2929.14(C)(4)(b) as the basis for imposing consecutive sentences by stating: “I find that 

the acts that you committed were a course of conduct, and that the harm that was 

caused to your victim, that a single term does not adequately reflect the seriousness of 
 18

that conduct.”4 (Sentencing T.p. 15-16). The court did not make reference to either of 

the other factors set forth in that statutory section at the sentencing hearing, R.C. 

2929.14(C)(4)(a) or (c).5 

{¶66} Although R.C. 2929.14(C)(4)(a) was not referenced by the trial court at the 

sentencing hearing, it was cited by the court in its sentencing entry: “[P]ursuant to R.C. 

2929.14(C)(4)(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 post-release 

control for a prior offense[.]” (Sentencing Entry p. 2). 

{¶67} There is no additional information provided in the entry to support the 

court’s foregoing conclusory statement. It is undisputed that appellant was not under a 

sanction imposed pursuant to R.C. 2929.16, 2929.17, or 2929.18, nor was he under 

post-release control at the time of the offense. In fact, the state concedes that R.C. 

2929.14(C)(4)(a) does not apply to appellant’s situation. 

{¶68} This writer additionally points out that there is no explanation as to why the 

court failed to consider this factor, or even determine that it applied, during the 

sentencing hearing. The trial court’s failure to make a required finding regarding R.C. 

2929.14(C)(4)(a) at the time of imposing sentence cannot be cured by a subsequent 

entry. Bonnell, supra, at ¶30. The record does not support the court’s determination 

that consecutive sentences are justified under R.C. 2929.14(C)(4)(a). 

 

1. The sentencing entry contains a similar conclusion regarding R.C. 2929.14(C)(4)(b). 

2. The court also made no reference to R.C. 2929.14(C)(4)(c), “[t]he offender’s history of criminal 

conduct,” in its sentencing entry. 
 19

{¶69} Regarding R.C. 2929.14(C)(4)(b), as stated, the trial court determined that 

consecutive sentences were justified at the sentencing hearing: “I find that the acts that 

you committed were a course of conduct, and that the harm that was caused to your 

victim, that a single term does not adequately reflect the seriousness of that conduct.” 

(Sentencing T.p. 15-16). This conclusion is also memorialized in the court’s sentencing 

entry: “[P]ursuant to R.C. 2929.14(C)(4)(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.” (Sentencing Entry pp. 2-

3). 

{¶70} The record fails to establish the trial court’s determination that appellant 

committed two or more separate offenses that constituted a course of conduct as 

required by R.C. 2929.14(C)(4)(b). The court never expressly stated that appellant had 

been convicted of multiple offenses. See State v. St. John, 11th Dist. Lake No. 2015-L133, 2017-Ohio-4043, ¶44 (“a trial court makes a sufficient ‘course of conduct’ finding if, 

at some point during the sentencing hearing, the court notes that the defendant has 

been found guilty of multiple offenses that had the necessary temporal relationship.”) 

{¶71} The record reveals that the court’s focus was on the offense in this case 

that appellant committed against M.B. The court did not mention or discuss the conduct 

and harm to L.B. in Case No. 16 C 000012. Rather, the court’s only reference to Case 

No. 16 C 000012 was the following: “I have reviewed the presentence investigation, 

both the one associated with 16C12, as well as the one associated with this case, 
 20

16C147.” (Sentencing T.p. 15). The court did not make any assertion that a temporal 

relationship existed between the offense at issue in this case and the offenses in Case 

No. 16 C 000012. 

{¶72} A trial court does not err if it clearly explains that its R.C. 2929.14(C)(4)(b) 

finding is reliant upon the fact that a defendant’s conduct harmed two or more separate 

victims. See State v. English, 8th Dist. Cuyahoga No. 101883, 2015-Ohio-3227, ¶22. 

In the case at bar, however, the court throughout the sentencing hearing repeatedly 

used the term “victim” in the singular tense in discussing the applicability of R.C. 

2929.14(C)(4)(b). The state even points out in its appellate brief that “[t]he trial court 

may have stumbled over its words a bit when it referenced the harm caused to the 

victim, rather than victims, when making the statutory finding under subsection 

(C)(4)(b)[.]” (State’s Brief p. 8) The record reveals the court’s determination that 

appellant engaged in a course of conduct was predicated only upon its consideration of 

the acts against M.B., a singular victim. Although consecutive sentences for offenses 

committed against a single victim may be justified in some circumstances, the same 

cannot be said where, as here, a defendant is only convicted of a single offense against 

a single victim. 

{¶73} There is no doubt that appellant’s behavior was appalling. However “a 

reviewing court may not imply a statutorily required finding that does not appear in the 

record simply because the facts of the case are particularly appalling.” State v. 

Farnsworth, 7th Dist. Columbiana No. 12 CO 10, 2013-Ohio-1275, ¶11. While “magic 

language” is not required, the trial court’s findings regarding the R.C. 2929.14(C)(4)(a)-

(c) factors must be distinct and explicit. In this case, as addressed, they were not. The 
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court’s deficiency renders appellant’s sentence contrary to law. See Purtilo, supra, at 

¶17; State v. Skaggs, 11th Dist. Lake No. 2015-L-024, 2016-Ohio-1160, ¶44. 

{¶74} Appellant’s first and second assignments of error have merit. 

{¶75} In his third assignment of error, appellant contends the trial court erred in 

imposing a consecutive sentence that exceeds the maximum. 

{¶76} Given this writer’s determination that this case must be reversed and 

remanded for resentencing, as addressed in appellant’s first and second assignments of 

error, appellant’s sentencing contention contained in his third assignment is moot. See 

App.R. 12(A)(1)(c); State v. Gleason, 10th Dist. Franklin No. 03AP-135, 2003-Ohio6110, ¶24, 28-30 (holding that because the trial court erred in imposing consecutive 

sentences without making the required statutory findings and that the matter must be 

reversed and remanded for resentencing, the appellant’s remaining maximum sentence 

argument was rendered moot). 

{¶77} For the foregoing reasons, because this humble writer finds merit in 

appellant’s first and second assignments of error, I would reverse the trial court’s 

judgment and remand for further proceedings. 

{¶78} I respectfully dissent.