[Cite as State v. Holmes, 2014-Ohio-2724.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, 

V. 

SHEROD HOLMES, 

 DEFENDANT-APPELLANT. 

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CASE NO. 13 MA 76 

OPINION 

CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common 

Pleas of Mahoning County, Ohio 

Case No. 13CR156 

JUDGMENT: Reversed and Remanded 

APPEARANCES: 

For Plaintiff-Appellee Paul Gains 

Prosecutor 

Ralph M. Rivera 

Assistant Prosecutor 

21 W. Boardman St., 6th Floor 

Youngstown, Ohio 44503 

For Defendant-Appellant Attorney Edward A. Czopur 

42 North Phelps St. 

Youngstown, Ohio 44503 

JUDGES: 

Hon. Gene Donofrio 

Hon. Cheryl L. Waite 

Hon. Mary DeGenaro 

 

 

 Dated: June 19, 2014 
[Cite as State v. Holmes, 2014-Ohio-2724.]

DONOFRIO, J. 

{¶1} Defendant-appellant Sherod Holmes appeals the decision of the 

Mahoning County Common Pleas Court sentencing him to consecutive sentences for 

one count each of gross sexual imposition and importuning. He contends that the 

court erred in imposing consecutive sentences by failing to fulfill its judicial factfinding duties under R.C. 2929.14(C). 

{¶2} On March 27, 2013, Holmes pleaded guilty to a bill of information 

containing two counts of gross sexual imposition in violation of R.C. 

2907.05(A)(1)(C)(1), fourth-degree felonies and two counts importuning in violation of 

R.C. 2907.07(B)(1)(F)(3), fifth-degree felonies. In exchange, the state agreed to 

recommend a twenty-four month term of imprisonment and that it would not object to 

judicial release after he had served six months of that sentence. 

{¶3} Sentencing was held on April 24, 2013. The court sentenced Holmes to 

a concurrent twelve-month term of imprisonment on each of the counts. The court 

also ordered the term for one of the gross sexual imposition counts to be served 

consecutively with one of the terms for the importuning counts for an aggregate 

sentence of twenty-four months in prison on all counts. This appeal followed. 

{¶4} Holmes’s sole assignment of error states: 

The sentence imposed against Mr. Holmes was in violation of 

[R.C.] 2929.14(C)(4) and an abuse of discretion as the trial court did not 

make the necessary findings before imposing consecutive sentences. 

{¶5} In support of his argument that the trial court did not make the 

necessary findings for consecutive sentences, Holmes quotes the court’s statement 

at the sentencing hearing concerning the consecutive sentences: 

[I]n order to protect the public and recognizing the severity of the 

offenses involved and what the Court deems as a recidivism factor in 

this type of crime, the Defendant in the second count, Count Four, will 

be sentenced -- or in Count Three, will be sentenced consecutively to 

the sentence imposed in Count One and Count Two. 
-2-

(Sentencing Hearing Tr. 22.) 

{¶6} In response, the state argues that the record supports the trial court 

imposition of consecutive sentences referring to the fact that: (1) Holmes pleaded 

guilty to four sexually-related offenses against three separate victims that occurred 

on three separate occasions; (2) Holmes committed the offenses while he was 

employed as a probation officer for Mahoning County Juvenile Court; and (3) two of 

the victims’ mothers spoke at the sentencing hearing about the effect that these 

offenses had on their daughters. The state also points to the trial court’s statement at 

the sentencing hearing that it was considering the principles and purposes of 

sentencing, and that consecutive sentences were needed to protect the public, based 

upon the severity of the offenses, and the likelihood of recidivism. 

{¶7} Pursuant to 2011 H.B. 86, effective September 20, 2011, a court 

imposing consecutive sentences must make certain findings. This legislation was 

enacted in response to the Ohio Supreme Court’s statement that its Foster decision 

was incorrect in striking down statutory consecutive sentence provisions and that the 

legislature would need to enact a new statute to revive any requirement of findings 

for consecutive sentences. State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 

N.E.2d 768, paragraph three of the syllabus. 

{¶8} R.C. 2929.14(C)(4) sets forth the findings required for imposition of 

consecutive sentences: 

(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: 
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(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. 

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

consecutive sentences are necessary to protect the public from future 

crime by the offender. 

{¶9} In analyzing whether a sentencing court complied with R.C. 

2929.14(C)(4), this court has held that a trial court is not required to recite any magic 

or talismanic words when imposing consecutive sentences but it must be clear from 

the record that the trial court engaged in the appropriate analysis. State v. Power, 7th 

Dist. No. 12 CO 14, 2013-Ohio-4254, ¶ 40; State v. Bellard, 7th Dist. No. 12 MA 97, 

2013-Ohio-2956, ¶ 17. “Although the trial court is not required to recite the statute 

verbatim, there must be an indication that the court in fact found that (1) 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 defendant’s conduct and to the danger he poses to the public, and (3) one of 

the findings described in subsections (a), (b) or (c). R.C. 2929.14(C)(4).” Bellard at ¶ 

17. See also Power at ¶ 37. 

{¶10} Because the record can either contain magic words or words which 

reflect that a finding was actually made, determining whether a sentencing court has 

complied with R.C. 2929.14(C)(4) has become fact specific, particularly where the 
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sentencing court has not employed the magic words. Some recent examples from 

this appellate district follows. 

{¶11} In State v. Verity, 7th Dist. No. 12 MA 139, 2013-Ohio-1158, the 

sentencing court stated: 

THE COURT: * * * Well, as everybody is aware, I have the 

benefit of having the pre-sentence investigation. I am sure your lawyer 

has gone over it with you. And of particular interest to the court is that 

these four different counts are your * * * ninth, tenth, eleventh, twelfth 

felony count. When you committed these offenses you were already out 

on community control. In addition to that, you have a minimum of at 

least 12 prior misdemeanor convictions all involving thievery, theft, 

criminal trespass, everything, which is indicative also, I might add, 

recognizing you that you have obviously some underlying problem. But 

your underlying problem, obviously, in the years past has been kicked 

aside and ignored and obviously must have [sic] recognized that 

something transpired, at least in this twelfth felony, that it was about 

time to do something. But at the same time it was a little late. I might 

also add I am not taking into account you have had more cases 

dismissed than the average citizen has filed against them. And, 

obviously, you stood in front of judges and told them that, you know, 

you are trying to do what you can. * * * 

But taking everything into account, particularly your prior criminal 

history, your history of reoffending, all of a similar nature, and in 

reviewing the principles and purposes of sentencing, and in particular in 

reviewing the crimes that you committed while you are under the control 

of another court, and it shows this court that consecutive sentencing is 

needed to protect the public. And I might also add that in the PSI, in the 

pre-sentence investigation, it is noted that there was a very significant 

loss of damages. 
-5-

(Emphasis sic.) Verity at ¶ 34. 

{¶12} This court found that the above statement was enough to establish 

compliance with R.C. 2929.14(C)(4)(c) (history of criminal conduct), but went on to 

add that Verity’s sentencing entry contained a more explicit finding from the 

sentencing court with regard to proportionality: “The Court finds that in order to 

protect the public and not punish the Defendant disproportionately and pursuant to § 

2929.14(C)(4) that a consecutive prison term is necessary due to Defendant’s 

previous convictions and a high risk of recidivism.” Id. at ¶ 36. 

{¶13} In State v. Kornegay, 7th Dist. No. 12 MA 10, 2013-Ohio-658, the 

appellant was convicted of violating community control by committing burglary, 

robbery and receiving stolen property offenses. Apparently referring to R.C. 

2929.14(C)(4)(c) (history of criminal conduct), this court held that the sentencing 

court’s findings were enough for imposition of consecutive sentences where: 

At sentencing, the trial court found that appellant committed the 

crimes “during the course of the time period where he was involved in 

other matters” and that this demonstrated that a sentence on a single 

term would not adequately represent the seriousness of the offenses 

and would not adequately protect the public. (Tr. 13-14). The court also 

noted that recidivism was a “big problem”. (Tr. 14). It pointed out that 

when it gave appellant the opportunity for day reporting and treatment, 

he was not able to comply. (Tr. 14). Thus, the trial court gave adequate 

support under R.C. 2929.14(C)(4) for ordering consecutive sentences. 

Kornegay at ¶ 19. 

{¶14} Conversely in State v. Esmail, 7th Dist. No. 11 CO 35, 2013-Ohio-2165, 

this court reversed the trial court’s sentence for failing to make sufficient findings 

pursuant to R.C. 2929.14(C)(4). In Esmail, the trial court stated in the sentencing 

entry that it considered “the purposes and principles of sentencing, and all other 

relevant factors, (O.R.C. 2929.11 and 12).” Id. at ¶ 22. During the sentencing hearing 
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the trial court, in addition to acknowledging the defendant’s prior drug trafficking 

convictions as noted by the State, made the following findings: 

I have considered all of the appropriate factors in this case, I 

believe; including the Presentence Investigation. 

* * * 

I would also note, sir, back in 2003, according to my review, was 

the first time that there was some sort of a drug-related offense. I do not 

believe that you are amendable to Community Control. Again, based on 

the past record that I see reflected in the Presentence Investigation.” 

* * * 

I do believe that this sentence today is consistent with the terms 

of Senate Bill 86. Again, the primary purposes of which are to protect 

the public and to punish the offender.” 

Esmail at ¶ 21. 

{¶15} This court held that these findings were insufficient as a matter of law: 

The trial court did find that Esmail’s sentence was necessary to 

protect the public and to punish the offender, but this was the only one 

of the three findings required by R.C. 2929.14(C)(4) the trial court made 

before imposing consecutive sentences. The trial court did not find that 

the consecutive sentences are not disproportionate to the seriousness 

of Esmail’s conduct and to the danger he poses to the public. And 

although the trial court noted Esmail’s prior record, it did so in the 

context of community control; no finding was made with respect to 

consecutive sentences in light of Esmail’s record. While the trial court 

did state that it believed the sentence was consistent with “Senate Bill 

86.” this was not enough to comply with R.C. 2929.14(C)(4). Although 

the trial court was not required to use the exact words of the statute, 
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generally citing to H.B. 86 is not sufficient to show the court made the 

required statutory findings. 

Esmail at ¶ 23. 

{¶16} The only findings concerning consecutive sentences that can be 

gleaned from the trial court’s statements in this case came towards the end of the 

hearing when the court actually pronounced the sentence: 

COURT: Okay. Taking everything into consideration and the 

Defendant’s appearance of some remorse, and considering the 

principles and purposes of sentencing, it is going to be the order of the 

Court in Count One, the felony four, Gross Sexual Imposition, the 

Defendant will be sentenced to a 12-month stay at the Lorain 

Correctional Facility. 

In Count Two, that’s also a Gross Sexual Imposition, it will be the 

order of the Court that the Defendant will be sentenced to a 12-month 

stay in Lorain Correctional Facility. That Count Two will be served 

concurrently with Count One. 

In Count Three, the Importuning count, a felony of the fifth 

degree, the Defendant will be sentenced to a 12-month stay at the 

Lorain Correctional Facility, and in order to protect the public and 

recognizing the severity of the offenses involved and what the Court 

deems as a recidivism factor in this type of a crime, the Defendant in 

the second count, Count Four, will be sentenced -- or in Count Three, 

will be sentenced consecutively to the sentence imposed in Count One 

and Count Two. 

Count Four, it’s another felony five, Importuning. The Defendant 

will be sentenced to a 12-month stay at the Lorain Correctional Facility 

to be served concurrently with the sentence imposed in Count One and 

Two. 
-8-

Thus, the Defendant has a total of two years’ confinement. 

(Emphasis added.) (Sentencing Hearing Tr. 21-23.) 

{¶17} The May 3, 2013 sentencing entry itself contains no findings relative to 

the court’s imposition of consecutive sentences. 

{¶18} Here, the trial court did not make all of the three findings required for 

imposition of consecutive sentences. The first required finding is that consecutive 

sentences are necessary to protect the public from future crime or to punish the 

offender. Here, the court met this requirement when it stated that it was imposing 

consecutive sentences “in order to protect the public.” 

{¶19} The second required finding is that consecutive sentences are not 

disproportionate to the seriousness of the defendant’s conduct and to the danger he 

poses to the public. The court’s statement that it was imposing consecutive 

sentences in order to “recogniz[e] the severity of the offenses involved” would seem 

to be enough to support that there was a finding that consecutive sentences were not 

disproportionate to the seriousness of the defendant’s conduct. Arguably, the court’s 

statement that it was imposing consecutive sentences “in order to protect the public” 

could be construed as a reference to whether Holmes posed any danger to the 

public. But, due to the complete absence of the third required finding, it is 

unnecessary for us to reach a conclusion in that regard. 

{¶20} The third required finding is one of the findings described in subsections 

(a), (b), or (c) to R.C. 2929.14(C)(4). Based on the record before this court, it does 

not appear that subsections (a) or (c) would be applicable. There was no indication 

that Holmes had been under any type of judicial sanction or constraint at the time he 

committed these offenses or that he had prior history of criminal conduct. But, given 

that there were multiple offenses, subsection (b) might be applicable if the harm 

caused was so great or unusual that consecutive sentences were necessary to 

address the seriousness of Holmes’s conduct. As indicated, the trial court mentioned 

the severity of the offenses. However, it did not reference the harm caused by those 

offenses. 
-9-

{¶21} In sum, the trial court’s failure to adequately address consecutive 

sentences under R.C. 2929.14(C)(4) at the sentencing hearing combined with the 

complete absence of any such findings in the judgment entry of sentence itself leads 

us to the conclusion that Holmes’s sentence is contrary to law because the trial court 

failed to make all of the required findings before imposing consecutive sentences 

under R.C. 2929.14(C)(4). Accordingly, Holmes’s sole assignment of error has merit. 

{¶22} The judgment of the trial court is reversed and this case remanded for 

resentencing. 

Waite J., concurs. 

DeGenaro, P.J., concurs.