[Cite as State v. Hodges, 2013-Ohio-5025.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 99511 

STATE OF OHIO 

PLAINTIFF-APPELLEE 

vs.

JAVONTE L. HODGES

 DEFENDANT-APPELLANT

JUDGMENT: 

REVERSED AND REMANDED FOR 

RESENTENCING 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-562692 

BEFORE: Jones, J., Celebrezze, P.J., and E.T. Gallagher, J. 

 

RELEASED AND JOURNALIZED: November 14, 2013 
ATTORNEY FOR APPELLANT 

Michael P. Maloney 

24441 Detroit Road 

Suite 300 

Westlake, Ohio 44145

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

BY: Brian M. McDonough 

Assistant County Prosecutor 

The Justice Center, 8th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
LARRY A. JONES, SR., J.: 

{¶1} Defendant-appellant, Javonte L. Hodges, appeals his 20-years-to-life 

sentence, which was imposed after his plea to murder and associated crimes. We 

reverse the consecutive portion of the sentence and remand for resentencing. 

 I. 

{¶2} In May 2012, Hodges was charged with the aggravated murder of Christopher 

Johnson. The nine-count indictment also charged Hodges with aggravated robbery, 

improperly handling firearms in a motor vehicle, having weapons while under disability, 

and tampering with evidence. The aggravated murder and aggravated robbery charges 

contained one- and three-year firearm specifications. 

{¶3} After negotiations with the state, Hodges pleaded guilty to amended Count 1, 

murder, with a three-year firearm specification; Count 3, aggravated robbery, with a 

three-year firearm specification; Count 5, improperly handling firearms in a motor 

vehicle; and Count 6, having weapons while under disability. The remaining counts and 

specifications were nolled. 

{¶4} For purposes of sentencing, the murder, aggravated robbery, and improperly 

handling firearms in a motor vehicle were merged as allied offenses; the state elected to 

proceed to sentencing on the murder conviction. The trial court sentenced Hodges to 

three years on the firearm specification attendant to the murder count, to be served prior 

and consecutively to 15 years to life on the underlying charge; and 24 months on the 
having weapons while under disability conviction, to be served consecutive to the murder 

sentence. Hodges was, therefore, sentenced to 20 years to life. 

 II. 

{¶5} In March 2012, Hodges, along with codefendants John Johnson and Deante 

Kidd, shot and killed the victim, Christopher Johnson, because of a drug deal gone bad. 

Hodges was the shooter; he shot Johnson in the back of the head from close range in the 

vehicle where the drug transaction occurred. After being shot, the victim, who had been 

driving the vehicle, crashed into a home. Hodges fled the scene and thereafter fled to 

Florida, where he was eventually apprehended. According to law enforcement officials 

who apprehended him, Hodges initially denied being the shooter. At sentencing, 

Hodges stated that the shooting was an accident. 

 III. 

{¶6} In his sole assignment of error, Hodges challenges his consecutive sentence, 

contending that the trial court failed to (1) sufficiently inquire into and apply the factors 

under R.C. 2929.12 and, therefore, did not comply with the purposes of felony sentencing 

set forth under R.C. 2929.11, (2) merge the murder and having weapons while under 

disability convictions, and (3) make the required findings for the imposition of 

consecutive sentences. 

Sentencing Factors under R.C. 2929.12

{¶7} The trial court has the full discretion to impose any term of imprisonment 
within the statutory range, but it must consider the sentencing purposes in R.C. 2929.11 

and the guidelines contained in R.C. 2929.12. State v. Stone, 3d Dist. Marion No. 

9-11-39, 2012-Ohio-1895, ¶ 10, citing State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 

845 N.E.2d 470, ¶ 36-42; State v. Elston, 3d Dist. Putnam No. 12-11-11, 

2012-Ohio-2842, ¶ 10. 

{¶8} R.C. 2929.11(A) provides that a sentence imposed for a felony shall be 

reasonably calculated to achieve the two overriding purposes of felony sentencing: (1) 

“to protect the public from future crime by the offender and others,” and (2) “to punish 

the offender using the minimum sanctions that the court determines accomplish those 

purposes.” The sentence imposed shall also be “commensurate with and not demeaning 

to the seriousness of the offender’s conduct and its impact on the victim, and consistent 

with sentences imposed for similar crimes committed by similar offenders.” R.C. 

2929.11(B). 

{¶9} The sentencing court must consider the seriousness and recidivism factors set 

forth in R.C. 2929.12 in determining the most effective way to comply with the purposes 

and principles of sentencing set forth in R.C. 2929.11. State v. Arnett, 88 Ohio St.3d 

208, 213, 724 N.E.2d 793 (2000). R.C. 2929.12 provides a non-exhaustive list of 

factors a trial court must consider when determining the seriousness of the offense and 

the likelihood that the offender will commit future offenses. State v. Samuels, 8th Dist. 

Cuyahoga No. 88610, 2007-Ohio-3904, ¶ 14. R.C. 2929.12(A) also permits the court to 

consider “any other factors that are relevant to achieving the purposes and principles of 
sentencing.” 

{¶10} At sentencing, Hodges maintained that the shooting accidently occurred 

when he was taking his money out of his sleeve, where he also had the gun, and the gun 

jammed; he denied ever pulling the trigger. 

{¶11} The court noted that Hodges, who was 23 years old at the time of 

sentencing, had a juvenile record and an adult record that included convictions for rioting 

and criminal gang activity. The court found that Hodges’s past criminal record 

demonstrated that the “respect [he has] for human life is not all that great * * *.” 

{¶12} The court further stated the following: 

Now, whether your victim was a drug dealer or not is really of no 

consequence, because you don’t have the right or the power to execute 

anyone. And in our country we don’t execute drug dealers. We may 

imprison them, but we don’t execute them. You did. And I don’t buy 

that it was an accident. I find that extremely difficult to believe. And 

that story makes me say that you are not remorseful for your actions and 

that you are really not even taking responsibility for your actions despite the 

guilty plea because you still want us all to believe it was an accident. I 

don’t know how anyone carries a gun by accident starting there. A gun 

can’t get in your pocket, your waistband, or your arm sleeve by accident. 

An intentional movement must place that gun on your person. How does a 

gun get loaded? Not by accident. It’s an intentional movement to put 

those bullets in that gun. 

* * * 

[There was] [n]o accidental meeting on the street. It was a planned 

meeting. It was planned that you would have a gun. It was planned that 

the gun had bullets. So if it had a hair trigger, which I disbelieve, and if it 

accidently went off, which I disbelieve, there were still planned actions 

leading up to that point. And you know that a gun is a deadly weapon. 

So you know even carrying a gun has a consequence of killing someone 

else. 
So whatever part of this you think was an accident, this court disagrees with 

you. And your plea states otherwise as well. 

{¶13} The court’s judgment entry of sentence states the court “considered all 

required factors of the law. The court finds that prison is consistent with the purpose of 

R.C. 2929.11.” 

{¶14} Upon review of the record, the trial court properly considered the applicable 

factors and principles set forth in R.C. 2929.11 and 2929.12, including recidivism factors 

and the need to punish Hodges. Hodges’s contention that the trial court failed to 

consider the sentencing considerations under R.C. 2929.11 and 2929.12 is therefore 

without merit. 

Allied Offenses

{¶15} Hodges next challenges his sentence on the ground that the murder and 

having weapons while under disability convictions should have merged. We disagree. 

{¶16} A merger analysis was conducted in this case and resulted in the merger of 

the murder, aggravated robbery, and improperly handling firearms in a motor vehicle 

convictions. The murder and having weapons while under disability convictions were 

properly not merged. 

{¶17} The Ohio Supreme Court set forth a two-part test for determining whether 

offenses are allied offenses of similar import in State v. Johnson, 128 Ohio St.3d 153, 

2010-Ohio-6314, 942 N.E.2d 1061. The first inquiry focuses on “whether it is possible 

to commit one offense and commit the other with the same conduct * * *.” Id. at ¶ 48. 

It is not necessary that the commission of one offense will always result in the 
commission of the other. Id. Rather, the question is whether it is possible for both 

offenses to be committed by the same conduct. Id. Conversely, if the commission of one 

offense will never result in the commission of the other, the offenses will not merge. Id.

at ¶ 51. 

{¶18} If the multiple offenses can be committed with the same conduct, the court 

must then determine whether the offenses were in fact committed by a single act, or 

performed with a single state of mind. Id. at ¶ 49. If the answer to both questions is 

yes, the offenses are allied offenses of similar import and must be merged. Id. at ¶ 50. 

On the other hand, if the offenses are committed separately or with a separate animus, the 

offenses will not merge. Id. at ¶ 51. 

{¶19} This court has previously held that the 

animus of having a weapon under disability is making a conscious choice to 

possess a weapon. [The defendant] necessarily acquired the guns 

sometime prior to committing the other crimes. The fact that he then used 

the weapons to commit the other crimes does not absolve [the defendant] of 

the criminal liability that arises solely from his decision to illegally possess 

the weapons. 

State v. Cowan, 8th Dist. Cuyahoga No. 97877, 2012-Ohio-5723, ¶ 39; see also State v. 

West, 8th Dist. Cuyahoga No. 98274, 2013-Ohio-487, ¶ 43-45. 

{¶20} Here, Hodges took a gun to meet the victim to buy drugs. He therefore 

was in possession of the gun before he ever met up with the victim. He shot the victim 

after the codefendants purchased drugs from the victim and it was decided that he had 

been “cheated.” On this record, the crime of having weapons while under disability 

occurred before Hodges’s meeting with the victim and, therefore, was committed with an 
animus separate from the murder. Therefore, the having weapons while under disability 

and murder convictions were properly not merged. 

Consecutive Sentences

{¶21} Under R.C. 2953.08(G)(2), the following two grounds permit an appellate 

court to reverse a trial court’s imposition of consecutive sentences upon an offender if: 

(1) the sentence is “otherwise contrary to law”; or (2) the appellate court, upon its review, 

clearly and convincingly finds that “the record does not support the sentencing court’s 

findings.” See also State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, ¶ 

11. 

{¶22} Under R.C. 2929.14(C)(4), when imposing consecutive sentences, the trial 

court must first find that the sentence is “necessary to protect the public from future crime 

or to punish the offender.” The trial court must also find that consecutive sentences are 

“not disproportionate to the seriousness of the offender’s conduct and to the danger the 

offender poses to the public.” Id. Further, the trial court must find that one of the 

following factors applies: 

(a) The offender committed one or more of the multiple offenses while the 

offender was awaiting trial or sentencing, was under a sanction * * *, 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 * * * 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. 

Id.

{¶23} After sentencing Hodges to the mandatory 18 years for the murder 

conviction, the court stated the following: 

The Court will also sentence you to * * * 24 months on the having 

weapon[s] while under disability, Count 6. And I will run that consecutive 

to the murder charge in Count 1. * * * Those 24 months will run * * * 

consecutive to amended Count 1. This, of course, is the most serious 

offense. I find that recidivism factors are present, and that any less of a 

sentence would demean the seriousness of this offense. Your lack of 

remorse is palpable. 

{¶24} The assistant prosecuting attorney stated that: 

[o]bviously this court has the discretion to impose those consecutive 

sentences if necessary to protect the public or punish the Defendant, and 

that they’re not disproportionate, and this was the worst form of the offense. 

 

{¶25} The court replied: 

Thank you. And as I’ve said, the seriousness of the offense, the facts of 

this case would — may support a theory of premeditation, meeting, a 

planned meeting, telling the co-defendant Deante Kidd that this is a cheater, 

bring a scale, and placing a gun in an arm sleeve as opposed to a pocket or 

holster or a waistband all are facts that this court believes given the 

statements of this Defendant also could lead to premeditation on this case. 

{¶26} We find on this record that the trial court did not comply with the 

requirements for the imposition of consecutive sentences.1

 The court offered “reasons” 

 1

In its brief on appeal, the state acknowledges that the trial court “did not explicitly go through 

the three[-]step analysis required under R.C. 2929.14(C)(4),” but notes that in the past this court has 

not required trial courts to do so. But recently, this court stated that the “current trend * * * has been 
for the sentence, but besides finding that “any less of a sentence would demean the 

seriousness of this offense,” the court did not make the required findings required for 

consecutive sentences. The assistant prosecuting attorney attempted to prompt the court 

to make the required findings, but the court did not. 

{¶27} At sentencing, the state requested the maximum sentence; it also filed a 

sentencing memorandum prior to sentencing seeking the same. The sentencing 

memorandum consisted of letters from the victim’s family and friends, the funeral 

program for the victim, and a remembrance book in honor of the victim. It has 

previously been suggested that 

if the state believes that a consecutive sentence is appropriate in a given 

case, the best practice would be to provide the trial court with a sentencing 

memorandum that includes the required statutory findings under R.C. 

2929.14(C)(4) with citations to the record supporting each required finding. 

State v. Wilson, 8th Dist. Cuyahoga No. 99331, 2013-Ohio-3915, ¶ 21 (Rocco, J., 

concurring). Perhaps a sentencing memorandum that also included the requisite 

statutory findings for the imposition of consecutive sentences would have guided the trial 

court in this case. 

{¶28} In light of the above, the sole assignment of error is sustained as it relates to 

 

to hold the trial court responsible for more than just ‘substantial compliance’ with the requirements. 

We do not believe following the trend is unreasonable. Otherwise, general statements made by trial 

courts can too easily be read as consecutive sentence findings. We do not believe that the legislature 

intended such a result; rather, it has specifically delineated the findings that need to be made when 

sentencing to consecutive terms.” State v. Schmick, 8th Dist. Cuyahoga No. 99262, 

2013-Ohio-4488, ¶ 13. 
the imposition of consecutive sentences. 

{¶29} Judgment imposing consecutive sentences reversed; case remanded for 

resentencing. 

It is ordered that appellant and appellee split the costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

 

LARRY A. JONES, SR., JUDGE 

FRANK D. CELEBREZZE, JR., P.J., CONCURS; 

EILEEN T. GALLAGHER, J., CONCURS IN 

JUDGMENT ONLY WITH SEPARATE OPINION 

EILEEN T. GALLAGHER, J., CONCURRING IN JUDGMENT ONLY: 

{¶30} I concur with the majority’s disposition of the first and second assigned 

errors. However, I concur in judgment only as it relates to Hodges’s third assignment of 
error, which relates to the mandatory findings for the imposition of consecutive sentences. 

{¶31} The majority determined that the trial court failed to make any of the 

findings required under R.C. 2929.14(C)(4). I would find the court satisfied the required 

findings under the first and third prongs of the statute, but failed to make a finding of 

proportionality. Although the trial court is not required to use “talismanic words” to 

comply with R.C. 2929.14(C)(4), “it must be clear from the record that the trial court 

actually made the findings required by statute.” State v. Goins, 8th Dist. Cuyahoga No. 

98256, 2013-Ohio-263, ¶ 10. 

{¶32} The court described Hodges’s violent criminal history and noted his 

extensive juvenile record. The court found that recidivism factors were present and 

stated that “any less of a sentence would demean the seriousness of the offense.” The 

court did not, however, make any finding that a consecutive sentence is not 

disproportionate to the seriousness of Hodges’s conduct and to the danger Hodges poses 

to the public. For that reason, I respectfully concur in judgment only.