[Cite as State v. Ferrell, 2016-Ohio-7715.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 104047

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

 JOHN FERRELL 

DEFENDANT-APPELLANT 

JUDGMENT: 

VACATED AND REMANDED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-13-574239-A 

BEFORE: Keough, P.J., E.T. Gallagher, J., and Stewart, J. 

RELEASED AND JOURNALIZED: November 10, 2016 
ATTORNEY FOR APPELLANT

Brian A. Smith 

755 White Pond Drive, Suite 403 

Akron, Ohio 44320 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

By: Frank Romeo Zeleznikar 

Assistant Prosecuting Attorney 

The Justice Center, 8th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
KATHLEEN ANN KEOUGH, P.J.: 

{¶1} In State v. Ferrell, 8th Dist. Cuyahoga No. 100659, 2014-Ohio-4377 

(“Ferrell I”), this court affirmed defendant-appellant John Ferrell’s convictions involving 

sexual contact and conduct with two minor females, but reversed his 75.5-year prison 

sentence and remanded the case to the trial court. Specifically, this court concluded that 

the trial court failed to make the necessary findings to support the imposition of 

consecutive sentences. Id. at ¶ 43 and 46. 

{¶2} On remand, the trial court again determined that the facts and circumstances 

of the case warranted the imposition of consecutive sentences. Accordingly, the trial 

court reaffirmed its original 75.5 year prison sentence and made the purported 

consecutive sentence findings on the record. 

{¶3} Ferrell now appeals this sentence, contending that the trial court again failed 

to make the requisite findings pursuant to R.C. 2929.14(C)(4) prior to imposing 

consecutive sentences. While the state concedes that the trial court failed to comply with 

R.C. 2929.14(C)(4), it contends that the record could support the imposition of 

consecutive sentences; thus, urging this court to overrule Ferrell’s second assignment of 

error challenging the record. A review of the trial court’s statements during resentencing 

demonstrates that the trial court once again failed to make the necessary findings prior to 

imposing consecutive sentences. 
{¶4} 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.” 

{¶5} R.C. 2929.14(C)(4) provides that in order to impose consecutive sentences, 

the trial court must find that consecutive sentences are (1) necessary to protect the public 

from future crime or to punish the offender, (2) that such sentences would not be 

disproportionate to the seriousness of the conduct and to the danger the offender poses to 

the public, and (3) that 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 from future crime 

by the offender. 

{¶6} Compliance with R.C. 2929.14(C)(4) requires the trial court to make the 

statutory findings at the sentencing hearing, which means that “‘the [trial] court must note 

that it engaged in the analysis’ and that it ‘has considered the statutory criteria and 

specifie[d] which of the given bases warrants its decision.’” State v. Bonnell, 140 Ohio 
St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 26, quoting State v. Edmonson, 86 Ohio 

St.3d 324, 326, 715 N.E.2d 131 (1999). Further, the reviewing court must be able to 

discern that the record contains evidence to support the findings. State v. Davis, 8th Dist. 

Cuyahoga No. 102639, 2015-Ohio-4501, ¶ 21, citing Bonnell at ¶ 29. A trial court is not, 

however, required to state its reasons to support its findings, nor is it required to give a 

rote recitation of the statutory language, “provided that the necessary findings can be 

found in the record and are incorporated in the sentencing entry.” Bonnell at ¶ 37. 

{¶7} After reviewing the sentencing transcript, we find that the trial court did not 

make the requisite R.C. 2929.14(C)(4) findings in support of its imposition of consecutive 

sentences. In making the first finding, the court stated “consecutive sentences are 

necessary to protect the public from future crime and punish the offender.” (Tr. 928.) 

In making the second finding, the court stated, “consecutive sentences are not 

disproportionate to the seriousness of the offender’s conduct. And the Court does find 

they are necessary to protect the public. The Court finds that consecutive sentences are 

not disproportionate to the danger the offender possesses to the public.” (Tr. at id.) 

{¶8} However, the trial court again failed to make the third finding supporting the 

imposition of consecutive sentences. In attempting to make the finding, the trial court 

stated “[A]nd the Court does find there were two victims in this case. * * * the Court 

does support its imposition of consecutive sentences in light of the fact that there were 

two victims in this case, and they were of a young age. One being his daughter.” (Tr. at 

id.) However, these statements alone are insufficient for this court to conclude that the 
third finding — “one of the three statutory factors set forth in R.C. 2929.14(C)(4)(a)-(c)” 

— was made. 

{¶9} Accordingly, we again vacate Ferrell’s consecutive sentences and remand the 

case for resentencing for the trial court to again consider whether consecutive sentences 

are appropriate under R.C. 2929.14(C)(4) and, if so, to make the required findings on the 

record and incorporate those findings in the sentencing journal entry in accordance with 

Bonnell. Ferrell’s first assignment of error, as conceded by the state, is sustained. 

{¶10} Based on our decision vacating Ferrell’s consecutive sentences and 

remanding for resentencing on this issue, Ferrell’s second assignment of error challenging 

the consecutive sentence findings the trial court did make is hereby rendered moot. As 

we previously stated in Ferrell I, “the possibility exists for the trial court to make another 

finding to support the imposition of consecutive sentences, * * * [b]ut the trial court is 

free to impose concurrent sentences if it does not find that consecutive sentences are 

appropriate.” Id. at ¶ 46. 

{¶11} The sentence is vacated, and the case is remanded for resentencing. 

It is ordered that appellant recover from appellee 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. 
 

KATHLEEN ANN KEOUGH, PRESIDING JUDGE 

EILEEN T. GALLAGHER, J., and 

MELODY J. STEWART, J., CONCUR