[Cite as State v. Burks, 2019-Ohio-3289.]

 

 

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 CLARK COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

RICHARD E. BURKS, IV 

Defendant-Appellant 

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Appellate Case No. 2018-CA-57 

Trial Court Case No. 2017-CR-663 

(Criminal Appeal from 

 Common Pleas Court) 

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O P I N I O N 

Rendered on the 16th day of August, 2019. 

. . . . . . . . . . . 

JOHN M. LINTZ, Atty. Reg. No. 0097715, Clark County Prosecutor’s Office, Appellate 

Division, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 

 Attorney for Plaintiff-Appellee 

 

ALEKSANDR KOCHANOWSKI, Atty. Reg. No. 0090940, 6302 Kincaid Road, Cincinnati, 

Ohio 45213 

 Attorney for Defendant-Appellant 

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HALL, J. 
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{¶ 1} Richard E. Burks IV appeals from the trial court’s revocation of his community 

control and its imposition of consecutive prison sentences for receiving stolen property 

and discharging a firearm on or near prohibited premises. 

{¶ 2} In his sole assignment of error, Burks challenges the trial court’s imposition 

of consecutive sentences. He argues that the trial court failed to make the findings 

required for consecutive sentences during his sentencing hearing. He also asserts that 

the record does not support consecutive sentences. 

{¶ 3} The record reflects that Burks pled guilty to the above-referenced charges in 

October 2017. The trial court accepted the plea and imposed community control 

sanctions. It advised Burks that if he violated the terms of his community control he faced 

consecutive prison sentences of 18 months for receiving stolen property and 36 months 

for discharging a firearm on or near prohibited premises. (November 21, 2017 Sentencing 

Tr. at 13; December 5, 2017 Judgment Entry of Conviction at 2). The trial court did not 

address the statutory findings required for consecutive sentences at that time. 

{¶ 4} Burks subsequently admitted to violating the conditions of his community 

control by failing to complete a treatment program. (April 24, 2018 Community Control 

Violation Hearing Tr. at 6). The trial court revoked community control and imposed 

consecutive prison terms of 18 months and 36 months. (Id. at 9). During a revocation and 

sentencing hearing, trial court did not make any findings under R.C. 2929.14(C) to support 

consecutive sentences. In a subsequent April 25, 2018 judgment entry of conviction, the 

trial court did make such findings. It stated: 

 The Court finds that consecutive service is necessary to protect the 

public from future crime or to punish the defendant and that consecutive 
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sentences are not disproportionate to the seriousness of the defendant’s 

conduct and to the danger the defendant poses to the public, and the Court 

also finds the defendant’s history of criminal conduct demonstrates that 

consecutive sentences are necessary to protect the public from future crime 

by the defendant. 

(Doc. # 12 at 2). 

{¶ 5} On appeal, Burks contends the trial court erred by failing to make the 

consecutive-sentence findings required by R.C. 2929.14(C) during his revocation and 

sentencing hearing. He further argues that the record does not support consecutive 

sentences. According to Burks, his own analysis of the statutory “seriousness” and 

“recidivism” factors demonstrates that consecutive sentences are unwarranted. 

{¶ 6} For its part, the State has conceded error in the trial court’s failure to make 

consecutive-sentence findings during Burks’ sentencing hearing upon revoking 

community control.1 We agree. “When an offender’s community control is revoked and 

multiple prison terms are imposed for the underlying offenses, the trial court must make 

the findings under R.C. 2929.14(C)(4) before imposing consecutive sentences at the 

revocation sentencing hearing.” State v. Artz, 2d Dist. Champaign No. 2014-CA-34, 2015-

Ohio-3789, ¶ 12. 

{¶ 7} As for whether the record supports consecutive sentences, that issue is 

moot. Because a sentencing error has been conceded, Burks’ sentence must be vacated 

 

1 We remind the State that pursuant to Second District Loc. R. 2.24, it was required to 

“file a separate notice of conceded error along with the responsive brief,” and provide a 

copy of the notice to the Court administrator. It did not. The rule’s requirement allows this 

court to provide for expeditious resolution. 
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and the case must be remanded for a new sentencing hearing. State v. Miller, 2d Dist. 

Clark No. 2017-CA-94, 2018-Ohio-3197, ¶ 18. On remand, the trial court may elect not to 

impose consecutive sentences. That being so, any discussion now about the propriety of 

consecutive sentences merely would be advisory.2 Id. 

{¶ 8} Based on the reasoning set forth above, Burks’ assignment of error is 

sustained. The trial court’s judgment is reversed as to his sentence, and the cause is 

remanded for a new sentencing hearing. 

. . . . . . . . . . . . . 

FROELICH, J. and TUCKER, J., concur. 

Copies sent to: 

John M. Lintz 

Aleksandr Kochanowski 

Hon. Richard J. O’Neill 

 

2 In Miller, as in the present case, the trial court made the necessary consecutivesentence findings in its judgment entry but neglected to make all of the findings during 

the sentencing hearing. Miller at ¶ 10, 14. Under those circumstances, we declined to 

decide whether the record supported consecutive sentences, electing instead simply to 

reverse and remand for a new sentencing hearing. Id. at ¶ 18-20.