[Cite as State v. Richmond, 2013-Ohio-2333.] 

[Vacated opinion. Please see 2013-Ohio-2887.] 

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 98915

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. 

DEMETRIUS RICHMOND

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED IN PART, 

REVERSED IN PART, AND REMANDED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-540291 

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

RELEASED AND JOURNALIZED: June 6, 2013 
ATTORNEY FOR APPELLANT 

Paul Mancino, Jr. 

75 Public Square 

Suite 1016 

Cleveland, OH 44113-2098 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

By: William Leland 

 Daniel T. Van 

Assistant Prosecuting Attorneys 

The Justice Center, 8th Floor 

1200 Ontario Street 

Cleveland, OH 44113 
SEAN C. GALLAGHER, P.J.: 

{¶1} Appellant Demetrius Richmond appeals from the sentence that was imposed 

by the trial court following a remand for merger of offenses in State v. Richmond, 8th 

Dist. No. 96155, 2011-Ohio-6450 (Richmond I). For the reasons stated herein, we affirm 

Richmond’s sentence, except with regard to the repeat violent offender specification, 

which we remand for a limited sentencing hearing. 

{¶2} In July 2010, Richmond was charged under an 11-count indictment with 

offenses that arose from Richmond’s physical and sexual abuse of his girlfriend’s son 

over a period of several years. The charges included domestic violence, multiple counts 

of endangering children, felonious assault, rape, and kidnapping. The indictment also 

included sexually violent predator, repeat violent predator, and sexual motivation 

specifications. Richmond was found guilty of all counts and sentenced to an aggregate 

term of 28 years in prison. 

{¶3} On direct appeal in Richmond I, this court affirmed in part, reversed in part, 

and remanded for a limited sentencing hearing to address the issues of merger of allied 

offenses and court costs. The underlying facts of the case are detailed in Richmond I and 

incorporated herein. 

{¶4} Richmond also filed a petition for postconviction relief relating to his speedy 

trial rights that was denied by the trial court. This court affirmed that ruling in State v. 

Richmond, 8th Dist. No. 97616, 2012-Ohio-2511. 
{¶5} Upon remand from Richmond I, the state elected to merge Counts 1 through 3 

into Count 1, Counts 4 through 7 into Count 7, and Counts 8 through 11 into Count 8. 

The trial court sentenced Richmond to eight years on Count 1, felonious assault, plus an 

additional ten years for the repeat violent offender specification; a consecutive ten-year 

sentence on Count 8, rape; and a concurrent five-year sentence on Count 7. The court 

imposed an aggregate term of 28 years in prison, included mandatory 5 years of 

postrelease control, imposed court costs, and classified Richmond as a Tier III sex 

offender. 

{¶6} Richmond timely filed this appeal from the sentence imposed upon remand. 

He raises nine assignments of error for our review. His first assignment of error provides 

as follows: 

I. Defendant was denied due process of law when the court imposed 

consecutive sentence in violation of statutory law. 

{¶7} Richmond asserts that the trial court was statutorily precluded from imposing 

consecutive sentences. He asserts that none of the provisions that authorize consecutive 

sentences are applicable and, therefore, his sentence is not authorized by law. At the 

time of Richmond’s sentencing in August 2012, R.C. 2929.41(A), provided as follows: 

Except as provided in division (B) of this section, division (E) of section 

2929.14, or division (D) or (E) of section 2971.03 of the Revised Code, a 

prison term, jail term, or sentence of imprisonment shall be served 

concurrently with any other prison term, jail term, or sentence of 

imprisonment imposed by a court of this state, another state, or the United 
States. Except as provided in division (B)(3) of this section, a jail term or 

sentence of imprisonment for misdemeanor shall be served concurrently 

with a prison term or sentence of imprisonment for felony served in a state 

or federal correctional institution. 

{¶8} This court has previously found the statute’s failure to reflect the 

renumbering of the judicial fact-finding requirements for consecutive sentencing from 

R.C. 2929.14(E) to R.C. 2929.14(C) is a typographical error. State v. Simonoski, 8th 

Dist. No. 98496, 2013-Ohio-1031, ¶ 6; State v. Walker, 8th Dist. No. 97648, 

2012-Ohio-4274, ¶ 81, fn. 2; State v. Ryan, 8th Dist. No. 98005, 2012-Ohio-5070, 980 

N.E.2d 553. “In fact, the legislature made its intent clear by recently amending the 

section in September 2012, to change the (E) to (C).” Simonoski at ¶ 7. 

{¶9} Accordingly, we overrule Richmond’s first assignment of error. 

{¶10} Richmond’s second assignment of error provides as follows: 

II. Defendant was denied due process of law when the court imposed 

consecutive sentences without appropriate findings. 

{¶11} Richmond claims that the trial court failed to comply with H.B. 86 when it 

imposed consecutive sentences and asserts that the trial court was required to make 

specific findings pursuant to R.C. 2929.14(C)(4). R.C. 2929.14(C)(4) provides that a 

court may issue consecutive prison terms if the court finds (1) “the consecutive service is 

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,” and (3) one of three 

enumerated factors applies to the offender. R.C. 2929.14(C)(4)(a)–(c). 

{¶12} Richmond acknowledges that the trial court found the requirements for 

consecutive sentences were met, but complains that the court failed to articulate specific 

findings. We find no merit to this argument. Although R.C. 2929.14(C)(4), as amended 

by H.B. 86, requires the court to make certain findings before issuing consecutive prison 

terms, “a sentencing judge need only make the required statutory findings under R.C. 

2929.14(C)(4) — there is no need for the court to state the reasons underlying those 

findings.” State v. Jarrett, 8th Dist. No. 98759, 2013-Ohio-1663, ¶ 5. As this court 

recognized in Simonoski, 8th Dist. No. 98496, 2013-Ohio-1031, at ¶ 20: 

There was no reason for the court to state its reasons for the findings. The 

General Assembly deleted R.C. 2929.19(B)(2)(c) in H.B. 86. This was the 

provision in S.B. 2 that had required sentencing courts to state their reasons 

for imposing consecutive sentences on the record. Accordingly, a trial 

court is not required to articulate and justify its findings at the sentencing 

hearing. Thus, although a trial court is free to articulate or justify its 

findings, there is no statutory requirement that it do so. State v. Goins, 8th 

Dist. No. 98256, 2013-Ohio-263, ¶ 11. 

{¶13} In any event, a review of the record herein shows that the trial court 

articulated its findings: 

[E]ither pre or post H.B. 86, [the] Court does find the harm was so great 

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

And, [defense counsel], you indicated that these weren’t the worst 

type of offenses. There was nothing about the victim’s behavior, a young 

boy, that would have provoked anyone to harm him. However, your client 

not only threw him out of the shower, breaking his arm, he refused to give 

him the medical attention he needed afterwards for it. He then committed a 

rape offense sometime later. 
And, the offense of rape, anal rape of a child is, in this Court’s 

opinion, the worst form of the offense of rape. 

So, I think the behavior in this case clearly justifies consecutive 

sentences, necessary to protect the public from future crime by this 

Defendant and to punish his conduct. And is not disproportionate with 

other sentences. * * * 28 years for anal rape and broken arm of a young 

victim is certainly appropriate. 

{¶14} Because the trial court made appropriate findings in compliance with R.C. 

2929.14(C), we overrule Richmond’s second assignment of error. 

{¶15} Richmond’s third assignment of error provides as follows: 

III. Defendant was denied due process of law when the court imposed 

maximum consecutive sentences along with an additional sentence for 

repeat violent offender specification and failing to make the required 

statutory findings. 

{¶16} The trial court imposed a sentence of eight years on Count 1 for felonious 

assault, which was a maximum sentence, plus an additional ten years on the repeat violent 

offender specification. Richmond argues that the trial court failed to make the necessary 

findings for imposing the sentence on the repeat violent offender specification. 

{¶17} Pursuant to R.C. 2929.14(B)(2)(a), in addition to the longest prison term 

authorized for the offense, the sentencing court may impose an additional definite prison 

term of one, two, three, four, five, six, seven, eight, nine, or ten years for the repeat 

violent offender specification, if all of the following criteria are met: 
(i) The offender is convicted of or pleads guilty to a specification of the 

type described in section 2941.149 of the Revised Code that the offender is 

a repeat violent offender. 

(ii) The offense of which the offender currently is convicted or to which the 

offender currently pleads guilty is * * * any felony of the first degree that is 

an offense of violence and the court does not impose a sentence of life 

imprisonment without parole. 

(iii) The court imposes the longest prison term for the offense that is not life 

imprisonment without parole. 

(iv) The court finds that the prison terms imposed * * * are inadequate to 

punish the offender and protect the public from future crime, because the 

applicable factors under section 2929.12 of the Revised Code indicating a 

greater likelihood of recidivism outweigh the applicable factors under that 

section indicating a lesser likelihood of recidivism. 

(v) The court finds that the prison terms imposed * * * are demeaning to the 

seriousness of the offense, because one or more of the factors under section 

2929.12 of the Revised Code indicating that the offender's conduct is more 

serious than conduct normally constituting the offense are present, and they 

outweigh the applicable factors under that section indicating that the 

offender's conduct is less serious than conduct normally constituting the 

offense. 

{¶18} In this case, Richmond was convicted of felonious assault, a first-degree 

felony that is an offense of violence, and its accompanying repeat violent offender 

specification. The trial court sentenced Richmond to the maximum term of 

imprisonment on the felonious assault count. Because the trial court failed to address the 

finding requirements of R.C. 2929.14(B)(2)(a)(iv) and (v), we must reverse and remand 
for a resentencing hearing on the repeat violent offender specification only. See State v. 

Warren, 8th Dist. No. 97837, 2012-Ohio-4721, ¶ 12. 

{¶19} Richmond’s fourth assignment of error provides as follows: 

IV. Defendant was denied due process of law when the court imposed a 

maximum consecutive sentence based upon an unconstitutional judicial 

fact-finding. 

{¶20} Richmond claims the trial court’s statements with regard to his conduct 

against the young victim constituted unconstitutional judicial fact-finding. The subject 

statements are contained in the dialogue set forth under the second assignment of error 

and were made in the context of justifying the court’s findings supporting the imposition 

of consecutive sentences. While trial courts are no longer required to articulate reasons 

for imposing consecutive sentences, they are free to do so. State v. Goins, 8th Dist. No. 

98256, 2013-Ohio-263, ¶ 11. Accordingly, we overrule Richmond’s fourth assignment 

of error. 

{¶21} Richmond’s fifth assignment of error provides as follows: 

V. Defendant was denied due process of law when the court imposed 

maximum consecutive sentences based upon contradicting findings. 

{¶22} Richmond claims the trial court failed to make the requisite considerations 

under R.C. 2929.11 and 2929.12. He further claims that a contradiction is present in the 

court’s journal entry that contains the remark “not worst type of offenses.” 

{¶23} R.C. 2929.11(A) provides that when a trial court sentences an offender for a 

felony conviction, it must be guided by the “overriding purposes of felony sentencing.” 

Those purposes are “to protect the public from future crime by the offender and others 
and to punish the offender.” R.C. 2929.11(B) requires a felony sentence to be reasonably 

calculated to achieve the purposes set forth under R.C. 2929.11(A), commensurate with 

and not demeaning to the seriousness of the crime and its impact on the victim and 

consistent with sentences imposed for similar crimes committed by similar offenders. 

R.C. 2929.12 provides a nonexhaustive 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. 

{¶24} In this case, the transcript reflects that the trial court found consecutive 

sentences were necessary to protect the public from future crime by Richmond and to 

punish his conduct. The court also found the sentence was not disproportionate to other 

sentences. The court also stated in its journal entry that “prison is consistent with the 

purpose of R.C. 2929.11.” 

{¶25} Although the journal entry contains the statement “not worst type of 

offenses,” it is apparent from the transcript that the trial court found otherwise. At the 

sentencing hearing, the trial court disagreed with defense counsel’s position that “these 

weren’t the worst type of offenses.” Upon reviewing Richmond’s conduct against the 

young victim, the court specifically found that “the offense of rape, anal rape of a child is, 

in this Court’s opinion, the worst form of the offense of rape.” Upon remand, the trial 

court may amend the sentencing entry nunc pro tunc to reflect that which transpired at the 

sentencing hearing. 
{¶26} Upon the record before us, we cannot conclude that the sentence was 

improper or contrary to law. Richmond’s fifth assignment of error is overruled. 

{¶27} Richmond’s sixth assignment of error provides as follows: 

VI. Defendant was denied due process of law when the court failed to 

consider defendant’s situation in imposing maximum sentences. 

{¶28} Richmond claims that the trial court should have considered his behavior 

during the intervening period from his original sentencing and his resentencing. The 

record reflects that both defense counsel and Richmond were afforded the opportunity to 

address the court and offer circumstances for the court’s consideration. Further, there is 

nothing in the record to support Richmond’s assertion. Under similar circumstances, we 

found no merit to a similar argument in State v. Sutton, 8th Dist. No. 97132, 

2012-Ohio-1054, ¶ 31. 

{¶29} Richmond also complains that the trial court imposed the sentence without a 

presentence investigation report. Crim.R. 32.2(A) provides that “in felony cases the 

court shall, and in misdemeanor cases may, order a presentence investigation and report 

before granting probation.” The trial court did not impose probation and was not 

obligated to order a presentence investigation report prior to imposing a prison term. See

State v. Davis, 8th Dist. No. 95722, 2011-Ohio-1377, ¶ 9; R.C. 2951.03. 

{¶30} Accordingly, we reject Richmond’s sixth assignment of error. 

{¶31} Richmond’s seventh assignment of error provides as follows: 

VII. Defendant was denied due process of law when the court imposed a 

five year sentence for endangering children on count seven. 
{¶32} Richmond argues that his sentence for endangering children under 

R.C. 2919.22(B)(4) should have been for a felony of the third degree, rather than second 

degree, because there was no finding that the child was under the age of 18. 

{¶33} R.C. 2919.22(B)(4) provides as follows: 

No person shall do any of the following to a child under eighteen years of 

age: * * * (4) Repeatedly administer unwarranted disciplinary measures to 

the child, when there is a substantial risk that such conduct, if continued, 

will seriously impair or retard the child’s mental health or development. 

A violation of this section is a felony of the second degree if “the violation results in 

serious physical harm to the child involved.” R.C. 2919.22(E)(3). 

{¶34} Under R.C. 2919.22(B)(4), the victim being under 18 years old is an element 

of the crime. It is not an aggravating factor for purposes of elevating the offense, as 

argued by Richmond. 

{¶35} Our review reflects that the jury was properly instructed on Count 7 for 

endangering children, which included that the victim was a child under 18. Because the 

jury verdict reflected serious physical harm, Richmond was found guilty of the offense as 

a felony of the second degree. Therefore, his five-year sentence on this count was 

properly imposed. Richmond’s seventh assignment of error is overruled. 

{¶36} Richmond’s eighth assignment of error provides as follows: 

VIII. Defendant was denied due process of law when the court failed to 

properly consider a waiver of court costs as defendant was indigent. 

{¶37} “[A] trial court may assess court costs against a convicted indigent 

defendant” who has been convicted of a felony. State v. White, 103 Ohio St.3d 580, 
2004-Ohio-5989, 817 N.E.2d 393, ¶ 8. Further, while waiver of court costs against an 

indigent defendant is permissible, it is not required. Id. at ¶ 14; State v. Perry, 8th Dist. 

No. 97696, 2012-Ohio-3573, ¶ 10. The decision to impose costs will not be reversed 

absent an abuse of discretion. Perry at ¶ 12. 

{¶38} In imposing court costs in this case, the trial court indicated that Richmond 

would be in prison for 28 years and would be earning $16 a month in pay. Insofar as 

Richmond claims that the court failed to notify him that the failure to make timely 

payments could result in an order that he perform community service, such an advisement 

would have been impractical given Richmond’s lengthy prison term. Further, then R.C. 

2947.23(A)(1)(a) had indicated “the failure to give this notice does not affect the court’s 

ability to require community service and, effective March 22, 2013, the trial court is no 

longer required to give this notice to offenders who receive a prison sentence. See 2012 

Sub.H.B. 247.” State v. Haney, 2d Dist. No. 25344, 2013-Ohio-1924, ¶ 21. 

{¶39} Finding no abuse of discretion or error by the trial court, we overrule 

Richmond’s eighth assignment of error. 

{¶40} Richmond’s ninth assignment of error provides as follows: 

IX. Defendant was denied due process of law and subjected to multiple 

punishments when the court failed to grant defendant appropriate jail time 

credit. 

{¶41} Richmond argues that the trial court failed to give him appropriate jail-time 

credit, reflecting the time between his original sentencing and the time of his 
resentencing. After this appeal was filed, Richmond filed a motion for jail-time credit 

that was granted by the trial court and has rendered this assignment of error moot. 

{¶42} In conclusion, we affirm the judgment of the trial court except with regard 

to the repeat violent offender specification. Because the trial court failed to address the 

finding requirements of R.C. 2929.14(B)(2)(a)(iv) and (v), we must reverse and remand 

for a resentencing hearing on the repeat violent offender specification only. 

{¶43} Judgment affirmed in part, reversed in part; case remanded. 

It is ordered that appellant and appellee share 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. 

SEAN C. GALLAGHER, PRESIDING JUDGE 

KATHLEEN ANN KEOUGH, J., and 

EILEEN T. GALLAGHER, J., CONCUR