[Cite as State v. Redd, 2012-Ohio-5417.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 98064

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. 

DARNELL REDD, JR.

DEFENDANT-APPELLANT

JUDGMENT: 

CONVICTIONS AFFIRMED; 

SENTENCE VACATED; 

REMANDED FOR RESENTENCING

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-541880 

BEFORE: Boyle, P.J., Celebrezze, J., and E. Gallagher, J. 

RELEASED AND JOURNALIZED: November 21, 2012 
ATTORNEYS FOR APPELLANT 

Robert L. Tobik 

Cuyahoga County Public Defender 

BY: Erika B. Cunliffe 

Assistant Public Defender 

310 Lakeside Avenue 

Suite 200 

Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

BY: John R. Kosko 

Assistant County Prosecutor 

9th Floor Justice Center 

1200 Ontario Street 

Cleveland, Ohio 44113 
MARY J. BOYLE, P.J.: 

{¶1} Defendant-appellant, Darnell Redd, Jr., appeals his sentence. He raises 

two assignments of error for our review: 

[1.] The trial court violated Mr. Redd’s right to due process and the 

prohibition against double jeopardy by imposing a split sentence of 30 

months in prison and two years of community control for a single offense. 

[2.] The trial court imposed a sentence contrary to law and violated Mr. 

Redd’s right to due process when it ordered consecutive sentences without 

stating the requisite statutory findings on the record. 

{¶2} We find merit to both assignments of error, vacate Redd’s sentence, and 

remand for a new sentencing hearing. 

Procedural History and Factual Background

{¶3} In September 2010, Redd was indicted on 12 counts: four counts of 

felonious assault in violation of R.C. 2903.11(A)(1), and eight counts of endangering 

children in violation of R.C. 2919.22(A) and (B)(1). The indictment arose out of 

allegations that Redd shook his nearly two-month-old son and grabbed or pulled the baby 

by his legs. 

{¶4} In January 2012, Redd withdrew his previous not guilty plea and entered a 

plea of guilty to two counts of endangering children, third degree felonies, in violation of 

R.C. 2919.22(A). The remaining counts were nolled. 

{¶5} After obtaining a presentence investigation report, the trial court held a 

sentencing hearing. At the hearing, the trial court informed Redd that it was sentencing 

him to 30 months on each count, to be served consecutive to one another, for an aggregate 
sentence of 60 months in prison. The trial court then stated: “[a]lso, upon Mr. Redd’s 

release from prison, because those 30 months together will be five years, the defendant is 

ordered to be placed into community control or probation for a period of two years.” 

The trial court further advised Redd that upon his release from prison, he would be 

subject to three years of discretionary postrelease control. Redd objected to the length of 

his sentence. It is from this judgment that Redd appeals. 

Standard of Review

{¶6} An appellate court must conduct a meaningful review of the trial court’s 

sentencing decision. State v. Johnson, 8th Dist. No. 97579, 2012-Ohio-2508, ¶ 6, citing 

State v. Hites, 3d Dist. No. 6-11-07, 2012-Ohio-1892, ¶ 7. Specifically, R.C. 

2953.08(G)(2) provides that our review of consecutive sentences is not an abuse of 

discretion. An appellate court must “review the record, including the findings 

underlying the sentence or modification given by the sentencing court.” Id. If an 

appellate court clearly and convincingly finds either 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,” then “the appellate court may increase, reduce, or otherwise 

modify a sentence * * * or may vacate the sentence and remand the matter to the 

sentencing court for resentencing.” Id.

Sentence for a Single Offense

{¶7} In his first assignment of error, Redd argues that the trial court erred by 

sentencing him to prison and community control for a single offense. We agree that the 
trial court cannot sentence a defendant to community control and prison for the same 

offense. See State v. Jacobs, 189 Ohio App.3d 283, 2010-Ohio-4010, 938 N.E.2d 79, ¶ 

5 (8th Dist.). The state also concedes this error. 

{¶8} Thus, Redd’s first assignment of error is sustained. Redd’s entire sentence 

is vacated as it is contrary to law, and we remand for a de novo sentencing hearing. 

Consecutive Sentences

{¶9} In his second assignment of error, Redd contends that the trial court erred 

by sentencing him to consecutive prison terms without making the mandatory findings 

under R.C. 2929.14(C)(4) as revived by H.B. 86. Although we are vacating Redd’s 

sentence, this issue will arise again at resentencing and, thus, we will address it. We 

agree with Redd that the trial court failed to make all of the required findings under R.C. 

2929.14(C) before imposing consecutive sentences. 

{¶10} Redd was sentenced in February 2012. He was, therefore, subject to the 

amendments in H.B. 86. State v. Blackburn, 8th Dist. Nos. 97811 and 97812, 

2012-Ohio-4590, ¶ 30. 

{¶11} H.B. 86 revived the provision under S.B. 2 that required trial courts to make 

findings before imposing consecutive sentences. Id. at ¶ 32. R.C. 2929.14(C)(4), as 

revived, now requires that a trial court engage in a three-step analysis in order to impose 

consecutive sentences. First, the trial court must find that “consecutive service is 

necessary to protect the public from future crime or to punish the offender.” Id. Next, 

the trial court must 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. Finally, the trial court must find that at least one of the following applies: (1) the 

offender committed one or more of the multiple offenses while awaiting trial or 

sentencing, while under a sanction, or while under postrelease control for a prior offense; 

(2) 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 offenses 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; or (3) the 

offender’s history of criminal conduct demonstrates that consecutive sentences are 

necessary to protect the public from future crime by the offender. Id.

{¶12} In each step of this analysis, the statutory language directs that the trial court 

must “find” the relevant sentencing factors before imposing consecutive sentences. R.C. 

2929.14(C)(4). In making these findings, a trial court is not required to use “talismanic 

words to comply with the guidelines and factors for sentencing.” State v. Brewer, 1st 

Dist. No. C-000148, 2000 Ohio App. LEXIS 5455, *10 (Nov. 24, 2000). But under 

H.B. 86, a trial court is not required to articulate and justify its findings at the sentencing 

hearing when it imposes consecutive sentences as it had to do under S.B. 2. Blackburn 

at ¶ 35. This is because the General Assembly deleted the former R.C. 2929.19(B)(2)(c) 

in H.B. 86, which was the provision in S.B. 2 that had required sentencing courts to state 

their reasons for imposing consecutive sentences on the record. As we explained in 

Blackburn, a trial court is free to express and justify its reasons, of course, but it does not 
commit reversible error if it fails to do so, as long as it has made the required findings. 

Id. at ¶ 35. 

{¶13} At the sentencing hearing in this case, defense counsel requested that the 

court impose community controlled sanctions. Defense counsel explained that Redd had 

no prior juvenile or adult criminal history and that the presentence investigation report 

(“PSI”) found Redd to be in the “low zero to 5 risk of recidivism, which would find him 

amendable for probation supervision.” Defense counsel stated that Redd had complied 

with every condition of his court- supervised release program during the pendency of his 

case for a period of almost one year. Redd’s probation officer reported that Redd had 

reported as directed every time and had all negative urine tests. Defense counsel further 

informed the court that Redd had been employed throughout most of his teenage and 

adult life, and that he had the support of many of his family members and friends, many 

of whom had written letters (which were attached to Redd’s sentencing memorandum) to 

the court on Redd’s behalf. 

{¶14} After the trial court heard from the state, defense counsel, Redd, Redd’s 

aunt, and Redd’s wife, the trial court stated that it reviewed Redd’s sentencing 

memorandum, including the 13 letters from Redd’s friends and family. The trial court 

further stated that it considered the record, the oral statements given at the sentencing 

hearing, the PSI, the purposes and principles of sentencing under R.C. 2929.11, the 

seriousness and recidivism factors relevant to the offense and offender pursuant to R.C. 

2929.12, and “the need for deterrence, incapacitation, rehabilitation and restitution.” It 
further considered the “significant disability that [the minor child] has as a result of being 

abused at the hands of his own father.” The court then found that Redd was not 

amenable to community control sanctions and that prison was consistent with the 

purposes and principles of sentencing. 

{¶15} Next, the trial court indicated that it was imposing two 30-month prison 

terms for each offense and ordering that they be served consecutively to one another. 

When sentencing Redd to consecutive sentences, the trial court stated, “These are two 

separate incidents resulting in injuries to this child separate and apart from one or the 

other. And that’s why I’m imposing 30 month terms based upon each count to run 

consecutively.” 

{¶16} We can construe the trial court’s statements to equate to one of the 

consecutive sentence findings, i.e., that the multiple offenses were committed as part of a 

course of conduct, and the harm caused was so great or unusual that no single prison term 

could adequately reflect the seriousness of the offender’s conduct. But the trial court 

failed to make the two mandatory findings that (1) “consecutive service is necessary to 

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

sentences are not disproportionate to the seriousness of the offender’s conduct and to the 

danger the offender poses to the public.” 

{¶17} The state argues that this court should infer from the record that the trial 

court made the two mandatory findings under R.C. 2929.14(C)(4) because the underlying 

facts of the case were well known to the trial court. Specifically, in arguing that we 
should infer from the record that the trial court found that “consecutive service [was] 

necessary to protect the public from future crime or to punish the offender,” the state 

contends that “the injuries caused by the appellant are so serious, that it cannot be 

contested that incarceration is a proper punishment in this case.” Further, the state 

maintains that this court should infer from the record that the trial court found that 

consecutive sentences were “disproportionate to the seriousness of the offender’s conduct 

and to the danger of the public” because “[i]t is hard to imagine any amount of prison 

time being disproportionate to seriousness of such an offense.” 

{¶18} This court cannot agree with the state that we can infer any of these findings 

simply from the facts in the record. See State v. Blackburn, 8th Dist. Nos. 97811 and 

97812, 2012-Ohio-4590 (trial court must make the required findings on the record). 

More importantly, based on the record before us, the trial court will be hard pressed to 

make the required findings to impose consecutive sentences at the new sentencing 

hearing. According to the PSI and Redd’s sentencing memorandum, Redd has no prior 

adult or juvenile criminal history and was rated the lowest possible risk of recidivism. 

{¶19} Accordingly, we sustain Redd’s second assignment of error. 

{¶20} Normally, when a defendant challenges the trial court’s imposition of 

consecutive sentences and we agree with the defendant and sustain the assignment of 

error, we only vacate that portion of the defendant’s sentence that imposed consecutive 

sentences (the sentencing range for each offense remains intact). Blackburn at ¶ 37. 

But here, we are also vacating the defendant’s sentence due to the improper imposition of 
prison and community control. Accordingly, Redd’s entire sentence is vacated as it is 

contrary to law. 

{¶21} Convictions affirmed; sentence vacated; case remanded for a de novo 

resentencing hearing. 

It is ordered that appellant recover of 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. The defendant’s conviction having 

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court 

for resentencing. 

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

the Rules of Appellate Procedure. 

 

 

MARY J. BOYLE, PRESIDING JUDGE 

FRANK D. CELEBREZZE, JR., J., and 

EILEEN A. GALLAGHER, J., CONCUR