STATE OF OHIO v. RUBEN BARKLEY
Nos. 98549, 98551, and 98552
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
April 18, 2013
[Cite as State v. Barkley, 2013-Ohio-1545.]
MARY J. BOYLE, J.
JOURNAL ENTRY AND OPINION; Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case Nos. CR-555009, CR-558789, and CR-554504; BEFORE: Boyle, J., Stewart, A.J., and Kilbane, J.
Patricia J. Smith
4403 St. Clair Avenue
The Brownhoist Building
Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Katherine Mullin
Mary H. McGrath
Assistant County Prosecutors
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Ruben Barkley, appeals his sentences in connection with three separate cases, raising the following single assignment of error:
The trial court erred when it failed to make findings required by statutе prior to imposing a prison term of consecutive sentences for the appellant’s convictions of fourth and fifth degree felonies, therefore the sentence is contrary to law.
{¶2} Finding merit to the appeal, we reverse and remand for further proceedings.
Procedural History and Facts
{¶3} In October 2011, Barkley was indicted in Cuyahoga C.P. No. CR-554504 on the following four counts for еvents occurring on September 11, 2011: two counts of receiving stolen property, violations of
{¶4} In Januаry 2012, pursuant to a plea agreement, Barkley ultimately withdrew his not guilty plea. In Case No. CR-554504, he pleaded guilty to a single count of grand theft, a fourth degree felony, and the remaining charges were dismissed. Barkley further pleaded guilty to the single charge of unauthorized use of a motor vehicle, a fifth degree
{¶5} Following the acceptance of Barkley’s guilty plea, the trial court ordered a presentence invеstigation report and deferred sentencing to a later date. While Barkley was out on bond and prior to sentencing, he was indicted in another case, Cuyahoga C.P. No. CR-558789, for forgery, a violation of
{¶6} In May 2012, the trial court held the sentencing hearing. At the hearing, the trial court discussed the details of Barkley’s presentence investigation report, including his extensive criminal record. The trial court noted that Barkley has “spent 22, the better part of 22 of the previous 24 years in the state penitentiary for crimes of various degrees of harm.” In imposing consecutive sentences, the court further stated the following:
While your first two cаses were pending, you went out and committed a fraud on Gordon Food Service. * * * I’ve considered the purposes and the principles of our sentencing laws, I find that case 558789 was committed while awaiting trial and/or sentencing. In Cases 554504 and 555009, I find that your criminal history does demonstrate that consecutive terms are needed to protect the public.
Despite being 58, again, you show no signs of slowing down. Heck, you have at least five felonies in the last decade alone, therefore, I’m going to impose the following sentences:
On Case 554504, on the fourth-degree felony of grand theft, I will sentence you to 15 months at Lorain Correctional Institute [sic].
In Case 555009, on the F5 offense of unauthorized use of a motor vehicle, I will sentence you to 10 months at Lorain Correctional Institute [sic].
{¶7} The trial court ordered that each of the sentences be served consecutive to one another. Thus, the court imposed a total sentence of 37 months in prison for all three cases. The trial court also informed Barkley that he would be subject to a discretionary period of three years of postrelease control and ordered Barkley to pay restitution in the amount of $1,197.
{¶8} Barkley now appeals, challenging the trial court’s imposition of consecutive sentences.
Standard of Review
{¶9} 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,
Consecutive Sentences
{¶11}
{¶12} In each step of this analysis, the statutory language directs that the trial court must “find” the relevant sentеncing factors before imposing consecutive sentences.
{¶13} Barkley acknowledges thаt the trial court made two of the required findings, but contends that the trial court failed to make any finding that consecutive sentences are not disproportionate to the sеriousness of Barkley’s conduct and to the danger he poses to the public.
{¶14} The “not disproportionate” finding essentially encompasses two parts: (1) seriousness of the оffender’s conduct, and (2) the danger the offender poses to the public. While we find that the trial court’s discussion on the record was sufficient to satisfy the “not disproportionatе” finding related to the danger that Barkley poses to the public, we agree with Barkley that the trial court failed to make any finding as to whether the imposition of consecutive sentences was not disproportionate to the seriousness of Barkley’s conduct in the three underlying cases. Indeed, the trial court did not discuss Barkley’s conduct in these cаses. The only reference to any conduct was that Barkley “went out and committed a fraud on Gordon Food Service” while his first two cases were
{¶15} Thus, given the absence of this specific finding or any discussion of Barkley’s conduсt in these cases to infer such a finding, we are constrained to sustain this assignment of error. See, e.g., State v. Jones, 8th Dist. No. 98371, 2013-Ohio-489, ¶ 22-23 (defendant’s conduct may well warrant consecutive sentences but the trial court’s failure to articulate findings required remand); State v. Matthews, 8th Dist. No. 97916, 2012-Ohio-5174 (the record did not demonstrate that the trial court engaged in the required analysis and made the necessary findings for the imposition of consecutive sentences).
{¶16} Barkley’s sole assignment of error is sustained. Judgment reversed and case remanded to the lower court for further proceedings consistent with this opinion.
It is ordered that appellant recover of appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is оrdered 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.
MARY J. BOYLE, JUDGE