STATE OF OHIO, PLAINTIFF-APPELLEE vs. PARIS J. HAMMOND, DEFENDANT-APPELLANT
No. 99117
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
August 29, 2013
[Cite as State v. Hammond, 2013-Ohio-3727.]
BEFORE: Kilbane, J., Celebrezze, P.J., and E.A. Gallagher, J.
JOURNAL ENTRY AND OPINION; Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-558346
Robert L. Tobik
Chief Public Defender
John T. Martin
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Edward Fadel
Assistant County Prosecutor
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Paris Hammond (“Hammond“), appeals his sentence for two counts of felonious assault. For the reasons set forth below, we reverse and remand for resentencing.
{¶2} In January 2012, Hammond was charged in a ten-count indictment.1 Count 1 charged him with attempted murder. Counts 2-7 charged him with felonious assault. Count 8 charged him with improperly discharging a firearm into a habitation. Count 9 charged him with the discharge of a firearm on or near a prohibited premises. Count 10 charged him with having a weapon while under disability. Each of Counts 1-9 carried one- and three-year firearm specifications.
{¶3} Pursuant to a plea agreement, Hammond pled guilty to two amended counts of felonious assault (Counts 2 and 4) with a three-year firearm specification. The one-year firearm specification on both counts was deleted and Counts 1, 3, and 5-10 were nolled. The trial court sentenced Hammond to three years in prison on the firearm specification in Count 2, to be served prior to seven years in prison on the amended felonious assault charge, and three years in prison on the firearm specification in Count 4, to be served prior to eight years in prison on the base felonious assault charge. The trial
{¶4} Hammond now appeals, raising the following sole assignment of error for review.
Assignment of Error
The trial court erred by imposing consecutive sentences when it failed to make findings required by
{¶5} In the sole assignment of error, Hammond argues that the trial court erred in sentencing him to consecutive sentences without making the required findings under
{¶6} Recently, this court addressed the standard of review used by appellate courts when reviewing challenges to the imposition of consecutive sentences in State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891. In Venes, we held that the standard of review set forth by the Ohio Supreme Court in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, was no longer valid. We stated:
In [Kalish], the supreme court considered the relevant standard of review in the post-Foster era in which the findings necessary to impose consecutive sentences under former
R.C. 2929.14(E)(4) had been declared unconstitutional. A plurality of the court held thatR.C. 2953.08(G)(2) was inapplicable because it expressly related to “findings” that had been abrogated as unconstitutional. Instead, the plurality set forth the following method of reviewing criminal sentences: (1) is the sentence contrary to law and (2) if not, was it an abuse of discretion. Id. at ¶ 14-19.Kalish, as is any plurality opinion, is of “questionable precedential value.” See Kraly v. Vannewkirk, 69 Ohio St.3d 627, 633, 635 N.E.2d 323 (1994). Nevertheless, panels of this court have found it persuasive, at least insofar
as it was applied to sentencing in the post-Foster era. See, e.g., State v. Martinez, 8th Dist. No. 96222, 2011-Ohio-5832, ¶ 6, fn. 1. The post-Foster era ended with the enactment of H.B. 86 and the revival of statutory findings necessary for imposing consecutive sentences under
R.C. 2929.14(C)(4) . By reviving the requirement for findings as a predicate for imposing consecutives, the ground offered by Kalish for rejecting the standard of review set forth in formerR.C. 2953.08 — that it could not stand as a standard of review for a statute that improperly required findings of fact before imposing consecutive sentences — was nullified. With the basis for the decision in Kalish no longer valid, and given that Kalish had questionable precedential value in any event, we see no viable reasoning for continuing to apply the standard of review used in that case. Henceforth, we review consecutive sentences using the standard of review set forth inR.C. 2953.08 .
{¶7}
{¶8}
{¶9} “In making these findings, a trial court is not required to use ‘talismanic words,’ however, it must be clear from the record that the trial court actually made the findings required by statute.” State v. Marton, 8th Dist. Cuyahoga No. 99253, 2013-Ohio-3430, citing Venes at ¶ 14, 17; State v. Pierson, 1st Dist. Hamilton No. C-970935, 1998 Ohio App. LEXIS 3812 (Aug. 21, 1998).
{¶10} In the instant case, the trial court reviewed the presentence investigation report and heard from the victim through an impact letter and the victim‘s mother. The 15-year-old victim was sitting on a porch when he was struck by a bullet from a gun fired by Hammond. The victim is paralyzed, has damage to his liver and kidney, and a shattered tailbone. At the hearing, the trial court spoke about Hammond‘s criminal record, noting that new charges were filed against Hammond and his membership with the “Heartless Felons” gang. The court also spoke about the seriousness of the crime and the impact on the victim, the victim‘s family, and the community.
{¶12} The record in the instant case does not reflect that the trial court conducted the appropriate analysis required under
{¶13} Accordingly, the sole assignment of error is sustained.
{¶14} Judgment is reversed and the matter remanded to the trial court for a resentencing hearing.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
EILEEN A. GALLAGHER, J., CONCUR