STATE OF OHIO, PLAINTIFF-APPELLEE vs. DAVID C. TROTTER, DEFENDANT-APPELLANT
No. 99014
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
June 20, 2013
[Cite as State v. Trotter, 2013-Ohio-2538.]
BEFORE: Jones, P.J., Keough, J., and E.A. Gallagher, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-525504
JUDGMENT: REVERSED AND REMANDED
Robert L. Tobik
Cuyahoga County Public Defender
BY: John T. Martin
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Scott Zarzycki
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant David Trotter appeals his consecutive sentence for two counts of rape. We reverse and remand for resentencing.
{¶2} In 2009, Trotter was charged with four counts of rape, two counts of kidnapping, eleven counts relating to alleged child pornography found on his computer, and two counts of corrupting another with drugs. The matter proceeded to a bench trial in January 2010; however, after six days of testimony, the court granted a motion to suppress the evidence found on Trotter’s computer that was made after the judge, sua sponte, raised a jurisdictional issue. The state appealed this ruling, and this court reversed. State v. Trotter, 8th Dist. No. 94648, 2011-Ohio-418.
{¶3} The bench trial continued in February 2011. At the end of trial, the state dismissed the two counts of corrupting another with drugs. The trial court convicted Trotter of two counts of rape in violation of
{¶4} Trotter appealed his convictions and this court reversed in part, finding that the trial court erred by imposing multiple punishments for allied offenses; specifically, this court found that Counts 1, 3, and 5 were allied and Counts 2, 4, and 6 were allied. State v. Trotter, 8th Dist. No. 97064, 2012-Ohio-2760. We remanded the case for the merger of allied offenses and resentencing.
{¶6} Trotter appeals, raising the following assignment of error for our review:
[I.] The trial court erred by imposing consecutive sentences when it failed to make findings required by
R.C. 2929.14(C)(4) .
{¶7} With the enactment of Am.Sub.H.B. No. 86, effective September 30, 2011, the General Assembly has revived the requirement that trial courts make findings before imposing consecutive sentences under
{¶8}
{¶9} A trial court is not required to use “‘talismanic words to comply with the guidelines and factors for sentencing.’” State v. Dodson, 8th Dist. No. 98521, 2013-Ohio-1344, ¶ 7, quoting State v. Brewer, 1st Dist. No. C-000148, 2000 Ohio App. LEXIS 5455, *10 (Nov. 24, 2000). It must, however, be clear from the record that the trial court actually made the findings required by statute. Id., citing State v. Pierson, 1st Dist. No. C-970935, 1998 Ohio App. LEXIS 3812 (Aug. 21, 1998). A trial court satisfies this statutory requirement when the record reflects that the court has engaged in the required analysis and has selected the appropriate statutory criteria. See State v. Edmonson, 86 Ohio St.3d 324, 326, 1999-Ohio-110, 715 N.E.2d 131. Thus, in reviewing whether a trial court complied with the statutory requirements for imposing consecutive sentences, this court has construed statements made by the trial court to equate to findings. See State v. Redd, 8th Dist. No. 98064, 2012-Ohio-5417, ¶ 16.
{¶10} In sentencing Trotter, the trial court stated:
As you know I tried the case, I found you not guilty of a number of counts related to items found on your computer. I did find you guilty of a number of offenses involving this victim who was 14 or 15 at the time. It was clear that alcohol was involved. You’re a much older person. You should have been more responsible. You took advantage of her.
I understand now that the state has to elect these counts, but there were two separate acts. Each of those acts of rape require a separate sentence.
Therefore, you are sentenced on Count 1, being the count elected by the state, to ten years in prison, and Count 2, the count elected by the state, to ten years in prison, to be served consecutive to each other, with credit for time served.
{¶11} We agree with Trotter that the trial court failed to make the findings required by
{¶12} In making its findings, the trial court considered the young age of the victim, the use of alcohol, and the fact that two rapes occurred. We can construe those statements to equate to
{¶13} But the court failed to find on the record that consecutive sentences were necessary to protect the public from future crime or to punish Trotter, and also failed to find that consecutive sentences were not disproportionate to the seriousness of Trotter’s conduct and to the danger he poses to the public, as mandated by
{¶14} While we are aware that the sentencing court was also the trier of fact in a bench trial, and, therefore, intimately aware of the facts of this case, the court was nevertheless mandated by statute to make certain findings on the record. The trial court failed to do so; consequently, Trotter must be resentenced.
{¶15} Accordingly, this case is remanded to the trial court to consider whether consecutive sentences are appropriate under H.B. 86, and, if so, to enter the proper findings on the record. Dodson at ¶ 11; State v. Walker, 8th Dist. No. 97648, 2012-Ohio-4274, ¶ 87.
{¶17} Sentence vacated; case remanded to the trial court for resentencing and to consider whether consecutive sentences are appropriate under H.B. 86, and, if so, to enter the proper findings on the record.
It is ordered that appellant recover of appellee his 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.
LARRY A. JONES, SR., PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and
EILEEN A. GALLAGHER, J., CONCUR