# State v. Brown, Unpublished Decision (11-21-2005)

> Ohio Court of Appeals · November 21, 2005 · 2005 Ohio 6177

URL: https://www.frixlaw.com/law-library/cases/3728539

## Case

- **Full name:** State of Ohio v. Antwayne D. Brown
- **Court:** Ohio Court of Appeals
- **Decided:** November 21, 2005
- **Citations:** 2005 Ohio 6177
- **Precedential status:** Unpublished
- **Opinion:** Dissent
- **Judges:** SHAW, J.
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3728539

## Opinion text

{¶ 15} I concur with the majority opinion on the first assignment of error; however, I must respectfully dissent on the second assignment of error.
{¶ 16} The Ohio Supreme Court in State v. Comer, 99 Ohio St.3d 463 , 2003-Ohio-4165 , stated that:
A court may not impose consecutive sentences for multiple offenses unless it "finds" three statutory factors. R.C. 2929.14 (E)(4). First, the court must find that consecutive sentences are necessary to protect the public from future crime or to punish the offender. Id. Second, the 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. Third, the court must find the existence of one of the enumerated circumstances in R.C. 2929.14 (E)(4)(a) through (c).
A trial court must also comply with R.C. 2929.19 (B) when imposing consecutive sentences. R.C. 2929.19 is the statute governing the sentencing hearing. R.C. 2929.19 (B)(2) provides that the sentencing court "shall impose a sentence and shall make a finding that gives its reasons for selecting the sentence imposed in any of the following circumstances: * * *
(c) If it imposes consecutive sentences under [R.C.] 2929.14 * * *.
Id. at 466-467 (emphasis in original).
{¶ 17} As noted by the majority, R.C. 2929.14 (E)(4) provides: If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public * * *.
(emphasis added.)
{¶ 18} Here, Appellant has argued that the trial court failed to make appropriate findings, and/or to support those findings, on the record, with reasons as required by statute. Appellant specifically argues that while the trial court did find that the sentences imposed were not disproportionate to the seriousness of the defendant's conduct, the trial court failed to find that the sentences were not also disproportionate to the danger that Appellant poses to the public.
{¶ 19} As noted above, the Supreme Court, in Comer, clearly defined the second necessary finding to support consecutive sentences as follows: "the 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." 99 Ohio St.3d at 466 (emphasis in original). The sentences in both R.C. 2929.14 (E)(4) and Comer are clearly written in the conjunctive. Thus, I would submit that merely finding the sentence is not disproportionate to the seriousness of the offender's conduct is insufficient. Under the Comer Court's interpretation of what is necessary under R.C. 2929.14 (E)(4), the court must also find that the sentence is not disproportionate to the danger that Appellant poses to the public. Accordingly, the trial court has not made a complete finding in this instance.
{¶ 20} Because the trial court has failed to make a necessary finding under R.C. 2929.14 (E)(4), I believe that case must be remanded for resentencing. This result is demonstrative of the problems anticipated by Judge Grady's dissent in Comer, and reiterated in my concurring opinion in State v. Kalb, 3d Dist. No. 6-05-05, 2005-Ohio-5889 , ¶¶ 11-16.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3728539. Public record. Not legal advice.