[Cite as State v. Ziska, 2014-Ohio-4692.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 101168



                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                       PATRICK ZISKA
                                                    DEFENDANT-APPELLANT




                                    JUDGMENT:
                              REVERSED AND REMANDED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-12-569007-A


        BEFORE: Celebrezze, J., Boyle, A.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: October 23, 2014
ATTORNEY FOR APPELLANT

Stephen L. Miles
20800 Center Ridge Road
Suite 405
Rocky River, Ohio 44116


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Brett Kyker
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:

      {¶1} Defendant-appellant, Patrick Ziska, appeals from his 11-year prison term.

After a careful review of the record and relevant case law, we reverse appellant’s

sentence and remand for proceedings consistent with this opinion.

                                 I. Procedural History

      {¶2} On November 29, 2012, the Cuyahoga County Grand Jury returned a

140-count indictment against appellant in Cuyahoga C.P. No. CR-12-569007-A. Counts 1

through 5 charged him with pandering sexually oriented matter involving a minor in

violation of R.C. 2907.322(A)(2). Counts 6 through 139 charged him with pandering

sexually oriented matter involving a minor in violation of R.C. 2907.322(A)(1). Count

140 charged him with possession of criminal tools in violation of R.C. 2923.24(A).

      {¶3} On January 2, 2013, appellant entered a plea of not guilty to all counts as

indicted. On August 27, 2013, he withdrew his not guilty plea and pled guilty to Counts

1 through 100 and Count 140.

      {¶4} On February 25, 2014, appellant received a cumulative sentence of 11 years.

Specifically, the trial court sentenced him to eight years on Count 1 and three years on

Count 2, to run consecutively to each other but concurrently to the court’s sentence of

eight years on Counts 3 through 100 and one year on Count 140.

      {¶5} Appellant now brings this timely appeal, raising one assignment of error for

review.
                                  II. Law and Analysis

       {¶6} In his sole assignment of error, appellant argues that the trial court erred in

sentencing him to consecutive sentences.

                                    Standard of Review

       {¶7} R.C. 2953.08(G)(2) states that when reviewing felony sentences, “[t]he

appellate court’s standard for review is not whether the sentencing court abused its

discretion.” Rather, the statute states that if we “clearly and convincingly” find that (1)

“the record does not support the sentencing court’s findings under [R.C. 2929.14(C)(4)],”

or that (2) “the sentence is otherwise contrary to law,” then we “may increase, reduce, or

otherwise modify a sentence * * * or [we] may vacate the sentence and remand the matter

to the sentencing court for resentencing.” R.C. 2953.08(G)(2).

                                  Consecutive Sentences

       {¶8} Under R.C. 2929.14(C)(4), a trial court may impose consecutive multiple

prison terms for convictions on multiple offenses where the court makes the necessary

statutory findings. This court has interpreted the statute to require that the trial court make

separate and distinct findings apart from any findings relating to the purposes and goals of

criminal sentencing. State v. Nia, 8th Dist. Cuyahoga No. 99387, 2014-Ohio-2527, ¶ 13.

 See also State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453 (8th Dist.).

       {¶9} R.C. 2929.14(C)(4) states:

       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,
       and if the court also finds any of the following:

       (a) The offender committed one or more of the multiple offenses while the
       offender was awaiting trial or sentencing, was under a sanction imposed
       pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or
       was under post-release control for a prior offense.

       (b) 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
       multiple offenses so committed 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.

       (c) The offender’s history of criminal conduct demonstrates that
       consecutive sentences are necessary to protect the public from future crime
       by the offender.

       {¶10} In this case, the state concedes that “the trial court failed to find that

consecutive sentences were not disproportionate to the seriousness of appellant’s conduct

and to the danger [he] poses to the public.” We therefore vacate the sentence and

remand the case for the trial court to consider whether consecutive sentences are

appropriate under R.C. 2929.14(C)(4) and, if so, to make the required findings on the

record and incorporate those findings into the court’s sentencing entry. See State v.

Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659.

       {¶11} Appellant’s sole assignment of error is sustained.

       {¶12} Reversed and remanded to the trial court for resentencing consistent with

this opinion.

       It is ordered that appellant recover from 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.

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

the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., JUDGE

MARY J. BOYLE, A.J., and
SEAN C. GALLAGHER, J., CONCUR
