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Date: 05-03-2021
Case Style:
STATE OF OHIO vs. BRENDAN MACDONALD,
Case Number: C-190684
Judge: Marilyn Zayas
Court: IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
Plaintiff's Attorney: Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald Springman,
Assistant Prosecuting Attorney
Defendant's Attorney:
Description:
Cincinnati, Ohio - Criminal defense attorney represented Brendan MacDonald with appealing the consecutive sentences imposed during his resentencing hearing.
{¶2} On February 22, 2018, Brendan MacDonald was convicted of five
counts of attempted murder and two counts of felonious assault all with
specifications. MacDonald was accused of “fir[ing] a gun into his neighbor’s yard,
and then engag[ing] in a shootout with the responding police officers outside of his
home.” State v. MacDonald, 1st Dist. Hamilton No. C-180310, 2019-Ohio-3595, ¶ 1
(“MacDonald I”). In his direct appeal, this court affirmed the convictions but
vacated the sentence after finding that the trial court failed to make a finding
pursuant to R.C. 2929.14(C)(4). Id. at ¶ 66. We vacated the consecutive sentences
and “remanded for a new sentencing hearing on that issue alone.” Id.
{¶3} On October 23, 2019, the trial court resentenced MacDonald. At the
hearing, MacDonald’s counsel referenced R.C. 2929.14(C) and reminded the court
that the remand was directed toward that specific finding.
{¶4} R.C. 2929.14(C)(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 OHIO FIRST DISTRICT COURT OF APPEALS
3
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.
{¶5} Then, MacDonald argued that of the three subsections, two did not
apply. The first subsection did not apply because MacDonald was not on postrelease control or community service at the time of the offenses. The last one did not
apply because MacDonald did not have a meaningful prior criminal history.
MacDonald then directed the court to subsection (b) and argued that the record did
not support this finding because no one was actually shot or seriously injured and OHIO FIRST DISTRICT COURT OF APPEALS
4
the harm caused was insignificant compared to the harm caused in other situations.
MacDonald requested that the court impose concurrent sentences. MacDonald
made the same argument at his initial sentencing hearing.
{¶6} The court declined, finding that “it was a flat miracle nobody was
killed.” The court further stated that, “I’m going to make these findings, which the
court of appeals [ ] required that I do.” The court found consecutive sentences “was
necessary to protect the public and/or punish the offender, and is not
disproportionate to the seriousness of the offender’s conduct, and the danger that the
offender poses to the public.” The court then made the finding that the harm caused
by the multiple offenses was so great or unusual that no single prison term would
adequately reflect the seriousness of the conduct. The trial court reiterated, “It was a
miracle nobody was killed.”
Law and Analysis
{¶7} MacDonald argues that consecutive sentences were not necessary to
protect the public because his conduct was due to a mental breakdown and was out
of character for MacDonald, and he had no prior history of this kind. MacDonald
further argues that the sentences were disproportionate to the seriousness of the
conduct.
{¶8} MacDonald made this exact argument on direct appeal, and this court
found:
At the sentencing hearing, the trial court made two out of the three
mandatory consecutive sentence findings pursuant to R.C.
2929.14(C)(4). The court said that consecutive sentence[s are]
necessary to protect the public and [are] not disproportionate to the OHIO FIRST DISTRICT COURT OF APPEALS
5
seriousness of the offender’s conduct and the danger he poses to the
public. The court was then required to make a finding under
subsection (a), (b), or (c), but failed to do so.
MacDonald I at ¶ 58.
{¶9} This court has already determined that the record supported those
findings. See id. To the extent MacDonald challenges this court’s prior decision, his
arguments lack merit under the law-of-the-case doctrine. See State v. Paulo, 1st
Dist. Hamilton No. C-060969, 2007-Ohio-4316, ¶ 6; State v. Akemon, 173 Ohio
App.3d 709, 2007-Ohio-6217, 880 N.E.2d 143, ¶ 10 (1st Dist.) (“Under the doctrine
of the law of the case, a decision of a reviewing court in a case remains the law of that
case on the legal questions involved for all subsequent proceedings in the case at
both the trial and reviewing levels.”) (Citation omitted.).
{¶10} When reviewing felony sentences, a reviewing court may overturn the
imposition of consecutive sentences where the court “clearly and convincingly” finds
that (1) “the record does not support the sentencing court’s findings under R.C.
2929.14(C)(4),” or (2) “the sentence is otherwise contrary to law.” The imposition of
consecutive sentences is contrary to law if a trial court fails to make the findings
mandated by R.C. 2929.14(C)(4). State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio3177, 16 N.E.3d 659, ¶ 37.
{¶11} The trial court must make the statutory findings at the sentencing
hearing, which means that “ ‘the [trial] court must note that it engaged in the
analysis’ and that it ‘has considered the statutory criteria and specifie[d] which of the
given bases warrants its decision.’ ” Bonnell at ¶ 26, quoting State v. Edmonson, 86
Ohio St.3d 324, 326, 715 N.E.2d 131 (1999). A trial court is not, however, required to OHIO FIRST DISTRICT COURT OF APPEALS
6
state its reasons to support its findings, nor is it required to precisely recite the
statutory language, “provided that the necessary findings can be found in the record
and are incorporated in the sentencing entry.” Bonnell at ¶ 37.
{¶12} In this case, when making the requisite finding under R.C.
2929.14(C)(4), the trial court found that the harm was so great that no single prison
term adequately reflected the seriousness of the offense. And a review of the record
supports the court’s finding. As this court explained in MacDonald I:
On three separate occasions [MacDonald] fired at police despite
multiple warnings and commands by police. All of the officers, except
Celender, testified that MacDonald pointed the gun at them and fired
at them. Their testimonies were consistent and backed up by dash and
body camera footage. Celender also testified that MacDonald told him,
“I’m gonna kill you cops, I’m gonna kill all of you.”
MacDonald I at ¶ 16.
{¶13} The trial court stated the necessary findings for consecutive sentences
at the hearing and made the requisite finding under R.C. 2929.14(C)(4)(b), and the
trial court incorporated the consecutive-sentencing findings into the sentencing
entry. Accordingly, we overrule MacDonald’s sole assignment of error.
Outcome: The trial court did not err in imposing consecutive sentences, and we
affirm the trial court’s judgment.
Judgment affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: