State v. Bass , 2013 Ohio 4503 ( 2013 )

[Cite as State v. Bass, 2013-Ohio-4503.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
No. 12AP-622
Plaintiff-Appellee, : (C.P.C. No. 11CR-09-5187)
and
v. : No. 12AP-623
(C.P.C. No. 11CR-09-5183)
Lamar R. Bass, :
(REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on October 10, 2013
Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for
appellee.
Yeura R. Venters, Public Defender, and Timothy E. Pierce, for
appellant.
APPEALS from the Franklin County Court of Common Pleas
CONNOR, J.
{¶ 1} Defendant-appellant, Lamar R. Bass ("defendant"), appeals from his
convictions of two counts of felonious assault with specifications, two counts of having a
weapon while under disability, and one count each of aggravated burglary, discharge of a
firearm on or near a prohibited premises with specification, and improperly handling
firearms in a motor vehicle while under disability.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} Defendant's convictions arise out of two separate incidents involving two
different victims. The two incidents became the subject of separate indictments. On
August 24, 2011, defendant shot Anthony Taylor, the boyfriend of his "white girl
Courtney," because Taylor refused to give Courtney money to buy drugs from defendant.
Nos. 12AP-622 and 12AP-623 2
(Tr. 87.) This incident gave rise to the charges in case No. 11CR-09-5183 ("first
indictment"). On September 12, 2011, defendant kicked down the door of an apartment
belonging to his ex-girlfriend, Shelly Hummel, and shot her new boyfriend, Andre Jordan,
as he fled the apartment. This incident gave rise to the charges in case No. 11CR-09-5187
("second indictment"). Police were not able to apprehend defendant at the scene of either
incident. However, a day or so after the Jordan shooting, police located defendant in a
vehicle parked near the home of Hummel's father. Defendant was arrested after leading
police on a seven or eight minute car chase.
{¶ 3} Plaintiff-appellee, the State of Ohio ("State"), requested that the indictments
be joined for trial inasmuch as the same gun was used in both incidents. Following an
oral hearing, the trial court joined the two indictments. The case was tried to a jury and
defendant was convicted.1 The trial court sentenced defendant to a total of 21 years of
imprisonment.
II. ASSIGNMENTS OF ERROR
{¶ 4} Defendant appeals to this court assigning the following four assignments of
error:
[I.] The Appellant's right to a fair trial as memorialized in
Article I, Section 10 and 16 of the Ohio Constitution and the
Sixth and Fourteenth Amendments of the United States
Constitution was impugned when the trial court erred by
consolidating for trial Appellant's two indictments in violation
of Rules 8(A) and 13 of the Ohio Rules of Criminal Procedure
and when it failed to sustain Appellant's motion for relief from
prejudicial joinder under Rule 14 of the Ohio Rules of
Criminal Procedure.
[II.] The consciousness of guilt instruction was contrary to law
because it contained an improper comment on the evidence
by the court and it was incomplete.
[III.] In its June 25, 2012 entries the lower court erred in
ordering that the charges in these two indictments be served
consecutively to one another because, at the June 12, 2012
sentencing hearing, it failed to so specify on the record.
1The offenses of having a weapon under disability were tried to the court and defendant was convicted on
both counts.
Nos. 12AP-622 and 12AP-623 3
[IV.] The trial court's sentence was contrary to law in
violation of R.C. § 2953.08(A)(4) when it imposed consecutive
sentences without making the required findings under R.C. §
2929.14(C)(4).
III. JOINDER OF INDICTMENTS
{¶ 5} In his first assignment of error, defendant contends that the improper
joinder for a single trial of the unrelated offenses in the two indictments unduly
prejudiced his defense.
A. Standard of Review
{¶ 6} We review a trial court's decision on joinder of offenses for trial under an
abuse of discretion standard. State v. Banks, 10th Dist. No. 09AP-1087, 2010-Ohio-5714,
¶ 30, citing State v. LaMar, 95 Ohio St. 3d 181, 2002-Ohio-2128. "The term 'abuse of
discretion' connotes more than a mere error in law or judgment; it implies that the court's
attitude was unreasonable, arbitrary or unconscionable." Id., quoting State v. Adams, 62
Ohio St. 2d 151, 157 (1980).
B. Same or Similar Character
{¶ 7} "The court may order two or more indictments * * * to be tried together, if
the offenses * * * could have been joined in a single indictment." Crim.R. 13. Crim.R.
8(A) states that two or more offenses may be charged in the same indictment if they are of
"the same or similar character, or are based on the same act or transaction, or are based
on two or more acts or transactions connected together or constituting parts of a common
scheme or plan, or are part of a course of criminal conduct." State v. Sullivan, 10th Dist.
No. 10AP-997, 2011-Ohio-6384, ¶ 21. The law favors joining multiple offenses in a single
trial because it conserves judicial and prosecutorial time, lessens the considerable
expenses associated with multiple trials, diminishes inconvenience to witnesses, and
minimizes the possibility of inconsistent results in successive trials before different juries.
Id., citing State v. Walters, 10th Dist. No. 06AP-693, 2007-Ohio-5554, ¶ 21.
{¶ 8} The threshold argument in this case is whether the offenses charged in the
two indictments are of the "same or similar character." In our decision, the fact that both
indictments arise out of shooting incidents that occurred only a few weeks apart, and with
the same handgun, establishes that each indictment charges offenses of a similar
Nos. 12AP-622 and 12AP-623 4
character. See State v. Washington, 1st Dist. No. C-090561, 2010-Ohio-3175 (where both
shootings occurred within a five-week period, in the same location, and where both
victims knew defendant and were able to identify him, the offenses were of the same or
similar character and joinder of the offenses was proper). Id. See also State v. Williams,
73 Ohio St. 3d 153, 158 (1995) (where separate offenses are joined for trial, evidence
tending to prove that the same firearm was used in two offenses is pertinent to the
evidence of "identity"); State v. Nelms, 10th Dist. No. 06AP-1193, 2007-Ohio-4664
(evidence of defendant's possession of alleged murder weapon offered in support of
indictment charging illegal possession of weapons would have been admissible as "other
acts" evidence in murder trial under second indictment, even if charges were severed).
Additionally, we find that the character of the offenses charged in the two indictments is
similar in the sense that both shootings were motivated by defendant's anger toward other
males who interfered in his personal relationships with certain females.
{¶ 9} While defendant asks the court to focus on the fact that the offenses were
committed against two different victims, at different locations and at different times, such
distinctions do not mean that the two indictments charge offenses of dissimilar character.
Indeed, the most serious offenses charged in each indictment, felonious assault, are of
similar character and the related weapons charges involve the same firearm.
{¶ 10} In short, we find that the offenses charged in the two indictments are
similar, and that the trial court did not abuse its discretion in granting the State's motion.
We also reject defendant's claim that the prosecutor's oral argument in the penalty stage
proves that the prosecutor believed the indictments arose out of "completely unrelated
incidents." (Tr. 503.) The prosecutor made the remark in advocating consecutive
sentences for the convictions under two indictments. When viewed in proper context, the
prosecutor's remarks are not inconsistent with joinder. The fact that the charged offenses
are of similar character does not mean that there should not be separate punishment for
multiple convictions.
C. Defendant's Claim of Prejudice
{¶ 11} An accused may move the trial court, pursuant to Crim.R. 14, to sever
counts of an indictment on the grounds that he or she will be prejudiced by the joinder of
multiple offenses. LaMar at ¶ 49. And, "[i]f it appears that a defendant * * * is prejudiced
Nos. 12AP-622 and 12AP-623 5
by a joinder of offenses * * * in an indictment, * * * the court shall order * * * separate
trials of counts * * * or provide such other relief as justice requires." Crim.R. 14. The
defendant bears the burden to prove prejudice and must show that the trial court
abused its discretion in denying severance. Washington. 2
{¶ 12} Defendant argues that the jury may have mistakenly considered his flight
from police as evidence of his guilt of the offenses charged in both indictments, when such
evidence is relevant only as to the offenses charged in the second indictment. Defendant
also contends that he was prejudiced in his defense to the charges in the second
indictment by Taylor's testimony that he saw defendant sitting in a vehicle with a gun on
his lap "a couple of months before I was shot." (Tr. 82.) Defendant asserts that this
evidence was admissible only when offered to prove his consciousness of guilt as to the
drive-by shooting charge in the first indictment. Finally, defendant argues that the
evidence of his involvement with drug trafficking unfairly prejudiced his defense of the
charges in the second indictment, which had nothing to do with drugs.
{¶ 13} When defendant asserts that his defense will be prejudiced by the joinder of
two or more indictments in a single trial, the prosecution may negate defendant's claim of
prejudice with a showing that: (1) the evidence of the other crimes would be admissible
even if the counts were severed, and (2) if not, whether the evidence of each crime is
simple and distinct. Banks, citing State v. Schaim, 65 Ohio St. 3d 51, 59 (1992). The
former is generally referred to as the "other acts test," while the latter is known as the
"joinder test." The two tests are disjunctive, so that the satisfaction of one negates a
defendant's claim of prejudice without consideration of the other. Sullivan at ¶ 22, citing
State v. Gravely, 188 Ohio App. 3d 825, 2010-Ohio-3379 (10th Dist.). The defendant
must furnish the trial court with sufficient information to weigh the factors favoring
joinder against the defendant's right to a fair trial. Id., citing State v. Lott, 51 Ohio St. 3d
160, 163 (1990).
2 Although defendant did not file a motion to sever the indictments, defendant did renew his "motion
contra" joinder at the conclusion of all the evidence. (Tr. 389, 392.) Accordingly, we find that defendant did
not waive the issue of improper joinder for purposes of appeal.
Nos. 12AP-622 and 12AP-623 6
1. Other Acts Test
{¶ 14} As to the "other acts test" under Evid.R. 404, other acts evidence is
inadmissible when offered to prove the criminal propensity of the accused. State v.
Parnell, 10th Dist. No. 11AP-257, 2011-Ohio-6564, ¶ 31, citing State v. Lowe, 69 Ohio
St.3d 527, 530 (1994). However, under Evid. R. 404(D), evidence of "other crimes,
wrongs, or acts" is admissible when offered "as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident." Id., citing
State v. Woodard, 68 Ohio St. 3d 70, 73 (1993). Evidence of other crimes may be
introduced to prove identity if the defendant " ' "committed similar crimes within a period
of time reasonably near to the offense on trial, and that a similar scheme, plan or system
was utilized to commit both the offense at issue and the other crimes." ' " Sullivan at ¶ 25,
quoting State v. Shedrick, 61 Ohio St. 3d 331, 337 (1991), quoting State v. Curry, 43 Ohio
St.2d 66, 73 (1975).
{¶ 15} As noted above, we believe that the character of the offenses charged in the
two indictments is similar. Evidence that defendant used a firearm is clearly admissible
evidence when offered to prove defendant's guilt of a majority of the charged offenses in
each indictment. Williams; Nelms. The fact that defendant used the same firearm in
committing the offenses charged in each indictment is also admissible when offered to
prove opportunity, intent, preparation, plan, or absence of mistake or accident.
Washington. Evidence that both victims had allegedly interfered with defendant's women
would be admissible when offered to prove defendant's motive to commit the felonious
assault charges in the two indictments.
{¶ 16} We disagree with defendant's contention that the evidence of flight was
relevant only as to the second indictment. Contrary to defendant's assertion,
" '[a]dmissibility of evidence of flight has not been made contingent upon how much time
passes between the offense and the defendant's flight.' " State v. Willis, 8th Dist. No.
98847, 2013-Ohio-2531, ¶ 13, quoting State v. Alexander, 8th Dist. No. 51784 (Feb. 26,
1987). While defendant's flight is of greater probative value when offered to prove
defendant's consciousness of guilt as to the offenses charged in the second indictment,
flight occurred within a period of time reasonably near the Taylor shooting and is
Nos. 12AP-622 and 12AP-623 7
admissible to prove defendant's consciousness of guilt of the offenses charged in the first
indictment. Thus, the State negated defendant's particular claim of prejudice.
{¶ 17} We also reject defendant's claim that his defense to the handgun charges in
the second indictment was unfairly prejudiced by Taylor's testimony that he saw
defendant in possession of a firearm "a couple months before I was shot." (Tr. 82.)
Evidence that defendant was seen in possession of a handgun a few months prior to the
Jordan shooting would have been admissible in a separate trial of the second indictment
when offered to prove defendant's opportunity, intent, preparation or plan to shoot
Jordan. This is particularly true given Hummel's testimony that defendant had
threatened to shoot any man he found in her apartment. The fact that defendant shot at
Taylor from a vehicle but shot at Jordan in an apartment building is a distinction without
a difference. The important fact is that Taylor saw defendant in possession of a handgun
prior to the Jordan shooting.
{¶ 18} Defendant insists that the jury gave great weight to Taylor's testimony
inasmuch as one of the juror's asked the court whether such testimony was admissible.
However, our review of the transcript shows that the jury did not specifically ask whether
the testimony was admissible as to any particular charge or for any particular purpose.
(Tr. 482.) Thus, evidence of the alleged prejudice is not shown in the record.
{¶ 19} Moreover, even if we were to find that the Taylor evidence would not have
been admissible if the second indictment had been tried separately, given the mountain of
evidence to support defendant's guilt of the handgun offenses charged in the second
indictment, the potential prejudice is negligible. Indeed, Hummel testified that defendant
took his handgun with him everywhere. Both Jordan and Hummel testified that a hooded
individual, brandishing a handgun, broke in the door to Hummel's apartment and that
the individual shot Jordan as he fled the apartment. Hummel identified defendant as the
assailant, and a shell casing found at the scene matched a shell casing recovered at the
Taylor shooting.
{¶ 20} With regard to the evidence of defendant's involvement in drug activities,
we find that such evidence would not have been admissible if offered in a separate trial of
the second indictment. Even the prosecutor concedes that the drug evidence is not
relevant to any of the offenses charged in the second indictment. We also agree that
Nos. 12AP-622 and 12AP-623 8
defendant's criminal propensity may be inferred from the drug evidence, and that such an
inference could have improperly influenced the jury in deliberating defendant's guilt of
the offenses charged in the second indictment. Accordingly, the "other acts test" does not
negate this particular claim of prejudice.
2. Joinder Test
{¶ 21} As noted above, the State may also negate a claim of prejudice by showing
that the evidence of each crime is simple and distinct. The evidence relevant to the second
shooting consists almost entirely of the eyewitness testimony of Jordan and Hummel.
Their testimony is corroborated both by the physical evidence gathered at the scene,
defendant's flight from police, and Hummel's recollection of defendant's prior threat.
While the offenses charged are of similar character, the two indictments arise out of
incidents that occurred on different days involving different victims. Thus, there was little
chance that the jury would be unable to set aside the evidence of defendant's drug activity
in determining defendant's guilt as to the offenses charged in the second indictment.
{¶ 22} Moreover, the trial court instructed the jurors as follows:
Each indictment and each offense constitutes a separate and
distinct matter for you to consider. You must independently
weigh and consider each - - consider the evidence applicable
to each offense and each indictment
Your verdict must not be influenced by your decision as to any
one or more offense or indictment.
You may find the defendant not guilty or guilty of any one or
all of the offenses charged in either indictment.
(Tr. 459-60.)
{¶ 23} Presuming that the jury followed the instructions, as we are required to do
in the absence of evidence to the contrary, the possibility of jury confusion was extremely
remote. In short, applying the "joinder test," we find that the evidence relevant to the
offenses charged in the two indictments is both simple and distinct. Accordingly,
defendant's claim of prejudice was negated by the State under the "joinder test."
Nos. 12AP-622 and 12AP-623 9
{¶ 24} Based upon the foregoing, we hold that the trial court did not abuse its
discretion in joining the two indictments for trial and in denying defendant's request for
separate trials. Defendant's first assignment of error is overruled.
IV. CONSCIOUSNESS OF GUILT
{¶ 25} In defendant's second assignment of error, defendant contends that the trial
court abused its discretion by improperly instructing the jury on "consciousness of guilt."
When reviewing a trial court's jury instruction, the proper standard of review for an
appellate court is whether the trial court abused its discretion given the facts and
circumstances of the case. State v. Gover, 10th Dist. No. 05AP-1034, 2006-Ohio-4338.
An abuse of discretion implies that the court's attitude was unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219 (1983). Additionally,
" '[i]n considering whether a particular portion of a trial court's instructions was
improper, the instructions must be viewed in their entirety.' " State v. Brady, 9th Dist.
No. 22034, 2005-Ohio-593, ¶ 7, quoting State v. Pitts, 6th Dist. No. L-96-256 (Sept. 30,
1997), citing Schade v. Carnegie Body Co., 70 Ohio St. 2d 207, 210 (1982).
{¶ 26} The trial court instructed the jury as follows:
In this case there was evidence that the defendant fled from
justice. You are instructed that you may not presume the
defendant guilty from such evidence. You may, however, infer
a consciousness of guilt regarding the evidence of defendant's
alleged flight.
An accused's flight and related conduct may be considered as
evidence of consciousness of guilt and thus of guilt itself.
(Tr. 459.)
{¶ 27} " 'Flight from justice "means some escape or affirmative attempt to avoid
apprehension." It is well established that evidence of flight is admissible as tending to
show consciousness of guilt. Thus, a trial court does not abuse its discretion by issuing
an instruction on flight if sufficient evidence exists in the record to support the charge.' "
State v. Lozada, 8th Dist. No. 94902, 2011-Ohio-823, ¶ 17, quoting State v. Benjamin,
8th Dist. No. 80654, 2003-Ohio-281, ¶ 29-31.
{¶ 28} Defendant argues that the phrase "there was evidence that the defendant
fled from justice" implies that defendant's "behavior was leavened with a nefarious
Nos. 12AP-622 and 12AP-623 10
purpose." (Appellant's Brief, 51.) Defendant also contends that the instruction presumes
that defendant did, in fact, flee from police. Neither argument has merit.
{¶ 29} A number of courts have used the phrase "from justice" in discussing the
propriety of a consciousness of guilt instruction. See Lozada; Benjamin; State v. Allen,
5th Dist. No. 2009-CA-13, 2010-Ohio-4644. We also disagree that the instruction
presumes that flight was established. The instruction merely states that there was
evidence of flight. Whether defendant fled from justice is a question clearly left to the
jury.
{¶ 30} Defendant also claims that the instruction is incomplete inasmuch as it does
not remind the jury that (1) defendant's flight may be motivated by factors other than
consciousness of guilt, and (2) that it must find that the defendant's guilty conscious is
due to the charge in question. However, a jury instruction "should not be held erroneous
merely because every condition to a recovery or defense is not embraced in each
paragraph." State v. Nichols, 9th Dist. No. 24900, 2010-Ohio-5737, citing Youngstown
Municipal Ry. Co. v. Mikula, 131 Ohio St. 17, 20 (1936).
{¶ 31} Although we agree that the instruction given by the trial court is brief, we
note that it is consistent with Ohio law as it pertains to consciousness of guilt. See State v.
Eaton, 19 Ohio St. 2d 145, 160 (1969). The instruction informs the jury that defendant's
flight "may be considered as evidence of consciousness of guilt." (Jury Instructions, 7.)
Thus, the jury was free to consider other reasons for defendant's conduct. Similarly, to
the extent that defendant claims that the jury should have been told to consider evidence
of flight only in reference to the offenses charged in the second indictment, we have held
that such was relevant to the offenses charged in both indictments, not just the second.
Moreover, the trial court instructed the jury as follows: "Each indictment and each offense
constitutes a separate and distinct matter for you to consider. You must independently
weigh and consider each - - consider the evidence applicable to each offense and each
indictment." (Tr. 459-60.)
{¶ 32} Based upon the foregoing, we cannot say that the trial court abused its
discretion in giving the consciousness of guilt instruction. Accordingly, defendant's
second assignment of error is overruled.
Nos. 12AP-622 and 12AP-623 11
{¶ 33} In defendant's third assignment of error, defendant contends that the trial
court failed to inform defendant, in open court, that his sentences on the two indictments
were to run consecutively. We disagree.
{¶ 34} A defendant has a due process right, embodied in Crim.R. 43, to be
"physically present at every stage of the criminal proceeding and trial, including * * * the
imposition of sentence." Crim.R. 43(A)(1). See also State v. Railey, 1st Dist. No. C-
120029, 2012-Ohio-4233. "Where a court's entry is silent and/or the record is ambiguous
as to whether a consecutive or concurrent term applies, a court must resolve the
ambiguity in favor of the defendant." State v. Speakman, 10th Dist. No. 06AP-408,
2006-Ohio-6378, ¶ 31.
{¶ 35} In this case, the two sentencing entries issued by the trial court specifically
state that the prison term for his convictions on the first indictment are to be served
consecutively with the prison term for the convictions on the second indictment.3
Defendant argues, however, that the trial court was unclear on this point when it
sentenced defendant in open court. The transcript of defendant's sentencing hearing
shows the following:
THE COURT: Okay, Mr. Benton. Mr. Bass - - sir, the Court at
this time, in considering the factors the Court is required to
consider, in case number 5183, the Court imposes the
following sentence: On count one, three years; count two,
three years; count three, 18 months; court four, three years. In
addition, the Court will impose the mandatory five years for
the drive-by shooting and three years for the firearm
specification. That all is for a total of 11 years on this case.
MR. BENTON: Your Honor, what was the sentence on count
four?
THE COURT: Count four was three years.
3 The sentencing entry in case No. 11CR-09-5183 provides in relevant part: "The Specification as to Count
One shall be served concurrent with Specification One as to Count Two and consecutive to Specification Two
as to Count Two. Counts One, Two, Three and Four shall be served concurrent with each other, consecutive
to all Specifications, and consecutive to Case No. 11CR-09-5187, for a total sentence of Eleven (11) years."
The sentencing entry in case No. 11CR-09-5187 provides in relevant part: "All specifications shall be served
concurrent with each other. Counts One, Two and Three shall be served concurrent with each other,
consecutive to all Specifications, and consecutive to Case No. 11CR-09-5183, for a total sentence of Ten (10)
years."
Nos. 12AP-622 and 12AP-623 12
MR. BENTON: Okay.
THE COURT: With respect to case number 5187, the Court
imposes the following sentence: On count one, seven years;
count two, six years; and count three, twelve months. Those
are to be served concurrently. In addition, the Court will add
an additional three years for the firearm specification, for a
total of 21 years.
(Tr. 514-15.)
MR. BENTON: Judge, I'm still a little confused.
THE COURT: Mr. Bass, the Court imposed 21 years. I took
into consideration your age at this time. Twenty-one years is
sufficient time for you to hopefully grow up and realize - -
you'll be 48 when you are released - - that guns and you don't
get along well.
MR. BENTON: Your Honor, that's the total sentence as to
both cases?
THE COURT: That's the total sentence on both cases.
Twenty-one years. Twenty-one years.
(Tr. 516.)
{¶ 36} Defendant concedes that, in all probability, the trial court intended to
sentence defendant to consecutive terms. Defendant maintains, however, that the trial
court's failure to explicitly state its intentions on the record leaves us with no choice but to
reverse the trial court sentencing entry and order that the sentences are to run
concurrently. We disagree.
{¶ 37} It is clear from the trial transcript that defendant was informed that he was
to serve a 21-year prison term. Defendant was told, in no uncertain terms, that he would
be 48 years old when he was released from prison. Ohio courts have repeatedly stated
that "the trial court is not * * * required to recite any 'magic' or 'talismanic' words when
imposing consecutive sentences." State v. Hubbard, 10th Dist. No. 11AP-945, 2013-Ohio-
2735, ¶ 86, quoting State v. Farnsworth, 7th Dist. No. 12 CO 10, 2013-Ohio-1275, ¶ 8. See
also State v. Bailey, 10th Dist. No. 12AP-699, 2013-Ohio-3596, ¶ 43; State v. Frasca, 11th
Dist. No. 2011-T-0108, 2012-Ohio-3746, ¶ 57; State v. Murrin, 8th Dist. No. 83714, 2004-
Nos. 12AP-622 and 12AP-623 13
Ohio-3962, ¶ 12. The only reasonable conclusion to draw from the trial transcript is that
the 11-year prison term for the convictions under the first indictment is consecutive to the
ten year term for the convictions under the second indictment. The fact that the trial
court did not use the word "consecutive," in defendant's presence is not fatal to the
validity of the sentence. The record demonstrates that defendant understood that his
sentences were consecutive, and the sentencing entries are consistent with the sentence
imposed in open court.
{¶ 38} Accordingly, defendant's third assignment of error is overruled.
{¶ 39} In his fourth assignment of error, defendant contends that the trial court
erred when it ordered his sentences to run consecutively without expressly considering
the factors set out in R.C. 2929.14(E)(4), as amended by House Bill 86 ("H.B. No. 86").
{¶ 40} H.B. No. 86 took effect on September 30, 2011. R.C. 2929.14(E)(4) now
requires the trial court to make three findings before imposing consecutive sentences:
(1) that consecutive sentences are necessary to protect the public from future crime or to
punish the offender, (2) 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 (3) that one of the subsections (a), (b), or (c) apply. Bailey. The State concedes that
the trial judge did not make the findings required under R.C. 2929.14(C)(4) even though
defendant requested that he do so. (Tr. 513-14.) The question on appeal to this court is
whether the trial judge should have made the required findings on the record before
imposing consecutive sentences.
{¶ 41} R.C. 1.58(B) states: "If the penalty, forfeiture, or punishment for any offense
is reduced by a reenactment or amendment of a statute, the penalty, forfeiture, or
punishment, if not already imposed, shall be imposed according to the statute as
amended." In this case, defendant committed his crimes prior to September 30, 2011, the
effective date of H.B. No. 86. However, the trial court did not sentence defendant until
June 18, 2012. This court has consistently held that where an offender is sentenced to
multiple prison terms after September 30, 2011, the trial judge must make the findings
required under amended R.C. 2929.14(C)(4) before imposing a consecutive sentence. See
Bailey at ¶ 42. See also State v. Wilson, 10th Dist. No. 12AP-551, 2013-Ohio-1520, ¶ 17;
State v. Roush, 10th Dist. No. 12AP-201, 2013-Ohio-3162, ¶ 79; Hubbard.
Nos. 12AP-622 and 12AP-623 14
{¶ 42} The State makes several arguments in support of its position that H.B. No.
86 does not apply to individuals who committed crimes prior to the effective date of the
amendment. However, subsequent to the filing of the State's brief in this case, this court
issued a series of decisions rejecting the arguments advanced by the State herein. See,
e.g., Bailey; Wilson; Roush; and Hubbard. In Roush at ¶ 49, and Wilson at ¶ 17, we
rejected the States contention that, given the language of H.B. No. 86, Section 11, the
General Assembly did not intend for R.C. 1.58(B) to apply to H.B. No. 86.4 We also
rejected the State's claim that the General Assembly did not intend R.C. 1.58(B) to be
applied to R.C. 2929.14(C)(4) given the language used in H.B. No. 86, Section 5. Roush at
¶ 49; Wilson at ¶ 17.5 We see no reason to retreat from the reasoning of our recent
decision. Accordingly, we find the State's argument to be without merit.
{¶ 43} The State's final argument is that R.C. 1.58 does not apply to this case
inasmuch as amended R.C. 2929.14 does not reduce the penalty for any offense. State v.
Edwards, 6th Dist. No. WD-11-078, 2013-Ohio-519. However, in this case, defendant was
convicted by the trial court of two counts of having a weapon while under disability, a
felony in the third degree, and he was sentenced to 12 months in prison for each offense.
Under amended R.C. 2929.14(A)(3)(b), the minimum penalty for having a weapon while
under disability is reduced from 12 months to nine months. Bailey at ¶ 42. Accordingly,
even if we adopt the State's position, H.B. No. 86 would still apply to the facts of this case.
See Id. at ¶ 41 (Edwards distinguished.).
4 H.B. No. 86, Section 11 states: "In amending division (E)(4) of section 2929.14 * * * of the Revised Code in
this act, it is the intent of the General Assembly to simultaneously repeal and revive the amended language
in those divisions that was invalidated and severed by the Ohio Supreme Court's decision in State v. Foster
(2006), 109 Ohio St. 3d 1. The amended language in those divisions is subject to reenactment under the
United States Supreme Court's decision in Oregon v. Ice (2009), 555 U.S. 160, and the Ohio Supreme
Court's decision in State v. Hodge (2010), ... Ohio St.3d ..., Slip Opinion No. 2010-Ohio-6320 and, although
constitutional under Hodge, supra, that language is not enforceable until deliberately revived by the General
Assembly."
5 H.B. No. 86, Section 4 states: "The amendments to * * * division (A) of section 2929.14 of the Revised
Code * * * made in this act apply to a person who commits an offense specified or penalized under those
sections on or after the effective date of this section and to a person to whom division (B) of section 1.58 of
the Revised Code makes the amendments applicable."
Nos. 12AP-622 and 12AP-623 15
{¶ 44} In short, we hold that the trial court erred by failing to sentence defendant
in accordance with H.B. No. 86. We do not believe, however, that we must order that the
sentences run concurrently. Indeed, the applicable case law holds that when the trial
court fails to articulate the appropriate findings required by R.C. 2929.14(C)(4), the case
is to be remanded for the trial judge to consider whether consecutive sentences are
appropriate under H.B. No. 86 and, if so, to enter the proper findings on the record. Id.;
Wilson; Roush; Hubbard; and State v. Cowan, 8th Dist. No. 97877, 2012-Ohio-5723,
¶ 44.
{¶ 45} For the foregoing reasons, defendant's fourth assignment of error is
sustained in part and overruled in part.
V. DISPOSITION
{¶ 46} Having overruled appellant's first, second, and third assignments of error,
but having sustained the fourth assignment of error in part and overruled in part, the
judgment of the Franklin County Court of Common Pleas is affirmed in part and reversed
in part. This case is hereby remanded to that court to consider whether consecutive
sentences are appropriate under H.B. No. 86 and, if so, to enter the proper findings on the
record.
Judgments affirmed in part
and reversed in part;
cause remanded.
SADLER and McCORMAC, JJ., concur.
McCORMAC, J., retired, formerly of the Tenth Appellate
District, assigned to active duty under the Ohio Constitution,
Article IV, Section 6(C).
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