State v. Beatty , 2022 Ohio 3099 ( 2022 )

[Cite as State v. Beatty, 2022-Ohio-3099.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO, : CASE NO. CA2021-10-057
Appellee, : EN BANC O P I N I O N
9/6/2022
:
- vs -
:
AUNRICO WILLIAM BAKER BEATTY, :
Appellant. :
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2020 CR 1062
Mark L. Tekulve, Clermont County Prosecuting Attorney, and Nicholas A. Horton, Assistant
Prosecuting Attorney, for appellee.
W. Stephen Haynes, Clermont County Public Defender, and Robert F. Benintendi, Assistant
Public Defender, for appellant.
EN BANC.
{¶ 1} This cause is before the court pursuant App.R. 26(A)(2)(b) upon this court's
sua sponte en banc consideration of this court's decision in State v. Beatty, 12th Dist.
Clermont No. CA2021-10-057, 2022-Ohio-2329 ("Beatty I"). After holding an en banc
conference on the matter pursuant to Loc.R. 18(D), this court now overrules the decision in
Clermont CA2021-10-057
Beatty I to the extent it conflicts with this court's holding in State v. Isreal, 12th Dist. Warren
No. CA2011-11-115, 2012-Ohio-4876, that, "pursuant to R.C. 2929.14(B)(1)(g), sentences
for multiple [firearm] specifications should be run consecutive to each other." Id. at ¶ 72.
{¶ 2} In Isreal, a decision the Ohio Supreme Court declined to review, this court
applied the language found in R.C. 2929.14(B)(1)(g) as written when holding that, "pursuant
to R.C. 2929.14(B)(1)(g), sentences for multiple [firearm] specifications should be run
consecutive to each other." Id. Numerous other Ohio appellate districts have approvingly
cited to this court's decision in Isreal since its release nearly a decade ago. This includes
cases from First, Second, Fourth, Fifth, Sixth, Eighth, Ninth, Tenth, and Eleventh Districts.
Of those ten Ohio appellate districts that have approvingly cited to this court's decision in
Isreal, we note that the Eighth District and the Fourth District have specifically cited to Isreal
when holding that the imposition of consecutive sentences for multiple firearm specifications
is mandatory under R.C. 2929.14(B)(1)(g). See State v. Nelson, 8th Dist. Cuyahoga No.
110593, 2022-Ohio-1665, ¶ 42 ("the imposition of consecutive sentences for firearm
specifications is mandatory under R.C. 2929.14[B][1][g]"); State v. Clay, 4th Dist. Lawrence
No. 11CA23, 2013-Ohio-4649, ¶ 72 ("The statute also allowed the court to exercise its
discretion to impose any remaining firearm specification prison terms, which it did.
Consequently, the trial court did not err by requiring Clay to serve the firearm specification
prison terms consecutively to one another").
{¶ 3} We also note the First District Court of Appeals' decision in State v. Pompey,
1st Dist. Hamilton No. C-150479, 2016-Ohio-4610. In that case, the defendant pled guilty
to four counts of aggravated robbery, all of which included three-year firearm specifications,
and was sentenced to an aggregate 18-year prison sentence that "consisted of six-year
sentences for each aggravated robbery and three-year sentences for each firearm
specification." Id. at ¶ 4. "The six-year sentences were all made concurrent, while the four
-2-
Clermont CA2021-10-057
specifications were made consecutive to each other and consecutive to the concurrent six-
year sentences." Id. The defendant appealed and argued that the trial court erred when it
"imposed excessive, consecutive sentences" and urged the appellate court "to reduce his
sentences because the trial court did not make findings before imposing consecutive
sentences for the firearm specifications * * *." Id. at ¶ 5. The appellate court, citing to this
court's decision in Isreal, rejected the defendant's argument and instead found that,
pursuant to R.C. 2929.14(B)(1)(g), the trial court "did precisely what was required by law"
by imposing consecutive sentences for each of the four firearm specifications that the
defendant was being sentenced.1 Id. at ¶ 7.
{¶ 4} Therefore, because the Ohio Supreme Court declined to review this court's
decision in Isreal, which necessarily included this court's holding that, pursuant to R.C.
2929.14(B)(1)(g), sentences for multiple firearm specifications should be run consecutive
to each other, and because this court's holding that, pursuant to R.C. 2929.14(B)(1)(g),
sentences for multiple firearm specifications should be run consecutive to each other, has
been approvingly cited to, and applied by, multiple other Ohio appellate districts, we find it
now generally well established that the language found in R.C. 2929.14(B)(1)(g) requires
sentences for multiple firearm specifications to be run consecutive to each other. This court
must therefore overrule the portion of Beatty I that permits a trial court to impose anything
other than a consecutive sentence for a firearm specification. This court instead reiterates
that, in accordance with this court's decision in Isreal, sentences for multiple firearm
specifications should be run consecutive to each other in accordance with R.C.
2929.14(B)(1)(g).
1. In a similar case, the Eleventh District Court of Appeals cited to Isreal to support its decision finding the trial
court did not err by imposing consecutive sentences for the three firearm specifications that the defendant
was being sentenced on in accordance with R.C. 2929.14(B)(1)(g). See State v. Fortune, 11th Dist. Lake No.
2014-L-117, 2015-Ohio-4019, ¶ 18.
-3-
Clermont CA2021-10-057
{¶ 5} When so doing, the trial court need not comply with the dictates of R.C.
2929.14(C)(4). See State v. James, 8th Dist. Cuyahoga No. 102604, 2015-Ohio-4987, ¶
47 ("[w]ith there being no requirement in R.C. 2929.14[B][1][g] for the court to make findings
of any kind before ordering a third penalty enhancing specification to be served
consecutively, the court had no obligation to make any findings"); see also State v. Howard,
2d Dist. Montgomery No. 29181, 2021-Ohio-4501, ¶ 15; and Pompey, 2016-Ohio-4610 at
¶ 6. This is because the plain language found in R.C. 2929.14(C)(4) provides that the
statute only applies when the trial court is imposing multiple prison terms for convictions of
"multiple offenses." "[A] firearm specification is a penalty enhancement, not a criminal
offense." State v. Ford, 128 Ohio St.3d 398, 2011-Ohio-765, ¶ 19. Therefore, while the
language found in R.C. 2929.14(B)(1)(g) allows a trial court to exercise its discretion not to
impose a sentence on a firearm specification that arises out of the same act or transaction,
that discretion applies only to the question of whether the trial court should impose an
additional firearm specification and not to how the sentence should be served once that
firearm specification is imposed.
{¶ 6} In conclusion, and to secure and maintain uniformity of this court's decisions,
this court hereby confirms the holding in Isreal that, "pursuant to R.C. 2929.14(B)(1)(g),
sentences for multiple [firearm] specifications should be run consecutive to each other." Id.
at ¶ 72. To the extent Beatty I allows a trial court to do anything other than sentence a
defendant on a firearm specification to a consecutive sentence, it is overruled. The
judgment in Beatty I remains unchanged, however, as this court's en banc consideration
does not alter the disposition of appellant's single assignment of error challenging the trial
court's decision ordering the prison terms imposed for the third and fourth firearm
specification convictions be served consecutively to all other prison terms.
S. POWELL, HENDRICKSON, and PIPER, JJ., concur
-4-
Clermont CA2021-10-057
M. POWELL, P.J., and BYRNE, J., dissent
M. POWELL, P.J., and BYRNE, J., dissenting
{¶ 7} Based upon our reasoning in State v. Beatty, 12th Dist. Clermont No.
CA2021-10-057, 2022-Ohio-2329 ("Beatty I"), we reiterate that State v. Isreal, 12th Dist.
Warren No. CA2011-11-115, 2012-Ohio-4876, should be overruled to the extent it holds
that R.C. 2929.14(B)(1)(g) mandates that a firearm specification prison term imposed in the
sentencing court's discretion must be served consecutively to all other prison terms
imposed upon an offender.
{¶ 8} The statutory scheme for imposition and service of firearm specification prison
terms is contained within R.C. 2929.14(B) and (C). R.C. 2929.14(B)(1)(a) requires
imposition of a specified prison term if an offender is convicted of a felony and an attendant
firearm specification under R.C. 2941.141, 2941.144, or 2941.145. R.C. 2929.14(B)(1)(g)
authorizes imposition of multiple firearm specification prison terms that arise from a single
act or transaction when certain offenses are involved. This is an exception to the rule of
R.C. 2929.14(B)(1)(b) that a sentencing court may impose only a single firearm
specification prison term based upon convictions of multiple offenses and firearm
specifications arising from a single act or transaction. R.C. 2929.14(B)(1)(g) recognizes
two types of "same act or transaction" firearm specification prison terms: the prison terms
for the two most serious firearm specifications, which a sentencing court must impose; and
the prison term or terms for "the remaining specifications," which a sentencing court may
impose in its discretion (hereinafter "discretionary firearm prison term(s)"). R.C.
2929.14(C)(1)(a) requires consecutive service of a firearm specification prison term if it
qualifies as a "mandatory prison term." R.C. 2929.14(B)(1)(g) works hand-in-hand with
R.C. 2929.14(C)(1)(a) to require consecutive service of the firearm specification prison
-5-
Clermont CA2021-10-057
terms for the two most serious specifications. Because R.C. 2929.14(B)(1)(g) provides that
the sentencing court "shall impose" prison terms for the two most serious "same act or
transaction" firearm specifications, those prison terms are "mandatory prison terms" for
which consecutive service is required by R.C. 2929.14(C)(1)(a). However, because a
prison term for the remaining specifications is not a prison term "that must imposed," it is
not a mandatory prison term. R.C. 2929.01(X)(1).
{¶ 9} In Isreal, we held that "pursuant to R.C. 2929.14(B)(1)(g), sentences for
multiple [firearm] specifications should be run consecutive to each other." Isreal, 2012-
Ohio-4876, at ¶ 72. Isreal applied the foregoing, not only to the firearm specification prison
terms for the two most serious specifications, but also to a discretionary firearm prison term.
This appeal does not concern the prison terms a sentencing court must impose for the two
most serious same act or transaction specifications.2 The issue in this case is limited to
whether R.C. 2929.14(B)(1)(g) requires consecutive service of discretionary firearm prison
terms. We hereinafter refer to the foregoing as "Isreal's holding" or the "Isreal holding."
{¶ 10} Isreal is based upon a misconstruction of R.C. 2929.14(B)(1)(g). The Isreal
court explained its reasoning as follows:
While the General Assembly did not include the word
"consecutive" in R.C. 2929.14(B)(1)(g), it nonetheless carved
out an exception to the general rule that a trial court may not
impose multiple firearm specifications for crimes committed
within a single transaction. The mandatory language of the
statute ("the court shall impose") also indicates the General
Assembly's intention that the defendant serve multiple
sentences for firearm specifications associated with the
enumerated crimes, such as murder or felonious assault.
Isreal, 2012-Ohio-4876, at ¶ 73.
2. Although we disagree with Isreal that R.C. 2929.14(B)(1)(g) requires consecutive service of the prison
terms for the two most serious specifications, because those prison terms are "mandatory prison terms," they
must be served consecutively pursuant to R.C. 2929.14(C)(1)(a). Thus, any error in identifying the correct
statute requiring consecutive service of these prison terms is practically inconsequential.
-6-
Clermont CA2021-10-057
{¶ 11} Isreal first misconstrues R.C. 2929.14(B)(1)(g) by regarding the authority to
impose a discretionary firearm prison term as synonymous with a requirement for
consecutive service of such a prison term. However, the imposition and service of a prison
term are distinct facets of a criminal sentence. "[A] judge sentencing a defendant pursuant
to Ohio law must consider each offense individually and impose a separate sentence for
each offense. Only after the judge has imposed a separate prison term for each offense
may the judge then consider in his discretion whether the offender should serve those terms
concurrently or consecutively." (Citations omitted.) State v. Saxon, 109 Ohio St.3d 176,
2006-Ohio-1245, ¶ 9. Thus, the power to impose a prison term does not suggest it be
served consecutively. Whether the prison term is to be served concurrently or consecutively
is a matter of the sentencing court's discretion, and in some cases, specified by other
statutory enactments such as R.C. 2929.14(C)(1)(a) and (4).
{¶ 12} Isreal also mistakenly construes the "court shall impose" language of R.C.
2929.14(B)(1)(g) as disclosing the General Assembly's intent that all firearm specification
prison terms must be served consecutively. However, that language applies only to the
prison terms for the two most serious specifications, not to discretionary firearm prison
terms. The statutory language applicable to discretionary firearm prison terms provides that
the sentencing court, "in its discretion, also may impose on the offender the prison term
specified under that division for any or all of the remaining specifications." (Emphasis
added.) R.C. 2929.14(B)(1)(g). To the extent Isreal holds that the "court shall impose"
language of R.C. 2929.14(B)(1)(g) mandates consecutive service of discretionary firearm
prison terms, it is plainly wrong.
{¶ 13} Another crucial error is Isreal's failure to consider R.C. 2929.14(C)(1)(a), the
statute which prescribes how firearm specification prison terms are to be served. See State
ex rel. Fraley v. Ohio Dept. of Rehab. & Correction, 161 Ohio St.3d 209, 2020-Ohio-4410,
-7-
Clermont CA2021-10-057
¶ 11-12; State v. Gillespie, 12th Dist. Warren No. CA2021-01-004, 2021-Ohio-3650, ¶ 52.
R.C. 2929.14(C)(1)(a) demonstrates the General Assembly's intent that not all firearm
prison terms are required to be served consecutively. The statute provides, "if a mandatory
prison term is imposed upon an offender pursuant to division (B)(1)(a) of this section * * * ,"
then that prison term must be served consecutively to all other prison terms. (Emphasis
added.) If all firearm specification prison terms were required to be served consecutively
as Isreal holds, there would have been no reason for the General Assembly to have
restricted consecutive service to "mandatory" firearm specification prison terms. Instead,
the General Assembly would have omitted the "mandatory" qualifier and provided that if a
"prison term" is imposed pursuant to R.C. 2929.14(B)(1)(a), it must be served consecutively.
By restricting consecutive service to "mandatory" firearm specification prison terms, R.C.
2929.14(C)(1)(a) recognizes that not all firearm prison terms are mandatory and required
to be served consecutively. We discussed in Beatty I why a discretionary firearm prison
term should not be considered a "mandatory prison term." Beatty I, 2022-Ohio-2329 at ¶
17-19.
{¶ 14} R.C. 2929.41(A) also makes it clear that R.C. 2929.14(B)(1)(g) does not
require consecutive service of a discretionary firearm prison term. The statute provides
Except as provided in division (B) of this section, division (C) of
section 2929.14, or division (D) or (E) of section 2971.03 of the
Revised Code, a prison term, jail term, or sentence of
imprisonment shall be served concurrently with any other prison
term, jail term, or sentence of imprisonment imposed by a court
of this state, another state, or the United States.
{¶ 15} Pursuant to the statute, if a prison term is imposed, it must be served
concurrently with other prison terms unless consecutive service is authorized by R.C.
2929.14(C). It is important to note that R.C. 2929.41(A), in recognizing the exception to the
general rule that prison terms be served concurrently, refers to R.C. 2929.14(C), not R.C.
-8-
Clermont CA2021-10-057
2929.14(B)(1)(g). Thus, consecutive service of a firearm prison term requires that it either
be a "mandatory prison term" pursuant to R.C. 2929.14(C)(1)(a), or that the R.C.
2929.14(C)(4) findings support a consecutive sentence.
{¶ 16} The Eighth Appellate District has recognized, as we did in Beatty I, that
consecutive service of discretionary firearm prison terms is not mandated. In State v.
James, 8th Dist. Cuyahoga No. 102604, 2015-Ohio-4987, a unanimous panel reversed a
consecutive discretionary firearm prison term because of the sentencing court's
misapprehension that it was required to impose the prison term consecutively. "We agree
with James that the court erred by indicating that it had to order consecutive service on the
third firearm specification." Id. at ¶ 44; see also State v. Nelson, 8th Dist. Cuyahoga No.
104336, 2017-Ohio-5568, ¶ 84-86.
{¶ 17} Additionally, in State v. Hope, 11th Dist. No. 2018-T-0053, 2019-Ohio-2174,
the Eleventh Appellate District remanded a case to the trial court for purposes of journalizing
a nunc pro tunc entry incorporating a R.C. 2929.14(C)(4) consecutive sentence finding
relative to the consecutive service of a discretionary firearm prison term which was made
during the sentencing hearing but omitted from the original sentencing entry. If R.C.
2929.14(B)(1)(g) mandated consecutive service of discretionary firearm prison terms, the
consecutive sentence findings would be unnecessary, and the court of appeals would not
have remanded the matter for that reason.
{¶ 18} The majority creates the inaccurate impression that its view is shared by
Ohio's other appellate districts with near unanimity when it states in ¶ 2 that "[n]umerous
other districts have approvingly cited to this court's decision in Isreal since its release nearly
a decade ago. This includes cases from First, Second, Fourth, Fifth, Sixth, Eighth, Ninth,
Tenth, and Eleventh Districts." Almost all the cases from other appellate districts citing
Isreal are included in one of three categories. The first category includes those cases that
-9-
Clermont CA2021-10-057
do not involve a discretionary firearm prison term. The second category consists of cases
where a discretionary firearm prison term was imposed but ordered to be served
concurrently. Because the cases in these first two categories do not involve a consecutive
discretionary firearm prison term, any comment in those cases concerning the significance
of R.C. 2929.14(B)(1)(g) on the consecutive service of discretionary firearm prison terms is,
at most, obiter dicta. "It is a well recognized principle that any pronouncement of the court
must be considered in the light of the facts under consideration." White Castle Sys. v.
Huntington Nat. Bank, Columbus, 36 Ohio Law Abs. 253, 258 (2nd Dist.1941).
{¶ 19} The third category includes cases citing Isreal for the proposition that same
act or transaction firearm specification convictions do not merge for purposes of sentencing.
These third category cases involve assignments of error challenging consecutive service of
discretionary firearm prison terms only because they should merge as arising from the same
act or transaction. Although these cases may affirm a sentencing court's imposition of
consecutive discretionary firearm prison terms, it is because R.C. 2929.14(B)(1)(g) creates
an exception to merger under certain circumstances. These cases do not implicate the
issue of whether R.C. 2929.14(B)(1)(g) requires consecutive service of discretionary firearm
prison terms. "'[A] reported decision, although a case where the question might have been
raised, is entitled to no consideration whatever as settling * * * a question not passed upon
or raised at the time of the adjudication.'" State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-
4642, ¶ 11, quoting State ex rel. Gordon v. Rhodes, 158 Ohio St. 129 (1952), paragraph
one of the syllabus. Thus, neither do the cases included in this third category support
Isreal's holding.
{¶ 20} That other appellate districts may have "approvingly cited" Isreal for a
proposition of law other than whether R.C. 2929.14(B)(1)(g) requires consecutive service
of discretionary firearm prison terms is irrelevant and does nothing to establish Isreal's
- 10 -
Clermont CA2021-10-057
holding as settled law. The majority acknowledges that only "the Eighth District and the
Fourth District have specifically cited to Isreal when holding that the imposition of
consecutive sentences for multiple firearm specifications is mandatory under R.C.
2929.14(B)(1)(g)." However, the Eighth District does not support Isreal's holding that R.C.
2929.14(B)(1)(g) requires consecutive service of discretionary firearm prison terms as the
majority contends.
{¶ 21} The sole Eighth District opinion cited by the majority is State v. Nelson, 8th
Dist. Cuyahoga No. 110593, 2022-Ohio-1665.3 Nelson involved the imposition of two
firearm specification prison terms arising from two separate incidents or the imposition of
same act or transaction firearm specification prison terms for the two most serious
specifications.4 In either case, Nelson does not involve a discretionary firearm prison term.
Because Nelson does not involve a discretionary firearm prison term, it is included among
the first category of cases discussed above, and any comment concerning the significance
of R.C. 2929.14(B)(1)(g) on the consecutive service of discretionary firearm prison terms
must be discounted.
{¶ 22} The majority also cites State v. Pompey, 1st Dist. Hamilton No. C-150479,
2016-Ohio-4610, and asserts it holds that "pursuant to R.C. 2929.14(B)(1)(g), the trial court
'did precisely what was required by law' by imposing consecutive sentences for each of the
four firearm specifications that the defendant was being sentenced." However, Pompey
holds no such thing. In Pompey, the First Appellate District cites R.C. 2929.14(B)(1)(g) only
to demonstrate that the sentencing court had the authority to impose multiple firearm
3. Note that this citation to State v. Nelson, 8th Dist. Cuyahoga No. 110593, 2022-Ohio-1665, refers to a
different Eighth District opinion than our earlier citation to State v. Nelson, 8th Dist. Cuyahoga No. 104336,
2017-Ohio-5568, in ¶ 16 above.
4. The recitation of facts in Nelson suggests that the two firearm specification prison terms arose from separate
acts or transactions, but the opinion does not explicitly state as much.
- 11 -
Clermont CA2021-10-057
specification prison terms, not that it was required to order they be served consecutively.
Regarding consecutive service, the court relied upon R.C. 2929.14(C)(1)(a), not R.C.
2929.14(B)(1)(g). Id. at ¶ 7. Although we disagree with the First District that R.C.
2929.14(C)(1)(a) requires consecutive service of discretionary firearm prison terms,
Pompey agrees with Beatty I in that R.C. 2929.14(C)(1)(a), not R.C. 2929.14(B)(1)(g), is
the statute which specifies the way firearm prison terms are to be served.5
{¶ 23} In a footnote, the majority cites State v. Fortune, 11th Dist. No. 2014-L-117,
2015-Ohio-4019, claiming that it cites Isreal to support its decision affirming consecutive
service of a discretionary firearm specification. However, the sole reference to Isreal in
Fortune was not to support the proposition that R.C. 2929.14(B)(1)(g) requires consecutive
service of discretionary firearm prison terms, but that the statute provides an exception to
R.C. 2929.14(B)(1)(b) by permitting imposition of more than a single firearm specification
prison term for multiple firearm specifications arising from a single act or transaction.
Fortune is a merger case and nowhere holds that R.C. 2929.14(B)(1)(g) requires
consecutive service of discretionary firearm prison terms.
{¶ 24} The majority sums up its defense of Isreal by stating
[B]ecause the Ohio Supreme Court declined to review this
court's decision in Isreal, which necessarily included this court's
holding that, pursuant to R.C. 2929.14(B)(1)(g), sentences for
multiple firearm specifications should be run consecutive to
each other, and because this court's holding that, pursuant to
R.C. 2929.14(B)(1)(g), sentences for multiple firearm
specifications should be run consecutive to each other, has
been approvingly cited to, and applied by, multiple other Ohio
appellate districts, we find it now generally well established that
the language found in R.C. 2929.14(B)(1)(g) requires sentences
for multiple firearm specifications to be run consecutive to each
other.
5. See Beatty I, 2022-Ohio-2329, at ¶ 17-19 for our discussion of why R.C. 2929.14(C)(1)(a) does not require
consecutive service of discretionary firearm prison terms.
- 12 -
Clermont CA2021-10-057
{¶ 25} This summation is based upon faulty premises. First, the supreme court did
not decline to review Isreal. In fact, the supreme court denied Isreal's motion for a delayed
appeal. State v. Isreal, 137 Ohio St.3d 1420, 2013-Ohio-5285. Furthermore, a review of
the appellate cases citing Isreal reveals only a single Fourth Appellate District opinion
supporting Isreal's holding that R.C. 2929.14(B)(1)(g) requires consecutive service of
discretionary firearm prison terms.6 Only this district and a single Fourth District opinion
have held that R.C. 2929.14(B)(1)(g) requires consecutive service of discretionary firearm
prison terms. That proposition is not so generally well established as the majority suggests.
{¶ 26} The majority also cites cases and asserts that Beatty I is wrong in holding that
consecutive service of discretionary firearm prison terms requires the court to engage in the
R.C. 2929.14(C)(4) consecutive sentence findings. The majority contends that R.C.
2929.14(C)(4) "only applies when the trial court is imposing multiple prison terms for
convictions of 'multiple offenses.' '[A] firearm specification is a penalty enhancement, not a
criminal offense.'" Majority opinion at ¶ 3, quoting State v. Ford, 128 Ohio St.3d 398, 2011-
Ohio-765, ¶ 19. We discussed R.C. 2929.41(A) above, and its guidance that prison terms
are to be served concurrently unless R.C. 2929.14(C) provides an exception. Contrary to
the majority's assertion that R.C. 2929.14(C)(4) does not apply to firearm prison terms
because they are penalty enhancements, R.C. 2929.41(A) is not concerned with whether
the prison term is imposed as a "penalty enhancement" or as a sanction for an "offense."
R.C. 2929.41(A) is concerned only with whether a prison term is imposed. If a prison term
is imposed, it must be served concurrently unless R.C. 2929.14(C) provides an exception.7
6. State v. Clay, 4th Dist. Lawrence No. 11CA23, 2013-Ohio-4649.
7 We further discuss our reasoning on this issue in Beatty I. See Beatty I, 2022-Ohio-2329, at ¶ 21-26.
- 13 -
Clermont CA2021-10-057
{¶ 27} In summary, Isreal's holding is one in search of justification. Isreal finds that
justification by relying upon case law that touches upon tangential issues, ignoring R.C.
2929.14(C)(1)(a), the statute specifying how firearm prison terms are to be served, and
misconstruing R.C. 2929.14(B)(1)(g).
{¶ 28} Based upon the foregoing, we would hold that (1) R.C. 2929.14(C)(1)(a), not
R.C. 2929.14(B)(1)(g), controls how firearm prison terms are to be served; (2) because a
discretionary firearm prison term is not a "mandatory prison term," R.C. 2929.14(C)(1)(a)
does not mandate that it be served consecutively; (3) a sentencing court may order that
discretionary firearm prison terms be served consecutively to other prison terms upon
making the R.C. 2929.14(C)(4) consecutive sentence findings; and (4) Isreal be overruled
to the extent that it holds that R.C. 2929.14(B)(1)(g) requires consecutive service of
discretionary firearm prison terms. With respect and regard for our colleagues in the
majority, we dissent.
- 14 -