[Cite as State v. Marino, 2013-Ohio-113.]



                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                   WASHINGTON COUNTY

STATE OF OHIO,                        :    Case No. 11CA36
                                      :
     Plaintiff-Appellee,              :
                                      :    DECISION AND
     v.                               :    JUDGMENT ENTRY
                                      :
BRANDON M. MARINO,                    :
                                      :    RELEASED 01/11/13
     Defendant-Appellant.             :
______________________________________________________________________
                            APPEARANCES:

Stephen K. Sesser, Chillicothe, Ohio, for appellant.

James E. Schneider, Washington County Prosecuting Attorney and Alison L. Cauthorn,
Washington County Assistant Prosecuting Attorney, Marietta, Ohio, for appellee.
______________________________________________________________________
Harsha, J.

        {¶1}     Brandon Marino appeals his sentence for a sexual battery conviction. He

argues that the trial court erred by ordering that his 60 month sentence run

consecutively to an unrelated burglary sentence. R.C. 2929.41(A) requires that a

defendant’s sentence shall be served concurrently with any other prison term, unless

one of the listed exceptions applies. And because none of the exceptions pertain to

Marino’s conviction, his consecutive sentence is clearly and convincingly contrary to

law. Accordingly, we sustain his assignment of error and reverse the trial court’s

judgment.

                                            I. FACTS

        {¶2}     Brandon Marino was charged with aggravated burglary, rape and sexual

battery. He subsequently pleaded guilty to one count of sexual battery, a third-degree

felony in violation of R.C. 2907.03(A)(3)&(B). As part of the plea agreement, the court
Washington App. No. 11CA36                                                                    2

dismissed the remaining charges. After receiving a presentence investigation and a

report by the SEPTA center, the court ordered Marino to serve a 60 month sentence to

run consecutively to his prison sentence for an unrelated burglary conviction. This

appeal followed.

                               II. ASSIGNMENT OF ERROR

       {¶3}   Marino presents one assignment of error for our review:

       {¶4}   “THE TRIAL COURT ERRED IN THAT IT ABUSED ITS DISCRETION

WHEN IT SENTENCED MARINO TO A CUMULATIVE PRISON TERM OF FIVE (5)

YEARS TO AN UNRELATED BURGLARY EVENT THAT OCCURRED AFTER THIS

MATTER.”

                              III. CONSECUTIVE SENTENCE

       {¶5}   Marino argues that the trial court erred by ordering his 60 month sentence

in this case run consecutively to an unrelated four year burglary sentence. Specifically,

he claims that the trial court abused its discretion. After reviewing the record and the

law, we agree.

                                       A. Standard of Review

       {¶6}   “[A]ppellate courts must apply a two-step approach when reviewing felony

sentences. First, [we] must examine the sentencing court’s compliance with all

applicable rules and statutes in imposing the sentence to determine whether the

sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the

trial court’s decision in imposing the term of imprisonment is reviewed under the abuse-

of-discretion standard.” State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d

124, ¶ 26.
Washington App. No. 11CA36                                                                     3

                         B. Clearly and Convincingly Contrary to Law

       {¶7}    When imposing its sentence, the trial court must consider the principles

and purposes of sentencing in R.C. 2929.11 and balance the seriousness and

recidivism factors under 2929.12. Kalish at ¶ 13. In addition, the sentencing court must

also be guided by statutes that are specific to the case itself. Id.

       {¶8}     Marino was convicted of a third-degree felony in violation of R.C.

2907.03(A)(3)&(B). Under R.C. 2929.14(A)(3)(a), the prison term for a third-degree

felony conviction in violation of R.C. 2907.03 “shall be twelve, eighteen, twenty-four,

thirty, thirty-six, forty-two, forty-eight, fifty-four, or sixty months.”

       {¶9}    In this case, although Marino’s 60 month sentence is the maximum

possible, it is clearly within the prescribed statutory limits set by R.C. 2929.14(A)(3)(a).

Marino argues that by ordering his five year sentence in this case to run consecutively

with his four year sentence, the trial court effectively sentenced him to a nine year

prison term that falls outside the permissible statutory range. Although we do not find

this specific argument persuasive, we do conclude his sentence is contrary to law.

       {¶10} R.C. 2929.41(A), the law regarding consecutive sentencing, previously

stated: “Except as provided in division (B) of this section, division (E) 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.” However, in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470,

the Supreme Court of Ohio declared R.C. 2929.41(A) unconstitutional and severed it

from the statute. Id. at paragraphs three and four of the syllabus. The Court held that

because no statute remained the “common-law presumptions [were] reinstated.” State
Washington App. No. 11CA36                                                                      4

v. Bates, 118 Ohio St.3d 174, 2008-Ohio-1983, 887 N.E.2d 328, ¶ 18. Thus, trial

courts were left with full discretion to determine whether a prison sentence would run

consecutively to any other term of imprisonment. Foster at paragraph seven of the

syllabus.

       {¶11} However, the General Assembly subsequently enacted Am.Sub.H.B. 86,

which rewrote R.C. 2929.41(A). The legislature stated:

       In amending division (E)(4) of section 2929.14 and division (A) of section
       2929.41 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.

       {¶12} As a result of H.B. 86, R.C. 2929.41(A) now mandates that “[e]xcept as

provided in division (B) of this section, division (E) 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.” Thus, the general rule

currently is that any sentence must be served concurrently with any other prison term or

sentence of imprisonment.

       {¶13} Because H.B. 86 took effect on September 30, 2011, the amended

version of R.C. 2929.41(A) was controlling at the time of Marino’s sentencing held on

November 22, 2011. And because none of the exceptions named in the current statute
Washington App. No. 11CA36                                                                                 5

apply to Marino’s case, the trial court was required to impose a concurrent sentence.1

Thus, Marino’s consecutive sentence is clearly and convincingly contrary to law.

        {¶14} Here, the trial court did not adhere to R.C. 2929.41(A). Therefore, the

portion of Marino’s sentence ordering him to serve his sentence consecutively to his

unrelated burglary sentence is clearly and convincingly contrary to law. Although

Marino did not make this precise argument in his brief, we deem it plain error as the

Supreme Court of Ohio in State v. Fischer held that no court has the authority to simply

disregard or overlook a mandatory sentencing provision. See State v. Fischer, 128

Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 23. Moreover, the failure to follow a

mandatory sentencing provision would also be an abuse of discretion. As a result, we

sustain Marino’s assignment of error and reverse the trial court’s judgment.

                                                                       JUDGMENT REVERSED.




1
  Before the Supreme Court of Ohio found R.C. 2929.14(E)(4) unconstitutional in State v. Foster, 109
Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, the statute addressed the imposition of consecutive
sentences and the findings a trial court needed make to impose such a sentence. In State v. Bates, 118
Ohio St.3d 174, 2008-Ohio-1983, 887 N.E.2d 328, the Court noted that “[b]efore the Foster severance
former R.C. 2929.14(E)(4) and former R.C. 2929.41(A) did not appear to permit a trial court to order a
prison sentence to be served consecutively to a prison sentence previously imposed by a different court.”
Id. at ¶ 14. When the General Assembly passed Am.Sub.H.B. 86 and revived the language of former
R.C. 2929.14(E)(4) it renumbered the statute as R.C. 2929.14(C)(4). See State v. Bloom, 8th Dist. No.
97535, 2012-Ohio-3805, ¶ 18. However, the legislature did not reflect this change in R.C. 2929.41(A),
and as a result the statute still identifies R.C. 2929.14(E), rather than R.C. 2929.14(C), as an exception to
the general rule that sentences shall run concurrently. Because R.C. 2929.14(E) now addresses
sentences for specific serious felony convictions, it is inapplicable to this case. Thus, we need not
determine whether the trial court in this case had the authority under R.C. 2929.14(C)(4) to order Marino’s
prison sentence to be served consecutively to his prison sentence previously imposed by another Ohio
court.
Washington App. No. 11CA36                                                                    6

                                    JUDGMENT ENTRY

         It is ordered that the JUDGMENT IS REVERSED and the Appellee shall pay the
costs.

         The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court directing the
Washington County Common Pleas Court to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.

McFarland, P.J. & Abele, J.: Concur in Judgment Only.

                                            For the Court


                                            BY: ________________________
                                                William H. Harsha, Judge




                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
