[Cite as State v. Drobny, 2013-Ohio-937.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 98404




                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                  ANDREW T. DROBNY
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-558198

        BEFORE: S. Gallagher, P.J., E.A. Gallagher, J., and Blackmon, J.

        RELEASED AND JOURNALIZED: March 14, 2013
ATTORNEY FOR APPELLANT

Rick L. Ferrara
2077 East 4th Street
Second Floor
Cleveland, OH 44114


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Mary Weston
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, P.J.:

       {¶1} Defendant-appellant, Andrew Drobny (“defendant”), appeals his sentence in

this case, arguing that it is contrary to law because he asserts it is inconsistent with the

sentence the trial court imposed on his codefendant.          He also claims that the trial court

erred by ordering him to serve his sentence in this case consecutively to the sentence

imposed upon him in Cuyahoga C.P. No. CR-558241.                    Although defendant filed a

separate appeal and brief in each case, the sole assignment of error in 8th Dist. No. 98403,

2013-Ohio-818, is exactly the same as his second assignment of error in this case. For

the reasons that follow, we affirm.

       {¶2} In CR-558198, defendant pled guilty to burglary, a felony of the third degree.

His codefendant, Brittany Martin, entered the same guilty plea. In CR-558241, defendant

pled guilty to theft, a felony of the fifth degree.        At the time defendant entered these

guilty pleas, he was on probation in Parma Municipal Court.                    The court ordered

defendant to serve a 30-month prison sentence on the burglary conviction consecutive to

an 11-month sentence for the theft conviction.1 The trial court explained its rationale for

imposing consecutive sentences as follows:

       [T]he reason that you’re getting consecutive terms rather than concurrent
       terms is because this court believes that the harm you created is great, is
       unusual, and a single term does not adequately reflect the seriousness of the

       1
            Initially the trial court ordered defendant to serve 12 months for the theft offense
consecutively to a 36-month prison term for the burglary conviction. After a side-bar discussion, the
court reduced defendant’s sentence in both cases as stated.
        offense. You heard what Mr. and Mrs. Bonner had to say, and you heard
        what your grandmother had to say. You’ve been creating problems for
        people for a very long time. And although I’m only allowed to sentence you
        for the two matters that are before the Court today, your past record indicates
        that you have had a serious — several serious bouts with the law which
        requires that you have the most serious prison term possible.

        {¶3} The court explained to defendant that he received a different sentence than his

codefendant for the burglary conviction based on the differences in their criminal records

— she had none.       The trial judge directly asked the defendant if he really had expected to

get the same sentence as the codefendant for the burglary conviction in light of his past

record.     He responded, “no.”

        {¶4} Defendant appeals and asserts the following assignment of error for our

review:

                                     Assignment of Error No. 1

        The trial court erred by imposing a 30-month sentence for burglary while
        imposing a lesser sentence on his co-defendant.

        {¶5} A review of felony sentencing involves a two-step analysis: (1) whether the

trial court complied with all applicable rules and statutes to determine if the sentence was

clearly and convincingly contrary to law; and (2) whether the trial court abused its decision

by imposing the sentence. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896

N.E.2d 124, ¶ 4.2


        2
            Subsequent to the court’s decision in Kalish, H.B. 86 took effect. Am.Sub.H.B. 86, 2001
Ohio Laws 29 (“H.B. 86”), revised Ohio’s sentencing statutes. Among other amendments, the
legislature explicitly stated its intent to re-enact and revive mandatory statutory findings applicable to
imposing consecutive sentences. See R.C. 2929.14, editor’s note regarding the provisions of Section
11 of H.B. 86, citing State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768 (“although
        {¶6} Defendant contends that the trial court failed to comply with the objectives of

R.C. 2929.11(B) in terms of the consistency and proportionality of his sentence.

Particularly, defendant maintains that his 30-month prison sentence was “grossly

disproportionate” to his codefendant’s sentence comprised of a six-month jail term and a

five-year term of community control sanctions.

        {¶7} There is a distinction between consistent and identical sentences, which was

noted by this court in State v. Georgakopoulos, 8th Dist. No. 81934, 2003-Ohio-4341, ¶

26:

        “The legislature’s purpose for inserting the consistency language contained
        in R.C. 2929.11(B) is to make consistency rather than uniformity the aim of
        the sentencing structure. See Griffin and Katz, Ohio Felony Sentencing
        Law (2001), 59. Uniformity is produced by a sentencing grid, where all
        persons convicted of the same offense with the same number of prior
        convictions receive identical sentences, Id. Consistency, on the other hand,
        requires a trial court to weigh the same factors for each defendant, which
        will ultimately result in an outcome that is rational and predictable. Under
        this meaning of ‘consistency,’ two defendants convicted of the same offense
        with a similar or identical history of recidivism could properly be sentenced
        to different terms of imprisonment.”

constitutional under Hodge, supra, that language is not enforceable until deliberately revived by the
General Assembly”). Although H.B. 86 took effect after Kalish was decided, the majority of
appellate courts continue to apply the two-step analysis it established for sentencing review. Kalish
did not address the standard of review for required findings that are now back in place for consecutive
sentencing under R.C. 2929.14(C)(4). We recognize that the revived statutory findings require the
application of R.C. 2953.08(G) and the clear and convincing standard to determine whether requisite
statutory findings are supported by the record or whether the sentence is contrary to law in the context
of consecutive sentencing. Accordingly, some more recent court decisions that have addressed felony
sentencing have applied the statutory standard of review and do not reference the two-step analysis
contained in Kalish. While much of this may be more about semantics than a real distinction in
analysis, it is important to note that the viability of Kalish may have to be reviewed in light of H.B. 86.
 Nevertheless, until the Supreme Court of Ohio directs us otherwise, we continue to recognize Kalish
even if our analysis includes reference to R.C. 2953.08.
Id., quoting State v. Quine, 9th Dist. No. 20968, 2002-Ohio-6987; see also State v.

Rowland, 1st Dist. No. C-000592, 2001 Ohio App. LEXIS 2088 (May 11, 2001)

(“Although we acknowledge the statutory mandate for consistency in sentencing,

consistency does not require that identical sentences be imposed for co-defendants.”);

State v. Pruitt, 8th Dist. No. 98080, 2012-Ohio-5418, ¶ 26, citing, State v. Marshall, 8th

Dist. No. 89551, 2008-Ohio-1632; State v. Klepatzki, 8th Dist. No. 81676,

2003-Ohio-1529; State v. Richards, 8th Dist. No. 83696, 2004-Ohio-4633; State v. Harris,

8th Dist. No. 83288, 2004-Ohio-2854; State v. Dawson, 8th Dist. No. 86417,

2006-Ohio-1083 (although an offense may be similar, distinguishing factors may justify

dissimilar treatment); State v. Nelson, 11th Dist. No. 2008-L-072, 2008-Ohio-5535 (no

requirement that codefendants receive equal sentences).

      {¶8} The record reflects that the trial court properly considered the statutory factors

and guidelines in R.C. 2929.11 and 2929.12 before imposing defendant’s sentence. The

trial court explained that defendant and the codefendant were not similar offenders.     For

example and among other distinctions, the codefendant had no criminal record.           The

codefendant stated she was currently a senior in high school.          Defendant was not

currently in school or employed. Defendant pled guilty in two different cases and was on

probation to Parma Municipal Court for aggravated trespassing.        Defendant also had a

domestic violence case, in which his father was the victim.      Defendant’s victim in the
theft conviction was his grandmother.3 Defense counsel indicated defendant had a heroin

addiction that required hospitalization.           The burglary victim addressed the court and

reported that defendant had denied breaking into his house until it was confirmed that his

DNA had been found in the home.

       {¶9} Defendant said he broke into the victim’s house and stole copper plumbing,

gym equipment, and several other things for drug money.                        The amount owed in

restitution is $18,305. At sentencing, defendant apologized to the victims. Defense

counsel also cited defendant’s mental health diagnosis in mitigation.

       {¶10} Defendant has not established that his 30-month prison sentence is clearly and

convincingly contrary to law or that the trial court abused its discretion by imposing it.

This assignment of error is overruled.

                                       Assignment of Error No. 24

       The trial court acted contrary to law when it imposed consecutive sentences
       without authority to do so under the Ohio Revised Code.

                                       Assignment of Error No. 3

       The trial court erred when it failed to make statutorily necessitated findings
       before imposing consecutive sentences.

       {¶11} Defendant contends that the trial court was without authority to impose

consecutive sentences pursuant to the version of R.C. 2929.41(A) that was in effect at the

time of his sentencing, which provided:

       3
               Defendant stole her camera and pawned it for drug money.
           4
               This is the same assignment of error alleged in 8th Dist. No. 98403, 2013-Ohio-818.
       (A) 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, jail term, or sentence of
       imprisonment imposed by a court of this state, another state, or the United
       States. Except as provided in division (B)(3) of this section, a jail term or
       sentence of imprisonment for misdemeanor shall be served concurrently with
       a prison term or sentence of imprisonment for felony served in a state or
       federal correctional institution.

       {¶12} Defendant contends that none of the exceptions to the presumption of

concurrent sentences apply, and therefore the trial court erred by imposing consecutive

sentences in this case.   However, there are provisions for imposing consecutive sentences

in R.C. 2929.14(C)(4) that were not included in the above-quoted version of R.C.

2929.41(A).

       {¶13} Following the Ohio Supreme Court’s decision in Hodge,5 the legislature

expressed its intent to revive the statutory fact-finding provisions that existed as a

prerequisite to imposing consecutive sentences that were effective before State v. Foster,

109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. Under a prior version of Ohio’s

sentencing law, the judicial fact-finding requirements for consecutive sentencing were

contained in R.C. 2929.14(E); now they appear in R.C. 2929.14(C). This court has

determined that the reference to R.C. 2929.14(E) in R.C. 2929.41(A) was legislative

oversight and “resulted in the failure to update the cross-reference in the ‘revived’ R.C.

2929.41(A) from ‘division (E) of section 2929.14’ to ‘division (C) of 2929.14.’” State v.

Ryan, 8th Dist. No. 98005, 2012-Ohio-5070, ¶ 19.                In fact, R.C. 2929.41(A) was

        5
            128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768.
amended on September 28, 2012, for the specific purpose of making this correction.

R.C. 2929.41(A), Section Notes (“The 2012 amendment substituted ‘division (C)’ for

‘division (E)’ in the first sentence of (A).”).

       {¶14} In Ryan, this court applied the statute as the legislature intended it to be

applied rather than affording weight to a typographical error by applying the statute in a

manner contrary to the legislative intent. Id. at ¶ 22.   Accordingly, the trial court was

authorized to impose consecutive sentences in this case in accordance with R.C.

2929.14(C).

       {¶15} R.C. 2929.14(C)(4) provides:

       (4) 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.

       {¶16} The trial court explained to defendant,
       [T]he reason that you’re getting consecutive terms rather than concurrent
       terms is because this court believes that the harm you created is great, is
       unusual, and a single term does not adequately reflect the seriousness of the
       offense. You heard what Mr. and Mrs. Bonner had to say, and you heard
       what your grandmother had to say. You’ve been creating problems for
       people for a very long time. And although I’m only allowed to sentence you
       for the two matters that are before the Court today, your past record indicates
       that you have had a serious — several serious bouts with the law which
       requires that you have the most serious prison term possible.

These findings by the court, coupled with the record evidence, complied with the

provisions of R.C. 2929.14(C)(4) and support the court’s exercise of discretion to impose

consecutive sentences in this case.

       {¶17} The second and third assignments of error are overruled.

       {¶18} Judgment affirmed.

       It is ordered that appellee recover from appellant 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. The defendant’s conviction having been

affirmed, any bail pending appeal is terminated. Case remanded to the trial court for

execution of sentence.

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

Rules of Appellate Procedure.



SEAN C. GALLAGHER, PRESIDING JUDGE

EILEEN A. GALLAGHER, J., and
PATRICIA ANN BLACKMON, J., CONCUR
