[Cite as State v. Jones, 2014-Ohio-382.]

                       [Vacated opinion. Please see 2014-Ohio-1634.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 99703


                                       STATE OF OHIO

                                                     PLAINTIFF-APPELLEE

                                               vs.

                                           LISA JONES
                                                     DEFENDANT-APPELLANT



                               JUDGMENT:
                   AFFIRMED IN PART, REVERSED IN PART,
                             AND REMANDED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                               Case Nos. CR-568908 and CR-568910

        BEFORE: Stewart, J., Jones, P.J., and E.A. Gallagher, J.

        RELEASED AND JOURNALIZED:                    February 6, 2014
ATTORNEY FOR APPELLANT

Joseph V. Pagano
P.O. Box 16869
Rocky River, OH 44116


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Adrienne E. Linnick
          Daniel T. Van
Assistant County Prosecutors
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
MELODY J. STEWART, J.:

       {¶1} Defendant-appellant Lisa Jones entered guilty pleas in two separate cases: in

CR-568908, she pleaded guilty to a second-degree felony count of aggravated arson and

four, fourth-degree felony counts of arson; in CR-568910, she pleaded guilty to one count

of menacing by stalking. The cases arose from Jones’s harassment of, and threats made

to, her ex-boyfriend and setting fire to his house that, in turn, burned four houses that

surrounded it. In this appeal, she complains that the court should have transferred her

cases to the mental health docket; that her guilty pleas were involuntary; that the court

should have merged the arson counts for sentencing; and that the court abused its

discretion by prohibiting her from participating in prison programs that might entitle her

to an early release.

                                             I

       {¶2} Jones first argues that her cases should have been transferred to the court’s

mental health docket in light of an assessment performed by the court psychiatric clinic

that declared that Jones “meets criteria for transfer to the Mental Health Court.”

                                            A

       {¶3} Rule 30.1(A) of the Local Rules of the General Division of the Common

Pleas Court of Cuyahoga County establishes a mental health docket for cases “where the

defendant has a confirmed serious mental illness” — defined in the rule as “within the

previous six months prior to arraignment, there is a clinical diagnosis of a severe mental
illness with a psychotic feature.” In a case where the mental health of the defendant is

not determined until after arraignment, assignment to the mental health docket is

discretionary. See Loc.R. 30.1(C)(2); State v. Ellis, 8th Dist. Cuyahoga No. 98538,

2013-Ohio-1184, ¶ 30.

         {¶4} Jones’s mental health evaluations were performed after her arraignment. A

sanity evaluation concluded that Jones suffered from bipolar disorder at the time of her

offense, but that her mental disease “did not prevent her from knowing the wrongfulness

of the alleged behavior.” A competency evaluation conducted at the same time found

her competent to stand trial and found also that, although Jones was not at that time

presenting with symptoms of psychosis, she was a candidate for transfer to the mental

health docket. During sentencing, defense counsel told the court that Jones had been

placed on medication while in jail and that her condition had been stabilized, giving her

“a very sound grasp of her situation and the problems that she’s experienced.” Defense

counsel also told the court that while he believed Jones was a “prime candidate” for the

mental health docket, the court “has the discretion to do a lot of things.”

         {¶5} Jones never made a formal motion to have her case transferred to the mental

health docket.    And when she did raise that forum as an alternative to the regular

criminal docket, she did so only at the time of sentencing after having entered guilty pleas

as part of a plea bargain. By that point, transfer was admittedly discretionary with the

court.
       {¶6} Nothing in the record shows that the court abused its discretion by not

transferring the case to the mental health docket.         Although Jones’s evaluations

determined that she was a candidate for transfer to the mental health docket, the

evaluation determined also that she was competent to stand trial and her mental health

issues did not prevent her from knowing that her conduct was wrong. Additionally, the

court appeared unconvinced that Jones would benefit from having her case transferred to

the mental health docket, saying that it did not sympathize with “people who don’t take

the medication they’re given * * *.” The court noted that Jones made a “conscious

choice to not follow the doctor’s direction, to drink, to not take your medication.”

Reasonable people might disagree with the court’s decision after considering the mental

health evaluations, but that kind of disagreement does not amount to an abuse of

discretion.

                                             B

       {¶7} Jones next argues that if we find that counsel’s failure to file a formal motion

to have the case transferred to the mental health docket constitutes a waiver of that

request, we should find that counsel was ineffective.

       {¶8} An ineffective assistance of counsel claim will lie only when it has shown

that both (1) the performance of defense counsel was seriously flawed and deficient, and

(2) the result of the defendant’s trial or legal proceeding would have been different had

defense counsel provided proper representation. Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
       {¶9} We have no basis for concluding that defense counsel’s failure to file a

motion to transfer the case to the mental health docket was the direct cause of the court’s

refusal to order the transfer. The psychiatric report was prepared after arraignment, so at

all events a transfer request based on the contents of that report would have been

discretionary with the court. The report showed that Jones’s mental health stabilized

considerably once she began taking her medication. Defense counsel noted the same

thing based on his own interaction with Jones. To the court, this appeared to mean that

Jones could have avoided criminal involvement had she been compliant with her

medication, but that Jones made a “conscious choice” to not take her medication and

instead consume alcohol. Given the court’s statements, we cannot say that it would have

been predisposed to order transfer to the mental health docket had a formal motion for

transfer been filed, so there is no showing that but for defense counsel’s failure to file a

motion, Jones’s case would have been transferred to the mental health docket.

                                             II

       {¶10} We next consider Jones’s argument that her guilty plea was involuntary

because she was not clearly advised of the elements of proof required for aggravated

arson, it being her belief that the structure she set fire to was not an occupied house but

more of a “tool shed.”

       {¶11} “Crim.R. 11(C)(2)(a) requires the court to determine whether a defendant

has an ‘understanding of the nature of the charges,’ but that requirement does not require

the court to inform the accused of the actual elements of the charged offense during the
plea colloquy.”     State v. Woodard, 8th Dist. Cuyahoga Nos. 94672 and 94673,

2011-Ohio-104, ¶ 4. Instead, the court must look to the circumstances of the case to

determine whether the defendant understands the charges to which she is pleading. See

State v. Esner, 8th Dist. Cuyahoga No. 90740, 2008-Ohio-6654, ¶ 3.

       {¶12} Jones pleaded guilty to a single count of aggravated arson in violation of

R.C. 2909.02(A)(2). That section charged that she, by means of fire, knowingly caused

physical harm to an occupied structure. Jones maintains that she did not set fire to an

occupied structure as evidenced in the sentencing transcript where she states that the

victim “had gutted the house * * *. The plumbing was gone, the kitchen was gone and

everything. There was nothing in that house. It was a tool shed.” Jones argues that

these statements show that she could not have understood that she was pleading guilty to

burning down an occupied structure. Jones apparently believes that the term “occupied

structure” means a habitation or where someone currently lives. Such is not necessarily

the case.

       {¶13} As applicable here, R.C. 2909.01(C) defines occupied structure in pertinent

part as any house, building, or other structure that is maintained as a permanent or

temporary dwelling, regardless of whether it is temporarily unoccupied or whether any

person is actually present. Other provisions in the statute reference habitation, overnight

accommodation, and the presence or likely presence of a person. But regardless of how

Jones characterizes the victim’s property, it is clear that the house satisfies the statutory
requirement for aggravated arson. Jones’s argument that she did not understand that she

was pleading guilty to setting an occupied structure on fire is without merit.

       {¶14} Jones also complains that the court misled her about the potential

consequences of her plea by advising her that she “could receive community control for

up to five years.” She maintains that this advisement was misleading because the court

refused to order a presentence investigation report, so community control sanctions were

unavailable as a sanction under authority of R.C. 2951.03(A)(1). (“No person who has

been convicted of or pleaded guilty to a felony shall be placed under a community control

sanction until a written presentence investigation report has been considered by the

court.”)

       {¶15} Crim.R. 11(C)(2)(a) requires the court to inform the defendant of the

“maximum penalty involved, and if applicable, that the defendant is not eligible for

probation or for the imposition of community control sanctions at the sentencing

hearing.” The court has no obligation to inform a defendant that community control is an

available sanction. Jones was apparently eligible for community control, and the court

took Crim.R. 11(C)(2)(a) a step further than it had to by telling Jones that she “could”

receive a community control sanction. Although Jones argues that the court’s statement

was false and misleading because the court had no intention of imposing a community

control sanction because it did not order a presentence investigation report, the

advisement did not amount to any kind of promise that community control would be

imposed. As with other sentencing decisions, community control is discretionary with
the court. The court’s decision to not order a presentence investigation report and, in

turn, not sentence Jones to a community control was a decision within the court’s

discretion and did not involve any of the advisements required under Crim.R. 11(C).

                                            III

       {¶16} Jones pleaded guilty to one count of aggravated arson and four counts of

arson. She argues that these were allied offenses because the fire started with one single

act — she set fire to one house and the fire spread to four adjacent houses.

       {¶17} When a defendant’s conduct results in the commission of two or more

“allied” offenses of similar import, that conduct can be charged separately, but the

defendant can be convicted and sentenced for only one offense.           R.C. 2941.25(A).

Offenses are “allied” and must be merged for sentencing if the defendant’s conduct is

such that a single act could lead to the commission of separately defined offenses, but

those separate offenses were committed with a state of mind to commit only one act. See

State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 48-50.

Merger is a sentencing issue, so the defendant bears that burden of establishing her

entitlement to the protection of the Allied Offenses Statute, R.C. 2941.25. State v.

Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, 999 N.E.2d 661, ¶ 18.

       {¶18} The court did not err by failing to merge the arson counts for sentencing. In

addition to the single count of aggravated arson under R.C. 2909.02(A)(2), Jones pleaded

guilty to four counts of arson in violation of R.C. 2909.03(A)(1). That section states that

no person, by means of fire or explosion, shall knowingly “[c]ause, or create a substantial
risk of, physical harm to any property of another without the other person’s consent[.]”

We have held that when allied offenses are committed against different victims, the

defendant may be sentenced in a multiple manner. State v. Snuffer, 8th Dist. Cuyahoga

Nos. 96480, 96481, 96482, and 96483, 2011-Ohio-6430, ¶ 4, quoting State v. Phillips, 75

Ohio App.3d 785, 790, 600 N.E.2d 825 (2d Dist.1991), citing State v. Jones, 18 Ohio

St.3d 116, 118, 480 N.E.2d 408 (1985); State v. Chaney, 8th Dist. Cuyahoga No. 97872,

2012-Ohio-4933, ¶ 27. In this case, the four arson counts were committed against four

different structures. This case is thus distinguishable from State v. Hedrick, 8th Dist.

Cuyahoga No. 57844, 1990 Ohio App. LEXIS 5647 (Dec. 20, 1990), in which we found

that four counts of aggravated arson relating to the burning of a single house with four

inhabitants must merge for sentencing.

                                              IV

          {¶19} The two remaining assignments of error relate to sentencing issues.

                                              A

          {¶20} The court sentenced Jones to an eight-year term for aggravated arson; 18

months on each of the four arson counts; and 18 months on the menacing by stalking

counts. All of the counts were run consecutively for a total of 15 and one-half years in

prison.     Jones argues that the court did not make the findings necessary to impose

consecutive sentences as required by R.C. 2929.14(C)(4) and that even if it did,

consecutive sentences were disproportionate to her conduct and an abuse of the court’s

sentencing discretion.
                                              1

       {¶21} R.C. 2929.14(C)(4) requires a sentencing judge to make three distinct

findings before imposing consecutive sentences, in addition to whatever findings the

judge makes with respect to the purposes and goals of sentencing. First, the trial court

must find that “consecutive service is necessary to protect the public from future crime or

to punish the offender.” R.C. 2929.14(C)(4). Second, the trial court must find that

“consecutive sentences are not disproportionate to the seriousness of the offender’s

conduct and to the danger the offender poses to the public.” Finally, the trial court must

find that at least one of the following applies:

       (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 postrelease 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.

       {¶22} The best course for a trial judge to follow when imposing consecutive

sentences is to make findings using the exact wording of R.C. 2929.14(C)(4). In cases

too many to mention, sentencing judges appear to state reasons for imposing consecutive

sentences without actually making the R.C. 2929.14(C)(4) findings. We stress yet again

that R.C. 2929.14(C)(4) does not require the court to support its findings with reasons.
State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, ¶ 16. All the court need

do is make the separate and distinct findings required by the statute. Using the wording

of R.C. 2929.14(C)(4) is the preferred method of complying with R.C. 2929.14(C)(4)

because doing so removes all ambiguity. But we do not require literal compliance. Id.

at ¶ 13.

       {¶23} The transcript indicates that the court made separate and distinct findings

when ordering Jones to serve her sentences consecutively. It found that consecutive

sentences were necessary to protect the public and punish Jones. In addition, the court

noted that Jones displayed a pattern in stalking her ex-boyfriend and his family, resulting

in “extreme financial loss and psychological damage.” The court found this damage

affected not only the victim and his family, but an entire neighborhood. Admittedly, the

court did not use the word “disproportionate,” but its intent to make that finding was

inescapable from the context.     We therefore find that the court complied with R.C.

2929.14(C)(4) and made the findings necessary to order that Jones serve her sentences

consecutively.

                                            2

       {¶24} Having found that the court complied with R.C. 2929.14(C)(4) when

ordering Jones to serve her sentences consecutively, we have no authority to review the

court’s decision for an abuse of discretion. R.C. 2953.08(G)(2) expressly states that an

appeals court standard of review “is not whether the sentencing court abused its

discretion.” R.C. 2929.14(C)(4) makes clear that the court has the discretion to order a
defendant to serve sentences consecutively (“the court may require the offender to serve

the prison terms consecutively”), so the court’s exercise of discretion in doing so is

unreviewable — we may only review the legal question of whether the court complied

with its statutory obligation to make certain findings before ordering a defendant to serve

sentences consecutively.    See State v. Thompson, 8th Dist. Cuyahoga No. 99628,

2014-Ohio-202, ¶ 23.

                                            B

       {¶25} After the court sentenced Jones, defense counsel asked the court whether

Jones would be “eligible for participating in programs and so on?” The court replied,

“I’m not gonna’ oppose her participation in any programs if she’d like to take them for

credit.” However, in the sentencing entries entered in both cases, the court stated its

opposition to Jones being placed in any form of early release or transitional control.

Jones complains that these sentencing entries conflict with statements the court made at

sentencing and in any event failed to comply with R.C. 2929.19(D) that requires the court

to state its reasons why it opposes placement.

       {¶26} R.C. 5120.032(A) authorizes the Department of Rehabilitation and

Correction to establish intensive programs that prisons focus on, among other things,

educational achievement, vocational training, substance abuse, and community service.

An eligible prisoner who successfully completes an intensive program may have a prison

sentence reduced by the department. R.C. 2929.19(A)(1)(b). The sentencing court may
disapprove of a prisoner’s participation in an intensive program, but must make “a finding

that gives its reasons for its recommendation or disapproval.” R.C. 2929.19(D).

       {¶27} The state argues that the court did not definitively state at sentencing that it

would not oppose Jones’s participation in any programs that would entitle her to prison

credit. A fair reading of the sentencing transcript tends to show that the court was not

ambivalent about Jones going into the programs, just that it was unsure whether she

qualified for the programs, stating: “I don’t oppose her taking them, but I can’t control

— I don’t know for certain * * * what’s eligible or not with an F-2.”

       {¶28} In any event, we do agree with the state that regardless of any ambiguity at

sentencing, the court did not state any reasons for opposing Jones’s participation in

intensive programs as required by R.C. 2929.19(D). There being no other indication that

Jones had been rendered ineligible under R.C. 5120.032(B)(2), we sustain this assignment

of error and remand with instructions for the trial court to reconcile any ambiguity

between its statements and the journal entry, and for the court to make the required

finding that gives reasons for disapproving Jones’s participation in any early release or

transitional control programs if the court so opposes.

       {¶29} This cause is affirmed in part, reversed in part, and remanded to the trial

court for proceedings consistent with this opinion.

       It is ordered that appellant and appellee share the 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 Cuyahoga

County Court of Common Pleas 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.




MELODY J. STEWART, JUDGE

LARRY A. JONES, SR., P.J., and
EILEEN A. GALLAGHER, J., CONCUR
