       [Cite as State v. Ramsey, 2011-Ohio-2640.]




                         STATE OF OHIO, COLUMBIANA COUNTY

                                 IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT


STATE OF OHIO,                                      )
                                                    )      CASE NO.      10 CO 29
       PLAINTIFF-APPELLEE,                          )
                                                    )
       - VS -                                       )      OPINION
                                                    )
RICHARD RAMSEY, JR.,                                )
                                                    )
       DEFENDANT-APPELLANT.                         )


CHARACTER OF PROCEEDINGS:                               Criminal Appeal from Common Pleas
                                                        Court, Case No. 05CR202.

JUDGMENT:                                               Affirmed.

APPEARANCES:
For Plaintiff-Appellee:                                 Attorney Robert Herron
                                                        Prosecuting Attorney
                                                        Attorney Timothy McNicol
                                                        Assistant Prosecuting Attorney
                                                        105 South Market Street
                                                        Lisbon, Ohio 44432

For Defendant-Appellant:                                Richard Ramsey, Jr., Pro se
                                                        #502-944
                                                        Allen Correctional Institution
                                                        P.O. Box 4501
                                                        Lima, Ohio 45802
JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Cheryl L. Waite


                                                        Dated: May 25, 2011
VUKOVICH, J.


       ¶{1}   Defendant-appellant Richard Ramsey Jr. appeals the decision of the
Columbiana County Common Pleas Court, which denied his motion for relief from
judgment.     Appellant argues that since Foster excised R.C. 2929.14(E)(4), the
imposition of consecutive sentences in his case was impermissible under R.C.
5145.01. For the following reasons, the judgment of the trial court is affirmed.
                               STATEMENT OF THE CASE
       ¶{2}   Appellant was indicted for the rape of a child under thirteen resulting
from his conduct with his daughter sometime in 2003 or 2004. He was also indicted
for sexual battery for a later incident of sexual conduct with this same daughter. On
January 30, 2006, appellant pled guilty to an amended charge of gross sexual
imposition and to sexual battery, both third-degree felonies. His sentencing hearing
was held on March 24, 2006, less than a month after the Ohio Supreme Court’s
decision in Foster. He was sentenced to three years for gross sexual imposition and
four years for sexual battery. The court ordered the sentences to run consecutively.
       ¶{3}   Appellant filed an untimely appeal, which this court accepted as a
delayed appeal in February of 2007. In that appeal, appellant argued that he should
not have received more than the minimum sentence, and he complained about the
lack of findings. State v. Ramsey, 7th Dist. No. 06CO9, 2008-Ohio-1040, ¶4. We held
that because appellant was sentenced after Foster, the court had full discretion to
sentence appellant within the statutory range without making findings under R.C.
2929.14, noting that appellant could have received five years on each count to run
consecutively. Id. at ¶1, 4.
       ¶{4}   On August 13, 2010, appellant filed a motion for relief from judgment of
sentence, citing Crim.R. 57 and Civ.R. 60(B)(5). He urged that R.C. 5145.01 requires
concurrent sentences unless a consecutive sentencing provision of R.C. 2929.14
specifies that consecutive sentences are permissible in a given case.              He then
concluded that once Foster excised R.C. 2929.14(E)(4), the court’s authority to impose
consecutive sentences ended in this case.
       ¶{5}     On August 16, 2010, the trial court denied appellant’s motion, stating that
it had no authority under Crim.R. 57 or Civ.R. 60(B)(5) to revisit appellant’s sentence.
Appellant filed a timely notice of appeal.
                        ASSIGNMENT OF ERROR NUMBER TWO
       ¶{6}     Appellant sets forth four assignments of error on appeal, three of which
are essentially dependent upon the second assignment of error, which alleges:
       ¶{7}     “THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO FIND
APPELLANT’S SENTENCE WAS CONTRARY TO LAW.”
       ¶{8}     Chapter 5145 of the Ohio Revised Code deals with state correctional
institutions.   R.C. 5145.01 provides: “If a prisoner is sentenced for two or more
separate felonies, the prisoner's term of imprisonment shall run as a concurrent
sentence, except if the consecutive sentence provisions of sections 2929.14 and
2929.41 of the Revised Code apply.”
       ¶{9}     Prior to Foster, most consecutive sentences were imposed by a court
pursuant to R.C. 2929.14(E)(4), which provided certain findings the court had to make
in order to impose consecutive sentences.               However, Foster excised R.C.
2929.14(E)(4) and held that judicial fact-finding is no longer required in order to
impose consecutive sentences. See State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-
856, ¶99.
       ¶{10} Appellant argues that because R.C. 2929.14(E)(4) is excised and no
other portion of the statute is relevant to his case, R.C. 5145.01 requires his sentences
to run concurrently. Initially, it must be pointed out that R.C. 5145.01 also refers to
R.C. 2929.41. Prior to Foster, R.C. 2929.41(A) provided:
       ¶{11} “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.”
       ¶{12} When Foster excised R.C. 2929.14(E)(4), it also expressly excised R.C.
2929.41(A).      Foster, 109 Ohio St.3d 1 at ¶99.        This deleted the instruction to
sentencing courts that there is a statutory presumption in favor of concurrent
sentences. Unlike R.C. 2929.14(E)(4) and R.C. 2929.41(A), R.C. 5145.01 does not
instruct sentencing courts; rather, it involves state correctional institutions.
       ¶{13} In Bates, the Ohio Supreme Court recognized that Foster altered the
statutory presumption that sentences are to be served concurrently. State v. Bates,
118 Ohio St.3d 174, 2008-Ohio-1983, ¶8. Specifically, the Bates Court stated that
excision of former R.C. 2929.14(E)(4) and former R.C. 2929.41(A) in their entirety by
Foster left no statute to establish presumptions for concurrent and consecutive
sentencing or to limit trial court discretion beyond the basic provisions in R.C. 2929.11
and R.C. 2929.12. Id. at ¶18. The Court thus reinstated the common law on the topic
so that the sentencing court has discretion and inherent authority to determine whether
a prison sentence within the statutory range shall run concurrently or consecutively. Id.
at ¶18-19.
       ¶{14} Appellant relies on a footnote in Bates, which noted that R.C. 5145.01
provides a presumption of concurrent sentences unless the consecutive sentence
provisions of R.C. 2929.14 and R.C. 2929.41 apply. Id. at fn.2. The Court stated that
the effect of the severance of R.C. 2929.14(E)(4) and R.C. 2929.41(A) on R.C.
5145.01 was an issue that was not raised. The Court thus declined to address the
issue. Appellant believes that this is an indication that the Court would find R.C.
5145.01 to require concurrent sentences where no provision of R.C. 2929.14 or R.C.
2929.41 allows for them. However, as aforementioned, the Bates Court specifically
stated that the excision of those provisions leaves no statute to establish presumptions
for concurrent and consecutive sentencing. Id. at ¶18.
       ¶{15} Moreover, the Court subsequently restated that after Foster, consecutive
sentencing is within the court’s sound inherent discretion. See, e.g., State v. Elmore,
122 Ohio St.3d 472, 2009-Ohio-3478, ¶33. The Court even more recently reiterated
that after Foster’s act of excision, there remained no specific statute limiting the court’s
ability to impose consecutive sentences, thus reinstating the common law sentencing
presumptions including the court’s choice of concurrent or consecutive sentencing.
State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, ¶12-13.
       ¶{16} Notably, a local federal district court has characterized appellant’s
reading of Bates as laughable at best and sanctionable at worst. Shie v. Smith (Feb.
13, 2009), N.D. Ohio No. 1:08 CV 194. That court declared:
       ¶{17} “It is hard to imagine, after making these unambiguous proclamations
with full knowledge of the existence of §5145.01, that the Ohio Supreme Court would
now find that a statute that addresses the governance of state prisons trumps the Ohio
sentencing statutes, creates a liberty interest in concurrent sentences and forms a
basis for overturning, in less than three years, its decisions in Foster and Bates.” Id.
       ¶{18} Four Ohio Appellate Districts that have addressed arguments akin to
appellant’s have agreed that R.C. 5145.01 does not impose a concurrent sentencing
requirement on sentencing courts after Foster’s excision of R.C. 2929.14(E)(4). See
State v. Johnson, 8th Dist. No. 93004, 2010-Ohio-2214, fn.3; State v. McGee, 8th Dist.
No. 92019, 2010-Ohio-2081, ¶41-45; State v. Hoelzer, 6th Dist. No. L-08-1037, 2009-
Ohio-6337, ¶8-9; State v. Paugh, 12th Dist. No. CA2008-11-144, 2009-Ohio-4682, ¶5-
9; State v. Smith, 5th Dist. No. 08CA42, 08CA43, 2009-Ohio-1684, ¶55, 58; State v.
Castle, 6th Dist. No. OT-08-029, 2008-Ohio-6388, ¶2; State v. Shie, 8th Dist. No.
88677, 2007-Ohio-3773, ¶11.
       ¶{19} The trend in the appellate districts and the plain statements of law in
Bates and Elmore do not support appellant’s argument here. This assignment of error
is overruled.
         ASSIGNMENTS OF ERROR NUMBERS ONE, THREE, AND FOUR
       ¶{20} Appellant’s first, third, and fourth assignments of error provide:
       ¶{21} “THE TRIAL COURT ABUSED ITS DISCRETION IN OVERRULING
APPELLANT’S MOTION FOR RELIEF FROM JUDGMENT BY HOLDING IT HAD NO
AUTHORITY TO ENTERTAIN IT.”
       ¶{22} “THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO
CORRECT SENTENCE IMPOSED CONTRARY TO STATUTORY LAW WHEN IT
WAS OBLIGATED TO DO SO WHEN PRESENTED WITH THE CLAIM.”
       ¶{23} “THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO
GRANT AN EVIDENTIARY HEARING ON THE 60(B) MOTION.”
       ¶{24} Appellant argues that both Crim.R. 57(B) and Civ.R. 60(B)(5) were
proper vehicles for his argument about R.C. 5145.01 and thus the trial court erred by
failing to hold an evidentiary hearing and by suggesting that it had no authority to act
under these rules. He alternatively states that it was irrelevant what title he gave his
motion as the court can correct a sentence entered contrary to a statute upon request
by a defendant.
       ¶{25} Crim.R. 57(B) provides: “If no procedure is specifically prescribed by
rule, the court may proceed in any lawful manner not inconsistent with these rules of
criminal procedure, and shall look to the rules of civil procedure and to the applicable
law if no rule of criminal procedure exists.” Civ.R. 60(B)(5) provides that upon motion,
made within a reasonable time, and upon terms that are just, a court can relieve a
party from a final judgment for any reason justifying relief from the judgment.
       ¶{26} Even if Civ.R. 60 (B) applies, appellant’s motion was not filed within a
reasonable time under Civ.R. 60(B). He was sentenced in March of 2006 but did not
file this motion regarding the effect of Foster, a case released in February of 2006,
until August of 2010. If appellant is attempting to state that he was unaware of the full
scope of the issue until the footnote in the Supreme Court’s Bates decision, that case
was released in 2008.
       ¶{27} In any event, Civ.R. 60(B) should not be used as a substitute for an
appeal or to raise mistakes allegedly committed by the trial court. Mitchell v. Haynes,
7th Dist. No. 05MA78, 2006-Ohio-4607, ¶20, citing Doe v. Trumbull Cty. Children
Services Bd. (1986), 28 Ohio St.3d 128, 131. The issue presented in appellant’s
motion could have been raised in his direct appeal. Thus, it cannot be raised now.
See State v. Shie, 8th Dist. No. 83632, 2009-Ohio-5828, ¶7 (argument on R.C.
5145.01 in motion to vacate sentence is barred by res judicata).
       ¶{28} Regardless of all of this, a movant must demonstrate a meritorious claim
or defense. GTE Automatic Elec., Inc. v. Arc Industries, Inc. (1976), 47 Ohio St.2d
146.   Hence, appellants’ arguments here are moot as they are dependent on his
substantive argument set forth in assignment of error number two, which was disposed
of above. That is, since we found his second assignment of error concerning R.C.
5145.01 to lack merit, he has not set forth a meritorious claim regarding his sentence
(thus disposing of his first assignment of error) and he has not otherwise demonstrated
that his sentence is contrary to law (thus disposing of his third assignment).
       ¶{29} As for his fourth assignment of error, there are no facts in dispute here.
The issue is a legal one. As such, there was no need for an evidentiary hearing on his
motion. Benesch, Friedlander, Coplan, & Arnoff v. City Concrete, LLC, 7th Dist. No.
06 MA 95, 2007-Ohio-3331, ¶18-20, citing WFMJ TV, Inc. v. AT&T Fed. Systems, 7th
Dist. No. 01 CA69, 2002-Ohio-3013, ¶6. These assignments of error are overruled.
       ¶{30} For the foregoing reasons, the judgment of the trial court is hereby
affirmed.

Donofrio, J., concurs.
Waite, P.J., concurs.
