[Cite as State v. Umphlettee, 2011-Ohio-1322.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                    :      JUDGES:
                                                 :      Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                       :      Hon. Sheila G. Farmer, J.
                                                 :      Hon. Patricia A. Delaney, J.
-vs-                                             :
                                                 :
RYAN UMPHLETTEE                                  :      Case No. 10-CA-89
                                                 :
        Defendant-Appellant                      :      OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common Pleas,
                                                     Case No. 09CR56



JUDGMENT:                                            Affirmed




DATE OF JUDGMENT ENTRY:                              March 18, 2011




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

BRIAN T. WALTZ                                       ROBERT D. ESSEX
20 South Second Street                               1654 East Broad Street
4th Floor                                            Suite 302
Newark, OH 43055                                     Columbus, OH 43203
Licking County, Case No. 10-CA-89                                                     2

Farmer, J.

      {¶1}   On February 6, 2009, the Licking County Grand Jury indicted appellant,

Ryan Umphlettee, on three counts of trafficking in marijuana in violation of R.C.

2925.03, and one count of possession of marijuana with forfeiture specifications in

violation of R.C. 2925.11. On September 4, 2009, appellant pled guilty as charged. By

judgment entry filed September 8, 2009, the trial court sentenced appellant to three

years of community control.

      {¶2}   On January 21, 2010, a motion was filed to revoke appellant's community

control. By judgment entry filed February 16, 2010, the trial court extended appellant's

community control by two years.

      {¶3}   On June 10, 2010, a second motion was filed to revoke appellant's

community control. A hearing was held on July 12, 2010. By judgment entry filed same

date, the trial court revoked appellant's community control, and sentenced appellant to

an aggregate term of three and one-half years in prison as set forth in the original

sentencing entry.

      {¶4}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                            I

      {¶5}   "IN LIGHT OF OREGON V. ICE, THE TRIAL COURT ERRED IN FAILING

TO MAKE THE REQUIRED FINDINGS UNDER O.R.C. 2929.14(E)(4) TO JUSTIFY

CONSECUTIVE SENTENCES."
Licking County, Case No. 10-CA-89                                                       3


                                            I

      {¶6}   Appellant claims the imposition of consecutive sentences was contrary to

law. We disagree.

      {¶7}   Appellant argues the trial court "was still required to make findings under

2929.14(E)(4) prior to the imposition of consecutive sentences in this matter."

Appellant's Brief at 8. In support of his arguments, appellant cites the case of Oregon v.

Ice (2009), 555 U.S. 160, wherein the United States Supreme Court "upheld the

constitutional validity of an Oregon statute similar to Ohio's pre-Foster sentencing

statutes that requires Oregon's trial judges to make factual findings prior to imposing

consecutive sentences." State v. Hodge, ___ Ohio St.3d ___, 2010-Ohio-6320, ¶3.

      {¶8}   In the recently decided Hodge case, the Supreme Court of Ohio

thoroughly analyzed the Ice decision vis-à-vis its decision in State v. Foster, 109 Ohio

St.3d 1, 2006-Ohio-856, and concluded the following at ¶39-40:

      {¶9}   "For all the foregoing reasons, we hold that the decision of the United

States Supreme Court in Oregon v. Ice does not revive Ohio's former consecutive-

sentencing statutory provisions, R.C. 2929.14(E)(4) and 2929.41(A), which were held

unconstitutional in State v. Foster. Because the statutory provisions are not revived,

trial court judges are not obligated to engage in judicial fact-finding prior to imposing

consecutive sentences unless the General Assembly enacts new legislation requiring

that findings be made.

      {¶10} "The trial court in this case did not err in imposing consecutive sentences

without applying R.C. 2929.14(E)(4) and 2929.41(A), and defendants such as Hodge

who were sentenced without application of the statutes are not entitled to resentencing."
Licking County, Case No. 10-CA-89                                                       4


       {¶11} In the case sub judice, the trial court sentenced appellant to six months

each on the trafficking in marijuana convictions in the fifth and fourth degrees and two

years on the possession of marijuana conviction in the third degree, to be served

consecutively for a total of three and one-half years. Pursuant to R.C. 2929.14(A)(3),

felonies of the third degree are punishable by "one, two, three, four, or five years."

Felonies of the fourth degree are punishable by "six, seven, eight, nine, ten, eleven,

twelve, thirteen, fourteen, fifteen, sixteen, seventeen, or eighteen months" and felonies

of the fifth degree are punishable by "six, seven, eight, nine, ten, eleven, or twelve

months." R.C. 2929.14(A)(4) and (5).

       {¶12} The sentences herein are within the statutory sentencing range, and the

trial court did not abuse its discretion in ordering them to be served consecutively. See,

State v. Mooney, Stark App. No.2005CA00304, 2006-Ohio-6014; State v. Firouzmandi,

Licking App. No 2006-CA-41, 2006-Ohio-5823; Blakemore v. Blakemore (1983) 5 Ohio

St.3d 217.

       {¶13} Upon review, we find the imposition of consecutive sentences was not

contrary to law.

       {¶14} The sole assignment of error is denied.
Licking County, Case No. 10-CA-89                                             5


      {¶15} The judgment of the Court of Common Pleas of Licking County, Ohio is

hereby affirmed.

By Farmer, J.

Hoffman, P.J. and

Delaney, J. concur.




                                       _s/ Sheila G. Farmer__________________




                                       _s/ William B. Hoffman________________




                                       _s/ Patricia A. Delaney________________


                                                       JUDGES

SGF/sg 228
Licking County, Case No. 10-CA-89                                                6


             IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT



STATE OF OHIO                            :
                                         :
       Plaintiff-Appellee                :
                                         :
-vs-                                     :         JUDGMENT ENTRY
                                         :
RYAN UMPHLETTEE                          :
                                         :
       Defendant-Appellant               :         CASE NO. 10-CA-89




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Licking County, Ohio is affirmed. Costs to

appellant.




                                         _s/ Sheila G. Farmer__________________




                                         _s/ William B. Hoffman________________




                                         _s/ Patricia A. Delaney________________


                                                         JUDGES
