[Cite as State v. Midlam, 2012-Ohio-6299.]


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

STATE OF OHIO,                 :
                               :
     Plaintiff-Appellee,       : Case No. 12CA2
                               :
     vs.                       :     RELEASED 12/28/12
                               :
COLE MIDLAM,                   : DECISION AND JUDGMENT
                               : ENTRY
    Defendant-Appellant.       :
__________________________________________________________________
                          APPEARANCES:

Carol Ann Curren, and Conrad A. Curren, Greenfield, Ohio, for Appellant.

Anneka P. Collins, Highland County Prosecutor, Hillsboro, Ohio, for Appellee.
__________________________________________________________________

McFarland, J.:

        {¶1} This is an appeal from a Highland County Court of Common Pleas

judgment entry sentencing Appellant, Cole Midlam, to a five year prison term for

aggravated robbery, which was ordered to be served consecutively to prison terms

Appellant was already serving for other convictions. On appeal, Appellant raises a

single assignment of error, contending that the trial court erred to his detriment

when the sentence was ordered to be served consecutive to sentences for the same

crime in other jurisdictions. However, in light of our determination that the

sentence imposed by the trial court was not contrary to law and was not an abuse
Highland App. No. 12CA2                                                                2


of discretion, we reject Appellant’s sole assignment of error. Accordingly, the

decision of the trial court is affirmed.

                                           FACTS

      {¶2} Appellant was indicted for aggravated robbery, a first degree felony, of

a Rite-Aid drug store in Hillsboro, Ohio, that occurred on May 16, 2010. This

aggravated robbery was one of several aggravated robberies that Appellant

committed throughout various Ohio counties, including Montgomery and Greene

counties, and also in the state of Indiana, in order to support his addiction to

Oxycontin.

      {¶3} The record reveals that Appellant pled guilty to the aggravated

robberies in the other jurisdictions and was sentenced to ten year concurrent terms

of imprisonment on each of those convictions. After pleading guilty to the

aggravated robberies in the other jurisdictions, Appellant eventually pled guilty to

the aggravated robbery of the Hillsboro Rite-Aid as well, in exchange for the

dismissal of the gun specification. As a result, Appellant was sentenced on

February 3, 2012. The trial court sentenced Appellant to a five year prison term, to

be served consecutively to the ten year sentences he was already concurrently

serving on his other aggravated robbery convictions. It is from this conviction and

sentence that Appellant now brings his timely appeal, setting forth a single

assignment of error for our review.
Highland App. No. 12CA2                                                                   3


                            ASSIGNMENT OF ERROR

“I.   THE TRIAL COURT ERRED TO THE DETRIMENT OF THE
      DEFENDANT WHEN THE SENTENCE WAS ORDERED
      CONSECUTIVE TO SENTENCES FOR THE SAME CRIME IN OTHER
      JURISDICTIONS.”

                                 LEGAL ANALYSIS

      {¶4} In his first assignment of error, Appellant contends that the trial court

erred to his prejudice when the sentence imposed was ordered to be served

consecutively to sentences imposed for the same crime in other jurisdictions.

Specifically, Appellant argues that the trial court erroneously stated that the

offense was part of an organized criminal activity, and that the trial court failed to

make the necessary findings before imposing consecutive sentences, as required

under the recently enacted H.B. No. 86, as codified in R.C. 2929.14(C)(4), which

became effective September 30, 2011. The State responds by arguing that the trial

court properly considered the required statutory sentencing factors when it

imposed a five year consecutive sentence that was not otherwise contrary to law.

      {¶5} This Court has been employing a two-step approach to review 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 shall be reviewed under an abuse-of-discretion standard.”

State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 4.
Highland App. No. 12CA2                                                                  4


      {¶6} We have previously reasoned that, in analyzing whether a sentence is

contrary to law, “ ‘[t]he only specific guideline is that the sentence must be within

the statutory range [.]’ ” State v. Hines, 4th Dist. No. 09CA36, 2010-Ohio-2749, ¶

7; quoting State v. Ross, 4th Dist. No. 08CA872, 2009-Ohio-877, ¶ 10. Accord

State v. Slagle, 4th Dist. Nos. 10CA4 & 10CA5, 2011-Ohio-1463, ¶ 9, overruled in

part on other grounds; State v. Pierce, 4th Dist. No. 10CA10, 2011-Ohio-5353, ¶

10, FN. 2. Additionally, courts must consider the general guidance factors set forth

in R.C. 2929.11 and 2929.12. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856,

845 N.E.2d 470, ¶ 42; Kalish at ¶ 13.

      {¶7} However, as set forth above, the General Assembly recently enacted

H.B. 86, effective September 30, 2011, which amends R.C. 2929.14 and requires

fact finding for consecutive sentences. State v. Anderson, 4th Dist. No. 10CA4,

2012-Ohio-3245, ¶41; State v. Terrell, 4th Dist. No. 10CA39, 2012-Ohio-1926, ¶

12. We find that this amendment applies to Appellant, who was sentenced on

February 3, 2012, after the effective date of H.B. 86.

      {¶8} Here, Appellant does not argue that his five year sentence was outside

of the statutory range. Instead, he argues that the trial court erred in ordering that

the sentence be served consecutively to other sentences he was serving for similar

offenses committed in other jurisdictions. It appears that this question is one of

first impression in our district, to the extent that it involves analysis and application
Highland App. No. 12CA2                                                              5


of the recently enacted H.B. 86. Thus, we look to other districts within our state

for guidance, and in an effort to maintain consistency.

      {¶9} The First District has noted that as a result of H.B. 86’s recent

enactment, we now have another consideration when determining whether

consecutive sentences imposed by a trial court are contrary to law. State v.

Alexander, 1st Dist. Nos. C-110828, C-110829, 2012-Ohio-3349, ¶ 13. For

example, in Alexander, the court reasoned as follows at ¶ 13-14:

      The General Assembly has “revived the requirement that trial courts

      make findings before imposing consecutive sentences in R.C.

      2929.14(C).” State v. Jones, 1st Dist. No. C-110603, 2012-Ohio-2075,

      ¶ 17; see also State v. Hites, 3rd Dist. No. 6-11-07, 2012-Ohio-1892, ¶

      11; State v. Bonner, 8th Dist. No. 97747, 2012-Ohio-2931, ¶ 5 (“The

      revisions * * * now require a trial court to make specific findings

      when imposing consecutive sentences.”); State v. Sullivan, 10th Dist.

      No. 11AP-414, 2012-Ohio-2737, ¶ 24. Our determination of whether

      a trial court has adhered to the applicable requirements of R.C.

      2929.14(C)(4) in imposing consecutive sentences is also subject to

      review under the first prong of Kalish and under R.C. 2953.08(G)(2).

      See Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, at ¶

      14.
Highland App. No. 12CA2                                                             6


      H.B. No 86 amended subsection (E)(4) of R.C. 2929.14 [now subsection

(C)(4) ], effective September 30, 2011, which is applicable herein, and states as

follows:

      (C)(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
Highland App. No. 12CA2                                                                7


      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.

Thus, as explained by the Alexander court at ¶ 15, “R.C. 2929.14(C)(4) now

requires that a trial court engage in a three-step analysis in order to impose

consecutive sentences.” Further, “[i]n each step of this analysis, the statutory

language directs that the trial court must ‘find’ the relevant sentencing factors

before imposing consecutive sentences. R.C. 2929 .14(C)(4)” Alexander at ¶ 16.

      {¶10} In Alexander, the court noted with approval the trial court’s use of a

“sentencing-findings worksheet,” to ensure that it had adhered to the sentencing

requirements, and also to ensure meaningful review of the trial court’s sentencing

decisions.” Id. at ¶ 17. Here, the trial court used a sentencing worksheet, much

like in Alexander. A review of the trial court’s judgment entry indicates that it

made the necessary findings under R.C. 2929.14(C)(4) for imposition of

consecutive sentences. Specifically, the trial court found that consecutive

sentences were 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 * * *.” The trial court further found that “[a]t least two
Highland App. No. 12CA2                                                                   8


of the multiple offenses were committed as part of one or more courses of conduct

* * *[,]” and that “[t]he offender’s history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime by the

offender.”

      {¶11} Appellant claims that the record does not support these findings, and

further, that the trial court was required to state reasons in support of its findings.

Based upon the following reasoning of the Eighth District, we disagree.

      Under prior case law, construing the pre- Foster version of R.C.

      2929.14(C), and R.C. 2929.19(B), the trial court was also required to

      “make a finding that gives its reasons for selecting a consecutive

      sentence.” See State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165,

      793 N.E.2d 473. The present version of R.C. 2929.14(C) simply

      requires findings from the court but does not include the requirement

      that the court state on the record the findings that give reasons for the

      sentence. Compare current versions of R.C. 2929.14(C)(4) with the

      current version of R.C. 2929 .14(B)(2)(e) and the current version of

      R.C. 2929.19. State v. Parrish, 8th Dist. No. 97482, 2012-Ohio-3153,

      FN. 1

   {¶12} Further, a review of the record reveals that as a result of Appellant’s drug

addiction he committed a string of armed robberies of several different pharmacies
Highland App. No. 12CA2                                                                  9


throughout Ohio and into Indiana. At the time Appellant was sentenced herein, he

had already been convicted in those other jurisdictions and was already serving

concurrent prison terms imposed in those other jurisdictions. Thus, the trial court’s

findings regarding the multiple offenses being part of a course of conduct that

caused great and unusual harm are supported by the record. Further, the trial

court’s finding that the offender’s criminal history demonstrated the need for

consecutive sentences also finds support in the record in that at the time Appellant

was sentenced herein, he already had multiple other, albeit related, convictions and

was serving time in prison. As such, we reject Appellant’s argument that the trial

court failed to make the findings necessary under recently revised R.C.

2929.14(C)(4), or that those findings are not supported by the record.

Accordingly, we cannot conclude that the consecutive sentence imposed by the

trial court was contrary to law.

      {¶13} In addition to these arguments, however, Appellant also contends that

the trial court’s finding that “the offender committed the offense for hire or as part

of an organized criminal activity” was in error. This finding was made by the trial

court as part of its consideration of R.C. 2929.11 and 2929.12, which simply must

be considered during the sentencing process. State v. Alexander at ¶24. “Unlike

R.C. 2929.14(C), [these statutes] do not require the trial court to ‘use specific

language or make specific findings on the record in order to evince the requisite
Highland App. No. 12CA2                                                                  10


consideration of the applicable seriousness and recidivism factors.” Id. (internal

citations omitted). Thus, the trial court was not required to set forth or even

address the specific factors it found applicable sub judice. However, we find that

the trial court’s finding that Appellant committed the offense as part of an

organized criminal activity does have some support in the record.

      {¶14} During the sentencing hearing, the trial court stated that it found

“pursuant to Section 2929.12(B) that factors indicating offenders conduct is more

serious than conduct normally constituting the offense is that, uh, Defendant

committed this apparently as part of a crime spree, or uh, organized criminal

activity in the sense that he was committing a repeated number of offenses in a

short period of time.” “A trial court is not limited to the specific factors listed in

R.C. 2929.12, as the statute itself allows the trial court to consider ‘any other

factors that are relevant to achieving the purposes and principles of sentencing.’ ”

State v. Irwin, 7th Dist. No. 11CO7, 2012-Ohio-2720, ¶ 11; citing R.C. 2929.12(A).

Admittedly, the trial court’s finding in this regard may have been more

appropriately labeled as “any other relevant factor” rather than as “part of an

organized criminal activity;” however, we find that the trial court explained its

findings in detail during the sentencing hearing and that these findings are

supported by the record.
Highland App. No. 12CA2                                                             11


      {¶15} Here, we find the trial court’s decision to order Appellant’s five year

sentence for aggravated robbery to be served consecutively to sentences already

imposed by other jurisdictions for additional aggravated robberies, all committed

as part of the same crime spree, was not contrary to law. Accordingly, we find no

abuse of discretion on the part of the trial court and therefore we overrule

Appellant’s sole assignment of error. As Such, the decision of the trial court is

affirmed.

                                              JUDGMENT AFFIRMED.

Kline, J., concurring.

      {¶16} I respectfully concur in judgment only. Here, I agree that the trial

court complied with R.C. 2929.14(C)(4). I also agree that Midlam’s sentence is

not contrary to law. However, unlike the principal opinion, I would review

Midlam’s sentence under both prongs of the Kalish test.

      {¶17} R.C. 2929.14(C)(4) states that a trial court “may require the offender

to serve the prison terms consecutively if the court [makes the necessary

findings].” (Emphasis added.) “The use of the word ‘may’ indicates a court has

discretion to take a given action.” Wells Fargo Bank v. Rajaie, 5th Dist. No. 09-

CAE-03-0027, 2010-Ohio-2546, ¶ 6; see also Dorrian v. Scioto Conservancy Dist.,

27 Ohio St.2d 102, 271 N.E.2d 834 (1971), paragraph one of the syllabus.

Therefore, even though the trial court made the necessary findings under R.C.
Highland App. No. 12CA2                                                                 12


2929.14(C)(4), the court still had the discretion to impose a concurrent prison term

upon Midlam. The principal opinion, however, does not account for this

discretion. Instead, the principal opinion finds no abuse of discretion simply

because the trial court complied with R.C. 2929.14(C)(4). In other words, the

principal opinion makes both of the Kalish findings while analyzing just one prong

of the Kalish test. I cannot agree with this approach.

      {¶18} In conclusion, I agree that the trial court did not abuse its discretion.

But I would make this finding under the second prong of the Kalish test. As a

result, I respectfully concur in judgment only.
Highland App. No. 12CA2                                                               13


                               JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee
recover of 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
Highland 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.

Abele, P.J.: Concurs in Judgment Only.
Kline, J.: Concurs in Judgment Only with Opinion.

                           For the Court,

                           BY: _________________________
                               Matthew W. McFarland, 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.
