[Cite as State v. Thomas, 2014-Ohio-1120.]




        IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                            :

        Plaintiff-Appellee                               : C.A. CASE NO. 25331 and 25332

v.                                                       : T.C. NO.    11CR2231 and 11CR4305

MICHAEL A. THOMAS                                        :     (Criminal appeal from
                                                                Common Pleas Court)
        Defendant-Appellant                   :

                                                         :

                                             ..........

                                             OPINION

                         Rendered on the          21st        day of       March       , 2014.

                                             ..........

MATTHEW T. CRAWFORD, Atty. Reg. No. 0089205, Assistant Prosecuting Attorney, 301
W. Third Street, 5th Floor, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

CHARLES W. MORRISON, Atty. Reg. No. 0084368, 1105 Wilmington Avenue, Dayton,
Ohio 45420
      Attorney for Defendant-Appellant

                                             ..........

DONOVAN, J.

        {¶ 1}    Defendant-appellant Michael A. Thomas appeals his conviction and

sentence for one count of aggravated possession of drugs, and one count of possession of
                                                                                            2

heroin.     Thomas filed a motion for delayed appeal with this Court. For good cause, we

granted the delayed appeal.

          {¶ 2}   On January 19, 2012, Thomas was indicted in Case No. 2011-CR-2231 for

one count of aggravated possession of drugs. . Shortly thereafter, Thomas was indicted in a

separate case, Case No. 2011-CR-4305, for one count of possession of heroin and one count

of possession of cocaine. At his arraignment in Case No. 2011-CR-2231, Thomas stood

mute, and the trial court entered a plea of not guilty on his behalf. A not guilty plea was

also entered on Thomas’ behalf at his arraignment in Case No. 2011-CR-4305.

          {¶ 3}   On February 23, 2012, Thomas plead guilty to one count of aggravated

possession of drugs in Case No. 2011-CR-2231 and one count of possession of heroin in

Case No. 2011-CR-4305. As part of a negotiated plea deal, the State dropped the count of

possession of cocaine in Case No. 2011-CR-4305 and agreed to remain silent at sentencing.

          {¶ 4}   At his sentencing hearing, Thomas made an oral motion to withdraw his

guilty pleas and have new counsel appointed to represent him. The trial court proceeded

with sentencing on the two counts and announced that new counsel would be appointed to

assist Thomas on his motion to withdraw his guilty pleas. The trial court sentenced Thomas

to eleven months for aggravated possession of drugs in Case No. 2011-CR-2231 and

seventeen months for possession of heroin in Case No. 2011-CR-4305. The trial court

ordered that the sentences run consecutively.

          {¶ 5}   On May 18, 2012, the trial court held an evidentiary hearing on Thomas’

motion to withdraw his guilty pleas. At the close of evidence, the trial court overruled

Thomas’ motion from the bench and journalized it.
                                                                                               3

       {¶ 6}    It is from this judgment that Thomas now appeals.1

       {¶ 7}    Because they are interrelated, Thomas’s first and second assignments of

error will be discussed together as follows:

       “APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL,

BECAUSE COUNSEL SHOULD HAVE REQUESTED A HEARING DEVICE FOR HIS

HEARING-IMPAIRED CLIENT AT HIS PLEA HEARING.”

       “THE TRIAL COURT ERRED IN FAILING TO HOLD AN EVIDENTIARY

HEARING        TO   DETERMINE         THE      EXTENT      OF    APPELLANT’S         HEARING

IMPAIRMENT AFTER BEING PLACED ON NOTICE OF HIS IMPAIRMENT.”

       {¶ 8}    In his first assignment of error, Thomas contends that his trial counsel was

ineffective for failing to request that a hearing device be supplied to him by the trial court at

his plea hearing. Thomas asserts that he was prejudiced in this regard because, but for his

counsel’s alleged deficient performance, he would not have entered the guilty pleas. Thus,

Thomas argues that he was denied his right to effective assistance of counsel, and his

convictions should therefore, be reversed. In his second assignment, Thomas argues that

the trial court erred when it failed to hold an evidentiary hearing once it became aware of his

hearing difficulties at beginning of the hearing.

       {¶ 9}     In order to demonstrate ineffective assistance of trial counsel, a

defendant must demonstrate that counsel’s performance was deficient and fell


          1
           We note that on January 23, 2014, the State filed a notice of additional
   authority in support of its position regarding the fourth assignment of error. The
   two cases cited by the State are State v. Rodeffer, 2d Dist. Montgomery No.
   25574, 2013-Ohio-5759, and State v. Polhamus, 2d Dist. Miami No. 2013-CA-3,
   2014-Ohio-145.
                                                                                             4

below an objective standard of reasonable representation, and that the defendant

was prejudiced by counsel’s performance; that is, there is a reasonable probability

that but for counsel’s unprofessional errors, the result of the defendant’s trial or

proceeding would have been different. Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538

N.E.2d 373 (1989). “Hindsight is not permitted to distort the assessment of what

was reasonable in light of counsel’s perspective at the time, and a debatable

decision concerning trial strategy cannot form the basis of a finding of ineffective

assistance of counsel.” State v. Hill, 2d Dist. Greene No. 2004 CA 79, 2005-Ohio

3176. “When the evidence a defendant relies upon [sic] dehors the record that

evidence must meet a threshold of cogency.” Id. “Cogent evidence is that which is

more than ‘marginally significant’ and advances a claim ‘beyond mere hypothesis

and desire for further discovery.’” Id.

       {¶ 10} Upon review, the record of the plea hearing does not support Thomas’ claim

that his counsel was ineffective. The record establishes that Thomas’ counsel and the trial

court were aware of his hearing difficulties and took adequate steps in order to ensure that he

could hear and understand the proceedings.         During the plea hearing, the following

exchange occurred:

               Defense Counsel: We may have to come closer, Your Honor.

               The Court: Yeah. Let’s – typically as we do with Mr. Thomas, since

       he has a hearing issue, if we could just have him step right up here in front of

       me so he can hear everything clearly.

               ***
                                                                                  5

       The Court: Hi, Mr. Thomas.

       Thomas: Hi.

       The Court: With this proximity between us, can you hear me okay?

       Thomas: Yeah.

       The Court: And are you able to hear what [defense counsel] has been

telling you?

       Thomas: Yeah.

       The Court: Okay. So, [defense counsel], how are we proceeding?

       Defense Counsel: Your Honor, at this time, I believe Mr. Thomas is

going to enter a plea to two counts. One is a Felony 4, possession of heroin

in 2011-4305 [sic] and a Felony 5 count of aggravated possession in

2011-2231 [sic].

       The Court: Okay.

       Defense Counsel: The State is dismissing Count 2, possession, in

4305. And we will acknowledge that these pleas constitute grounds for

revocation [indiscernible].

       The Court: And, Mr. Thomas, is that you want to do, sir?

       Thomas: Uh, yes.

       The Court: Okay. So it’s – what [defense counsel] has told me is that

you’re going to enter a guilty plea to a fourth-degree felony and a guilty plea

to a fifth-degree felony; right?

       Thomas: (No audible response.)
                                                                                 6

         The Court: Okay. Is the what you want to do?

         Thomas: Yeah.

         ***

         The Court: Okay. So as I go through this process of taking your

guilty pleas, if you have any questions or concerns, I need you to stop me and

let me know. Or, if there’s anything that you’re not hearing clearly, I need

you to let me know that. Okay? Because I can repeat it but if you don’t tell

me that you’re not hearing clearly, I’m going to assume that you’re hearing

everything I’m saying. Fair enough?

Thomas: Correct.

         *** (Plea Colloquy)

         The Court: Okay. Do you – and, obviously, I know you have a

hearing issue and we’re taking care of that by putting you really close to me;

right?

         Thomas: Correct.

         The Court: Okay. Do you have any other condition that would make

it difficult for you to understand your legal rights as I explain them to you?

         Thomas: No, ma’am.

         The Court: And you understand that you have to tell me if you don’t

hear anything, right?

         Thomas: Right.

         ***
                                                                              7

       The Court: Okay.      And you understand that you’re going to be

entering a guilty plea to a fifth degree felony and a fourth degree felony?

       Thomas: Yes.



       ***

       The Court: Okay. Are you being able to hear me –

       Thomas: Yes.

       The Court: – so far?           Any questions or

                       concerns over what we’ve gone

                       over so far?

       Thomas: No.

       The Court: Okay. And are you entering your guilty pleas today on

these two cases – a Felony 4 and a Felony 5 – of your own free will.

       Thomas: Yes.

       ***

       The Court: Okay. Now, we’re going to have the next charge, the

Felony 5 charge read to you now.

       The State: In Case No. 2011-CR-2231, the State charges that Michael

A. Thomas, on or about February 2, 2011, in Montgomery County, State of

Ohio, did knowingly obtain, possess, or use a controlled substance, to wit,

Methadone, a drug included in Section I or II, contrary to the form of the

statute in violation of Section 2925.11(A).
                                                                           8

       The Court: And, Mr. Thomas, did you hear and understand what the

prosecutor just said?

       Thomas: Yes, ma’am.

       The Court: And you understand that’s the other charge that you’re

pleading guilty to today?

       Thomas: Yes, ma’am.

       The Court: And are those facts true?

       Thomas: Yes.

       ***

       The Court: Okay. And are you

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       Thomas: Yes.

       ***

       The Court: Have you heard everything that I’ve gone over with you?

       Thomas: Yes, ma’am.

       ***

       The Court: *** Now, were you able to hear and understand

everything that we’ve gone over, sir.

       Thomas: Yes.

       The Court: Okay. Very good. I’ll see you then on March 8th for
                                                                                          10

       sentencing.

               Now, when you do get interviewed for your pre-sentence

       investigation, it’s going to be important that you tell them that you have a

       hearing problem so they can make sure that they make arrangements so you

       can understand what they’re asking you.

               Thomas: Okay.

               The Court: Okay? Thank you, sir.

               Defense Counsel: Thank you.

               Thomas: Thank you.

       {¶ 11} Thomas argues that defense counsel’s awareness of his hearing difficulties

should have prompted counsel to request that a hearing device be provided to him at the plea

hearing.   Thomas asserts that without a hearing device, he was unaware that he was

pleading guilty to a fifth degree felony, and therefore, did not appreciate the maximum

possible sentences which could be imposed. The record clearly refutes his claim.

       {¶ 12} Initially, we note that Thomas does not direct us to, nor have we located on

our own, any specific instances in the record where he was unable to hear or understand

everything that was discussed at the plea hearing. Defense counsel raised the issue of

Thomas’ hearing difficulties at the beginning of the hearing when he asked the trial court if

Thomas could move closer to the bench during the plea colloquy. Defense counsel alerted

the trial court to Thomas’ hearing impairment, and steps were immediately taken to

accommodate him. At every significant juncture throughout the plea hearing, the trial court

repeatedly asked Thomas if he could hear and understand the proceedings.            In each
                                                                                             11

instance, Thomas indicated “yes.”       Thomas never expressed any doubt or confusion

regarding the nature of the proceedings or the charges to which he was pleading guilty.

Specifically, Thomas never stated that he couldn’t hear the plea colloquy after the trial court

permitted him to move closer to the bench in order to compensate for his hearing

difficulties.   Thus, we cannot say, based on the record before us and in view of the

presumption of defense counsel’s competency, that counsel’s performance was deficient for

failing to request a hearing device for Thomas during the plea hearing.

        {¶ 13} In his second assignment, Thomas argues that the trial court erred when it

failed to hold an evidentiary hearing in order to determine the extent of his hearing

impairment after being made aware of the condition at the beginning of the plea hearing.

        {¶ 14} The Confrontation Clause of the Sixth Amendment to U.S. Constitution

contains three essential elements, to wit: 1) that the defendant be afforded the opportunity to

be physically present at trial; 2) that he be competent to assist in his defense; and 3) that he

be able to understand the language of the forum. State v. Mahan, 2d Dist. Montgomery No.

15071, 1996 WL 65250 (February 16, 1996). The Ohio Supreme Court has stated that “[a]

defendant who cannot hear is analogous to a defendant who cannot understand English, and

a severely hearing-impaired defendant cannot be tried without adopting reasonable measures

to accommodate his or her disability.” State v. Schaim, 65 Ohio St.3d 51, 64, 600 N.E.2d

661 (1992). Accordingly, the Court construed the Sixth Amendment to require “a trial

court to grant an evidentiary hearing when a defendant makes a credible claim that he or she

is seriously hearing-impaired.” Id. at 64-65. “Once a court grants an evidentiary hearing to

determine the degree of the defendant’s disability, it is within the trial court’s discretion to
                                                                                                                                   12

decide whether the defendant requires assistance to understand the proceedings and the best

means to accomplish that goal.” Id. at 65.

           {¶ 15} Initially, we note that no objection was made at the time of the plea hearing.

 Thus Thomas has waived all but plain error under Crim. R. 52(B) regarding the trial court’s

failure to hold an evidentiary hearing.                     In State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804 (1978), the Supreme

 Court has provided guidance for the consideration of plain error:

                      Ordinarily, * * * the failure to object * * * constitutes a waiver of any claim of error relative thereto.

           Further, * * * [it] does not constitute a plain error or defect under Crim.R. 52(B) unless, but for the error, the

           outcome of the trial clearly would have been otherwise. Notice of plain error under Crim.R. 52(B) is to be taken

           with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.

           {¶ 16} In support of his argument that the trial court was required to hold an evidentiary hearing to determine the

extent of his hearing impairment, Thomas cites to State v. Schaim, 65 Ohio St.3d 51, wherein the Ohio Supreme Court

discussed the case of a defendant who had been unable to hear significant portions of the trial testimony against him. The Schaim

court held that when a defendant makes a credible claim that he or she is severely hearing impaired, the trial court is required by the

Sixth Amendment to hold an evidentiary hearing to determine the extent of the impairment and what reasonable accommodations will

be necessary to address the issue.

           {¶ 17} Thomas also cites a case from the Tenth Appellate District, City of

Columbus v. Morris, 10th Dist. Franklin No. O1AP-1026, 2002-Ohio-1986, in which the

court held that the trial court was precluded from proceeding to trial without holding an

evidentiary hearing to determine whether the defendant needed an interpreter, where the
                                                                                             13

defendant alerted the trial court in both pre-trial proceedings and during the trial that he was

deaf and did not understand the majority of the proceedings.

       {¶ 18} The facts in Schaim and Morris, however, are clearly distinguishable from

the case at bar. In the instant case, Thomas made no claim at the beginning of the plea

hearing that he was severely hearing impaired, nor that his hearing was so poor that he could

not understand the nature of the proceedings. Once the trial court permitted Thomas to

move closer to the bench, he affirmatively stated that he could hear what the trial court was

saying. As previously noted, the trial court stopped the proceedings at several points and

asked Thomas if he understood what was being said, including the charges read by the

prosecutor. Each time, Thomas responded in the affirmative.2 Therefore, we conclude that

the record establishes that the accommodations made by the trial court to address Thomas’

hearing difficulties were satisfactory. The trial court did not have to hold a separate

evidentiary hearing because there was no indication that Thomas was unable to hear and

understand the proceedings once he moved closer to the bench.               By Thomas’ own

admission at the plea hearing, he was able to hear the trial court’s colloquy and respond

appropriately to all of the questions he was asked. Accordingly, the trial court did not err,

plainly or otherwise, when it failed to hold an evidentiary hearing in order to address the

extent of Thomas’ impairment.

       {¶ 19} Thomas’ first and second assignments of error are overruled.

       {¶ 20} Thomas’ third assignment of error is as follows:


          2
          We have reviewed the audio visual recording of the plea, and Thomas is
   standing just beneath the trial judge in front of the bench. Further, all responses
   were appropriate to the questions asked by the trial court.
                                                                                           14

       {¶ 21} “THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S

MOTION TO WITHDRAW PLEAS.”

       {¶ 22} In his third assignment, Thomas contends that the trial court erred when it

denied his motion to withdraw. Specifically, Thomas asserts that the trial court should have

granted his motion to withdraw because he did not understand the possible defenses to the

crimes for which he was charged and the range of potential sentences for those charges.

Thomas blames his lack of understanding on his trial counsel who he alleged failed to

adequately advise him regarding the charged offenses and their potential sentences.

Thomas also argues that the trial court’s Crim. R. 11 colloquy was deficient as he was

unable to hear entire portions of the plea hearing due to his hearing difficulties.

       {¶ 23} We note that Thomas orally moved to withdraw his pleas on the day of his

sentencing hearing but before the trial court imposed sentence. Thomas then filed a pro se

motion to withdraw four days after the sentencing hearing.            The trial court analyzed

Thomas’ motion to withdraw under both the pre and post- sentencing standards. The trial

court ultimately held that Thomas’ motion to withdraw failed under either standard.

       {¶ 24} As this Court has previously noted:

                * * * Crim.R. 32 .1 provides: “A motion to withdraw a plea of

       guilty or no contest may be made only before sentence is imposed;

       but to correct a manifest injustice the court after sentence may set

       aside the judgment of conviction and permit the defendant to

       withdraw his or her plea.”        Under the foregoing rule, a pre-sentence

       motion to vacate a guilty plea “should be freely and liberally granted.”

         State v. Xie (1992), 62 Ohio St.3d 521, 527. Nevertheless, even
                                                                                    15

      under the pre-sentence standard, the right to withdraw a plea is not

      absolute and a trial court retains discretion to overrule a pre-sentence

      plea-withdrawal motion. Id. The pre-sentence standard, however, is

      far more lenient than the “manifest injustice” standard applicable to

      post-sentence motions. State v. Fugate, Montgomery App. No.

      21574, 2007-Ohio-26, ¶ 10.

      ***

             But even under the more lenient pre-sentence standard, “a

      defendant must show a reasonable and legitimate basis for the

      withdrawal of the plea.” * * * “A change of heart is not enough,” and

      a trial court's finding regarding a defendant's true motivation is entitled

      to deference. * * * Likewise, a trial court's ultimate decision to grant or

      deny a pre-sentence motion to withdraw a guilty plea is subject to

      review for an abuse of discretion. Fugate, at ¶ 10. State v. Simpson,

      2d Dist. Montgomery No. 24266, 2011-Ohio-6181,¶ 7, 10.

      {¶ 25} “Abuse of discretion” has been defined as an attitude that is

unreasonable, arbitrary, or unconscionable. Huffman v. Hair Surgeons, Inc., 19

Ohio St.3d 83, 482 N.E.2d 1248 (1985). A decision is unreasonable if there is no

sound reasoning process that would support that decision. AAAA Enterprises, Inc.

v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 553

N.E.2d 597 (1990).     Feldmiller v. Feldmiller, 2d Dist. Montgomery No. 24989,

2012-Ohio-4621, ¶ 7.

      {¶ 26} As this Court has noted:
                                                                          16

       “A trial court does not abuse its discretion in overruling a

motion to withdraw: (1) where the accused is represented by highly

competent counsel, (2) where the accused was afforded a full

hearing, pursuant to Crim. R. 11, before he entered the plea, (3)

when, after the motion to withdraw is filed, the accused is given a

complete and impartial hearing on the motion, and (4) where the

record reveals that the court gave full and fair consideration to the

plea withdrawal request.” State v. Askew, 2d Dist. Montgomery No.

20110, 2005-Ohio-4026, ¶ 8, quoting State v. Barnett, 73 Ohio

App.3d 244, 250, 596 N.E.2d 1101 (2d Dist. 1991).

{¶ 27} Further, this Court in Askew noted as follows:

      When conducting the hearing on the motion to withdraw, the

trial court may consider: “(1) whether the state will be prejudiced by

withdrawal; (2) the representation afforded to the defendant by

counsel; (3) the extent of the Crim. R. 11 plea hearing; (4) the extent

of the hearing on the motion to withdraw, * * * (5) whether the timing

of the motion was reasonable; (6) the reasons for the motion; (7)

whether the defendant understood the nature of the charges and

potential sentences, and (8) whether the accused was perhaps not

guilty or had a complete defense to the charge.” Askew, at ¶ 11,

quoting State v. Cuthbertson, 139 Ohio App.3d 895, 898-899, 746

N.E.2d 197 (7th Dist. 2000).

{¶ 28} Crim.R. 11(C)(2) provides:
                                                                                                                   17

                   In felony cases the court may refuse to accept a plea of guilty *

         * * and shall not accept a plea of guilty * * * without first addressing

         the defendant personally and doing all of the following:

                   (a) Determining that the defendant is making the plea

         voluntarily, with understanding of the nature of the charges and 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.

                   (b) Informing the defendant of and determining that the

         defendant understands the effect of the plea of guilty * * * , and that

         the court, upon acceptance of the plea, may proceed with judgment

         and sentence.

                   (c) Informing the defendant of and determining that the

         defendant understands that by the plea the defendant is waiving the

         rights to jury trial, to confront witnesses against him or her, to have

         compulsory process for obtaining witnesses against him or her, to

         have compulsory process for obtaining witnesses in the defendant’s

         favor, and to require the state to prove the defendant’s guilt beyond a

         reasonable doubt at a trial at which the defendant cannot be

         compelled to testify against himself or herself.

         {¶ 29} At the hearing on the motion to withdraw, Thomas’ trial counsel, Matthew

Arntz, testified that prior to the plea, he met with Thomas at the jail and advised him of the

maximum penalty he could receive after entering the negotiated plea. Attorney Arntz further testified that he informed
                                                                                                                               18

Thomas that a prison term was likely. Prior to the March 8, 2012, sentencing hearing, Arntz met with the trial court in chambers to

discuss the case. After the meeting, Arntz informed Thomas that the judge was inclined to send him to prison. The trial court

credited Arntz’s testimony over that of Thomas’ and found that there were adequate attorney-client communications prior to the plea

hearing.

           {¶ 30} Moreover, although Thomas claimed to have missed portions of the plea

hearing due to his hearing impairment, his claim is undermined by the record. With the

exception of only one instance where the trial court had to repeat itself at the plea hearing,

the record establishes that Thomas heard and understood the proceedings. Upon review,

we note that Thomas indicated that he was satisfied with the representation

afforded him, and he had sufficient time to discuss the matter with his lawyer.

Thomas acknowledged that he had not been threatened or promised anything

other than the dismissal of a charge against him in return for his guilty pleas.

Thomas stated he was not under the influence of drugs or alcohol. Thomas did

not indicate to the court that he was under any emotional stress.                                                     Thomas

indicated that his plea was voluntary and acknowledged that he understood the

nature of the charges against him.                             Thomas acknowledged all of his rights,

indicated that he understood them, and signed the plea forms.

           {¶ 31} When Thomas testified at the hearing on the motion to withdraw his

plea, he stated several reasons for wanting to withdraw his plea, and he

contradicted many of the statements he made at the plea hearing, such as his

previous responses to the trial judge that he had heard and understood the plea.

Nevertheless, the trial court was not required to credit this testimony at the hearing
                                                                                       19

on the motion to withdraw his pleas. The trial court gave full and fair consideration

to Thomas’ motion to withdraw his pleas. On this record, the trial court did not

abuse its discretion in denying Thomas’ request to withdraw his guilty plea.

       {¶ 32} Thomas’ third assignment of error is overruled.

       {¶ 33} Thomas’ fourth assignment of error is as follows:

       {¶ 34} “THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO

CONSECUTIVE SENTENCES WITHOUT MAKING THE REQUISITE JUDICIAL

FINDINGS MANDATED BY R.C. 2929.14(C)(4).”

       {¶ 35} In his fourth assignment, Thomas argues that the trial court failed to make

the requisite judicial findings pursuant to R.C. 2929.14(C)(4) before imposing consecutive

sentences in the instant case.

       {¶ 36} In State v. Nichols, 2d Dist. Clark No. 2012 CA 38, 2013-Ohio-3285, ¶ 9,

we recently stated the following:

                Recently, the Eighth District Court of Appeals held that in a

       sentencing or re-sentencing occurring on or after the effective date of

       H.B. 86, September 30, 2011, the revived version of R.C.

       2929.14(C)(4) was in effect and the court had to make certain findings

       before     imposing       consecutive   sentences.    State    v.   Venes,

       2013-Ohio-1891, --- N.E.2d ---, 2013 WL 1932857 (8th Dist.).

       Nichols was originally sentenced on May 6, 2010, after pleading guilty

       to four counts of GSI. As previously stated, Nichols appealed his

       sentence, and we reversed and remanded for re-sentencing.               On
                                                                                                                                   20

             May 4, 2012, the trial court re-sentenced Nichols to three years on

             each of the four GSI counts and ordered the sentences to be served

             consecutively. Nichols was sentenced after the effective date of H.B.

             86. Therefore, pursuant to H.B. 86, the trial court was required to

             make certain findings before imposing consecutive sentences. See

             Id.

             {¶ 37} Similar to the defendant in Nichols, we find that the trial court’s decision to impose

consecutive sentences was governed by R.C. 2929.14(C)(4).                                                      Furthermore, we

conclude on this record that the court’s imposition of consecutive terms fails to

meet the statutory criteria.

             {¶ 38}        R.C. 2929.14(C)(4) under H.B. 86 requires a trial court to make certain findings before imposing consecutive

sentences:

                        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,
                                                                                                                                  21

           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.

           {¶ 39} Thomas contends that the trial court failed to find that the consecutive sentence is not disproportionate to the

seriousness of the offender’s conduct and not disproportionate to the danger the offender poses to the public, as required by R.C.

292.14(C)(4). When it imposed consecutive sentences upon Thomas, it made the following finding:

                      And one of the reasons that the Court is requiring that the sentences be served consecutively is

           because he has two prior cases where he is on supervision. And I’m imposing consecutive sentences to try to

           create the maximum deterrent effect as well as punishment for picking up so many cases.

           {¶ 40} Upon review, we conclude that the record is devoid of any finding that the consecutive sentence is not

disproportionate to the seriousness of the offender’s conduct and not disproportionate to the danger the offender poses to the public.

The trial court did not include these two findings in the judgment entries imposing sentence or pronounce these findings orally at the

sentencing hearing. Simply put, the trial court failed to make the findings necessary for the imposition of consecutive sentences

pursuant to R.C. 2929.14(C)(4). Nichols, 2013-Ohio-3285; State v. Wills, 2d Dist. Montgomery No. 25357, 2013-Ohio-4507. “As a

remedy the matter will be remanded to the trial court to consider whether consecutive sentences are appropriate under R.C.

2929.14(C)(4) and, if so, to enter the proper findings on the record.” Wills, at ¶ 32.

           {¶ 41} Thomas’ fourth and final assignment of error is sustained.
                                                                                        22

       {¶ 42} Thomas’ fourth assignment of error having been sustained, his sentence is

reversed, and the matter is remanded to the trial court to consider whether consecutive

sentences are appropriate under R.C. 2929.14(C)(4), and if so, to enter the proper findings

on the record. In all other respects, the judgment of the trial court is affirmed.

                                              ..........

HALL, J., and WELBAUM, J., concur.

Copies mailed to:

Matthew T. Crawford
Charles W. Morrison
Hon. Mary L. Wiseman
