[Cite as State v. Jacobs, 2015-Ohio-4559.]


                                        COURT OF APPEALS
                                       KNOX COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                         Hon. William B. Hoffman, J.
                                                   Hon. Sheila G. Farmer, J.
-vs-
                                                   Case No. 15CA5
TERRY JACOBS

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Knox County Court of
                                               Common Pleas, Case No. 14CR04-0071


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                         October 29, 2015


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


CHARLES T. MCCONVILLE                          W. JEFFREY MOORE
Knox County Prosecutor                         Moore & Yaklevich
117 East High Street, Suite 234                100 E. Main Street
Mount Vernon, Ohio 43050                       Columbus, Ohio 43215
Knox County, Case No. 15CA5                                                                2

Hoffman, J.


        {¶1}   Defendant-appellant Terry Jacobs appeals his conviction and sentence

entered by the Knox County Court of Common Pleas. Plaintiff-appellee is the state of

Ohio.

                           STATEMENT OF THE CASE AND FACTS

        {¶2}   On April 21, 2014, Appellant was indicted on one count of engaging in a

pattern of corrupt activity, one count of aggravated funding of drug trafficking, and thirty-

five counts of trafficking in drugs. The indictment stemmed from allegations Appellant

acted in concert with other individuals in a scheme to travel to and from Florida and

other states during a period of time spanning from January 1, 2011 to February 7, 2014,

to obtain prescription medications and to use and/or sell those medications in Ohio.

        {¶3}   On January 6, 2015, Appellant entered a plea of guilty to one count of

engaging in a pattern of corrupt activity, in violation of R.C. 2923.32(A)(1), a felony of

the first degree; and one count of aggravated funding of drug trafficking, in violation of

R.C. 2925.05(A)(1), a felony of the first degree. Appellant also entered a plea of guilty

to a forfeiture specification to Count One, in the amount of $833.00 in U.S. currency, as

set forth in R.C. 2981.02.The state of Ohio then dismissed the remaining counts.

        {¶4}   On February 13, 2015, the trial court sentenced Appellant on Count One,

Engaging in a Pattern of Corrupt Activity, to a definite prison term of ten years in prison;

and on Count Two, Aggravated Funding of Drug Trafficking, to a mandatory seven year

prison term, to be served concurrently with the sentence imposed on Count One. The

trial court also imposed a five year term of post-release control.

        {¶5}   Appellant appeals, assigning as error:
Knox County, Case No. 15CA5                                                                3


       {¶6}   "I. THE TRIAL COURT ERRED IN SENTENCING MR. JACOBS TO 10

YEARS ON THE CHARGE OF ENGAGING IN A PATTERN OF CORRUPT ACTIVITY.

       {¶7}   "II. THE TRIAL COURT ERRED IN SENTENCING MR. JACOBS TO 10

YEARS ON COUNT 1 AND 7 YEARS ON COUNT 2.

       {¶8}   "III. THE TRIAL COURT ERRED IN NOT MERGING FOR SENTENCING

THE TWO CHARGES MR. JACOBS WAS CONVICTED OF."

                                                 I.

       {¶9}   In the first assignment of error, Appellant maintains the trial court erred in

sentencing Appellant pursuant to House Bill 86 revisions to sentencing.

       {¶10} At no time during the plea hearing did Appellant request the trial court

sentence him under pre-House Bill 86 sentencing statutes, nor did he file any motions to

that effect. Therefore, this Court reviews the argument only for plain error. State v.

Long (1978), 53 Ohio St.2d 91; Crim. R. 52(B).

       {¶11} House Bill 86 became effective on September 30, 2011. The General

Assembly made the prospective operation clear in Section 4 of the Act, which states:

"The amendments to...division (A) of section 2929.14 of the Revised Code that are

made in this act apply to a person who commits an offense specified or penalized under

those sections on or after the effective date of this section." (Emphasis added.)

       {¶12} The section does not provide the act applies to those who commit their

offenses during the effective date of the section. Therefore, although Appellant's course

of criminal conduct began prior to the effective date of H.B. 86, his conduct did occur

on, during and after the effective date; therefore, the trial court did not err in sentencing
Knox County, Case No. 15CA5                                                             4


Appellant according to the provisions of H.B. 86. We reject Appellant's argument he is

entitled to elect under which provision he is to be sentenced.

          {¶13} The first assignment of error is overruled.

                                                  II.

          {¶14} In the second assigned error, Appellant maintains his sentence is contrary

to law.

          {¶15} Appellant is a first-time felony offender and argues his sentence is

contrary to law because it does not comply with the overriding purposes of felony

sentencing, to wit, “to protect the public from future crime by the offender and others

and to punish the offender using the minimum sanctions that the court determines

accomplish those purposes without imposing an unnecessary burden on state or local

government resources.” R.C. 2929.11(A). Appellant asserts he should have received

the minimum sentence of six years.

          {¶16} In State v. Kalish, 120 Ohio St.3d 23, 896 N.E.2d 124, 2008–Ohio–4912,

the Ohio Supreme Court established a two-step procedure for reviewing a felony

sentence. The first step is to “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.” Kalish at ¶ 4. If the first step is

satisfied, the second step requires the trial court's decision be reviewed under an

abuse-of-discretion standard. Id. We have recognized that “[w]here the record lacks

sufficient data to justify the sentence, the court may well abuse its discretion by

imposing that sentence without a suitable explanation.” State v. Firouzmandi, 5th Dist.

Licking No.2006–CA–41, 2006–Ohio–5823, ¶ 52.
Knox County, Case No. 15CA5                                                             5


       {¶17} R.C. 2953.08(G)(2) provides two grounds for an appellate court to

overturn the imposition of a sentence: (1) the sentence is “otherwise contrary to law”; or

(2) the appellate court, upon its review, clearly and convincingly finds that “the record

does not support the sentencing court's findings * * *.”

       {¶18} The Supreme Court held, in Kalish, the trial court's sentencing decision

was not contrary to law. “The trial court expressly stated it considered the purposes and

principles of R.C. 2929.11, as well as the factors listed in R.C. 2929.12. Moreover, it

properly applied post release control, and the sentence was within the permissible

range. Accordingly, the sentence is not clearly and convincingly contrary to law.” Kalish

at ¶ 18. The Court further held the trial court “gave careful and substantial deliberation

to the relevant statutory considerations” and there was “nothing in the record to suggest

that the court's decision was unreasonable, arbitrary, or unconscionable.” Kalish at ¶ 20

       {¶19} In the instant case, the trial court found a prison term was consistent with

the purposes and principles of sentencing under R.C. 2929.11. The trial court found

Count Two, aggravated funding of drug trafficking, carried a mandatory prison sentence.

       {¶20} R.C. 2925.05(C)(1) provides:

              (C)(1) If the drug involved in the violation is any compound, mixture,

       preparation, or substance included in schedule I or II, with the exception of

       marihuana, whoever violates division (A) of this section is guilty of

       aggravated funding of drug trafficking, a felony of the first degree, and,

       subject to division (E) of this section, the court shall impose as a

       mandatory prison term one of the prison terms prescribed for a felony of

       the first degree.
Knox County, Case No. 15CA5                                                                 6


       {¶21} Appellant entered a plea of guilty to trafficking of Schedule I or II drugs.

       {¶22} Section 2929.13(A) states,

              (A) Except as provided in division (E), (F), or (G) of this section and

       unless a specific sanction is required to be imposed or is precluded from

       being imposed pursuant to law, a court that imposes a sentence upon an

       offender for a felony may impose any sanction or combination of sanctions

       on the offender that are provided in sections 2929.14 to 2929.18 of the

       Revised Code.

       {¶23} On Count One, the trial court sentenced Appellant within the applicable

statutory ranges for a first degree felony. Appellant was sentenced to ten years, within

the statutory range of three to eleven years prescribed by R.C. 2929.14(A)(1). On

Count Two, Appellant was sentenced to a seven year mandatory term of imprisonment

pursuant to R.C. 2929.14(A)(1).

       {¶24} Accordingly, we find Appellant's sentence herein is not contrary to law.

Further, we find the trial court did not abuse its discretion in sentencing Appellant.

       {¶25} The second assignment of error is overruled.

                                                III.

       {¶26} In the third assignment of error, Appellant asserts the trial court erred in

failing to merge his convictions for engaging in a pattern of corrupt activity and

aggravated funding of drug trafficking. We disagree.

       {¶27} R.C. 2923.32(A)(1), Engaging in a Pattern of Corrupt Activity, is Ohio's

equivalent of the federal RICO statute. In State v. Miranda, 138 Ohio St.3d 184, 2014-

Ohio-451, the Ohio Supreme Court held,
Knox County, Case No. 15CA5                                                                7


              “R.C. 2941.25, however, is not the sole legislative declaration in

       Ohio on the multiplicity of indictments.” Childs at 561, 728 N.E.2d 379.

       “While our two-tiered test for determining whether offenses constitute

       allied offenses of similar import is helpful in construing legislative intent, it

       is not necessary to resort to that test when the legislature's intent is clear

       from the language of the statute.” State v. Brown, 119 Ohio St.3d 447,

       2008-Ohio-4569, 895 N.E.2d 149, ¶ 37. R.C. 2941.25 generally provides

       the appropriate test to determine whether the court may impose multiple

       punishments for offenses arising from the same conduct. However, in this

       case, we find that the RICO statute evinces the General Assembly's intent

       that a court may sentence a defendant for both the RICO offense and its

       predicate offenses.

              ***

              We hold that Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942

       N.E.2d 1061, is not applicable to a RICO violation, and a RICO offense

       does not merge with its predicate offenses for purposes of sentencing. In

       this case, the trial court sentenced Miranda for both RICO and the

       predicate offense of trafficking in marijuana.

       {¶28} Based upon the Ohio Supreme Court's holding in Miranda, Appellant's

third assigned error is overruled.
Knox County, Case No. 15CA5                                                     8


       {¶29} Appellant's conviction and sentence in the Knox Court of Common Pleas

is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Farmer, J. concur
