[Cite as State v. White, 2013-Ohio-2058.]


                                        COURT OF APPEALS
                                       PERRY COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. William B. Hoffman, J.
                         Plaintiff-Appellee    :       Hon. Sheila G. Farmer, J.
                                               :
-vs-                                           :
                                               :       Case No. 12-CA-00018
THOMAS A. WHITE                                :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Perry County
                                                   Court of Common Pleas, Case No.
                                                   12CR0021


JUDGMENT:                                          Reversed and Remanded


DATE OF JUDGMENT ENTRY:                            May 16, 2013


APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

JOSEPH FLAUTT                                      FREDERICK SEALOVER
Prosecuting Attorney                               45 North Fourth Street
111 North High Street                              Box 2910
New Lexington, OH 43764                            Zanesville, OH 43702
[Cite as State v. White, 2013-Ohio-2058.]


Gwin, P.J.

        {¶1}     Defendant-appellant Thomas A. White [“White”] appeals his sentences on

two counts of illegal manufacture of drugs, a felony of the second degree in violation of

R.C. 2925.04.

                                        Facts and Procedural History

        {¶2}     White was indicted on two counts of illegal manufacture of drugs, felonies

of the first degree in violation of R.C. 2925.04, two counts of illegal assembly or

possession of chemicals for the manufacture of drugs, felonies of the third degree in

violation of R.C. 2925.041, and one count of aggravated possession of drugs, a felony

of the fifth degree, in violation of R.C. 2925.11.

        {¶3}     White appeared pro se at his arraignment on February 28, 2012. On

February 28, 2012, White filed an affidavit of indigency. On March 8, 2012, the trial

court appointed counsel to represent White having found him to be indigent.

        {¶4}     On June 27, 2012, White appeared at a change of plea hearing,

represented by court-appointed counsel, and entered a plea to two reduced counts of

illegal manufacture of drugs, felonies of the second degree. Prior to sentencing, White

asked the trial court “to waive the fines and to see if you’d run concurrent with

Muskingum County time.” (Sent. T., Aug. 21, 2012 at 4). White’s counsel “so moved the

Court.” Id.

        {¶5}     At the conclusion of the hearing, the court proceeded to pronounce

White’s sentence:

                 THE COURT: —For the two counts of illegal manufacturing of

        drugs, felonies of the second degree, I'm going to sentence you to three
Perry County, Case No. 12-CA-00018                                                       3


      years in a state penal institution on each count. They are to run

      consecutive and -- to each other as well as consecutive to any other time

      you may be serving in any other county.

             I'm also going to impose a $7,500 fine. Your driver's license will be

      suspended for six months on each count, and those will run consecutive.

      You will be given credit for any time you may have served in this matter,

      and I’m also assessing costs. Sent. T., Aug. 21, 2012 at 5.

      The trial court's Termination Judgment Entry was filed August 31, 2012.

                                     Assignments of Error

      {¶6}   White raises two assignments of error,

      {¶7}   “I. THE DEFENDANT-APPELLANT WAS DENIED THE EFFECTIVE

ASSISTANCE OF COUNSEL IN VIOLATION OF THE STATE AND FEDERAL

CONSTITUTIONS.

      {¶8}   “II. THE TRIAL COURT ERRED IN IMPOSING A PRISON SENTENCE

UPON THE DEFENDANT-APPELLANT TO BE SERVED CONSECUTIVELY TO A

PRISON SENTENCE IMPOSED BY ANOTHER COURT OF THIS STATE, CONTRARY

TO LAW.”

                                                I.

      {¶9}   In his first assignment of error, White argues that he was denied effective

assistance of counsel. Specifically, White contends that counsel was ineffective in failing

to move, in writing and prior to sentencing, pursuant to R.C. 2925.04(D)(1) and

2929.18(3)(1), for an Order dispensing with the mandatory fine because he is indigent

and unable to pay a mandatory fine.
Perry County, Case No. 12-CA-00018                                                        4


       {¶10} A claim of ineffective assistance of counsel requires a two-prong analysis.

The first inquiry in whether counsel's performance fell below an objective standard of

reasonable representation involving a substantial violation of any of defense counsel's

essential duties to appellant. The second prong is whether the appellant was prejudiced

by counsel's ineffectiveness. Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122

L.Ed.2d 180(1993); 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).

       {¶11} In determining whether counsel's representation fell below an objective

standard of reasonableness, judicial scrutiny of counsel's performance must be highly

deferential. Bradley, 42 Ohio St.3d at 142. Because of the difficulties inherent in

determining whether effective assistance of counsel was rendered in any given case, a

strong presumption exists that counsel's conduct fell within the wide range of

reasonable, professional assistance. Id.

       {¶12} In order to warrant a reversal, the appellant must additionally show he was

prejudiced by counsel's ineffectiveness. Prejudice warranting reversal must be such that

"there is a reasonable probability that, but for counsel's unprofessional errors, the result

of the proceedings would have been different.” Strickland, 466 U. S. at 694. A court

making the prejudice inquiry must ask if the defendant has met the burden of showing

that the decision reached would "reasonably likely been different" absent the errors.

Strickland, 466 U. S. 695, 696. A reasonable probability is a probability sufficient to

undermine confidence in the outcome. Strickland, supra; Bradley, supra.

       {¶13} R.C. 2925.04(D)(1) provides in part,
Perry County, Case No. 12-CA-00018                                                      5


              The court shall impose upon the offender [convicted of illegal

       manufacture of drugs, a felony of the second degree] the mandatory fine

       specified for the offense under [R.C. 2929.18(B)(1)] unless, as specified in

       that division, the court determines that the offender is indigent.

                                            ***

       {¶14} R.C. 2929.18(B)(1) provides, in part,

              For a first, second, or third degree felony violation of any provision

       of Chapter 2925, 3719, or 4729. of the Revised Code, the sentencing

       court shall impose upon the offender a mandatory fine of at least one-half

       of, but not more than, the maximum statutory fine amount authorized for

       the level of the offense pursuant to division (A)(3) of this section. If an

       offender alleges in an affidavit filed with the court prior to sentencing that

       the offender is indigent and unable to pay the mandatory fine and if the

       court determines the offender is an indigent person and is unable to pay

       the mandatory fine described in this division, the court shall not impose

       the mandatory fine upon the offender.

       {¶15} In the case at bar, an affidavit of indigency was filed in the trial court on

February 28, 2012. Thus, we cannot find counsel to be ineffective for failing to file the

affidavit. In reality, White appears to be arguing that the trial court failed to consider

White’s present or future ability to pay this mandatory fine.

       {¶16} In State v. Johnson, 5th Dist. No. 99COA01333, 2000 WL 1055893(July

26, 2000) this court observed,
Perry County, Case No. 12-CA-00018                                                       6


             [a]ppellant also argues the fines imposed by the trial court are

      contrary to law because she is indigent and the trial court should have

      determined her ability to pay the fines. Under R.C. 2929.18(E), a trial court

      may conduct a hearing to determine whether an offender is able to pay the

      sanction or is likely, in the future, to be able to pay it. The language

      contained in the statute, as it relates to a hearing, makes the holding of

      such a hearing discretionary with the trial court. Further, Ohio courts

      distinguish between the initial imposition of a fine and any subsequent

      incarceration for the non-payment of a fine. Although R.C. 2929.18(E)

      makes a hearing discretionary when initially imposing a fine, R.C. 2947.14

      mandates that a hearing be held to determine the ability to pay in the

      event an offender is facing incarceration due to non-payment. State v.

      Meyer (1997), 124 Ohio App.3d 373, 377, 706 N.E.2d 378; State v.

      Johnson (1995), 107 Ohio App.3d 723, 728-729, 669 N.E.2d 483. Ohio

      Courts have also recognized a distinction between an offender's ability to

      pay a fine and the offender's need for appointed counsel due to indigence.

      State v. Powell (1992), 78 Ohio App.3d 784, 789, 605 N.E.2d 1337. The

      difference exists in the offender's ability to raise the initial retainer needed

      to obtain counsel as opposed to the period of time given to gradually pay

      the imposed fine. Id. In the case sub judice, since the trial court only

      imposed the fine and did not sentence appellant for non-payment, it was

      within the trial court's discretion whether to conduct a hearing to determine

      appellant's ability to pay. However, in the event appellant is later brought
Perry County, Case No. 12-CA-00018                                                      7


      before the trial court for failure to pay the fine, appellant would be entitled

      to a hearing as to her ability to pay. Further, under R.C. 2929.18(G),

      appellant may request the trial court to suspend the fine in the event she

      fully completes all other sanctions to the trial court's satisfaction.

      Accordingly, the trial court's imposition of fines totaling $3,500 was not

      contrary to law.

Accord, State v. Young, 5th Dist. No. 03-CAA-10051, 2004-Ohio-4002, ¶16.

      {¶17} Further, the Ohio Supreme Court has stated, with respect to the imposition

of mandatory fines,

             we do not believe that former R.C. 2925.11(E)(5) was intended to

      preclude a trial court from imposing fines on able-bodied defendants who

      are fully capable of work but who happen to be indigent and unemployed

      at the moment of sentencing. Obviously, for purposes of former R.C.

      2925.11(E)(5)      and   the   current   analogous     provisions    of   R.C.

      2925.11(E)(1)(a) and 2929.18(B)(1), a trial court's determination whether

      an offender is indigent and is unable to pay a mandatory fine can (and

      should) encompass future ability to pay. If the General Assembly had

      intended otherwise, the statutes would have been written to permit a

      waiver of the mandatory fines based solely on a defendant's present state

      of indigency, and would not have also required trial courts to consider the

      additional question whether the offender is “unable to pay."

State v. Gipson (1998), 80 Ohio St.3d 626, 636, 687 N.E.2d 750, 758.
Perry County, Case No. 12-CA-00018                                                        8

      {¶18} As this Court explained in State v. Perry, 5th Dist. No. 2004–CA–00066,

2005–Ohio–85,

             “[T]here are no express factors that must be taken into

      consideration or findings regarding the offender's ability to pay that must

      be made on the record.” State v. Martin, 140 Ohio App.3d 326, 338, 747

      N.E.2d 318, 2000–Ohio–1942. Although a court may hold a hearing under

      R.C. 2929.18(E) “to determine whether the offender is able to pay the

      [financial] sanction or is likely in the future to be able to pay it,” a court is

      not required to do so. State v. Stevens (Sept. 21, 1998), 12th Dist. No.

      CA98–01–001, unreported (“although the trial court must consider the

      offender's ability to pay, it need not hold a separate hearing on that issue”.

      “All that R.C. 2929.19(B)(6) requires is that the trial court consider the

      offender's present and future ability to pay.” State v. Dunaway, 12th Dist.

      No. CA2001–12–280, 2003–Ohio–1062, at 36; Martin, 140 Ohio App.3d at

      33, 746 N.E.2d 642” Id. at *4–5, 746 N.E.2d 642. See also State v.

      Thompson, 5th Dist. No. 06–CA–62, 2008–Ohio–435, at ¶19. While it

      would be preferable for the trial court to expressly state on the record that

      it has considered a defendant's present and future ability to pay a fine, it is

      not required. State v. Parker, 2nd Dist. No. 03CA0017, 2004–Ohio–1313,

      ¶ 42, citing State v. Slater, 4th Dist. No. 01 CA2806, 2002–Ohio–5343.

      “The court's consideration of that issue may be inferred from the record

      under appropriate circumstances.” Id.
Perry County, Case No. 12-CA-00018                                                          9


       {¶19} In the case at bar, the court considered the Presentence Investigation

Report before imposing sentence. White was 26 years old at the time of sentencing. It

was not error for the trial court to find that White is an able-bodied individual who is fully

capable of work based upon the record before this Court.

       {¶20} Accordingly, based upon the foregoing reasons, White’s first assignment

of error is overruled.

                                                 II.

       {¶21} In his second assignment of error, White argues that the exceptions to

RC. 2929.41 do not allow for the imposition of consecutive sentences under the

circumstances of this case.

       {¶22} Although White requested the trial court impose concurrent time, White did

not argue that the exceptions to concurrent sentencing outlined in R.C. 2929.41(A), as

amended by H.B. 86, did not permit the court to order a prison term to be served

consecutively to another prison term that was currently being served in Ohio. Further,

White did not argue in the trial court that, if the current language of R.C. 2929.41(A)

contained a typographical error by the legislature, any benefit or ambiguity would inure

to his benefit and the language should be strictly construed against the state.

       {¶23} In State v. 1981 Dodge Ram Van, 36 Ohio St.3d 168, 522 N.E.2d 524

(1988), the Supreme Court noted,

              The general rule is that “an appellate court will not consider any

       error which counsel for a party complaining of the trial court's judgment

       could have called but did not call to the trial court's attention at a time

       when such error could have been avoided or corrected by the trial court.”
Perry County, Case No. 12-CA-00018                                                     10

      State v. Childs (1968), 14 Ohio St.2d 56 [236 N.E.2d 545] [43 O.O.2d

      119], paragraph three of the syllabus; State v. Glaros (1960), 170 Ohio St.

      471 [166 N.E.2d 379] [11 O.O.2d 215], paragraph one of the syllabus;

      State v. Lancaster (1971), 25 Ohio St.2d 83 [267 N.E.2d 291] [54 O.O.2d

      222], paragraph one of the syllabus; State v. Williams (1977), 51 Ohio

      St.2d 112, 117 [364 N.E.2d 1364] [5 O.O.3d 98]. Likewise, “[c]onstitutional

      rights may be lost as finally as any others by a failure to assert them at the

      proper time.” State v. Childs, supra, [14 Ohio St.2d], at 62 [236 N.E.2d

      545], citing State v. Davis (1964), 1 Ohio St.2d 28 [203 N.E.2d 357] [30

      O.O.2d 16]; State, ex rel. Specht, v. Bd. of Edn. (1981), 66 Ohio St.2d

      178, 182 [420 N.E.2d 1004] [20 O.O.3d 191], citing Clarington v. Althar

      (1930), 122 Ohio St. 608 [174 N.E. 251], and Toledo v. Gfell (1958), 107

      Ohio App. 93, 95 [156 N.E.2d 752] [7 O.O.2d 437]. [Footnote omitted.]

36 Ohio St.3d 168, 170, 522 N.E.2d 524; See also, State v. Chandler, 157 Ohio App.3d

72, 813 N.E.2d 65, 2004-Ohio-3436 at ¶ 72; State v. Hughett, Delaware App. No. 04

CAA 06051, 2004-Ohio-6207 at ¶58.

      {¶24} As the United States Supreme Court observed in Puckett v. United States,

526 U.S. 129, 129 S.Ct. 1423, 173 L.Ed.2d 266, (2009),

             If an error is not properly preserved, appellate-court authority to

      remedy the error (by reversing the judgment, for example, or ordering a

      new trial) is strictly circumscribed. There is good reason for this; “anyone

      familiar with the work of courts understands that errors are a constant in

      the trial process, that most do not much matter, and that a reflexive
Perry County, Case No. 12-CA-00018                                                     11


       inclination by appellate courts to reverse because of unpreserved error

       would be fatal.”

556 U.S. at 134. (Citation omitted).

              [A]n appellate court may, in its discretion, correct an error not

       raised at trial only where the appellant demonstrates that (1) there is an

       error; (2) the error is clear or obvious, rather than subject to reasonable

       dispute; (3) the error affected the appellant’s substantial rights, which in

       the ordinary case means it affected the outcome of the district court

       proceedings; and (4) the error seriously affect[s] the fairness, integrity or

       public reputation of judicial proceedings.

United States v. Marcus, 560 U.S. __, 130 S.Ct. 2159, 2164,176 L.Ed.2d 1012 (May 24,

2010) (Internal quotation marks and citations omitted).

              The Ohio Supreme Court pertinently addressed when structural

       error analysis should be used in State v. Perry,

              We emphasize that both this court and the United States Supreme

       Court have cautioned against applying a structural-error analysis where,

       as here, the case would be otherwise governed by Crim.R. 52(B) because

       the defendant did not raise the error in the trial court. See Hill, 92 Ohio

       St.3d at 199, 749 N.E.2d 274; Johnson, 520 U.S. at 466, 117 S.Ct. 1544,

       137 L.Ed.2d 718. This caution is born of sound policy. For to hold that an

       error is structural even when the defendant does not bring the error to the

       attention of the trial court would be to encourage defendants to remain

       silent at trial only later to raise the error on appeal where the conviction
Perry County, Case No. 12-CA-00018                                                     12


      would be automatically reversed. We believe that our holdings should

      foster rather than thwart judicial economy by providing incentives (and not

      disincentives) for the defendant to raise all errors in the trial court-where,

      in many cases, such errors can be easily corrected.

101 Ohio St.3d 118, 802 N.E.2d 643, 2004-Ohio-297, ¶23.

      {¶25} Thus, the defendant bears the burden of demonstrating that a plain error

affected his substantial rights and, in addition that the error seriously affect[s] the

fairness, integrity or public reputation of judicial proceedings. United States v. Olano,

507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508(1993); State v. Perry, 101 Ohio

St.3d at 120, 802 N.E.2d 643. Even if the defendant satisfies this burden, an appellate

court has discretion to disregard the error. State v. Barnes, 94 Ohio St.3d 21, 27, 759

N.E.2d 1240(2002); State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804(1978), paragraph

three of the syllabus; Perry, supra, at 118, 802 N.E.2d at 646.

      {¶26} At the time of White's sentencing in August 2012, R.C. 2929.41(A) read:

             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. Except as provided in division (B)(3) of this section, a jail term or

      sentence of imprisonment for misdemeanor shall be served concurrently

      with a prison term or sentence of imprisonment for felony served in a state

      or federal correctional institution. (Emphasis added).
Perry County, Case No. 12-CA-00018                                                   13


      {¶27} Former R.C. 2929.14(E)(4) set forth the provisions a trial court must follow

in order to impose consecutive sentences. This statute provided:

             (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 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) The harm caused by the multiple offenses was so great or

      unusual that no single prison terms for any of the offenses committed as

      part of a single course 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.

      {¶28} In 2003, the Ohio Supreme Court held in State v. Comer, 99 Ohio St.3d

463, 2003-Ohio-4165, a court may not impose consecutive sentences unless it “finds”

three statutory factors enumerated in then 2929.14(E)(4). The statutory factors were the
Perry County, Case No. 12-CA-00018                                                     14


same as those now enumerated in the revised version of R.C. 2929.14(C)(4) following

enactment of H.B. 86. The revised version of the statute again requires the trial court to

“find” the factors enumerated.

      {¶29} The Court in Comer, supra, read R.C. 2929.14(E)(4), as it existed then, in

conjunction with then R.C. 2929.19(B) to reach its conclusion the trial court must also

state its reasons for the sentence imposed. Then R.C. 2929.19(B) stated the trial court

“shall impose a sentence and shall make a finding that gives its reasons for selecting

the sentence imposed in any of the following circumstances...(c) if it imposes

consecutive sentences under R.C. 2929.14.”

      {¶30} 2011 Am.Sub.H.B. No. 86, which became effective on September 30,

2011, revived the language provided in former R.C. 2929.14(E) and moved it to R.C.

2929.14(C)(4). The revisions to the felony sentencing statutes under 2011 Am.Sub.H.B.

No. 86 now require a trial court to make specific findings when imposing consecutive

sentences. R.C. 2929.14(C)(4) provides, in relevant part:

             (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
Perry County, Case No. 12-CA-00018                                                      15


      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 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.

(Emphasis added). In Section 11, the legislature explained that in amending former R.C.

2929.14(E)(4), it intended “to simultaneously repeal and revive the amended language

in those divisions that was invalidated and severed by the Ohio Supreme Court's

decision in State v. Foster (2006), 109 Ohio St.3d 1.” The General Assembly further

explained that the amended language in those divisions “is subject to reenactment

under the United States Supreme Court's decision in Oregon v. Ice (2009), 555 U.S.

160, and the Ohio Supreme Court's decision in State v. Hodge (2010), ––– Ohio St.3d –

–––, Slip Opinion No. 2010–Ohio–6320.” Thus, it is the legislature's intent that courts

interpret the language in R.C. 2929.14(C)(4) in the same manner as the courts did prior

to State v. Foster, 109 Ohio St.3d 1, 2006–Ohio–856, 845 N.E.2d 470.

      {¶31} When it is clear from the record that the trial court engaged in the

appropriate analysis, little can be gained by sending the case back for the trial court to,

in essence, recite the “magic” or “talismanic” words when imposing consecutive
Perry County, Case No. 12-CA-00018                                                          16


sentences. In other words, because the record supports the trial court’s imposition of

consecutive sentences, the trial court cannot err in imposing consecutive sentences

after remand. Our review on appeal of any subsequent resentencing will be directed at

looking at the entire trial court record to determine if that record supports the trial court’s

findings that the R.C. 2929.14(C) factors were met. See, State v. Alexander, 1st Dist.

Nos. C–110828, C–110829, 2012–Ohio–3349, ¶ 18; State v. Frasca, 11th Dist. 2011–

T–0108, 2012–Ohio–3746, ¶ 57.

       {¶32} Court’s that have previously addressed the pre-amendment version of

R.C. 2929.41(A) have held that the statute's reference to R.C. 2929.14(E) is a

typographical error and that the legislature meant to state R.C. 2929.14(C)(4), which

concerns making findings prior to imposing a consecutive sentence. State v. Walker, 8th

Dist. No. 97648, 2012–Ohio–4274, at fn. 2; State v. Ryan, 8th Dist. No. 98005, 2012–

Ohio–5070; State v. Hess, 2nd Dist. No. 25144, 2013–Ohio–10. Courts are empowered

to correct an obvious typographical error to give effect to the obvious intent of the rule.

Stanton v. Frankel Bros. Realty Co., 117 Ohio St. 345, 350, 158 N.E. 868(1927); Brim v.

Rice, 20 Ohio App.2d 293, 296, 253 N.E.2d 820(1st Dist. 1969); State v. Virasayachack,

138 Ohio App.3d 570, 574, 741 N.E.2d 943(8th Dist. 2000); Delahoussaye v. Ohio State

Racing Com., 10th Dist. Nos. 03AP-954, 03AP-955, 2004-Ohio-3388, ¶12.

       {¶33} We agree with the Second and Eighth District's resolution of White's

argument, and conclude that the trial court appropriately found that it could impose

consecutive sentences under R.C. 2929.14(C). In this case, it is clear that the Ohio

legislature intended to reference R.C. 2929.14(C), rather than R.C. 2929.14(E). We will
Perry County, Case No. 12-CA-00018                                                     17

not employ the rule of lenity to defeat the obvious intention of the legislature. See

Walker, Ryan and Hess.

      {¶34} However, we have reviewed the transcript of the sentencing hearing in the

case sub judice, and the sentencing entry. We note that the sentencing entry contains

the handwritten delineation in the margin, “and consecutive to any prison term imposed

in another county.” Termination Judgment Entry, filed Aug. 31, 2012 at 4.

      {¶35} We have consistently stated that the record must clearly demonstrate that

consecutive sentences are not only appropriate, but are also clearly supported by the

record. See, State v. Fauntleroy, 5th Dist. No. CT2012-0001, 2012-Ohio-4955; State v.

Bonnell, 5th Dist. No. 12CAA3022, 2012-Ohio-515.

      {¶36} In other words, in reviewing the record we must be convinced that the trial

court imposed consecutive sentences because it had found that consecutive sentences

were necessary to protect the public or to punish the offender, and that they are not

disproportionate to the seriousness of his conduct and the danger the offender poses to

the public. In addition, in reviewing the record we must be convinced that the trial court

found the offender’s history of criminal conduct demonstrated that consecutive

sentences were necessary to protect the public from future crime, or 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, or

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
Perry County, Case No. 12-CA-00018                                                    18


part of any of the courses of conduct adequately reflects the seriousness of the

offender's conduct. R.C. 2929.14(C)(4).

      {¶37} In the case at bar, the record contains no evidence that the trial court

engaged in the appropriate analysis before imposing consecutive sentences. Nor does

our through review of the record before this Court provide evidence that the trial court

considered the appropriate factors before imposing consecutive sentences.

      {¶38} Accordingly, White’s second assignment of error is sustained.

      {¶39} The judgment of the Perry County Court of Common Pleas is reversed

and this case is remanded for resentencing in accordance with this opinion and law.

By Gwin, P.J., and

Farmer, J., concur;

Hoffman, J., concurs

separately


                                            _________________________________
                                            HON. W. SCOTT GWIN


                                            _________________________________
                                            HON. WILLIAM B. HOFFMAN


                                            _________________________________
                                            HON. SHEILA G. FARMER




WSG:clw 0423
Perry County, Case No. 12-CA-00018                                                    19


Hoffman, J., concurring

      {¶40} I concur in the majority’s analysis and disposition of Appellant’s first

assignment of error. I further concur in the majority’s disposition of Appellant’s second

assignment of error but write separately only to note my continuing disagreement that

the “magic” or “talismanic” words found in R.C. 2929.14(C)(4) are unnecessary before

imposing consecutive sentences.




                                               ________________________________
                                               HON. WILLIAM B. HOFFMAN
[Cite as State v. White, 2013-Ohio-2058.]


                IN THE COURT OF APPEALS FOR PERRY COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
THOMAS A. WHITE                                   :
                                                  :
                                                  :
                        Defendant-Appellant       :       CASE NO. 12-CA-00018




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

the Perry County Court of Common Pleas is reversed and this case is remanded for

resentencing in accordance with this opinion and law. Costs to appellee




                                                      _________________________________
                                                      HON. W. SCOTT GWIN


                                                      _________________________________
                                                      HON. WILLIAM B. HOFFMAN


                                                      _________________________________
                                                      HON. SHEILA G. FARMER
