[Cite as State v. Wright, 2019-Ohio-165.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                     SANDUSKY COUNTY


State of Ohio                                      Court of Appeals Nos. S-17-055
                                                                         S-17-056
        Appellee
                                                   Trial Court Nos. 17CR127
v.                                                                  17CR588

Daniel L. Wright                                   DECISION AND JUDGMENT

        Appellant                                  Decided: January 18, 2019

                                            *****

        Timothy Braun, Sandusky County Prosecuting Attorney, and
        Mark E. Mulligan, Assistant Prosecuting Attorney, for appellee.

        Andrew R. Mayle and Ronald J. Mayle, for appellant.

                                            *****

        HENSAL, J.

        {¶1} Daniel Wright appeals his sentences from the Sandusky County Court of

Common Pleas. For the following reasons, this Court affirms.

                                              I.

        {¶2} Mr. Wright pleaded guilty to kidnapping in case number 17CR127. He

pleaded guilty to felonious assault and grand theft in case number 17CR588. At a joint
sentencing hearing, the trial court sentenced him to 96 months of imprisonment in each

case. It ordered him to serve the sentences consecutive to each other for a total prison

term of eight years. Mr. Wright has appealed, assigning as error that the trial court erred

when it ordered him to serve his sentences consecutively.

                                             II.

                               ASSIGNMENT OF ERROR

              THE GENERAL RULE IN OHIO IS THAT PRISON TERMS FOR

       SEPARATE OFFENSES RUN CONCURRENTLY. NO EXCEPTION

       APPLIES HERE. THEREFORE, THE TRIAL COURT ERRED IN

       IMPOSING CONSECUTIVE SENTENCES.

       {¶3} Mr. Wright argues that, although Revised Code Section 2929.14(C)(4) allows

a trial court to run the sentences for two offenses within the same case consecutive to

each other, it does not allow a court to run sentences imposed in two different

proceedings consecutive to each other. We “review felony sentences under the standard

set forth in R.C. 2953.08(G)(2) which provides that an ‘appellate court may vacate or

modify a felony sentence on appeal only if it determines by clear and convincing

evidence that the record does not support the trial court’s findings under relevant statutes

or that the sentence is otherwise contrary to law.’” State v. Braswell, 6th Dist. Lucas No.

L-16-1197, 2018-Ohio-3208, ¶ 38, quoting R.C. 2953.08(G)(2); State v Marcum, 146

Ohio St. 3d 516, 2016-Ohio-1002, ¶ 1. The trial court’s findings are not at issue in this




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case. “Thus, we must determine if the sentence is otherwise contrary to law.” State v.

Osley, 6th Dist. Lucas No. L-17-1117, 2018-Ohio-1958, ¶ 9.

       {¶4} Section 2929.14(C)(4) provides, in relevant part, that, “[i]f 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 * * *.” Mr. Wright argues

that comparing the language of that subsection to the language of subsections (C)(1)-(3)

compels the conclusion that a court may only run the sentences imposed in a single

proceeding consecutive to each other.

       {¶5} Section 2929.14(C)(1) requires certain offenders to serve their mandatory

prison sentences consecutive to prison terms “previously or subsequently” imposed on

the offender. Section 2929.14(C)(2) requires offenders who commit a felony while

incarcerated to serve the sentence imposed for the new felony consecutive to any prison

term “previously or subsequently” imposed. Section 2929.14(C)(3) requires an offender

who steals a firearm or flees from the police in a motor vehicle to serve the sentence for

that offense consecutive to any prison term “previously or subsequently” imposed on the

offender. According to Mr. Wright, because Section 2929.14(C)(4) does not say that the

court may order sentences to run consecutive to those previously or subsequently

imposed, it may only order consecutive sentences within a single proceeding.

       {¶6} In Sections 2929.14(C)(1)-(3), the General Assembly has required sentencing

courts to run sentences for certain offenses consecutive to all other sentences. Section

2929.14(C)(4), however, addresses a different situation. In that section, the General




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Assembly has given sentencing courts discretion to run other sentences consecutive to

each other if they make certain findings. R.C. 2929.14(C)(4). Upon review of Section

2929.14, we conclude that the fact that the General Assembly used the phrase “previously

or subsequently” in subsections (C)(1)-(3) has no significance as to subsection (C)(4)

because, even though they are all subsections under 2929.14(C), subsection (C)(4)

applies to different circumstances.

       {¶7} Mr. Wright next argues that the fact Section 2929.14(C)(4) describes what

“the” court may do indicates that it only applies to sentences imposed within a single

case. He also argues that the fact that the subsection uses the present tense “are”

indicates that it only applies to sentences within one case because those are the only

sentences that “are imposed” at the same time.

       {¶8} The phrase “[i]f multiple prison terms are imposed on an offender for

convictions of multiple offenses” does not contain any language specifically restricting it

to sentences imposed within a single proceeding. The statute’s use of the word “are”

suggests that a prison term need only be in existence at the time that the trial court applies

Section 2929.14(C)(4). At the time the sentencing court decides whether to run a

sentence consecutive under Section 2929.14(C)(4), there are two sets of sentences that

may exist for the offender: 1) those that have just been imposed in the current proceeding

and 2) those that were imposed in a prior proceeding and that the defendant has not

completed. Upon consideration of the plain language of Section 2929.14(C)(4), we

conclude that a sentencing court may require a defendant to serve a sentence consecutive




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to those imposed in a prior case because those sentences “are imposed” on the offender at

the time that the sentencing court applies Section 2929.14(C)(4).

       {¶9} Mr. Wright further argues that this Court should follow the Fifth District’s

decision in State v. Thompson, 5th Dist. Fairfield No. 01CA62, 2002-Ohio-4717, which

concluded that the sentencing court could not run Kenneth Thompson’s re-imposed

sentence for a community control violation consecutive to the sentence he had received

for the offense that was the basis for the violation. The Fifth District, however, reached

its conclusion for two reasons that are not applicable to this case. First, it determined that

the trial court could not impose a sentence on Mr. Thompson that was greater than the

one it originally imposed. It noted that the trial court’s original sentencing entry did not

indicate that his sentence would be served consecutive to any he received for a

subsequent offense. Id. at ¶ 31. Second, it determined that allowing consecutive

sentences would usurp the authority of the court that imposed the sentence for the

subsequent offense from fashioning an appropriate sentence for that offense under

Chapter 2929. In this case, the trial court imposed its sentence in the two cases at the

same hearing and neither case involved a community control violation. Accordingly, the

reasoning of the Fifth District in Thompson is inapplicable.

       {¶10} Upon review of Section 2929.14(C)(4), we conclude that the trial court

correctly concluded that it had discretion to run Mr. Wright’s sentence in case number

17CR127 and his sentence in case number 17CR588 consecutive to each other. Mr.

Wright’s assignment of error is overruled.




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                                            III.

       {¶11} Mr. Wright’s assignment of error is overruled. The judgment of the

Sandusky County Court of Common Pleas is affirmed.


                                                                        Judgment affirmed.
                                        _________

       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of

Common Pleas, County of Sandusky, State of Ohio, to carry this judgment into

execution. A certified copy of this journal entry shall constitute the mandate, pursuant to

App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal

entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at

which time the period for review shall begin to run. App.R. 22(C). The Clerk of the

Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and

to make a notation of the mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.


                                                   JENNIFER HENSAL
                                                   FOR THE COURT
SCHAFER, P. J.
CARR, J.
CONCUR.

Judges Jennifer Hensal, Julie Schafer, and Donna Carr, Ninth District Court of Appeals,
sitting by assignment of the Chief Justice of the Supreme Court of Ohio.




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          This decision is subject to further editing by the Supreme Court of
     Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
          version are advised to visit the Ohio Supreme Court’s web site at:
                   http://www.supremecourt.ohio.gov/ROD/docs/.




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