[Cite as State v. Peddicord, 2013-Ohio-3398.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                HENRY COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 7-12-24

        v.

MAURICE C. PEDDICORD, III,                               OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Henry County Common Pleas Court
                            Trial Court No. 12 CR 0065

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                             Date of Decision: August 5, 2013




APPEARANCES:

        Alan J. Lehenbauer for Appellant

        John H. Hanna for Appellee
Case No. 7-12-24



ROGERS, J.

           {¶1} Defendant-Appellant, Maurice C. Peddicord, III, appeals the judgment

of the Court of Common Pleas of Henry County, finding him guilty of two counts

of gross sexual imposition and sentencing him to 10 years in prison. On appeal,

Peddicord contends the trial court erred by: (1) finding him guilty based on

insufficient evidence; (2) failing to merge his convictions for gross sexual

imposition for the purposes of sentencing; and (3) imposing a mandatory sentence,

a maximum sentence, and consecutive sentences. For the reasons that follow we

affirm in part and reverse in part the trial court’s judgment.

           {¶2} On October 23, 2012, pursuant to a plea agreement, the State re-filed a

Bill of Information alleging two counts of gross sexual imposition in violation of

R.C. 2907.05(A)(4)(C)(2), a felony of the third degree.1 The Bill of Information

arose from Peddicord’s alleged sexual abuse of R.P., a three-year old female,

while he was responsible for supervising her.

           {¶3} Also on October 23, 2012, the trial court conducted a plea hearing. At

the hearing, the State read the following statement of facts into the record:

           [I]n the County of Henry, in the State of Ohio, specifically in
           Napoleon, Ohio, as to Count One on or between June 14, 2012 and
           June 17, 2012 Mr. Peddicord, Maurice Peddicord, III, did engage in
           sexual contact with another person, in this case, [R.P.] who was at
           that time 3 years of age and therefore obviously less than 13 years of

1
    The original Bill of Information, filed October 22, 2012, alleged two counts of rape.

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        age and obviously not his spouse, the sexual contact involved as
        related by the victim, playing on the bed, on her bed, and “Yo” as
        she called [him] would be naked and would touch her with his penis
        in the area of her mouth and that it was yucky. As to Count Two on
        the dates, June 17, 2012 to June 20, 2012 again in the City of
        Napoleon, Henry County, Ohio, Mr. Peddicord did engage in sexual
        contact again with [R.P.] who was 3 years of age, that sexual contact
        being the touching of his penis in the area of her mouth or perhaps
        with her hands as well. I would indicate that I have marked as
        State’s Exhibit 1 and would ask for its admission the DNA report
        from the bed on which these games were played showing semen that
        I believe the numbers are 1 in 2 quintillion 9482 quadrillion [sic] to 1
        that the semen came from either the defendant or his twin brother
        who was at that time incarcerated at CCNO facing other charges.3
        Again, on that count the victim was [R.P.] who was 3 years of age at
        the time and not the spouse of the defendant and we would move the
        admission of State Exhibit 1.

Plea Hearing Tr., p. 9-10. After the State read the statement of facts, the Court

admonished Peddicord of his constitutional rights and advised him of a possible

maximum sentence. Peddicord entered a plea of no contest for both counts of

gross sexual imposition alleged in the Bill of Information. Subsequently, the trial

court found him guilty on both counts.

        {¶4} The trial court conducted a sentencing hearing for Peddicord on

December 4, 2012.           The State requested the court to impose the maximum

sentence for Peddicord’s conduct:



2
 Exhibit 1 shows that the actual number is 2 quintillion 982 quadrillion.
3
  We assume that the State misspoke and meant to say that the DNA report indicated the odds that the
semen found on the victim’s bed came from someone other than Peddicord or his twin brother were 1 in 2
quintillion 982 quadrillion.

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       [I]n looking at the more serious verses [sic] the less serious, the age
       of the victim being a 3 year old at the time that the defendant
       committed these sexual assaults upon her, the victim having suffered
       serious physical and psychological harm as a result of the offense,
       and the offenders [sic] relationship, he was actually the caregiver for
       this child and abused that relationship by choosing to engage in
       sexual contact with her. This is a mandatory prison sentence
       because there was additional evidence other than simply the
       statement of the girl, there was semen found on the sheets of the
       little girls [sic] bed that was directly identified as the defendants
       [sic]. In the categories of less serious there aren’t any that fit. The
       victim certainly did not facilitate the offense, there is no strong
       provocation here for what he did, there aren’t any substantial
       grounds to mitigate the conduct of having sexual contact with a 3
       year old and certainly the defendant can’t in any way argue that he
       would not have expected that [sic] to cause any psychological harm
       to a 3 year old by engaging in sexual contact with that 3 year old
       child. Based upon that the State would recommend a sentence of 5
       years on each count to be served consecutively to one another.

Sentencing Tr., p. 7.

       {¶5} Peddicord argued for a more lenient sentence, noting that recidivism

was less likely since he had no prior juvenile or adult record, and had led a law

abiding life for a significant number of years until this incident. Peddicord also

noted how he took responsibility for his actions through his plea and spared R.P.

and her family from going through “further turmoil.” Id. at 8.

       {¶6} In making its sentencing determination, the trial court considered “all

those factors as set forth in 2929.11 and 2929.12 of the Revised Code in addition

to 2929.14 of the Revised Code.” Id. It also noted Peddicord’s lack of a criminal

history, the “heinous” nature of the crimes, and Peddicord’s lack of remorse.

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Based on these considerations, the trial court sentenced Peddicord to a prison term

of five years for each count, to be run consecutively, for a total of 10 years.

       {¶7} Peddicord filed this timely appeal, presenting the following

assignments of error for our review.

                             Assignment of Error No. I

       TRIAL COURT ERRED IN FINDING APPELLANT GUILTY
       PURSUANT TO THE NO CONTEST PLEA AS THERE WAS
       INSUFFICIENT EVIDENCE PRESENTED TO FIND
       APPELLANT GUILTY OF THE TWO CHARGES FOR
       GROSS SEXUAL IMPOSITION.

                            Assignment of Error No. II

       THE TRIAL COURT COMMITED PLAIN ERROR IN
       FAILING TO MERGE COUNT ONE WITH COUNT TWO OF
       THE BILL OF INFORMATION FOR SENTENCING
       PURPOSES OR AT LEAST IN FAILING TO CONDUCT AN
       ALLIED OFFENSES OF SIMILAR IMPORT ANALYSIS
       PRIOR TO SENTENCING THE APPELLANT.

                            Assignment of Error No. III

       THE TRIAL COURT ERRED BY IMPOSING THE
       MAXIMUM    SENTENCE    AND/OR    CONSECUTIVE
       SENTENCES FOR APPELLANT’S CONVICTIONS FOR
       TWO COUNTS OF GROSS SEXUAL IMPOSITION.

                             Assignment of Error No. I

       {¶8} In his first assignment of error, Peddicord contends that his

convictions are supported by insufficient evidence. He further argues that the



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prosecutor’s statement of facts negated an essential element of gross sexual

imposition. We disagree.

                                Standard of Review

       {¶9} When an appellate court reviews the record for sufficiency, the

relevant inquiry is whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found that the essential

elements of the crime were proven beyond a reasonable doubt. State v. Monroe,

105 Ohio St.3d 384, 2005-Ohio-2282, ¶ 47. Sufficiency is a test of adequacy.

State v. Thompkins, 78 Ohio St.3d 380, 386 (1997), superseded by constitutional

amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89 (1997).

Accordingly, the question of whether the offered evidence is sufficient to sustain a

verdict is a question of law. State v. Wingate, 9th Dist. Summit No. 26433, 2013-

Ohio-2079, ¶ 4.

                                 No-Contest Pleas

       {¶10} Under Crim.R. 11(B)(2), a no-contest plea “is not an admission of [a]

defendant’s guilt, but is an admission of the truth of the facts alleged in the

indictment, information, or complaint * * *.” The Ohio Supreme Court has held

that, “when an indictment, information, or complaint contains sufficient

allegations to state a felony offense and the defendant pleads no contest, the court

must find the defendant guilty of the charged offense.” State v. Bird, 81 Ohio

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St.3d 582, 583 (1998). Therefore, an “appellant is foreclosed from challenging the

factual merits of the underlying charge” after pleading no contest to a bill of

information. Id. at 584.

      {¶11} In State v. Lichtenberger, 3d Dist. Van Wert Nos. 15-02-13, 15-03-

03, 2003-Ohio-1581, the defendant pleaded no contest to one count of gross sexual

imposition and one count of pandering obscenity involving a minor. He later

appealed to this court, contending that the trial court erred in finding that the

State’s statement of the facts contained sufficient evidence for the court to find

him guilty. Count two of the appellant’s indictment read:

      On or about the 26th day of November 2001 in Van Wert County,
      Ohio, Aron D. Lichtenberger did have sexual contact with another
      who is not the spouse of the offender or cause another, not the
      spouse of the offender, to have sexual contact with the offender
      when the victim is less than thirteen years of age, whether or not the
      offender knows the age of the victim.

Id. at ¶ 9. We found that this language in the indictment mirrored the language of

R.C. 2907.05(A)(4) and was sufficient evidence to find the defendant guilty.

      {¶12} Similar language was used in this case.          The State’s Bill of

Information reads as follows:

      Maurice C. Peddicord, III, the Defendant, on or between June 14,
      2012 and June 17, 2012 did in this County violate Section
      2907.05(A)(4)(C)(2) of the Ohio Revised Code, in that the said
      Maurice C. Peddicord, III did knowingly have sexual contact with
      another, not the spouse of the said Maurice C. Peddicord, III, and the


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      other person was less than thirteen years of age, whether or not the
      said Maurice C. Peddicord, III knew of the age of the other person.

      ***

      Maurice C. Peddicord, III, the Defendant, on or between June 17,
      2012 and June 20, 2012, did in this County violate Section
      2907.05(A)(4)(C)(2) of the Ohio Revised Code, in that the said
      Maurice C. Peddicord, III did knowingly, have sexual contact with
      another, not the spouse of the said Maurice C. Peddicord, III, and the
      other person was less than thirteen years of age, whether or not the
      said Maurice C. Peddicord, III knew of the age of the other person.

(Docket No. 2, p. 1-2). As in Lichtenberger, the State’s language mirrored that of

the R.C. 2907.05(A)(4), which states:

      (A) No person shall have sexual contact with another, not the
      spouse of the offender; cause another, not the spouse of the offender,
      to have sexual contact with the offender; or cause two or more
      persons to have sexual contact when any of the following applies:

      ***

      (4) The other person, or one of the other persons, is less than
      thirteen years of age, whether or not the offender knows the age of
      that person.

Due to the consistency between the State’s Bill of Information and the language

contained in R.C. 2907.05(A)(4), we follow Lichtenberger’s guidance and find

that the Bill of Information contained sufficient evidence to support Peddicord’s

convictions.

      {¶13} Peddicord also argues that the Bill of Information failed to establish

the sexual contact happened on two separate incidents merely because there is an

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overlapping date.     We find this argument unconvincing.             In the Bill of

Information, the State adequately described two separate incidents where the

sexual contact took place and Peddicord pleaded no contest to each separate

incident. As stated above, he is precluded from taking a second bite at the apple

and challenging the factual merits of the underlying charge.

       {¶14} On appeal, Peddicord also maintains that an essential element of

gross sexual imposition was negated by the prosecutor’s statement of facts.

Unlike a misdemeanor offense, the prosecution is not required to present a

statement of facts when the trial court accepts a defendant’s plea of no contest to a

felony charge. State v. Cooper, 168 Ohio App.3d 378, 2006-Ohio-4004, ¶ 6 (2d

Dist.). However, if the prosecutor does present a statement of facts and those facts

directly contradict the felony charged in the indictment by negating an essential

element to the commission of the alleged offenses, the court cannot make a finding

of guilty based on the charges alleged in the indictment. Id.

       {¶15} Specifically, Peddicord argues that in its statement of facts, the State

described the “sexual contact” as Peddicord touching R.P. “with his penis in the

area of her mouth,” Plea Hearing Tr., p. 9-10, which does not meet the definition

of “sexual contact” as defined by the Ohio Revised Code. “Sexual contact” is

defined as “touching of an erogenous zone of another, including without limitation

the thigh, genitals, buttock, pubic region, or if the person is a female, a breast, for

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Case No. 7-12-24



the purpose of sexually arousing or gratifying either person. (Emphasis added.)

R.C. 2907.01(B). Since R.C. 2907.01(B) contains the phrase, “including without

limitation,” it is reasonable to conclude “that the legislature intended that body

parts that are not traditionally viewed as erogenous zones, may, in some instances,

be considered erogenous zones.” State v. Miesse, 2d Dist. Clark No. 99-CA-74

(Aug. 18, 2000).

       {¶16} Indeed, Ohio courts have typically found that the list of erogenous

zones in R.C. 2907.01 is a non-exhaustive list. See State v. Stair, 12th Dist.

Warren No. CA2001-03-017 (Jan. 14, 2002) (finding that victim’s hips constituted

an erogenous zone); Miesse, supra (holding that the defendant’s kissing, touching,

and blowing of the victim’s stomach was sexual contact); State v. Young, 4th Dist.

Athens No. 96CA1780 (Aug. 15, 1997) (holding that touching a victim’s buttock

through her clothing constituted sexual contact); State v. Watkins, 10th Dist.

Franklin No. 92AP-1546 (May 4, 1993) (finding that the rubbing of the back of

the victim’s leg was sexual contact).

       {¶17} In State v. Risch, 3d Dist. Wyandot No.16-10-14, 2011-Ohio-3633,

the defendant appealed a judgment finding him guilty of multiple sex offenses.

Risch at ¶ 1. The first count of Risch’s indictment alleged that Risch had sexual

contact with TNF. Id. at ¶ 6. During the trial, TNF testified that Risch had

grabbed her wrist and forced her hand to touch his genitals. Id. at ¶ 7. We found

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that this testimony was sufficient evidence to support the defendant’s gross sexual

imposition conviction. Id. Further, in State v. Tate, 8th Dist. Cuyahoga No.

98221, 2013-Ohio-370, the court held that both the defendant’s touching of the

victim’s genitals and forcing of the victim to touch his genitals constituted sexual

contact. Id. at ¶ 23. Similarly, in this case, Peddicord forced his genitals in the

area of R.P.’s mouth. We find that this constitutes sexual contact as defined in

R.C. 2907.01(B) and that the prosecutor’s statement of facts did not negate an

essential element of gross sexual imposition.

       {¶18} Therefore, we overrule Peddicord’s first assignment of error.

                            Assignment of Error No. II

       {¶19} In his second assignment of error, Peddicord argues that the trial

court erred when it failed to merge his gross sexual imposition convictions for

sentencing purposes. We disagree.

                                Standard of Review

       {¶20} Peddicord never raised the issue of merger at sentencing.         This

failure results in a waiver of all but plain error. State v. Underwood, 124 Ohio

St.3d 365, 2010-Ohio-1, ¶ 31.    In order to have plain error under Crim.R. 52(B)

there must be an error, the error must be an “obvious” defect in the trial

proceedings, and the error must have affected “substantial rights.” State v. Barnes,

94 Ohio St.3d 21, 27 (2002). Plain error is to be used “with the utmost caution,

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under exceptional circumstances and only to prevent a manifest miscarriage of

justice.” Id. Plain error exists only in the event that it can be said that “but for the

error, the outcome of the trial would clearly have been otherwise.” State v. Biros,

78 Ohio St.3d 426, 431 (1997). The Ohio Supreme Court has held that the

“imposition of multiple sentences for allied offenses of similar import is plain

error.” Underwood, 124 Ohio St.3d at ¶ 31.

                          Allied Offenses of Similar Import

       {¶21} It is well established that multiple violations of the same statute do

not constitute allied offenses of similar import under R.C. 2941.25(A). State v.

Brewster, 1st Dist. Hamilton Nos. C-030024, C-030025, 2004-Ohio-2993, ¶ 81

(“[M]ultiple violations of the same statute are not allied offenses of similar import,

and a defendant may be sentenced for each violation.”); State v. Douse, 140 Ohio

App.3d 42, 45 (8th Dist. 2000) (“These two paragraphs of R.C. 2941.25 express

the legislative intent that (1) multiple offense violations of the same statute do not

constitute allied offenses of similar import and (2) a defendant may be sentenced

on multiple violations of the same statute.”); State v. Garcia, 3d Dist. Putnam No.

12-95-4 (Feb. 22, 1996); accord State v. McClellan, 4th Dist. Meigs No. 451 (Jun.

27, 1991) (“Since the common law doctrine of merger did not apply to multiple

violations of the same statute, its direct progeny, R.C. 2941.25, should not be

interpreted to apply to multiple violations of the same statute.”).

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Case No. 7-12-24



        {¶22} Here, Peddicord pleaded no contest to two counts of gross sexual

imposition. Based on this well-settled rule that multiple violations of the same

statute are not allied offenses, we find that the trial court did not err in failing to

merge Peddicord’s convictions for the purposes of sentencing.

        {¶23} Accordingly, we overrule Peddicord’s second assignment of error.

                            Assignment of Error No. III

        {¶24} For his third assignment of error, Peddicord contends that the trial

court erred when sentencing him to the maximum sentence and sentencing him to

consecutive sentences. Specifically, Peddicord argues that the trial court failed to

sufficiently consider all factors required by law. Peddicord also challenges the

trial court’s imposition of a mandatory sentence. We agree in part and disagree in

part.

                            Mandatory Prison Sentence

        {¶25} On appeal, Peddicord argues that the trial court erred in issuing a

mandatory prison sentence pursuant to R.C. 2907.05(C)(2). According to R.C.

2907.05(C)(2), a trial court is required to impose a mandatory prison term if either

one of the following applies: (1) evidence other than the testimony of the victim

was admitted, which corroborates the violation; or (2) the offender previously was

convicted of or pleaded guilty to a violation of gross sexual imposition, rape,



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felonious sexual penetration, or sexual battery and the victim of the previous

offenses was less than thirteen years old. R.C. 2907.05(C)(2).

      {¶26} Peddicord has no prior criminal history. Thus, at issue is whether

evidence was offered that corroborates his gross sexual imposition convictions.

Here, the State offered Exhibit 1 into evidence, which was a DNA analysis of the

victim’s bed sheet. The results showed that there was a 1 in 2 quintillion 982

quadrillion chance that the semen came from someone other than the defendant or

his twin brother, who was incarcerated at the time the sexual contact took place.

This evidence corroborates the allegation that Peddicord played “games” with R.P.

on her bed and made sexual contact with her and satisfies the requirements of R.C.

2907.05(C)(2). As such, the trial court did not err in issuing a mandatory prison

sentence.

                                Maximum Sentence

      {¶27} Trial courts have full discretion to impose any sentence within the

statutory range. State v. Saldana, 3d Dist. Putnam No. 12-12-09, 2013-Ohio-1122

¶ 20. Since Peddicord was convicted of third degree felonies, the relevant range of

prison sentence is between one and five years. R.C. 2929.14(A)(3)(a). “A trial

court’s sentence will not be disturbed on appeal absent a defendant’s showing by

clear and convincing evidence that the sentence is unsupported by the record or

otherwise contrary to law.” State v. Barrera, 3d Dist. Putnam No. 12-12-01,

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Case No. 7-12-24



2012-Ohio-3196, ¶ 20. Clear and convincing evidence is that “which will produce

in the mind of the trier of facts a firm belief or conviction as to the facts sought to

be established.” Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the

syllabus. An appellate court should not, however, substitute its judgment for that

of the trial court because the trial court is in a better position to judge the

defendant’s chances of recidivism and determine the effects of the crime on the

victim. State v. Watkins, 3d Dist. Auglaize No. 2-04-08, 2004-Ohio-4809, ¶ 16.

       {¶28} R.C. Chapter 2929 governs sentencing. When sentencing a felony

offender, the trial court must consider R.C. 2929.11, which sets forth the

overriding purposes of felony sentencing. In advancing these purposes, sentencing

courts are instructed to “consider the need for incapacitating the offender,

deterring the offender and others from future crime, rehabilitating the offender,

and making restitution to the victim of the offense, the public, or both.” R.C.

2929.11(A). Further, R.C. 2929.11(B) requires that felony sentences not demean

“the seriousness of the offender’s conduct and its impact upon the victim” and be

consistent with sentences imposed in similar cases. State v. Snyder, 3d Dist.

Seneca No. 13-12-38, 2013-Ohio-2046, ¶ 24.

       {¶29} The trial court must also consider the factors set forth under R.C.

2929.12(B), (C), (D), and (E) relating to the seriousness of the offender’s conduct

and the likelihood of the offender’s recidivism, and “may consider any other

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

State v. Hartley, 3d Dist. Union No. 14-11-29, 2012-Ohio-4108, ¶ 31; R.C.

2929.12(A).

       {¶30} The Ohio Revised Code does not mandate that the sentencing judge

use specific language or make specific findings on the record when considering

the applicable seriousness and recidivism factors. State v. Arnett, 88 Ohio St. 3d

208, 215 (2000); R.C. 2929.12. Where the record lacks sufficient reasons to

justify the trial court’s sentence, the reviewing court may find that the trial court

erred. State v. Hobby, 5th Dist. Ashland No. 11COA41, 2012-Ohio-2420, ¶ 36.

However, where the record supports the sentence, the trial court does not need to

recite its reasoning on the record. Id.

       {¶31} Here, the trial court sentenced Peddicord to the maximum sentence

authorized by statute. At the sentencing hearing, the trial court acknowledged that

it had considered the appropriate sentencing factors and the purpose behind the

sentencing statutes.

       When I sit and think about what is an appropriate sentence in a case
       such as this, taking into consideration all those factors set forth in
       2929.11 and 2929.12 of the Revised Code in addition to 2929.14 of
       the Revised Code. The Court looks at two primary purposes in
       felony sentencing and those are to protect the public from future
       crime and to punish the defendant for his conduct. These are
       heinous crimes and there is no showing of any remorse.



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Sentencing Tr., p. 9. These statements demonstrate that the trial court properly

considered the factors set forth in R.C. 2929.11 and R.C. 2929.12.

        {¶32} The record as a whole also supports the trial court’s sentence. The

Pre-Sentence Investigation Report (“PSIR”) revealed that Peddicord was entrusted

with babysitting R.P. at the time Peddicord made sexual contact with the victim,

satisfying R.C. 2929.12(B)(6).               Additionally, the PSIR recommended that

Peddicord receive the maximum sentence.                    Finally, the trial court found that

Peddicord presented a high risk to the community. Although Peddicord has no

prior criminal record, the trial court was allowed to consider “any other relevant

factors” as to the likelihood that Peddicord would recidivate. R.C. 2929.12(D).

There is no indication in the record that Peddicord offered any sort of remorse for

his crime, which is indicative of his likelihood to recidivate.4 R.C. 2929.12(D)(5).

Given all this evidence, the trial court’s findings are supported by the record and

the trial court’s imposition of the maximum sentence was not clearly and

convincingly contrary to law.




4
  Peddicord makes the argument that the trial court improperly considered his lack of remorse at the
sentencing hearing because it is not a factor listed in R.C. 2929.12. However, R.C. 2929.12(D)(5) states
that the trial court may consider whether “[t]he offender shows no genuine remorse for the offense.”
Further, R.C. 2929.12 states that the trial court “may consider any other factors that are relevant to
achieving [the] purposes and principles of sentencing.” R.C. 2929.12(A). Thus, Peddicord’s argument is
without merit.

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                               Consecutive Sentences

       {¶33} The revisions to the felony sentencing statutes under H.B. 86 now

require a trial court to make specific findings on the record, as set forth in R.C.

2929.14(C)(4), when imposing consecutive sentences. State v. Hites, 3d Dist.

Hardin No. 6-11-07, 2012-Ohio-1892, ¶ 11. Specifically, the trial court must find

that (1) consecutive sentences are necessary to either protect the public or punish

the offender; (2) the sentences would not be disproportionate to the offense

committed; and (3) one of the factors set forth in R.C. 2929.14(C)(4)(a, b or c)

applies. Id. Although the trial court stated that it considered the factors set forth

in R.C. 2929.14, it did not make any of the three statutory findings that are

required by R.C. 2929.14(C). The State does not dispute that the trial court erred

in this regard. As such, we reverse the trial court’s imposition of consecutive

sentences and remand this matter so that the trial court can consider making the

proper findings, if they so exist, for the imposition of consecutive sentences.

       {¶34} Accordingly, we overrule Peddicord’s third assignment of error

insofar as it relates to the trial court’s imposition of a mandatory and maximum

sentence for his convictions. However, we sustain Peddicord’s third assignment

of error insofar as it relates to the trial court’s imposition of consecutive sentences

and remand this matter so that the trial court can consider making the necessary

findings to support an imposition of consecutive sentences.

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       {¶35} Having found no error prejudicial to Peddicord in the first and

second assignments of errors in their entirety and in the third assignment of error

in part, but having found error prejudicial to Peddicord in the third assignment of

error in part, we affirm in part and reverse in part the trial court’s judgment and

remand this matter for further proceedings consistent with this opinion.

                                                       Judgment Affirmed in Part,
                                                            Reversed in Part and
                                                                Cause Remanded

PRESTON, P.J. and WILLAMOWSKI, J., concur.

/jlr




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