[Cite as State v. Williams, 2013-Ohio-1026.]


                     Court of Appeals of Ohio
                                    EIGHTH APPELLATE DISTRICT
                                       COUNTY OF CUYAHOGA


                                   JOURNAL ENTRY AND OPINION
                                            No. 98261




                                           STATE OF OHIO
                                                   PLAINTIFF-APPELLEE

                                                  vs.

                                         JASON WILLIAMS
                                                   DEFENDANT-APPELLANT




                                               JUDGMENT:
                                                AFFIRMED


                                        Criminal Appeal from the
                                 Cuyahoga County Court of Common Pleas
                                          Case No. CR-556668

        BEFORE: Rocco, J., Boyle, P.J., and Jones, J.

        RELEASED AND JOURNALIZED: March 21, 2013
ATTORNEY FOR APPELLANT

Rick L. Ferrara
2077 East 4th St., 2nd Floor
Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: T. Allan Regas
        Anna M. Faraglia
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:

       {¶1} Defendant-appellant Jason Williams appeals the consecutive sentences imposed

upon him after he pled guilty to various counts in the Cuyahoga County Court of Common Pleas.

 Williams contends that the trial court’s imposition of consecutive sentences was contrary to

law.   For the reasons that follow, Williams’s consecutive sentences are affirmed.

       {¶2} On January 30, 2012, Williams was indicted in Cuyahoga County Case No.

CR-556668 on 368 counts of rape, a first degree felony pursuant to R.C. 2907.02, with sexually

violent predator specifications on each count, and three counts of kidnapping in violation of R.C.

2905.01, with sexual motivation and sexually violent predator specifications on each count.    As

part of a plea agreement, on March 19, 2012, Williams pled guilty to two counts of rape in

violation of R.C. 2907.02(A), without the sexually violent predator specifications. On that

same date, Williams also pled guilty to charges in two other cases. In Case No. CR-556698,

Williams pled guilty to one count of burglary in violation of R.C. 2911.12(A)(4) and one count

of theft in violation of R.C. 2913.02(A)(1), and in Case No. CR-557008, Williams pled guilty to

attempted failure to provide notice of change of address in violation of R.C. 2923.02 and R.C.

2950.05(F)(1). In exchange for Williams’s pleas, the state dismissed all other pending counts

against Williams.

       {¶3} Williams’s sentencing hearing was held on April 3, 2012.      Prior to sentencing, the

trial court heard from the prosecutors, the rape victim, and Williams and his counsel.   The trial

court also indicated that it had reviewed a presentence investigation report and mitigation report

from another case involving Williams.
       {¶4} The rape counts against Williams stemmed from his repeated rape and physical

abuse of his former girlfriend.     The record reflects that over a period of several months,

Williams beat and raped his former girlfriend repeatedly, threatening to kill her if she told

anyone. Williams also stole various electronics from the home of John Jenkins. Jenkins, who

was terminally ill, had previously taken Williams in and let Williams stay with him for a couple

of weeks when Williams needed assistance.        Williams later came back into Jenkins’s house

through an open door and stole the electronics, resulting in the theft and burglary charges in

Case No. CR-556698.

       {¶5} The trial court found that Williams had physically, emotionally, and/or economically

harmed his victims and that his actions were particularly egregious in light of the mental

condition of his rape victim and his abuse of prior relationships of trust to facilitate his crimes.

The trial court further found that Williams had a long history of violent criminal violations, had a

substantial history of non-compliance with community control sanctions, was likely to re-offend,

and was dangerous and presented a risk to public safety.

       {¶6} In Case No. CR-556668, the trial court sentenced Williams to five years in prison on

the first rape count, and six years in prison on the second rape count, to run consecutively. In

Case No. CR-556698, the trial sentenced Williams to one year in prison to run consecutively

with the 11-year sentence on the two rape counts, and in Case No. CR-557008, the trial court

sentenced Williams to two years in prison to be served concurrently with the other sentences,

resulting in an aggregate prison term of 12 years.
      {¶7} In sentencing Williams, the trial court stated on the record that it had considered the

sentencing factors outlined in R.C. 2929.11 and 2929.12 and further stated that consecutive

sentences were imposed “after a careful statutory sentencing analysis”:

      The reason I’m imposing what I consider to be a hefty prison term of 12 years is
      because of you being a risk to our safety, public safety, because you are dangerous.
      * * * [T]he consecutive sentences were imposed after a careful statutory
      sentencing analysis where I believe the law warrants it and that the Court’s finding
      is appropriate. I do understand that there have to be findings made, and I hope
      that the record indicates why, based on your violent history, based on the 2929.11
      and 2929.12 sentencing analysis, protecting the public, public safety, and your
      dangerousness, that is why I imposed consecutive sentences.

      {¶8} Williams appeals from the trial court’s judgment in Case No.

CR-556668 imposing consecutive sentences.

      {¶9} Williams presents a single assignment of error:

      The trial court acted contrary to law when it imposed consecutive sentences
      without authority to do so under the Ohio Revised Code.

      {¶10} Williams argues that his consecutive sentences were contrary to law because the

trial court lacked a specific statutory basis for the imposition of consecutive sentences under

R.C. 2929.41(A).

      {¶11} R.C. 2929.41(A) sets forth a presumption that the sentencing court will impose

concurrent sentences where an offender is sentenced to multiple prison terms for criminal

offenses.   At the time of Williams’s sentencing on April 3, 2012, R.C. 2929.41(A) stated

              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.

      {¶12} Thus, under R.C. 2929.41(A), as it existed at the time of Williams’s sentencing, a

defendant’s sentence must be served concurrently with any other prison term unless one of the

exceptions specified in R.C. 2929.41(A) — R.C.            2929.41(B), R.C. 2929.14(E), R.C.

2971.03(D), or R.C. 2971.03(E) — applies.

      {¶13} It is undisputed that none of the listed exceptions applies to Williams or the

offenses at issue. R.C. 2929.41(B) contains three subsections. R.C. 2929.41(B)(1) applies to

misdemeanor sentences; R.C. 2929.41(B)(2) involves situations in which a defendant has been

sentenced to a prison term by a court of another state or the United States in addition to the

sentence imposed by the Ohio court; and R.C. 2929.41(B)(3) involves situations in which the

defendant was convicted of certain vehicular felonies and related misdemeanors. R.C.

2971.03(D) and 2971.03(E) involve situations in which the defendant was found guilty of, or

pleaded guilty to, offenses involving sexually violent predator specifications. R.C. 2929.14(E)

provides: “The court shall impose sentence upon the offender in accordance with section

2971.03 of the Revised Code, and Chapter 2971 of the Revised Code applies regarding the

prison term or term of life imprisonment without parole imposed upon the offender and the

service of that term of imprisonment” if any of six enumerated conditions applies.   Given that

none of these exceptions applies, Williams argues that the trial court erred in imposing

consecutive sentences.

      {¶14} As this court has previously held, however, R.C. 2929.41(A), as it existed at the

time of Williams’s sentencing, contained a legislative scrivener’s   error.   State v. Ryan, 8th
Dist. No. 98005, 2012-Ohio-5070, ¶ 19, 22; State v. Walker, 8th Dist. No. 97648,

2012-Ohio-4274, ¶ 81, fn.2. In 2011 Am.Sub.H.B. No. 86 (“H.B. 86”), the General Assembly

amended R.C. 2929.14 and 2929.41(A) “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, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 270.”

       {¶15} Prior to H.B. 86, R.C. 2929.14(E)(4) required the trial court to make specific

factual findings prior to imposing consecutive sentences. In Foster, the Ohio Supreme Court

held that this statutory requirement violated the United States Constitution and severed it from

the statute. Id. at ¶ 99-102.

       {¶16} Several years later, the United States Supreme Court decided Oregon v. Ice, 555

U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009), in which it upheld a statute requiring judicial

fact-finding before imposing consecutive sentences.        In State v. Hodge, 128 Ohio St.3d 1,

2010-Ohio-6320, 941 N.E.2d 768, ¶ 36, the Ohio Supreme Court addressed the impact of Ice on

the statutory provisions severed in Foster, holding that Ice did not revive the former

consecutive-sentencing statutory provisions that were held unconstitutional in Foster and that

“the consecutive-sentencing statutes severed by Foster * * * remain null and of no effect absent

an affirmative act of the General Assembly.”

       {¶17} In response to Hodge, the General Assembly enacted H.B. 86.                 When the

legislature revived the language of former R.C. 2929.14(E)(4) in H.B. 86, it renumbered the

statute as R.C. 2929.14(C)(4).   The legislature, however, initially failed to reflect this change in

R.C. 2929.41(A). As a result, at the time of Williams’s sentencing, R.C. 2929.41(A) identified
R.C. 2929.14(E), rather than R.C. 2929.14(C), as one of the exceptions to the general rule that

sentences shall run concurrently. Ryan, 2012-Ohio-5070 at ¶ 18-19.       The legislature has since

corrected this error.   In 2012 Am.Sub. 337, effective September 28, 2012, the legislature

amended R.C. 2929.41(A) to correct the improper reference to R.C. 2929.14(E). R.C.

2929.41(A) now refers to R.C. 2929.14(C).

       {¶18} As this court explained in Ryan, the conclusion that R.C. 2929.41(A)’s reference to

R.C. 2929.14(E), rather than 2929.14(C), was an error is readily apparent from a reading of the

statute:

              Given that R.C. 2929.41(A) already referred to specific subsections of R.C.
       2971.03, the further reference to R.C. 2929.14(E), which points to other portions
       of R.C. 2971.03, appears to be surplusage. * * * [C]ourts must avoid statutory
       interpretations that render any part of a statute “surplusage or nugatory.” Ryan,
       2012-Ohio-5070 at ¶ 15, citing Westgate Ford Truck Sales, Inc. v. Ford Motor
       Co., 8th Dist. No. 96978, 2012-Ohio-1942, 971 N.E.2d 967, ¶ 14.

       {¶19} Further, in Section 11 of H.B. 86, the Ohio legislature clearly stated its legislative

intent in amending R.C. 2929.14 and R.C. 2929.41:

              In amending division (E)(4) of section 2929.14 and division (A) of section
       2929.41 of the Revised Code in this act, it is the intent of the General Assembly 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, 2006-Ohio-856, 845 N.E.2d 470. 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, 129 S. Ct. 711, 172 L. Ed.
       2d 517, and the Ohio Supreme Court’s decision in State v. Hodge, 128 Ohio St.3d
       1, 2010-Ohio-6320, 941 N.E.2d 768, and, although constitutional under Hodge,
       supra, that language is not enforceable until deliberately revived by the General
       Assembly.

       {¶20} Williams argues that the “Rule of Lenity precludes other interpretations of the clear

statutory language” in R.C. 2929.41(A), as it existed at the time of his sentencing, and that under
R.C. 2901.04(A), “[a]ny question that exists due to a conflict” between R.C. 2929.41(A), which

limits the exceptions to concurrent sentences to those specified in R.C. 2929.41(B), R.C.

2929.14(E), R.C. 2971.03(D), and R.C. 2971.03(E), and “any other section [of the Revised

Code], including laws authorizing consecutive sentences in 2929.14, must be resolved in favor

of [Williams].”   We disagree.

       {¶21} This court previously considered     — and rejected — a nearly identical argument

in Ryan, as follows:

               After reaching the conclusion that the legislature erred, the next question is
       whether we may apply the statute as the legislature intended it to be applied, rather
       than according to the literal text of the statute. R.C. 2901.04(A) states that
       “sections of the Revised Code defining offenses or penalties shall be strictly
       construed against the state, and liberally construed in favor of the accused.” As
       noted by this court in State v. Virasayachack, 138 Ohio App.3d 570, 741 N.E.2d
       943 (8th Dist.2000), “[o]rdinarily, we must presume the legislature means what it
       says; we cannot amend statutes to provide what we consider a more logical result.”
       Id. at 574, 741 N.E.2d 943. However, Virasayachack also reasoned that:

               when the terms of the statute, as written, would never be applicable, and the
       simple substitution of one character would result in a term that would always be
       applicable, we must conclude that the statute contains an obviously typographical
       error, and we may correct the error and give effect to the obvious intent of the
       statute. Id. at 574, 741 N.E.2d 943, citing Brim v. Rice, 20 Ohio App.2d 293,
       295-296, 253 N.E.2d 820 (1st Dist.1969). Additionally, in State v. Gomez, 9th
       Dist. Nos. 25496 and 25501, 2011-Ohio-5475, the court held that:

       [w]hen it appears beyond a doubt that a statute, when read literally as printed, is
impossible of execution, or will defeat the plain object of its enactment, or is senseless, or leads
to absurd results or consequences, a court is authorized to regard such defects as the result of
error or mistake, and to put such construction upon the statute as will correct the error or mistake
by permitting the clear purpose and manifest intention of the Legislature to be carried out.
(Emphasis added and internal citation omitted.) Id. at ¶ 30.

       This court is further persuaded by the words of the United States Supreme Court in
Chickasaw Nation v. United States, 534 U.S. 84, 122 S.Ct. 528, 151 L.Ed.2d 474 (2001). In that
case, the court noted that “canons [of statutory interpretation] are not mandatory rules. They
are guides that need not be conclusive” and are intended to assist courts in determining the
legislative intent underlying a statute. (Internal quotation marks and citation omitted.) Id. at 94,
122 S.Ct. 528, 151 L.Ed.2d 474. To the extent that the appellant’s strictly textual reading of R.C.
2929.41(A) and appellant’s rule of lenity argument runs contrary to the legislative intent evinced
by Section 11 of H.B. 86, those arguments cannot be allowed to overcome the intent of the
legislature.

      The principles referenced in Chickasaw Nation and the precedents of Virasayachack and
Gomez lead us to conclude that we are empowered to “correct” the typographical error caused by
the amendments contained in H.B. 86 in order to effectuate the legislative intent of the General
Assembly. * * *
Ryan, 2012-Ohio-5070 at ¶ 20-22.

        {¶22} “‘Lenity is reserved for those situations in which a reasonable doubt persists about

a statute’s intended scope even after resort to the language, structure, legislative history, and

motivating policies of the statute.’” State v. Hess, 2d Dist. No. 25144, 2013-Ohio-10, ¶ 18,

citing United States v. Warren, 149 F.3d 825, 828 (8th Cir.1998). Here, no such doubts persist.

 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), in identifying the exceptions to the general rule that sentences shall run

concurrently. The rule of lenity should not be applied “to defeat the obvious intention of the

legislature.”   Id.   This court will not reverse Williams’s consecutive sentences due to a

legislative scrivener’s error “when the legislature’s intent in enacting [H.B. 86] was clear.”

State v. Bushner, 9th Dist. No. 26532, 2012-Ohio-5996, ¶ 24, citing State v. Walker, 8th Dist.

No. 97648, 2012-Ohio-4274, ¶ 81, fn.2.

        {¶23} In this case, the trial court properly determined that it could impose consecutive

sentences on Williams under R.C. 2929.14(C)(4). R.C. 2929.14(C)(4) provides, in relevant

part:

                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:

       ***
             (c) The offender’s history of criminal conduct demonstrates that
       consecutive sentences are necessary to protect the public from future crime by the
       offender.

       {¶24} The record indicates that the trial court considered all the relevant statutory factors

and made the requisite factual findings in imposing consecutive sentences on Williams. The

trial court found that Williams was likely to re-offend, that Williams had a long history of

criminal violations, and that the mental condition of his rape victim, the physical, emotional, and

economic harm sustained by his victims, and Williams’s prior relationships with his victims and

abuse of positions of trust to facilitate to crimes “render[ed] [Williams’s] conduct more serious”

than conduct that ordinarily constitutes the offenses with which he was charged. The trial court

further found that, as a result of his “long history of violent criminal violations,” Williams was

dangerous and “a risk to * * * public safety.”

       {¶25} Williams does not challenge any of the trial court’s findings supporting its

imposition of consecutive sentences.    Accordingly, we conclude that the trial court did not err

in imposing consecutive sentences. Williams’s assignment of error is overruled.

       {¶26} Williams’s sentences are affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.
      It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution.   The defendant’s sentences having been affirmed,

any bail pending appeal is terminated.     Case remanded to the trial court for execution of

sentences.

      A certified copy of this entry shall constitute the mandate pursuant to




      Rule 27 of the Rules of Appellate Procedure.



      _________________________________
      KENNETH A. ROCCO, JUDGE

      MARY J. BOYLE, P.J., and
      LARRY A. JONES, SR., J., CONCUR
