[Cite as State v. Walker, 2011-Ohio-4505.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 96076




                                     STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                    ANDRE WALKER
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED



                                Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                           Case Nos. CR-538052 and CR-541146

        BEFORE:            S. Gallagher, J., Boyle, P.J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED: September 8, 2011
ATTORNEY FOR APPELLANT

Rick Ferrara
1424 East 25th Street
Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Ma’rion D. Horhn
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113




SEAN C. GALLAGHER, J.:

      {¶ 1} Appellant, Andre Walker, appeals from his sentences in Cuyahoga

County Court of Common Pleas Case Nos. CR-538052 and CR-541146. For

the reasons stated herein, we affirm.

      {¶ 2} In June and September 2010, Walker was indicted on various

charges in the two underlying cases. In CR-538052, he entered a plea of

guilty to one count of breaking and entering (R.C. 2911.13(A)). In CR-541146,
he entered a plea of guilty to one count of breaking and entering (R.C.

2911.13(A)) and one count of vandalism (R.C. 2909.05(B)(1)(a)). The court

nolled the remaining charges in each case.

      {¶ 3} On November 3, 2010, the court sentenced Walker.     In CR-541146,

the court imposed a prison term of 12 months on each of the two counts,

running concurrent. In CR-538052, the court imposed a prison term of 12

months, and further ordered the sentence to run consecutive to CR-541146, for

a total of 24 months, and consecutive to time being served in three other cases.

Walker was also advised of postrelease control and was ordered to pay

restitution in both cases.

      {¶ 4} Walker timely filed this appeal.   He raises two assignments of

error for our review. His first assignment of error provides as follows: “I.

The trial court erred when it failed to state its justification for imposing

consecutive sentences.”       Walker argues that the trial court acted

contrary to law by failing to make a proper finding under R.C. 2929.14(E)(4) in

light of the United States Supreme Court’s rulings regarding judicial

fact-finding in Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d

517, and automatic statutory revival in Quong Ham Wah Co. v. Indus. Acc.

Comm. of California (1921), 255 U.S. 445, 41 S.Ct. 373, 65 L.Ed. 723. We

recently rejected similar arguments in State v. Nimmer, Cuyahoga App. No.
95471, 2011-Ohio-1807, ¶ 6-8. We further find no merit to his argument that

the court was required to set forth its reasons and findings on the record.

      {¶ 5} Indeed, in State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941

N.E.2d 768, the Ohio Supreme Court explicitly held that Oregon v. Ice “does

not revive Ohio’s former consecutive-sentencing statutory provisions, R.C.

2929.14(E)(4) and 2929.41(A), which were held unconstitutional in State v.

Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.”         The court in

Hodge further instructed that “[t]rial court judges are not obligated to engage

in judicial fact-finding prior to imposing consecutive sentences unless the

General Assembly enacts new legislation requiring that findings be made.”

Id. at paragraph two and three of the syllabus. While Walker asks this court

to reject the re-enactment requirement in Hodge as improper, we are bound to

follow the law and decisions of the Ohio Supreme Court.            Accordingly,

Walker’s first assignment of error is overruled.

      {¶ 6} Walker’s second assignment of error provides as follows: “II.     The

trial court acted contrary to law when it imposed a term of incarceration

beyond the statutory maximum.”

      {¶ 7} Walker contends that the trial court imposed a prison sentence of

24 months, exceeding the maximum penalty for a fifth degree felony. We find

no merit to his argument.
       {¶ 8} The record reflects that Walker was sentenced to 12 months in each

of the two cases. In CR-541146, the court imposed a prison term of 12 months

on each of the two counts, which were run concurrent. In CR-538052, the

court imposed a prison term of 12 months. Thus, the trial court did not

exceed the statutory maximum in either case. Instead, because a consecutive

sentence was imposed between the cases, Walker was required to serve 24

months in prison. As reflected in the sentencing entry in CR-538052, the

court imposed a 12-month sentence that was “run consecutive to CR 541146

for a total of 24 months, and consecutive to CR 527669, CR 527432, and CR

526317.” Contrary to Walker’s argument, we find no discrepancies in the

court’s journal entries, which speak for themselves.                       Walker’s second

assignment of error is overruled.

       {¶ 9} Judgment 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 conviction having been

affirmed, any bail pending appeal is terminated.        Case remanded to the trial court for

execution of sentence.
       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




SEAN C. GALLAGHER, JUDGE

MARY J. BOYLE, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
