 [Cite as State v. Hayes, 2014-Ohio-5362.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                    CLARK COUNTY

 STATE OF OHIO

         Plaintiff-Appellee

 v.

 KEVIN M. HAYES

         Defendant-Appellant




 Appellate Case No.       2014-CA-27

 Trial Court Case No. 2013-CR-216


 (Criminal Appeal from
 (Common Pleas Court)
                                             ...........

                                             OPINION

                               Rendered on the 5th day of December, 2014.

                                             ...........

RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Assistant Clark County Prosecuting Attorney, 50
East Columbia Street, 4th Floor, Springfield, Ohio 45502
       Attorney for Plaintiff-Appellee

A. MARK SEGRETI, JR., Atty. Reg. No. 0009106, 1405 Streamside Drive, Dayton, Ohio 45459
     Attorney for Defendant-Appellant
                                                                                           2


                                                   .............


WELBAUM, J.



        {¶ 1}    Defendant-appellant, Kevin M. Hayes, appeals from his 59-month prison

 sentence he received in the Clark County Court of Common Pleas after pleading guilty to having

 weapons under disability and possession of heroin with a firearm specification. For the reasons

 outlined below, the sentence imposed by the trial court will be affirmed.

        {¶ 2}    On April 1, 2013, Hayes was indicted for one count of having weapons under

 disability in violation of R.C. 2923.13(A)(2), a felony of the third degree; one count of

 improperly handling firearms in a motor vehicle in violation of R.C. 2923.16(B), a felony of the

 third degree; and one count of possession of heroin in violation of R.C. 2925.11(A), a felony of

 the fourth degree. The charge for possession of heroin included a one-year firearm specification

 under R.C. 2941.141.

        {¶ 3}    Pursuant to a plea agreement, on July 22, 2013, Hayes pled guilty to having

 weapons under disability and possession of heroin with the one-year firearm specification. In

 exchange, the State dismissed the charge for improperly handling firearms in a motor vehicle.

 After entering his plea, the trial court imposed a 30-month prison sentence for having weapons

 under disability, a 17-month prison sentence for possession of heroin, and a 12-month prison

 sentence for the firearm specification. The trial court ordered the sentences to run consecutively

 for a total prison term of 59 months.

        {¶ 4}    Hayes is now appealing from his 59-month prison sentence, raising two

 assignments of error for review.
                                                                                            3




                                   First Assignment of Error

       {¶ 5}    Hayes’s First Assignment of Error is as follows:

       THE TRIAL COURT[’S] IMPOSITION OF CONSECUTIVE SENTENCES IS

       CONTRARY TO THE PRESUMPTION FOR CONCURRENT SENTENCES IN

       OHIO LAW AND IS CLEARLY AND CONVINCINGLY CONTRARY TO

       LAW OR AN ABUSE OF DISCRETION IN APPLICATION OF LAW. THE

       TRIAL COURT’S RECITATION OF STATUTORY LANGUAGE FOR

       APPLICATION OF AN EXCEPTION TO CONCURRENT SENTENCES IS

       CONTRARY TO LAW BECAUSE IT IS NOT BASED ON JUDICIAL

       FINDINGS OF FACT THAT EXPLAIN THE REASONS FOR NOT APPLYING

       THE STATUTORY PRESUMPTION IN THIS CASE.

       {¶ 6}    Under his First Assignment of Error, Hayes contends the trial court erred in

imposing consecutive sentences. Specifically, Hayes argues the trial court failed to make the

required findings in R.C. 2929.14(C)(4) before imposing consecutive sentences. In support of

this claim, Hayes alleges the trial court’s findings are insufficient in that the trial court simply

recited the language in the statute without providing any explanation or reasoning to support its

findings. As a result, Hayes claims the presumption in favor of concurrent sentences in R.C.

2929.41(A) should apply.

       {¶ 7}    As a preliminary matter, we note that the appellate standard of review for felony

sentences, including consecutive sentences, is set forth in R.C. 2953.08(G)(2). State v. Rodeffer,

2013-Ohio-5759, 5 N.E.3d 1069, ¶ 29 (2d Dist.); State v. Mooty, 2014-Ohio-733, 9 N.E.3d 443, ¶
                                                                                               4


68 (2d Dist.). This statute states, in pertinent part, that:

        The appellate court may increase, reduce, or otherwise modify a sentence that is

        appealed under this section or may vacate the sentence and remand the matter to

        the sentencing court for resentencing. The appellate court’s standard for review

        is not whether the sentencing court abused its discretion. The appellate court

        may take any action authorized by this division if it clearly and convincingly finds

        either of the following:

        (a) That the record does not support the sentencing court’s findings under division

        (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or

        division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;

        (b) That the sentence is otherwise contrary to law.

R.C. 2953.08(G)(2).

        {¶ 8}    “ ‘[T]he clear and convincing standard used by R.C. 2953.08(G)(2) is written in

the negative. It does not say that the trial judge must have clear and convincing evidence to

support its findings. Instead, it is the court of appeals that must clearly and convincingly find

that the record does not support the court’s findings.’ ” Rodeffer at ¶ 31, quoting State v. Venes,

2013-Ohio-1891, 992 N.E.2d 453, ¶ 21 (8th Dist.). “ ‘In other words, the restriction is on the

appellate court, not the trial judge. This is an extremely deferential standard of review.’ ” Id.

        {¶ 9}    As previously noted, Hayes challenges the trial court’s imposition of consecutive

sentences under R.C. 2929.14(C)(4), which is an exception to the presumption in favor of

concurrent sentences in R.C. 2929.41(A). Pursuant to R.C. 2929.14(C)(4), a sentencing court

may impose consecutive sentences if it finds that: (1) consecutive service is necessary to protect
                                                                                             5


the public from future crime or to punish the offender; (2) consecutive sentences are not

disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses

to the public; and (3) one or more of the following three findings are satisfied:

       (a) 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.

       (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.

R.C. 2929.14(C)(4)(a)-(c).

       {¶ 10} “ ‘[A] trial court is required to make the findings mandated by R.C.

2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing entry, but

it has no obligation to state reasons to support its findings.’ ” State v. Bittner, 2d Dist. Clark No.

2013-CA-116, 2014-Ohio-3433, ¶ 11, quoting State v. Bonnell, 140 Ohio St.3d 209,

2014-Ohio-3177, 16 N.E.3d 659, ¶ 37.

       {¶ 11} In this case, and as noted above, the trial court sentenced Hayes to 30 months in

prison for having weapons under disability, 17 months in prison for possession of heroin, and 12
                                                                                            6


months in prison for the firearm specification. The trial court then stated on the record that

       consecutive service of these sentences is necessary to protect the public from

       future crime and punish the offender, and consecutive sentences are not

       disproportionate to the seriousness of the offender’s conduct and to the danger

       that he poses to the public.          Further, the Defendant’s criminal history

       demonstrates consecutive sentences are necessary to protect the public from future

       crimes by this defendant.

Disposition Trans. (Aug. 12, 2013), p. 12-13.

       {¶ 12} The trial court incorporated these consecutive-sentence findings in its sentencing

entry. See Judgment Entry of Conviction (Aug. 13, 2013), Clark County Common Pleas Court

Case No. 2013-CR-0216, Docket No. 19, p. 3. Therefore, contrary to Hayes’s claim otherwise,

we find the trial court made all the necessary consecutive-sentence findings under R.C.

2929.14(C)(4) at the sentencing hearing and in its sentencing entry.

       {¶ 13} Furthermore, we do not clearly and convincingly find that the record does not

support these findings. The record, which includes Hayes’s presentence investigation report,

indicates that Hayes had a prior criminal history, including convictions in Clark County for theft,

improper handling of firearms in a motor vehicle, and escape in 2009, as well as a 2012

conviction for receiving stolen property.     The record also indicates that Hayes had a prior

juvenile adjudication for robbery in Orange County, California. We note that Hayes contends

his criminal history is unclear for purposes of sentencing because he claims the juvenile

adjudication for robbery was actually that of his twin brother. However, the trial court expressly

stated on the record that due to the confusion surrounding the juvenile adjudication, the court
                                                                                            7


would not consider that adjudication during sentencing.

       {¶ 14} The record also indicates that Hayes had not responded favorably to the sanctions

previously imposed for his prior convictions and that he scored high on the Ohio Risk

Assessment Survey. The trial court also indicated that Hayes displayed no genuine remorse for

his offense. In light of the foregoing, the trial court’s consecutive sentence-findings are not

clearly and convincingly unsupported by the record.

       {¶ 15} In continuing the review of Hayes’s sentence under R.C. 2953.08(G)(2), we do

not clearly and convincingly find that his sentence is otherwise contrary to law. “[A] sentence is

not contrary to law when the trial court imposes a sentence within the statutory range, after

expressly stating that it had considered the purposes and principles of sentencing set forth in R.C.

2929.11, as well as the factors in R.C. 2929.12.” Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069 at ¶

32, citing State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 18.

       {¶ 16} Here, Hayes’s 30-month prison sentence for having weapons under disability is

within the prescribed statutory range for felonies of the third degree. See R.C. 2929.14(A)(3).

Likewise, his 17-month prison sentence for possession of heroin is within the prescribed statutory

range for felonies of the fourth degree. See R.C. 2929.14(A)(4). The 12-month prison term for

the firearm specification is also prescribed by R.C. 2929.14(B)(1)(a)(iii). In addition, the trial

court expressly stated in its sentencing entry that it had considered the purposes and principles of

sentencing set forth in R.C. 2929.11 and the sentencing factors in R.C. 2929.12. Accordingly,

we have no basis to conclude that Hayes’s sentence is otherwise contrary to law.

       {¶ 17} We reiterate that we have reviewed Hayes’s sentence under the standard of

review set forth in Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069. In Rodeffer, we held that we
                                                                                       8


would no longer use an abuse-of-discretion standard in reviewing a sentence in a criminal case,

but would apply the standard of review set forth in R.C. 2953.08(G)(2). Since then, opinions

from this court have expressed reservations as to whether our decision in Rodeffer is correct.

See, e.g., State v. Garcia, 2d Dist. Greene No. 2013-CA-51, 2014-Ohio-1538, ¶ 9, fn.1; State v.

Johnson, 2d Dist. Clark No. 2013-CA-85, 2014-Ohio-2308, ¶ 9, fn. 1. Regardless, in the case

before us, we find no error in the sentence imposed under either standard of review.

       {¶ 18} Hayes’s First Assignment of Error is overruled.



                                 Second Assignment of Error

       {¶ 19} Hayes’s Second Assignment of Error is as follows:

THE TRIAL COURT[’S] IMPOSITION OF PRISON SENTENCES FOR BOTH THE

OFFENSE OF HAVING A WEAPON WHILE UNDER DISABILITY AND ALSO FOR A

MANDATORY ONE-YEAR PRISON SENTENCE FOR A GUN SPECIFICATION FOR THE

SAME WEAPON, IS CLEARLY AND CONVINCINGLY CONTRARY TO LAW OR AN

ABUSE OF DISCRETION IN APPLY[ING] THE LAW, AND VIOLATED THE RIGHT NOT

TO BE PLACED IN DOUBLE JEOPARDY, BY IMPOSING A PRISON SENTENCE FOR

THE SAME CONDUCT, WHICH SHOULD HAVE BEEN MERGED TOGETHER INTO ONE

SENTENCE.

       {¶ 20} Under his Second Assignment of Error, Hayes contends the trial court erred in

sentencing him separately for having weapons under disability and for the firearm specification

attached to the possession of heroin offense. According to Hayes, the separate prison terms

punish him for the exact same conduct and thus violate the Double Jeopardy Clause of the United
                                                                                         9


States and Ohio Constitutions. As a result, Hayes claims the weapons under disability offense

and the firearm specification should merge as allied offenses of similar import.

       {¶ 21} With respect to allied offenses, R.C. 2941.25 provides that:

       (A) Where the same conduct by defendant can be construed to constitute two or

       more allied offenses of similar import, the indictment or information may contain

       counts for all such offenses, but the defendant may be convicted of only one.

       (B) Where the defendant’s conduct constitutes two or more offenses of dissimilar

       import, or where his conduct results in two or more offenses of the same or

       similar kind committed separately or with a separate animus as to each, the

       indictment or information may contain counts for all such offenses, and the

       defendant may be convicted of all of them.

       {¶ 22} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, the

Supreme Court of Ohio held that “[w]hen determining whether two offenses are allied offenses

of similar import subject to merger under R.C. 2941.25, the conduct of the accused must be

considered.” Id. at syllabus [overruling State v. Rance, 85 Ohio St.3d 632, 710 N.E.2d 699

(1999) ]. In Johnson, the Supreme Court of Ohio also outlined a framework for evaluating

merger issues.

       {¶ 23} The first consideration “is whether it is possible to commit one offense and

commit the other with the same conduct * * *.” (Citation omitted. Emphasis in original.)

Johnson at ¶ 48. “If the offenses correspond to such a degree that the conduct of the defendant

constituting commission of one offense constitutes commission of the other, then the offenses are

of similar import.” Id.
                                                                                            10


       {¶ 24} If the first prong is satisfied, the next consideration is “whether the offenses were

committed by the same conduct, i.e., ‘a single act, committed with a single state of mind.’ ” Id.

at ¶ 49, quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 50

(Lanzinger, J., dissenting).   However, “if the offenses are committed separately, or if the

defendant has separate animus for each offense, then, according to R.C. 2941.25(B), the offenses

will not merge.” Johnson at ¶ 51. The defendant also has the burden of proving entitlement to

merger. State v. Forney, 2d Dist. Champaign No. 2012-CA-36, 2013-Ohio-3458, ¶ 10.

       {¶ 25} As previously noted, Hayes contends his weapons under disability offense and

the firearm specification attached to his possession of heroin offense should merge as allied

offenses of similar import. However, “a firearm specification is a penalty enhancement and is

contingent upon an underlying felony conviction; it is not a criminal offense in itself.” (Citation

omitted.) State v. Beal, 2d Dist. Clark No. 2013 CA 95, 2014-Ohio-3834, ¶ 10. The Supreme

Court of Ohio has held that a firearm specification and its predicate offense do not merge under

R.C. 2941.25. State v. Ford, 128 Ohio St.3d 398, 2011-Ohio-765, 945 N.E.2d 498, ¶ 19.

Moreover, R.C. 2929.14(C)(1)(a) provides that a firearm specification must be served

“consecutively to and prior to any prison term imposed for the underlying felony * * *, and

consecutively to any other prison term or mandatory prison term previously or subsequently

imposed upon the offender.” (Emphasis added.)

       {¶ 26} Based on the foregoing, we conclude that the weapons under disability offense

and the firearm specification for the possession of heroin offense are not allied offenses of similar

import as defined in R.C. 2941.25, because the firearm specification is a penalty enhancement,

not a separate criminal offense.
                                                                                       11


       {¶ 27} Furthermore, pursuant to R.C. 2929.14(C)(1)(a), Hayes’s 12-month prison

sentence for the firearm specification must be served consecutively to his 30-month prison

sentence for having weapons under disability.     See State v. Ruby, 6th Dist. Sandusky No.

S-10-028, 2011-Ohio-4864, ¶ 29-32 (holding that under former R.C. 2929.14(E)(1)(a), which is

now codified as R.C. 2929.14(C)(1)(a), the trial court properly ordered the defendant’s one-year

firearm specification to be served consecutively to the defendant’s other offenses–not just

consecutively to the predicate offense.)

       {¶ 28} Hayes’s Second Assignment of Error is overruled.



                                           Conclusion

       {¶ 29} Having overruled both of Hayes’s assignments of error, the judgment of the trial

court is affirmed.



                                                 .............



FROELICH, P.J. and DONOVAN, J., concur.




Copies mailed to:

Ryan A. Saunders
A. Mark Segreti, Jr.
Hon. Richard J. O’Neill
