[Cite as State v. Fox, 2016-Ohio-3293.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. Sheila G. Farmer, P. J.
        Plaintiff-Appellee                         Hon. W. Scott Gwin, J.
                                                   Hon. John W. Wise, J.
-vs-
                                                   Case No. 15 CAA 10 0082
LARRY FOX

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 12 CR I 10 0409


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         June 3, 2016



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

CAROL HAMILTON O'BRIEN                         TODD A. WORKMAN
PROSECUTING ATTORNEY                           WORKMAN LAW FIRM
ERIC C. PENKAL                                 35 North Sandusky Street
ASSISTANT PROSECUTOR                           Delaware, Ohio 43015
140 North Sandusky Street
Delaware, Ohio 43015
Delaware County, Case No. 15 CAA 10 0082                                                 2

Wise, J.

      {¶1}   Appellant Larry Fox appeals from the decision of the Court of Common

Pleas, Delaware County, resentencing him following a prior remand resulting from his

2014 direct appeal. Appellee is the State of Ohio. The relevant facts leading to this

appeal are summarized as follows:

      {¶2}   Appellant and C. T. (an adult) formerly lived in the same trailer park

community in Lewis Center, Ohio. C.T. and his friend Franklin Pyle sometimes hung out

with appellant and his brother, Harry Fox, at appellant's trailer. In early October 2012,

appellant gave Pyle money to buy some marijuana. C.T. and Pyle ended up in Columbus,

but they eventually called appellant and his brother to explain the drug money had been

stolen before they could purchase the marijuana. Appellant told C.T. he had a certain

amount of time to pay him back.

      {¶3}   On October 16, 2012, Pyle and C.T. went to appellant’s trailer after being

told he wanted to speak with them. Several other individuals were initially present. About

thirty minutes after Pyle and C.T. arrived, appellant got up and locked the door, stating

no one was leaving. C.T. was subsequently forced to sit on the floor, naked and

handcuffed. Appellant proceeded to terrorize C.T. with a machete, questioning him about

the money and the failed drug deal.

      {¶4}   Appellant then told C.T. he would have to perform “oral favors” in exchange

for the lost money, or appellant would kill him. Appellant, continuing to hold the machete,

subsequently forced C.T. to perform oral sex on him. Appellant later told everyone in the

trailer to leave and not to speak of the incident or he would kill them.
Delaware County, Case No. 15 CAA 10 0082                                                   3


      {¶5}      On October 26, 2012, appellant was indicted by the Delaware County Grand

Jury on the following counts:

      {¶6}      Count 1: Kidnapping, to terrorize or inflict serious physical harm (R.C.

2905.01(A)(3)), a felony of the first degree;

      {¶7}      Count 2: Kidnapping, to facilitate a felony (R.C. 2905.01(A)(2)), a felony of

the first degree;

      {¶8}      Count 3: Kidnapping, to commit rape (R.C. 2905.01(A)(4)), a felony of the

first degree;

      {¶9}      Count 4: Abduction by Force (R.C. 2905.02(A)(2)), a felony of the third

degree;

      {¶10} Count 5: Rape (R.C. 2907.02(A)(2)), a felony of the first degree;

      {¶11} Count 6: Rape (R.C. 2907.02(A)(2)), a felony of the first degree.

      {¶12} The kidnapping counts were subsequently reduced to felonies of the second

degree.

      {¶13} Following a jury trial, appellant was convicted of the aforesaid charges. Via

a judgment entry issued on September 30, 2014, appellant was sentenced as follows:

      {¶14} Count 1: Kidnapping, to terrorize or inflict serious physical harm - a prison

term of eight years.

      {¶15} Count 3: Kidnapping, to commit rape - a prison term of eight years, to be

served consecutive to the term imposed on Count 1.

      {¶16} Count 5: Rape - a mandatory prison term of eleven years, to be served

consecutive to the term imposed on Counts 1 and 3.
Delaware County, Case No. 15 CAA 10 0082                                                   4


      {¶17} Count 6: Rape - a mandatory prison term of eleven years, to be served

consecutive to the terms imposed on Counts 1, 3 and 5.

      {¶18} Count 4: Abduction by Force - merged with Count 1 as an allied offense of

similar import, and found to be a lesser offense to the charge of kidnapping.

      {¶19} Count 2: Kidnapping, to facilitate a felony - merged with Count 3 for

purposes of sentencing.

      {¶20} Appellant was further classified a Tier III sex offender registrant pursuant to

R.C. 2950.032.

      {¶21} Appellant then filed a direct appeal to this Court arguing (1) that the trial

court had erred in failing to merge Count 3 (kidnapping to commit rape), with the rape

charges and (2) that his constitutional rights were violated because there was insufficient

evidence to support three separate counts of kidnapping. On August 26, 2015, this Court

sustained appellant’s first assigned error and found his second assigned error to be

moot. See State v. Fox, 5th Dist. Delaware No. 14 CAA10 0065, 41 N.E.3d 230, 2015-

Ohio-3515 (“Fox I”).

      {¶22} Following remand, the trial court conducted a resentencing hearing. On

September 21, 2015, the trial court sentenced appellant to a total of thirty years in prison.

Among other things, the trial court orally concluded: "I do feel that consecutive sentences

are necessary to protect the public from future crime and to punish the Defendant, and

consecutive sentences are not disproportionate to the seriousness of the Defendant's

conduct and to the danger that he poses to the public, and also I find that the history of

criminal conduct demonstrates that the consecutive sentences are necessary to protect

the public from future crime by the Defendant." Tr. at 6.
Delaware County, Case No. 15 CAA 10 0082                                               5


      {¶23} Appellant filed a notice of appeal on October 19, 2015. He herein raises the

following sole Assignment of Error:

      {¶24} “I.   THE TRIAL COURT ERRED WHEN IT FAILED TO MAKE THE

NECESSARY DETERMINATIONS REQUIRED BY LAW WHEN SENTENCING

DEFENDANT/APPELLANT TO A CONSECUTIVE PRISON TERM THEREFORE

MAKING THE SENTENCE CONTRARY TO LAW.”

                                             I.

      {¶25} In his sole Assignment of Error, appellant maintains the trial court erred in

failing to make the necessary determinations to support its order of consecutive prison

sentences. We disagree.

      {¶26} Under R.C. 2953.08(G)(2)(a), we consider in the present context whether

there is clear and convincing evidence that the record does not support the sentencing

court's findings under R.C. 2929.14(C)(4) to impose consecutive sentences. See State

v. Deeb, 6th Dist. Erie No. E-14-117, 2015-Ohio-2442, ¶ 27.

      {¶27} We thus direct our attention to R.C. 2929.14(C)(4), which provides as

follows:

             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:
Delaware County, Case No. 15 CAA 10 0082                                                    6


            (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.

      {¶28} (Emphases added).

      {¶29} Thus, in a nutshell, “R.C. 2929.14(C)(4) provides that a trial court may

require the offender to serve multiple 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 one of three facts specified in subdivisions (a), (b), and (c).” State v.

Leet, 2nd Dist. Montgomery No. 25966, 2015–Ohio–1668, ¶ 15 (internal quotations and

brackets omitted).

      {¶30} As a brief history, we note 2011 Am.Sub.H.B. No. 86 revived the language

provided in former R.C. 2929.14(E) and moved it to R.C. 2929.14(C)(4). The General
Delaware County, Case No. 15 CAA 10 0082                                                 7


Assembly has thus expressed its intent to revive the statutory fact-finding provisions

pertaining to the imposition of consecutive sentences that were effective in the pre-Foster

era. See State v. Wells, 8th Dist. Cuyahoga No. 98428, 2013–Ohio–1179, ¶ 11.

      {¶31} In the case sub judice, appellant first maintains the trial court failed to

properly state “reasons” to support its statutory consecutive sentence findings. In

support, he cites several pre-H.B. 86 cases, including State v. Rich, 4th Dist. Pickaway

Nos. 00CA46 & 00CA0047, 2001-Ohio-2613, which states: “ *** [A]fter a sentencing court

has made the required findings under [former] R.C. 2929.14(E)(4), it must then justify

those findings by identifying specific reasons supporting the imposition of consecutive

prison terms.”

      {¶32} However, we have held on numerous occasions that although H.B. 86

requires the trial court to make findings before imposing a consecutive sentence, it does

not require the trial court to give its reasons for imposing the sentence. See, e.g., State

v. Collins, 5th Dist. Knox No. 12 CA 20, 2013-Ohio-2419, ¶ 22, citing State v. Bentley,

Marion App.No. 9–12–31, 2013–Ohio–852, ¶ 12. Moreover, the Ohio Supreme Court

has now clearly held as follows: “In order to impose consecutive terms of imprisonment,

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. Bonnell, 140 Ohio St.3d 209,

16 N.E.3d 659, 2014–Ohio–3177, syllabus.

      {¶33} Accordingly, appellant’s claim regarding a lack of adequate recited reasons

by the trial court concerning consecutive sentences is without merit.
Delaware County, Case No. 15 CAA 10 0082                                                 8


      {¶34} Appellant secondly contends the trial court did not have adequate

information to review for purposes of sentencing, as it appears the official court file and

jacket had not yet been returned to the trial court subsequent to this Court’s decision in

Fox I. See Tr., September 21, 2015 Resentencing Hearing, at 5. In that regard, we note

the trial court judge stated that he had “considered the remarks here” and had “looked

through the file that my office has handed to me from my predecessor and considered

all of the information that I can glean about the case of course from the Court of Appeals’

decision ***.” Id. The court also noted it had reviewed the PSI report and victim impact

statement. Sentencing Entry Pursuant to Remand at 2.

      {¶35} A presumption of regularity attaches to all trial court proceedings. See, e.g.,

Black v. Chiropractic Assocs. of Zanesville, L.L.C., 5th Dist. Muskingum No. CT2013-

0012, 2014-Ohio-192, ¶ 20, citing Chari v. Vore (2001), 91 Ohio St.3d 323, 325, 744

N.E.2d 763. In the case sub judice, upon review, we hold the trial court adequately

reviewed the case pursuant to our remand, and we find no clear and convincing evidence

that the record does not support the trial court's findings under R.C. 2929.14(C)(4) for

purposes of imposing consecutive sentences. Deeb, supra.
Delaware County, Case No. 15 CAA 10 0082                                       9


      {¶36} Appellant's sole Assignment of Error is therefore overruled.

      {¶37} For the foregoing reasons, the judgment of the Court of Common Pleas,

Delaware County, Ohio, is hereby affirmed.


By: Wise, J.

Farmer, P. J., and

Gwin, J., concur.


JWW/d 0518
