[Cite as State v. Miller, 2018-Ohio-3197.]




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

 STATE OF OHIO                                     :
                                                   :
          Plaintiff-Appellee                       :   Appellate Case No. 2017-CA-94
                                                   :
 v.                                                :   Trial Court Case Nos. 2017-CR-120B
                                                   :   and 2017-CR-208
 STEVEN H. MILLER, III                             :
                                                   :   (Criminal Appeal from
          Defendant-Appellant                      :   Common Pleas Court)
                                                   :

                                              ...........

                                             OPINION

                             Rendered on the 10th day of August, 2018.

                                              ...........

ANDREW P. PICKERING, Atty. Reg. No. 0068770, Assistant Prosecuting Attorney, Clark
County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
      Attorney for Plaintiff-Appellee

RICHARD E. MAYHALL, Atty. Reg. No. 0030017, 20 South Limestone Street, Suite 120,
Springfield, Ohio 45502
      Attorney for Defendant-Appellant

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




WELBAUM, P.J.
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       {¶ 1} Defendant-Appellant, Stephen H. Miller, III, appeals from his convictions

following his guilty plea to one count of felonious assault, a second degree felony, and

one count of possession of drugs (cocaine), a first degree felony. After the plea, the trial

court sentenced Miller to seven years for the felonious assault and seven years for

possession of cocaine, and imposed the sentences consecutively, for a total prison term

of fourteen years.

       {¶ 2} Miller appeals from the court’s judgment, raising two assignments of error

related to sentencing. The State has conceded error as to Miller’s First Assignment of

Error, pursuant to Loc.R. 2.24 of the Second District Court of Appeals, and asks that we

remand the case to the trial court for a new sentencing hearing. According to the State,

the trial court erred in failing to make findings for consecutive sentences at the sentencing

hearing. In view of this fact, the State also contends that Miller’s Second Assignment of

Error is moot.

       {¶ 3} We agree with the State that the trial court erred in failing to make the

required findings under R.C. 2929.14(C)(4). We also agree that the disposition of the

conceded error moots Miller’s Second Assignment of Error. Accordingly, the judgment

of the trial court will be reversed as to Miller’s sentence.      Miller’s sentence will be

vacated, and this cause will be remanded for a new sentencing hearing.



                              I. Facts and Course of Proceedings

       {¶ 4} On February 27, 2017, an indictment was filed charging Miller with one count

of felonious assault, a second degree felony, and one count of tampering with evidence,
                                                                                       -3-


a third-degree felony. These charges were based on allegations that on February 21,

2017, Miller knowingly caused or attempted to cause physical harm to another by means

of a deadly weapon or dangerous ordinance. The felonious assault charge also included

a gun specification.    The case resulting from that indictment was designated Clark

Common Pleas Court No. 17-CR-120B.

       {¶ 5} The assault charge arose from a shooting incident that occurred in the early

morning hours of February 21, 2017. According to a bill of particulars that was filed,

Miller and Raymond Reynolds had gone to the home of the victim, Colten Mollett, to

discuss a firearm that Mollett had purchased from Reynolds. At some point, Miller got

into a physical altercation with Mollett and told Reynolds to shoot Mollett. Reynolds then

shot Mollett in the side.

       {¶ 6} After Miller and Reynolds fled the scene in separate vehicles, the police

received information that an individual named Steven Miller, who was driving a gold truck,

had been involved in the shooting. The police subsequently stopped Miller on a felony

traffic stop and discovered a bag of cocaine in Miller’s pocket. As a result, another

indictment was filed on April 10, 2017, charging Miller with one count of possession of

cocaine in an amount greater than or equal to twenty-seven grams, but less than one-

hundred grams, a felony of the first degree. The case resulting from this indictment was

designated Clark Common Pleas Court No. 17-CR-208.

       {¶ 7} The two cases were later consolidated under Case No. 17-CR-120B for

further proceedings. Pursuant to a plea agreement, Miller pled guilty to possession of

cocaine, a first degree felony with a potential maximum prison term of 11 years, and to

felonious assault, a second degree felony with a potential maximum prison term of eight
                                                                                        -4-


years. In exchange for the guilty plea, the State agreed to dismiss the gun specification

and the charge of tampering with evidence, and to stand silent during sentencing.

      {¶ 8} After the trial court accepted the guilty plea, a presentence investigation was

conducted. The court then held a disposition hearing on October 17, 2017, and imposed

the sentences consecutively, as indicated above.



                              II. Error at the Sentencing Hearing

      {¶ 9} Miller’s First Assignment of Error states that:

             Because the Trial Court Failed to Make the Required Findings of Fact

      at the Sentencing Hearing, the Consecutive Sentences Imposed on

      Appellant are Contrary to Law (Sentencing Hearing, p. 8).

      {¶ 10} Under this assignment of error, Miller contends that while the trial court

made the necessary findings for imposing consecutive sentences in its judgment entry,

the court made only one of the three necessary factual findings required under R.C.

2929.14(C) at the sentencing hearing.

      {¶ 11} As pertinent here, R.C. 2929.14(C)(4) provides that:

             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:
                                                                                         -5-


              ***

              (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.

       {¶ 12} At the sentencing hearing, the trial court made the required finding under

R.C. 2929.14(C)(4)(b), but did not find that consecutive sentences were “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.”

       {¶ 13} According to Miller, the trial court’s omission at the sentencing hearing is

erroneous under State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659,

which held that “[i]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.” Id. at syllabus.

       {¶ 14} In responding to this assignment of error, the State has filed a notice of

conceded error under Loc. R. 2.24 of our court. We agree that the trial court erred in

failing to make the required findings at the sentencing hearing. Accordingly, Miller’s First

Assignment of Error is sustained.



                         III. Harm Caused By Possession of Cocaine
                                                                                       -6-


       {¶ 15} Miller’s Second Assignment of Error states as follows:

              Because There Was No Evidence, or Argument, That the Appellant’s

       Mere Possession of Cocaine Caused Any Harm, the Record Clearly and

       Convincingly Does Not Support the Trial Court’s Finding that the Harm

       Caused by the Two Offenses (Felonious Assault and Possession) Caused

       Great or Unusual Harm (Sentencing Hearing, p. 9). (Emphasis sic.)

       {¶ 16} As was noted, the trial court did make a finding at the sentencing hearing

under R.C. 2929.14(C)(4)(b) that “[a]t 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.”

       {¶ 17} According to Miller, his possession of cocaine did not cause great or

unusual harm as required by R.C. 2929.14(C)(4)(b). In this regard, Miller notes his

concession during the sentencing hearing that great harm was caused by the felonious

assault. While admitting this, Miller stresses that he denied at the sentencing hearing

that any “harm” had been caused by his possession of cocaine. He also stresses that

the presentence investigation report failed to indicate that any harm had been caused by

his possession of the drug. Miller argues that R.C. 2929.14(C)(4)(b) is concerned with

harm to identifiable victims, not to general societal interests.

       {¶ 18} The State contends that this assignment of error is moot, since a sentencing

error has been conceded, and the case will be reversed and remanded for a new

sentencing hearing. We agree. On remand, the trial court may decide not to impose
                                                                                          -7-


consecutive sentences, and any discussion of Miller’s second assignment of error would

only be advisory. As we have often said, appellate courts will not provide advisory

opinions. See, e.g., BP Oil Co. v. Dayton Bd. of Zoning Appeals, 109 Ohio App. 3d 423,

434, 672 N.E.2d 256 (2d Dist.1996); State v. Jones, 2017-Ohio-5758, 94 N.E.3d 971, ¶

10 (2d Dist.).

       {¶ 19} Based on the preceding discussion, the Second Assignment of Error is

overruled as moot.



                                         IV. Conclusion

       {¶ 20} Miller’s First Assignment of Error having been sustained as conceded error

and his Second Assignment of Error having been overruled as moot, the judgment of the

trial court is reversed as to Miller’s sentence. Miller’s sentence is vacated, and this cause

is remanded for a new sentencing hearing.



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



FROELICH, J. and HALL, J., concur.



Copies mailed to:

Andrew P. Pickering
Richard E. Mayhall
Hon. Richard J. O’Neill
