[Cite as State v. Kelley, 2014-Ohio-464.]


                                         COURT OF APPEALS
                                     DELAWARE COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


STATE OF OHIO                                   :   JUDGES:
                                                :
                                                :   Hon. W. Scott Gwin, P.J.
       Plaintiff-Appellee                       :   Hon. William B. Hoffman, J.
                                                :   Hon. Patricia A. Delaney, J.
-vs-                                            :
                                                :   Case No. 13 CAA 04 0028
                                                :
ANDRE D. KELLEY                                 :
                                                :
                                                :
       Defendant-Appellant                      :   OPINION


CHARACTER OF PROCEEDING:                            Appeal from the Delaware County Court
                                                    of Common Pleas Case No. 12 CR I 07
                                                    0247



JUDGMENT:                                           AFFIRMED




DATE OF JUDGMENT ENTRY:                             February 4, 2014




APPEARANCES:

For Plaintiff-Appellee:                             For Defendant-Appellant:

CAROL HAMILTON O’BRIEN                              ERIC ALLEN
DELAWARE CO. PROSECUTOR                             713 South Front
Peter B. Ruffing                                    Columbus, OH 43206
140 N. Sandusky St. 3rd Floor
Delaware, OH 43015
Delaware County, Case No. 13 CAA 04 0028                                                      2

Delaney, J.

       {¶1} Defendant-appellant Andre D. Kelley appeals from the March 18, 2013

judgment entry of the Delaware County Court of Common Pleas finding him in violation

of terms of his intervention-in-lieu-of-conviction (ILC) program, finding of guilty, and

sentence upon three counts of cocaine trafficking. Appellee is the state of Ohio.

                          FACTS AND PROCEDURAL HISTORY

       {¶2} A statement of the facts underlying appellant’s criminal convictions is not

necessary to our disposition of this appeal. On July 11, 2012, appellant was charged by

indictment with three counts of cocaine trafficking pursuant to R.C. 2925.03(A)(1), all

felonies of the fifth degree.

       {¶3} On October 22, 2012, appellant entered pleas of guilty as charged and

was ordered to complete treatment in lieu of conviction. The relevant terms of ILC

required appellant to refrain from any misconduct or violation of the law; not to consume

or possess any controlled or intoxicating substances; and to have no direct or indirect

contact with felons, drug users, or drug sellers. Also relevant, Item 20 of appellant’s ILC

terms and conditions states: “[Appellant] shall submit to a search, without a warrant of

his person, property, or place of residence by a probation officer employed by the

Delaware County Court of Common Pleas or the Adult Parole Authority at any time.”

       {¶4} Appellant met with Erin Rohrer, his probation officer, for the first time on

the same day he entered his pleas. Rohrer discussed the terms and conditions of ILC

and required appellant to submit to urinalysis which was positive for cocaine. Appellant

was not held accountable for a violation that day, but Rohrer warned he would continue

to be drug-tested and his ILC conditions required him not to be using.
Delaware County, Case No. 13 CAA 04 0028                                                   3


       {¶5} At appellant’s November 8 appointment with Rohrer, he showed up late.

Rohrer again discussed the conditions of his ILC, including required attendance at

AA/NA meetings.

       {¶6} On November 29, appellant tested positive for cocaine and eventually

admitted to Rohrer he used on November 26. He was unable to verify his attendance at

any AA or NA meetings. Appellant acknowledged the positive drug test and drug use in

writing.

       {¶7} Appellant failed to appear for his December 13 appointment, a Thursday.

He called to say he had to stay late at work and would come in the next day. Appellant

also failed to appear on Friday, December 14, calling again to say he would come in on

Monday.

       {¶8} Finally, on Monday, December 17, appellant appeared at Rohrer’s office.

He was immediately escorted into the bathroom by a male officer to provide a urine

sample. In the meantime his belongings were placed near the metal detector. Rohrer

confiscated appellant’s cell phone and reviewed its contents. When appellant returned

from the bathroom, she instructed him to put in the access code. At first appellant

claimed the phone belonged to his girlfriend, but eventually he put in the access code

and Rohrer scrolled through his text messages. She testified it was “[immediately] clear

lots of illegal activity was going on.” Appellant was placed under arrest.

       {¶9} Rohrer testified it was apparent to her from the text messages that

appellant continued to traffic in drugs.    To further her investigation, Rohrer asked

Delaware County’s information technology department to extract the texts from the

phone and print them out, which was accomplished.
Delaware County, Case No. 13 CAA 04 0028                                                      4


       {¶10} Rohrer served appellant with notice of violation of the rules of ILC on

January 29, 2013. She explained the delay between his initial arrest at the probation

office and service of the notice of violations after a subsequent arrest: appellant was

released for a brief period because he was expected to work with law enforcement but

in fact never did so. Appellant was therefore arrested again at his residence on January

22.

       {¶11} Rohrer testified appellant admitted the texts referenced his ongoing drug

trafficking activity through December 17, after initiation of his ILC terms and conditions.

       {¶12} Detective Cox of the Delaware County Drug Task Force testified at the

suppression hearing regarding the content of the text messages. He cited a few of the

most obvious: “cash, 50;” “what are we going to do?” “drink and smoke weed;” “hey boo,

you have any more stuff;” “can I get 25;” “would I be able to get, like, 35 until Friday;”

“no stuff;” “can I get some credit until tomorrow,” etc.           In Cox’s opinion, the

conversations were about drug sales and use, and the numbers referred to amounts of

crack cocaine. He also opined two of the people communicating with appellant were

known drug users, another violation of the terms of ILC.

       {¶13} The January 29, 2013 Notice of Intervention in Lieu of Conviction Violation

Hearing and Charges alleged appellant continued to traffic in drugs, tested positive for

cocaine on October 22 and November 29, and maintained contact with known drug

users. Appellant filed a Motion to Suppress/Denial of Violations, Request for Probable

Cause Hearing/Evidentiary Hearing. Appellee responded with a memorandum contra.

       {¶14} On March 13 and 14, 2013, the trial court held an evidentiary hearing. At

the conclusion of the hearing the trial court overruled appellant’s motion to suppress
Delaware County, Case No. 13 CAA 04 0028                                                    5


and found him to be in violation of the terms and conditions of ILC. Appellant’s ILC was

revoked, the trial court found him guilty of three counts of trafficking in cocaine, and

sentenced him to three consecutive 10-month prison terms.

       {¶15} Appellant now appeals from the Judgment Entry Finding Defendant in

Violation of Terms of Intervention in Lieu of Conviction, Finding of Guilty, and Sentence

filed on March 18, 2013.

       {¶16} Appellant raises four assignments of error:

                              ASSIGNMENTS OF ERROR

       {¶17} “I.    THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S

MOTION TO SUPPRESS.”

       {¶18} “II. THE TRIAL COURT ABUSED ITS DISCRETION BY REVOKING THE

INTERVENTION IN LIEU OF CONVICTION.”

       {¶19} “III. THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A

PRISON TERM INSTEAD OF A PERIOD OF COMMUNITY CONTROL.”

       {¶20} “IV.   THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING

CONSECUTIVE SENTENCES.”

                                       ANALYSIS

                                            I.

       {¶21} In his first assignment of error, appellant argues the trial court erred in

overruling his motion to suppress because the search of his cell phone and his arrest by

his probation officer were constitutionally infirm. We disagree.

       {¶22} Appellate review of a trial court’s decision to deny a motion to suppress

involves a mixed question of law and fact. State v. Long, 127 Ohio App.3d 328, 332,
Delaware County, Case No. 13 CAA 04 0028                                                          6


713 N.E.2d 1 (4th Dist.1998). During a suppression hearing, the trial court assumes the

role of trier of fact and, as such, is in the best position to resolve questions of fact and to

evaluate witness credibility. State v. Brooks, 75 Ohio St.3d 148, 154, 661 N.E.2d 1030

(1996). A reviewing court is bound to accept the trial court’s findings of fact if they are

supported by competent, credible evidence. State v. Medcalf, 111 Ohio App.3d 142,

145, 675 N.E.2d 1268 (4th Dist.1996). Accepting these facts as true, the appellate

court must independently determine as a matter of law, without deference to the trial

court’s conclusion, whether the trial court’s decision meets the applicable legal

standard. State v. Williams, 86 Ohio App.3d 37, 42, 619 N.E.2d 1141 (4th Dist.1993),

overruled on other grounds.

         {¶23} There are three methods of challenging a trial court’s ruling on a motion to

suppress on appeal. First, an appellant may challenge the trial court’s finding of fact. In

reviewing a challenge of this nature, an appellate court must determine whether the trial

court’s findings of fact are against the manifest weight of the evidence. See, State v.

Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486,

597 N.E.2d 1141 (4th Dist.1991). Second, an appellant may argue the trial court failed

to apply the appropriate test or correct law to the findings of fact. In that case, an

appellate court can reverse the trial court for committing an error of law. See, Williams,

supra.    Finally, an appellant may argue the trial court has incorrectly decided the

ultimate or final issues raised in a motion to suppress. When reviewing this type of

claim, an appellate court must independently determine, without deference to the trial

court’s conclusion, whether the facts meet the appropriate legal standard in any given

case. State v. Curry, 95 Ohio App.3d 93, 96, 620 N.E.2d 906 (8th Dist.1994).
Delaware County, Case No. 13 CAA 04 0028                                                    7


      {¶24} Appellant claims the warrantless search of his cell phone by his probation

officer was improper in the absence of a warrant because he had committed no

probation violation at the time of the search and did not voluntarily consent to the

search. It is well-established, however, that a warrantless search performed pursuant to

a condition of parole1 requiring a parolee to submit to random searches of his or her

person or property by a parole officer at any time is constitutional. State v. Benton, 82

Ohio St.3d 316, 695 N.E.2d 757 (1998), syllabus.

      {¶25} The Fourth Amendment to the United States Constitution protects

individuals against unreasonable governmental searches and seizures. In Katz v.

United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the Supreme

Court held that “searches conducted outside the judicial process, without prior approval

by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject

only to a few specifically established and well-delineated exceptions.” One such

exception exists when “ ‘special needs, beyond the normal need for law enforcement,

make the warrant and probable-cause requirement impracticable.’ ” Griffin v. Wisconsin,

483 U.S. 868, 873, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987), citing New Jersey v. T.L.O.,

469 U.S. 325, 351, 105 S.Ct. 733, 748, 83 L.Ed.2d 720 (1985) (Blackmun, J.,

concurring). In Griffin, the Court recognized a state's operation of a probation system

“presents ‘special needs' beyond normal law enforcement that may justify departures

from the usual warrant and probable-cause requirements.” The Court stated



1
  The cited case law refers to probation, parole, and ILC. ILC is comparable to
probation, and those who are placed on ILC are monitored by the county probation
department. R.C. 2951.041(D). The Ohio Supreme Court has held there is no material
difference between probationers and parolees in the context of constitutional
guarantees. State v. Roberts, 32 Ohio St.3d 225, 229, 513 N.E.2d 720 (1987).
Delaware County, Case No. 13 CAA 04 0028                                                         8


“probationers * * * do not enjoy ‘the absolute liberty to which every citizen is entitled, but

only * * * conditional liberty properly dependent on observance of special [probation]

restrictions.’ ” Griffin, supra, 483 U.S. at 873-874, citing Morrissey v. Brewer, 408 U.S.

471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). The Court observed:

              [Probation] restrictions are meant to assure that the probation

              serves as a period of genuine rehabilitation and that the community

              is not harmed by the probationers' being at large. * * * These same

              goals require and justify the exercise of supervision to assure that

              the restrictions are in fact observed. Recent research suggests that

              more intensive supervision can reduce recidivism * * * and the

              importance of supervision has grown as probation has become an

              increasingly common sentence for those convicted of serious

              crimes * * *. Supervision, then, is a ‘special need’ of the State

              permitting a degree of impingement upon privacy that would not be

              constitutional if applied to the public at large. Id., 483 U.S. at 875,

              107 S.Ct. at 3169 (citations omitted).

       {¶26} The Court continued to explain the rationale for the warrantless search

exception applicable to probationers as follows: “A warrant requirement would interfere

to an appreciable degree with the probation system, setting up a magistrate rather than

the probation officer as the judge of how close a supervision the probationer requires.

Moreover, the delay inherent in obtaining a warrant would make it more difficult for

probation officials to respond quickly to evidence of misconduct * * * an would reduce
Delaware County, Case No. 13 CAA 04 0028                                                           9


the deterrent effect that the possibility of expeditious searches would otherwise create *

* *.” Id., 483 U.S. at 876, 107 S.Ct. at 3170.

       {¶27} Thus, the Griffin court concluded that warrantless searches of a

probationer's home and other property satisfies the Fourth Amendment's requirement of

reasonableness if the warrantless search is “conducted pursuant to a valid regulation

governing probationers.” Id., 483 U.S. at 880, 107 S.Ct. at 3172, 97 L.Ed.2d 709; see,

also, State v. Benton, 82 Ohio St.3d 316, 695 N.E.2d 757 (1998).

       {¶28} Such a valid regulation exists here. R.C. 2967.131(B) permits a parole or

a probation officer to conduct warrantless searches of a parolee or a probationer if the

officer possesses “reasonable grounds to believe that the [probationer] is not abiding by

the law or otherwise is not complying with the terms and conditions” of probation. Thus,

pursuant to Griffin and Ohio's regulatory scheme, a warrantless search of a

probationer's home and other property does not violate the Fourth Amendment,

provided the searching officer possesses reasonable grounds to believe that the

probationer is in violation of the law or of the conditions and terms of probation.

       {¶29} Appellant contends, however, that Rohrer had no reasonable grounds to

search the phone because he was not in violation of his ILC conditions when she seized

it: the drug test he performed was negative. We disagree. To satisfy the “reasonable

grounds” standard, an officer need not possess the level of certainty required for

“probable cause.” Griffin, 483 U.S. at 877-78, 107 S.Ct. at 3170-71, 97 L.Ed.2d 709.

Rather, the Fourth Amendment's reasonableness requirement for warrantless searches

of probationers is satisfied if the information provided to the searching officer “indicates

* * * only the likelihood * * * of facts justifying the search.” Id., 483 U.S. at 880, 107 S.Ct.
Delaware County, Case No. 13 CAA 04 0028                                                   10


at 3172. In this case, appellant had missed two appointments with his probation officer,

showed up late on this date, and had a history of positive drug screens. We find Rohrer

had reasonable grounds to conclude appellant was not complying with the terms of ILC

despite the resulting negative drug screen on December 17.

       {¶30} Rohrer’s search of appellant’s cell phone and his subsequent arrest are

not unconstitutional. Appellant’s first assignment of error is overruled.

                                                II.

       {¶31} In his second assignment of error, appellant contends the trial court

abused its discretion in finding appellant violated the terms of ILC resulting in its

revocation. We disagree.

       {¶32} ILC is comparable to probation, and those who are placed on ILC are

monitored by the county probation department. R.C. 2951.041(D).               Although a

revocation proceeding must comport with the requirements of due process, it is not a

criminal proceeding. State v. Ryan, 3rd Dist. Union No. 14-06-55, 2007-Ohio-4743,

citing Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).

Therefore, the minimum due process requirements afforded a defendant in a probation

revocation proceeding differ from those in a criminal trial. The minimum due process

requirements for revocation hearings are as follows:

              (a) Written notice of the claimed violations of [probation or] parole;

              (b) disclosure to the [probationer or] parolee of evidence against

              him; (c) opportunity to be heard in person and to present witnesses

              and documentary evidence; (d) the right to confront and cross-

              examine adverse witnesses (unless the hearing officer specifically
Delaware County, Case No. 13 CAA 04 0028                                                    11


             finds good cause for not allowing confrontation); (e) a ‘neutral and

             detached’ hearing body such as a traditional parole board,

             members of which need not be judicial officers or lawyers; and (f) a

             written statement by the fact finders as to the evidence relied on

             and reasons for revoking [probation or] parole.

             State v. Miller, 42 Ohio St.2d 102, 104, 326 N.E.2d 259 (1975),

             quoting Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33

             L.Ed.2d 484 (1972).

      {¶33} Appellant does not contend he was denied any of the above.

      {¶34} A community control or probation revocation is not a criminal trial;

therefore, appellee is not required to establish a violation of the terms of community

control “beyond a reasonable doubt.” Ryan, supra, 2007–Ohio–4743, ¶ 7, citing State v.

Hylton, 75 Ohio App.3d 778, 600 N.E.2d 821 (4th Dist.1991). Instead, appellee must

show “substantial” proof appellant violated the terms of his community control sanctions.

Id. Substantial evidence is akin to a preponderance-of-the-evidence burden of proof.

State v. Ohly, 166 Ohio App.3d 808, 2006–Ohio–2353, 853 N.E.2d 675, at ¶ 18, citing

State v. Hayes, 6th Dist. No. WD–00–075,unreported, 2001 WL 909291 (Aug. 10,

2001). “Substantial evidence is considered to consist of more than a mere scintilla of

evidence, but somewhat less than a preponderance.” Id., citations omitted.

      {¶35} A trial court's finding of a violation of community control will not be

disturbed on appeal absent an abuse of discretion. State v. Burdette, 5th Dist. Morrow

No. 10-CA-9, 2011-Ohio-4425, *4. An abuse of discretion implies more than an error of

law or judgment; instead, it connotes that the trial court's attitude is unreasonable,
Delaware County, Case No. 13 CAA 04 0028                                                     12

arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450

N.E.2d 1140 (1983). When applying the abuse of discretion standard, an appellate court

may not simply substitute its judgment for that of the trial court. Id. Moreover, in terms

of credibility determinations, the weight of the evidence and the credibility of the

witnesses are determined by the trier of fact. State v. Yarbrough, 95 Ohio St.3d 227,

231, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79.

       {¶36} We find appellee demonstrated substantial proof appellant engaged in

drug trafficking and associated with drug users after the imposition of ILC terms and

conditions; appellee is not required to prove either beyond a reasonable doubt in this

context. Moreover, appellant’s acknowledged positive drug screens, standing alone,

are sufficient basis to revoke ILC, despite his arguments to the contrary. We note that

“the privilege of probation rests upon the probationer's compliance with the probation

conditions and any violation of those conditions may properly be used to revoke the

privilege.” State v. Bell, 66 Ohio App.3d 52, 57, 583 N.E.2d 414 (1990).

       {¶37} Appellant’s second assignment of error is overruled.

                                               III.

       {¶38} In his third assignment of error, appellant argues the trial court erred in

sentencing him to prison instead of imposing a community control sanction.            We

disagree.

       {¶39} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124,

the Ohio Supreme Court set forth a two-step process for examining felony sentences.

The first step is to “examine the sentencing court's compliance with all applicable rules

and statutes in imposing the sentence to determine whether the sentence is clearly and
Delaware County, Case No. 13 CAA 04 0028                                                           13

convincingly contrary to law.” Kalish at ¶ 4. If this first step “is satisfied,” the second step

requires the trial court's decision be “reviewed under an abuse-of-discretion standard.”

Id.

       {¶40} R.C. 2929.13(B) states:

              (B)(1)(a) Except as provided in division (B)(1)(b) of this section, if

              an offender is convicted of or pleads guilty to a felony of the fourth

              or fifth degree that is not an offense of violence or that is a

              qualifying assault offense, the court shall sentence the offender to a

              community control sanction of at least one year's duration if all of

              the following apply:

              (i) The offender previously has not been convicted of or pleaded

              guilty to a felony offense.

              (ii) The most serious charge against the offender at the time of

              sentencing is a felony of the fourth or fifth degree.

              (iii) If the court made a request of the department of rehabilitation

              and correction pursuant to division (B)(1)(c) of this section, the

              department, within the forty-five-day period specified in that

              division, provided the court with the names of, contact information

              for, and program details of one or more community control

              sanctions of at least one year's duration that are available for

              persons sentenced by the court.

              (iv) The offender previously has not been convicted of or pleaded

              guilty to a misdemeanor offense of violence that the offender
Delaware County, Case No. 13 CAA 04 0028                                              14


           committed within two years prior to the offense for which sentence

           is being imposed.

           (b) The court has discretion to impose a prison term upon an

           offender who is convicted of or pleads guilty to a felony of the fourth

           or fifth degree that is not an offense of violence or that is a

           qualifying assault offense if any of the following apply:

           (i) The offender committed the offense while having a firearm on or

           about the offender's person or under the offender's control.

           (ii) If the offense is a qualifying assault offense, the offender caused

           serious physical harm to another person while committing the

           offense, and, if the offense is not a qualifying assault offense, the

           offender caused physical harm to another person while committing

           the offense.

           (iii) The offender violated a term of the conditions of bond as set by

           the court.

           (iv) The court made a request of the department of rehabilitation

           and correction pursuant to division (B)(1)(c) of this section, and the

           department, within the forty-five-day period specified in that

           division, did not provide the court with the name of, contact

           information for, and program details of any community control

           sanction of at least one year's duration that is available for persons

           sentenced by the court.
Delaware County, Case No. 13 CAA 04 0028                                              15


           (v) The offense is a sex offense that is a fourth or fifth degree felony

           violation of any provision of Chapter 2907. of the Revised Code.

           (vi) In committing the offense, the offender attempted to cause or

           made an actual threat of physical harm to a person with a deadly

           weapon.

           (vii) In committing the offense, the offender attempted to cause or

           made an actual threat of physical harm to a person, and the

           offender previously was convicted of an offense that caused

           physical harm to a person.

           (viii) The offender held a public office or position of trust, and the

           offense related to that office or position; the offender's position

           obliged the offender to prevent the offense or to bring those

           committing it to justice; or the offender's professional reputation or

           position facilitated the offense or was likely to influence the future

           conduct of others.

           (ix) The offender committed the offense for hire or as part of an

           organized criminal activity.

           (x) The offender at the time of the offense was serving, or the

           offender previously had served, a prison term.

           (xi) The offender committed the offense while under a community

           control sanction, while on probation, or while released from custody

           on a bond or personal recognizance.
Delaware County, Case No. 13 CAA 04 0028                                                      16


       {¶41} In this case, the trial court specifically found appellant was in violation of

conditions of bond and committed the offenses as part of organized criminal activity.

We find the sentence is not clearly and convincingly contrary to law. Furthermore,

having thoroughly reviewed the record of this case, we are unwilling to find the trial

court abused its discretion in sentencing appellant to a prison term in light of his

repeated violations of the terms of ILC.

       {¶42} Appellant’s third assignment of error is overruled.

                                               IV.

       {¶43} Appellant argues the trial court abused its discretion in sentencing him to

consecutive prison terms in his fourth assignment of error. We disagree.

       {¶44} 2011 Am.Sub.H.B. No. 86, which became effective on September 30,

2011, revived language provided in former R.C. 2929.14(E) and moved it to R.C.

2929.14(C)(4). The General Assembly has thus expressed its intent to revive the

statutory fact-finding provisions pertaining to the imposition of consecutive sentences

that were effective pre-Foster. See State v. Wells, 8th Dist. Cuyahoga No. 98428,

2013–Ohio–1179, ¶ 11. These revisions to the felony sentencing statutes now require a

trial court to make specific findings when imposing consecutive sentences.

Nonetheless, “[a]lthough 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.” State v. Bentley, 3rd Dist. Marion No. 9–12–31, 2013–Ohio–

852, ¶ 12, citing State v. Frasca, 11th Dist. Trumbull No.2011–T–0108, 2012–Ohio–

3746, ¶ 57.
Delaware County, Case No. 13 CAA 04 0028                                                   17


      {¶45} The record must clearly demonstrate that consecutive sentences are not

only appropriate but also clearly supported by the record. See State v. Queer, 5th Dist.

Ashland No. 12–COA–041, 2013–Ohio–3585, ¶ 21.

      {¶46} 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:

             (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.
Delaware County, Case No. 13 CAA 04 0028                                                   18


             (c) The offender's history of criminal conduct demonstrates that

             consecutive sentences are necessary to protect the public from

             future crime by the offender.

       {¶47} In this case, the trial court found consecutive sentences are necessary to

protect the public from future harm or to punish the defendant and that consecutive

sentences are not disproportionate to the seriousness of the defendant’s conduct and to

the danger the defendant poses to the public. The trial court further found at least two

of the offenses were committed as part of one or more courses of conduct and the harm

caused by two or more of the multiple offenses 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 defendant’s conduct. We find the

trial court did not abuse its discretion in imposing consecutive sentences.

       {¶48} Appellant’s consecutive sentences are appropriate and are supported by

the record. His fourth assignment of error is overruled.
Delaware County, Case No. 13 CAA 04 0028                                                  19


                                    CONCLUSION

       {¶49} Appellant’s four assignments of error are overruled for the reasons stated

in the foregoing opinion and the judgment of the Delaware County Court of Common

Pleas is affirmed.

By: Delaney, J. and

Gwin, P.J.

Hoffman, J., concur.
