[Cite as State v. Green, 2012-Ohio-4362.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT




STATE OF OHIO                                :       JUDGES:
                                             :       Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                   :       Hon. William B. Hoffman, J.
                                             :       Hon. Sheila G. Farmer, J.
-vs-                                         :
                                             :
WILLIAM B. GREEN                             :       Case No. 12-CA-17
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 11CR00026



JUDGMENT:                                            Reversed and Remanded




DATE OF JUDGMENT:                                    September 24, 2012




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

KENNETH W. OSWALT                                    TODD W. BARSTOW
20 South Second Street                               4185 East Main Street
4th Floor                                            Columbus, OH 43213
Newark, OH 43055
Licking County, Case No. 12-CA-17                                                        2

Farmer, J.

      {¶1}   On April 5, 2011, the Licking County Grand Jury indicted appellant,

William Green, on two counts of complicity to unlawful sexual conduct with a minor in

violation of R.C. 2923.03 and 2907.04, both felonies of the third degree. Said charges

arose from appellant's role in facilitating sexual relations between his fifteen year old

son and an adult neighbor.

      {¶2}   Appellant pled guilty as charged on May 24, 2011. By judgment entry filed

same date, the trial court held appellant's pleas in abeyance and ordered him into a

diversion program. The trial court reserved a sentence of three years on each count, to

be served consecutively, for a total term of six years in prison, if appellant violated the

terms of the diversion program.

      {¶3}   On January 9, 2012, the state filed a motion to revoke appellant's

community control. A hearing was held on February 1, 2012. By judgment entry filed

same date, the trial court revoked appellant's community control and imposed the

reserved six year prison sentence.

      {¶4}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                             I

      {¶5}   "THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY

IMPROPERLY SENTENCING HIM TO CONSECUTIVE TERMS OF INCARCERATION

IN CONTRAVENTION OF OHIO'S SENTENCING STATUTES."
Licking County, Case No. 12-CA-17                                                      3


                                             II

       {¶6}   "THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING

APPELLANT TO PRISON TERMS."

                                              I

       {¶7}   Appellant claims the trial court erred in imposing consecutive sentences

without engaging in judicial fact-finding as now required by H.B. No. 86. We agree.

       {¶8}   H.B. No. 86 amended subsection (E)(4) of R.C. 2929.14 [now subsection

(C)(4)] and subsection (A) of R.C. 2929.41, effective September 30, 2011, and now

state the following, respectively:

       {¶9}   "(C)(4) 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:

       {¶10} "(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.

       {¶11} "(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
Licking County, Case No. 12-CA-17                                                          4


committed as part of any of the courses of conduct adequately reflects the seriousness

of the offender's conduct.

       {¶12} "(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime by the

offender.

       {¶13} "(A) Except as provided in division (B) of this section, division (E) of

section 2929.14, or division (D) or (E) of section 2971.03 of the Revised Code, a prison

term, jail term, or sentence of imprisonment shall be served concurrently with any other

prison term, jail term, or sentence of imprisonment imposed by a court of this state,

another state, or the United States. Except as provided in division (B)(3) of this section,

a jail term or sentence of imprisonment for misdemeanor shall be served concurrently

with a prison term or sentence of imprisonment for felony served in a state or federal

correctional institution."

       {¶14} Appellant argues the trial court erred in imposing consecutive sentences

as it did not make the requisite findings to do so. On May 24, 2011, appellant pled

guilty to the two charges.     By judgment entry filed same date, the trial court held

appellant's pleas in abeyance and ordered him into a diversion program. The trial court

reserved a sentence of three years on each count, to be served consecutively, for a

total term of six years in prison, if appellant violated the terms of the diversion program.

       {¶15} Because the trial court held appellant's pleas in abeyance and ordered

him into a diversion program, there was no conviction on May 24, 2011. The trial court

revoked appellant's community control and sentenced him on February 1, 2012, after

the effective date of H.B. No. 86, to the reserved sentence of two three-year
Licking County, Case No. 12-CA-17                                                    5


consecutive prison terms.      Therefore, we find H.B. No. 86 controlled appellant's

sentencing.

        {¶16} Although the trial court stated it was sentencing appellant under the

sentencing principles of R.C. 2929.11 and the seriousness and recidivism factors, we

find this is not judicial fact-finding under the H.B. No. 86 amendments.

        {¶17} Assignment of Error I is granted for resentencing under H.B. No. 86.

                                            II

        {¶18} Based upon our decision in Assignment of Error I, this assignment is

moot.

        {¶19} The judgment of the Court of Common Pleas of Licking County, Ohio is

hereby reversed.

By Farmer, J.

Gwin, P.J. and

Hoffman, J. concur.




                                             _s / Sheila G. Farmer______________



                                             s / W. Scott Gwin_________________



                                             s / William B. Hoffman_____________

                                                 JUDGES



SGF/sg 911
[Cite as State v. Green, 2012-Ohio-4362.]


                    IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT




STATE OF OHIO                                  :
                                               :
        Plaintiff-Appellee                     :
                                               :
-vs-                                           :        JUDGMENT ENTRY
                                               :
WILLIAM B. GREEN                               :
                                               :
        Defendant-Appellant                    :        CASE NO. 12-CA-17




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Licking County, Ohio is reversed, and the

matter is remanded to said court for further proceedings consistent with this opinion.

Costs to appellee.




                                               _s / Sheila G. Farmer______________



                                               s / W. Scott Gwin_________________



                                               s / William B. Hoffman_____________

                                                            JUDGES
