[Cite as State v. Drobny, 2013-Ohio-818.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 98403



                                      STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                 ANDREW T. DROBNY
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-558241

         BEFORE: E.A. Gallagher, J., S. Gallagher, P.J., and Blackmon, J.

         RELEASED AND JOURNALIZED:                   March 7, 2013
ATTORNEY FOR APPELLANT

Rick L. Ferrara
2077 East 4th Street
Second Floor
Cleveland, Ohio 44114


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Mary Weston
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:

       {¶1} Andrew Drobny appeals from his sentence received in the Cuyahoga

County Common Pleas Court and argues that the trial court erred in ordering him to

serve the sentence in this case consecutively to the sentence imposed upon him in

Cuyahoga C.P. No. CR-558198. Finding no merit to the instant appeal, we affirm the

judgment of conviction.

       {¶2} In CR-558241, Drobny pleaded guilty to one count of theft, a fifth-degree

felony. In CR-558198, Drobny pleaded guilty to one count of burglary, a third-degree

felony.   In a sentencing hearing for both cases, the trial court ordered Drobny to serve

11 months on the theft conviction that was to run consecutive to a 30-month prison

sentence for the burglary conviction.          In ordering the sentences to be served

consecutively, the trial court stated the following:

       [T]he reason that you’re getting consecutive terms rather than concurrent
       terms is because this court believes that the harm that you created is great,
       is unusual, and a single term does not adequately reflect the seriousness of
       the offense. You heard what Mr. and Mrs. Bonner had to say, and you
       heard what your grandmother had to say. You’ve been creating problems
       for people for a very long time. And although I’m only allowed to
       sentence you for the two matters that are before the Court today, your past
       record indicates that you have had a serious — several serious bouts with
       the law which requires that you have the most serious prison term possible;
       therefore, we are going to make sure these terms are run consecutively
       rather than concurrently.

       {¶3} In his sole assigned error, to wit: that “[t]he trial court acted contrary to
law when it imposed consecutive sentences without authority to do so under the Ohio

Revised Code,” Drobny argues that the trial court was without the authority to sentence

him to consecutive terms of imprisonment because of an error in the drafting of the

version of R.C. 2929.41(A) that was in effect at the time of his sentencing. The

language as drafted of R.C. 2929.41(A) is as follows:

       (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.

       {¶4} Drobny argues that because none of the exceptions to the presumption of

concurrent sentences applied, the trial court erred by imposing consecutive prison

sentences in this case.   We disagree.

       {¶5} Following the Ohio Supreme Court’s decision in State v. Hodge, 128 Ohio

St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768, the legislature expressed its intent to revive

the statutory, fact-finding provisions that existed as a prerequisite to imposing

consecutive sentences and that were effective before State v. Foster, 109 Ohio St.3d 1,

2006-Ohio-856, 845 N.E.2d 470. Under a prior version of Ohio’s sentencing law, the

judicial fact-finding requirements for consecutive sentencing were contained in R.C.

2929.14(E), they now appear in R.C. 2929.14(C). This court has determined that the

reference to R.C. 2929.14(E) in R.C. 2929.41(A) was a legislative oversight and
“resulted in the failure to update the cross-reference in the ‘revived’ R.C. 2929.41(A)

from ‘division (E) of section 2929.14’ to ‘division (C) of 2929.14.’” State v. Ryan, 8th

Dist. No. 98005, 2012-Ohio-5070, ¶19. In fact, R.C. 2929.41(A) was amended on

September 28, 2012, for the specific purpose of making this correction.               R.C.

2929.41(A), section notes (“[t]he 2012 amendment substituted ‘division (C)’ for

‘division (E)’ in the first sentence of (A).”)

       {¶6} In Ryan, this court applied the statute as the legislature intended it to be

applied rather than affording weight to a typographical error by applying the statute in a

manner contrary to the legislative intent. Id. at ¶ 22.    Accordingly, the trial court was

authorized to impose consecutive sentences in this case in accordance with R.C.

2929.14(C).

       {¶7} Drobny’s sole assignment of error is overruled.

       {¶8} The judgment of the trial court is affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said lower court to carry this

judgment into execution. The defendant’s conviction having been affirmed, any bail

pending appeal is terminated. The case is remanded to the trial court for execution of

sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE

SEAN C. GALLAGHER, P.J., and
PATRICIA A. BLACKMON, J., CONCUR
