I dissent from the decision of the majority because I believe that the trial court's consideration of an impermissible factor in its imposition of consecutive sentences was contrary to law and prejudicial. I would vacate that aspect of the *Page 290 sentences and remand the cause to the trial court to resentence Moore based solely on the factors set forth in the sentencing guidelines.
R.C. Chapter 2929 provides guidelines for the trial court to use in setting the type and length of the sentence to be imposed for a given offense. Some of the guidelines are more specific than others. For instance, if the court must impose or chooses to impose a prison term upon an offender who has not previously served a prison term, the court must impose the minimum termunless the court finds that one of two specific conditions exists.1
Similarly, a court is permitted to order an offender to serve consecutive prison terms for multiple offenses only 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."2 The court must also find either (a) that the defendant committed the offenses while awaiting trial or sentencing, while under a community residential or nonresidential sanction, or while under post-release control for a prior offense; or (b) that "[t]he harm caused by the multiple offenses was so great or unusual that no single prison term for any of the offenses committed as part of a single course of conduct adequately reflects the seriousness of the offender's conduct."3 It is for those reasons, and those reasons only, that R.C. 2929.14(E)(4) allows the imposition of consecutive sentences.
In this case, the trial court clearly stated on the record that the basis for its imposition of consecutive sentences was its desire to assist the state in determining whether to retry Moore on the charges on which the jury could not agree. This factor is not among those listed as appropriate considerations under R.C.2929.14(E)(4), and it is not among any of the general considerations in the sentencing guidelines. In other words, it is a totally impermissible factor.
The trial court's own language indicated that the sentence was in fact based on an impermissible factor, notwithstanding its otherwise rote recitation of the statutory language. The sentence was therefore contrary to law. Simply because this court would have upheld the sentence had it been properly imposed does not render the trial court's error harmless. It is our duty to ensure that trial courts impose sentences in accordance with the requirements of R.C. Chapter 2929. That was not done in this case, and I would vacate the consecutive *Page 291 sentences and remand for reconsideration of that aspect of the sentence that was based on the permissible factors.
1 See R.C. 2929.14(B). See, also, State v. Edmonson (1999),86 Ohio St.3d 324, 328, 715 N.E.2d 131, 134.
2 R.C. 2929.14(E)(4).
3 Id.