[Cite as State v. Midlam, 2012-Ohio-6299.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HIGHLAND COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 12CA2
:
vs. : RELEASED 12/28/12
:
COLE MIDLAM, : DECISION AND JUDGMENT
: ENTRY
Defendant-Appellant. :
__________________________________________________________________
APPEARANCES:
Carol Ann Curren, and Conrad A. Curren, Greenfield, Ohio, for Appellant.
Anneka P. Collins, Highland County Prosecutor, Hillsboro, Ohio, for Appellee.
__________________________________________________________________
McFarland, J.:
{¶1} This is an appeal from a Highland County Court of Common Pleas
judgment entry sentencing Appellant, Cole Midlam, to a five year prison term for
aggravated robbery, which was ordered to be served consecutively to prison terms
Appellant was already serving for other convictions. On appeal, Appellant raises a
single assignment of error, contending that the trial court erred to his detriment
when the sentence was ordered to be served consecutive to sentences for the same
crime in other jurisdictions. However, in light of our determination that the
sentence imposed by the trial court was not contrary to law and was not an abuse
Highland App. No. 12CA2 2
of discretion, we reject Appellant’s sole assignment of error. Accordingly, the
decision of the trial court is affirmed.
FACTS
{¶2} Appellant was indicted for aggravated robbery, a first degree felony, of
a Rite-Aid drug store in Hillsboro, Ohio, that occurred on May 16, 2010. This
aggravated robbery was one of several aggravated robberies that Appellant
committed throughout various Ohio counties, including Montgomery and Greene
counties, and also in the state of Indiana, in order to support his addiction to
Oxycontin.
{¶3} The record reveals that Appellant pled guilty to the aggravated
robberies in the other jurisdictions and was sentenced to ten year concurrent terms
of imprisonment on each of those convictions. After pleading guilty to the
aggravated robberies in the other jurisdictions, Appellant eventually pled guilty to
the aggravated robbery of the Hillsboro Rite-Aid as well, in exchange for the
dismissal of the gun specification. As a result, Appellant was sentenced on
February 3, 2012. The trial court sentenced Appellant to a five year prison term, to
be served consecutively to the ten year sentences he was already concurrently
serving on his other aggravated robbery convictions. It is from this conviction and
sentence that Appellant now brings his timely appeal, setting forth a single
assignment of error for our review.
Highland App. No. 12CA2 3
ASSIGNMENT OF ERROR
“I. THE TRIAL COURT ERRED TO THE DETRIMENT OF THE
DEFENDANT WHEN THE SENTENCE WAS ORDERED
CONSECUTIVE TO SENTENCES FOR THE SAME CRIME IN OTHER
JURISDICTIONS.”
LEGAL ANALYSIS
{¶4} In his first assignment of error, Appellant contends that the trial court
erred to his prejudice when the sentence imposed was ordered to be served
consecutively to sentences imposed for the same crime in other jurisdictions.
Specifically, Appellant argues that the trial court erroneously stated that the
offense was part of an organized criminal activity, and that the trial court failed to
make the necessary findings before imposing consecutive sentences, as required
under the recently enacted H.B. No. 86, as codified in R.C. 2929.14(C)(4), which
became effective September 30, 2011. The State responds by arguing that the trial
court properly considered the required statutory sentencing factors when it
imposed a five year consecutive sentence that was not otherwise contrary to law.
{¶5} This Court has been employing a two-step approach to review felony
sentences. “First, [we] must examine the sentencing court's compliance with all
applicable rules and statutes in imposing the sentence to determine whether the
sentence is clearly and convincingly contrary to law. If this first prong is satisfied,
the trial court's decision shall be reviewed under an abuse-of-discretion standard.”
State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 4.
Highland App. No. 12CA2 4
{¶6} We have previously reasoned that, in analyzing whether a sentence is
contrary to law, “ ‘[t]he only specific guideline is that the sentence must be within
the statutory range [.]’ ” State v. Hines, 4th Dist. No. 09CA36, 2010-Ohio-2749, ¶
7; quoting State v. Ross, 4th Dist. No. 08CA872, 2009-Ohio-877, ¶ 10. Accord
State v. Slagle, 4th Dist. Nos. 10CA4 & 10CA5, 2011-Ohio-1463, ¶ 9, overruled in
part on other grounds; State v. Pierce, 4th Dist. No. 10CA10, 2011-Ohio-5353, ¶
10, FN. 2. Additionally, courts must consider the general guidance factors set forth
in R.C. 2929.11 and 2929.12. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856,
845 N.E.2d 470, ¶ 42; Kalish at ¶ 13.
{¶7} However, as set forth above, the General Assembly recently enacted
H.B. 86, effective September 30, 2011, which amends R.C. 2929.14 and requires
fact finding for consecutive sentences. State v. Anderson, 4th Dist. No. 10CA4,
2012-Ohio-3245, ¶41; State v. Terrell, 4th Dist. No. 10CA39, 2012-Ohio-1926, ¶
12. We find that this amendment applies to Appellant, who was sentenced on
February 3, 2012, after the effective date of H.B. 86.
{¶8} Here, Appellant does not argue that his five year sentence was outside
of the statutory range. Instead, he argues that the trial court erred in ordering that
the sentence be served consecutively to other sentences he was serving for similar
offenses committed in other jurisdictions. It appears that this question is one of
first impression in our district, to the extent that it involves analysis and application
Highland App. No. 12CA2 5
of the recently enacted H.B. 86. Thus, we look to other districts within our state
for guidance, and in an effort to maintain consistency.
{¶9} The First District has noted that as a result of H.B. 86’s recent
enactment, we now have another consideration when determining whether
consecutive sentences imposed by a trial court are contrary to law. State v.
Alexander, 1st Dist. Nos. C-110828, C-110829, 2012-Ohio-3349, ¶ 13. For
example, in Alexander, the court reasoned as follows at ¶ 13-14:
The General Assembly has “revived the requirement that trial courts
make findings before imposing consecutive sentences in R.C.
2929.14(C).” State v. Jones, 1st Dist. No. C-110603, 2012-Ohio-2075,
¶ 17; see also State v. Hites, 3rd Dist. No. 6-11-07, 2012-Ohio-1892, ¶
11; State v. Bonner, 8th Dist. No. 97747, 2012-Ohio-2931, ¶ 5 (“The
revisions * * * now require a trial court to make specific findings
when imposing consecutive sentences.”); State v. Sullivan, 10th Dist.
No. 11AP-414, 2012-Ohio-2737, ¶ 24. Our determination of whether
a trial court has adhered to the applicable requirements of R.C.
2929.14(C)(4) in imposing consecutive sentences is also subject to
review under the first prong of Kalish and under R.C. 2953.08(G)(2).
See Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, at ¶
14.
Highland App. No. 12CA2 6
H.B. No 86 amended subsection (E)(4) of R.C. 2929.14 [now subsection
(C)(4) ], effective September 30, 2011, which is applicable herein, and states as
follows:
(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:
(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
Highland App. No. 12CA2 7
the courses of conduct adequately reflects the seriousness of the
offender's conduct.
(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
Thus, as explained by the Alexander court at ¶ 15, “R.C. 2929.14(C)(4) now
requires that a trial court engage in a three-step analysis in order to impose
consecutive sentences.” Further, “[i]n each step of this analysis, the statutory
language directs that the trial court must ‘find’ the relevant sentencing factors
before imposing consecutive sentences. R.C. 2929 .14(C)(4)” Alexander at ¶ 16.
{¶10} In Alexander, the court noted with approval the trial court’s use of a
“sentencing-findings worksheet,” to ensure that it had adhered to the sentencing
requirements, and also to ensure meaningful review of the trial court’s sentencing
decisions.” Id. at ¶ 17. Here, the trial court used a sentencing worksheet, much
like in Alexander. A review of the trial court’s judgment entry indicates that it
made the necessary findings under R.C. 2929.14(C)(4) for imposition of
consecutive sentences. Specifically, the trial court found 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 * * *.” The trial court further found that “[a]t least two
Highland App. No. 12CA2 8
of the multiple offenses were committed as part of one or more courses of conduct
* * *[,]” and that “[t]he offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime by the
offender.”
{¶11} Appellant claims that the record does not support these findings, and
further, that the trial court was required to state reasons in support of its findings.
Based upon the following reasoning of the Eighth District, we disagree.
Under prior case law, construing the pre- Foster version of R.C.
2929.14(C), and R.C. 2929.19(B), the trial court was also required to
“make a finding that gives its reasons for selecting a consecutive
sentence.” See State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165,
793 N.E.2d 473. The present version of R.C. 2929.14(C) simply
requires findings from the court but does not include the requirement
that the court state on the record the findings that give reasons for the
sentence. Compare current versions of R.C. 2929.14(C)(4) with the
current version of R.C. 2929 .14(B)(2)(e) and the current version of
R.C. 2929.19. State v. Parrish, 8th Dist. No. 97482, 2012-Ohio-3153,
FN. 1
{¶12} Further, a review of the record reveals that as a result of Appellant’s drug
addiction he committed a string of armed robberies of several different pharmacies
Highland App. No. 12CA2 9
throughout Ohio and into Indiana. At the time Appellant was sentenced herein, he
had already been convicted in those other jurisdictions and was already serving
concurrent prison terms imposed in those other jurisdictions. Thus, the trial court’s
findings regarding the multiple offenses being part of a course of conduct that
caused great and unusual harm are supported by the record. Further, the trial
court’s finding that the offender’s criminal history demonstrated the need for
consecutive sentences also finds support in the record in that at the time Appellant
was sentenced herein, he already had multiple other, albeit related, convictions and
was serving time in prison. As such, we reject Appellant’s argument that the trial
court failed to make the findings necessary under recently revised R.C.
2929.14(C)(4), or that those findings are not supported by the record.
Accordingly, we cannot conclude that the consecutive sentence imposed by the
trial court was contrary to law.
{¶13} In addition to these arguments, however, Appellant also contends that
the trial court’s finding that “the offender committed the offense for hire or as part
of an organized criminal activity” was in error. This finding was made by the trial
court as part of its consideration of R.C. 2929.11 and 2929.12, which simply must
be considered during the sentencing process. State v. Alexander at ¶24. “Unlike
R.C. 2929.14(C), [these statutes] do not require the trial court to ‘use specific
language or make specific findings on the record in order to evince the requisite
Highland App. No. 12CA2 10
consideration of the applicable seriousness and recidivism factors.” Id. (internal
citations omitted). Thus, the trial court was not required to set forth or even
address the specific factors it found applicable sub judice. However, we find that
the trial court’s finding that Appellant committed the offense as part of an
organized criminal activity does have some support in the record.
{¶14} During the sentencing hearing, the trial court stated that it found
“pursuant to Section 2929.12(B) that factors indicating offenders conduct is more
serious than conduct normally constituting the offense is that, uh, Defendant
committed this apparently as part of a crime spree, or uh, organized criminal
activity in the sense that he was committing a repeated number of offenses in a
short period of time.” “A trial court is not limited to the specific factors listed in
R.C. 2929.12, as the statute itself allows the trial court to consider ‘any other
factors that are relevant to achieving the purposes and principles of sentencing.’ ”
State v. Irwin, 7th Dist. No. 11CO7, 2012-Ohio-2720, ¶ 11; citing R.C. 2929.12(A).
Admittedly, the trial court’s finding in this regard may have been more
appropriately labeled as “any other relevant factor” rather than as “part of an
organized criminal activity;” however, we find that the trial court explained its
findings in detail during the sentencing hearing and that these findings are
supported by the record.
Highland App. No. 12CA2 11
{¶15} Here, we find the trial court’s decision to order Appellant’s five year
sentence for aggravated robbery to be served consecutively to sentences already
imposed by other jurisdictions for additional aggravated robberies, all committed
as part of the same crime spree, was not contrary to law. Accordingly, we find no
abuse of discretion on the part of the trial court and therefore we overrule
Appellant’s sole assignment of error. As Such, the decision of the trial court is
affirmed.
JUDGMENT AFFIRMED.
Kline, J., concurring.
{¶16} I respectfully concur in judgment only. Here, I agree that the trial
court complied with R.C. 2929.14(C)(4). I also agree that Midlam’s sentence is
not contrary to law. However, unlike the principal opinion, I would review
Midlam’s sentence under both prongs of the Kalish test.
{¶17} R.C. 2929.14(C)(4) states that a trial court “may require the offender
to serve the prison terms consecutively if the court [makes the necessary
findings].” (Emphasis added.) “The use of the word ‘may’ indicates a court has
discretion to take a given action.” Wells Fargo Bank v. Rajaie, 5th Dist. No. 09-
CAE-03-0027, 2010-Ohio-2546, ¶ 6; see also Dorrian v. Scioto Conservancy Dist.,
27 Ohio St.2d 102, 271 N.E.2d 834 (1971), paragraph one of the syllabus.
Therefore, even though the trial court made the necessary findings under R.C.
Highland App. No. 12CA2 12
2929.14(C)(4), the court still had the discretion to impose a concurrent prison term
upon Midlam. The principal opinion, however, does not account for this
discretion. Instead, the principal opinion finds no abuse of discretion simply
because the trial court complied with R.C. 2929.14(C)(4). In other words, the
principal opinion makes both of the Kalish findings while analyzing just one prong
of the Kalish test. I cannot agree with this approach.
{¶18} In conclusion, I agree that the trial court did not abuse its discretion.
But I would make this finding under the second prong of the Kalish test. As a
result, I respectfully concur in judgment only.
Highland App. No. 12CA2 13
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee
recover of Appellant costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Highland County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON
BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR
THIS COURT, it is temporarily continued for a period not to exceed sixty days
upon the bail previously posted. The purpose of a continued stay is to allow
Appellant to file with the Supreme Court of Ohio an application for a stay during
the pendency of proceedings in that court. If a stay is continued by this entry, it
will terminate at the earlier of the expiration of the sixty day period, or the failure
of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the
forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses
the appeal prior to expiration of sixty days, the stay will terminate as of the date of
such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Exceptions.
Abele, P.J.: Concurs in Judgment Only.
Kline, J.: Concurs in Judgment Only with Opinion.
For the Court,
BY: _________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.
State v. Midlam
Combined Opinion