[Cite as State v. Reynolds,

.]

COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Julie A. Edwards, J. -vs- Case No. 12 CA 7 DARL R. REYNOLDS, SR.

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 10 CR 497

JUDGMENT: Affirmed in Part; Reversed in Part and Remanded

DATE OF JUDGMENT ENTRY: December 10, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

GREGG MARX RUSSELL S. BENSING PROSECUTING ATTORNEY 1370 Ontario Street JOCELYN S. KELLY 1350 Standard Building ASSISTANT PROSECUTOR Cleveland, Ohio 44135 239 West Main Street Suite 101 BRADLEY KOFFEL Lancaster, Ohio 43130 THE KOFFEL LAW FIRM 1801 Watermark Drive, Suite 350 Columbus, Ohio 43215 Fairfield County, Case No. 12 CA 7 2

Wise, J.

{¶1} Appellant Darl R. Reynolds, Sr., aka Rick Reynolds, appeals his multiple-

count drug trafficking conviction and sentence in the Court of Common Pleas, Fairfield

County. The relevant facts leading to this appeal are as follows.

{¶2} On December 17, 2010, the Fairfield County Grand Jury indicted appellant

on seven counts of drug trafficking under R.C 2925.03, including one count of

aggravated trafficking in drugs (a felony of the second degree), five counts of

aggravated trafficking in drugs (a felony of the third degree), and one count of

aggravated trafficking in drugs (a felony of the fourth degree). These counts were

based on allegations of several incidents of appellant trafficking in Oxycodone

Hydrochloride, a Schedule II controlled substance, and Oxymorphone, a Schedule II

controlled substance, in August and September 2010.

{¶3} Pursuant to a negotiated plea agreement, appellant pled guilty to an

amended indictment charging him with seven counts of aggravated trafficking in drugs,

R. C. 2925.03(A)(1) and 2925.03(C)(1)(a), all felonies of the fourth degree. A contested

sentencing hearing was held. The State recommended seventeen months in prison on

each count, to be served consecutively, with prison imposed for three counts and

suspended for four counts. Appellant argued to have all prison terms suspended for

community control.

{¶4} The trial court, via a judgment entry filed February 3, 2012, sentenced

appellant to twelve months of imprisonment on each count, to be served consecutively,

with credit for two days previously served. Five of the sentences were suspended for a

term of community control, to begin upon completion of the remaining prison terms. Fairfield County, Case No. 12 CA 7 3

The court also ordered a driver's license suspension of six months on each count, to be

run consecutively.

{¶5} On February 10, 2012, appellant filed a notice of appeal. He herein raises

the following two Assignments of Error:

{¶6} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW BY

SENTENCING DEFENDANT TO CONSECUTIVE TERMS OF IMPRISONMENT

WITHOUT MAKING FINDINGS AT THE TIME OF THE SENTENCING HEARING,

AND WITHOUT GIVING REASONS FOR THE FINDINGS IN THE JOURNAL ENTRY

OF SENTENCING, AS REQUIRED BY R.C. §2929.14(C)(4).

{¶7} “II. THE TRIAL COURT ERRED AS A MATTER OF LAW BY IMPOSING

CONSECUTIVE DRIVERS LICENSE SUSPENSIONS UNDER R.C. §2925.03(G).”

I.

{¶8} In his First Assignment of Error, appellant contends the trial court erred in

ordering consecutive sentences without making proper findings and reasons under

R.C. 2929.14(C)(4). We disagree.

{¶9} In State v. Kalish,

,

, 2008–Ohio–4912, a

plurality opinion, the Ohio Supreme Court established a two-step procedure for

reviewing a felony sentence. 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 convincingly contrary to law.”

. The

second step requires the trial court's decision be reviewed under an abuse-of-

discretion standard.

Fairfield County, Case No. 12 CA 7 4

{¶10} Furthermore, in the case sub judice, H.B. 86 (effective September 30,

2011) controls the consecutive sentencing issues presented by appellant, who was

sentenced on January 25, 2012 (with a sentencing judgment entry filed February 3,

2012). We note H.B. 86 amended, inter alia, R.C. 2929.14(E)(4), (now subsection

(C)(4)), which now reads:

{¶11} “(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:

{¶12} “(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.

{¶13} “(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.

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

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

offender.” Fairfield County, Case No. 12 CA 7 5

{¶15} Thus, although the enactment of H.B. 86 and the language of R.C.

2929.14(C)(4) now require trial courts to make factual findings when imposing

consecutive sentences, the new provisions do not require a sentencing court to give

reasons for imposing consecutive sentences akin to those once required by the Ohio

Supreme Court’s holding in State v. Comer,

,

, 2003–

Ohio–4165. State v. Bradley, Stark App.No. 2012CA00011,

, ¶ 39-¶

40, citing State v. Frasca, Trumbull App.No. 2011–T–0108, 2012–Ohio–3746, ¶ 56-¶

57 (additional citations omitted).

{¶16} The judgment entry of sentencing in the case sub judice reads in pertinent

part as follows:

{¶17} “The Court ordered that said sentences are to be served

consecutively to each other. The Court found on record that it did

consider all the law required to be considered regarding the imposition of

consecutive sentencing, and accordingly found consecutive sentencing is

appropriate in the present case. This included consideration of Revised

Code §2929.14(C)(4). Based on the Court’s statements on the record, the

Court found that such consecutive sentences are 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. Section

2929.14 also requires the Court to find at least one of three factors listed

under Revised Code §2929.14(C)(4)(a), (b) or (c) applicable to impose

consecutive sentencing. Neither paragraph a nor paragraph c applied as Fairfield County, Case No. 12 CA 7 6

the hearing record reflected that Defendant had no prior history of criminal

conduct, and thus did not commit the offenses while awaiting trial or

sentencing or while under a court imposed sanction or post-release

control. Based on the Court’s statements on the record of considering all

relevant statutes, the Court by reference found the remaining paragraph

§2929.14(C)(4)(b) applicable and accordingly found that 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 any part of the courses of conduct adequately

reflects the seriousness of the offender’s conduct.”

{¶18} Judgment Entry, February 3, 2012, at 4-5.

{¶19} Upon review, we hold the trial court adequately made the findings, in the

sentencing entry, required by R.C. 2929.14(C)(4) in considering appellant’s total

sentence and did not abuse its discretion in reaching its decision.

{¶20} Appellant's First Assignment of Error is therefore overruled.

II.

{¶21} In his Second Assignment of Error, appellant contends the trial court erred

in imposing consecutive drivers license suspensions (six months for each of the seven

counts) under R.C. 2925.03(G). We agree.

{¶22} R.C. 2925.03(G) reads as follows: “When required under division (D)(2) of

this section or any other provision of this chapter, the court shall suspend for not less

than six months or more than five years the driver's or commercial driver's license or Fairfield County, Case No. 12 CA 7 7

permit of any person who is convicted of or pleads guilty to any violation of this section

or any other specified provision of this chapter. * * *”

{¶23} Clearly, a driver's license suspension serves several legislative goals,

including being “an effective means to protect other drivers and passengers on the

roads and to deter future drug use and punish offenders." See State v. Thompkins

(1996),

,

. However, it is well-established that

the sentencing provisions set forth in the Revised Code are to be strictly construed

against the State and liberally construed in favor of the accused. See, e.g., State v.

Fanti,

,

,

; R.C. 2901.04(A).

{¶24} We note the Second District Court of Appeals, addressing this same issue

in State v. Phinizee, Clark App.No. 95-CA-54,

, concluded that while

consecutive sentences of imprisonment are expressly provided for in R.C. 2929.41(B),

there was no express provision for consecutive driver's license suspensions in former

R.C. 2925.03(M), which utilized virtually the same “not less than six months or more

than five years” language. We are cognizant the case sub judice involved a negotiated

plea arrangement with a contested sentence hearing; however, upon review, we apply

similar reasoning and find reversible error in the trial court’s order of consecutive

license suspensions.

{¶25} Appellant's Second Assignment of Error is therefore sustained. Fairfield County, Case No. 12 CA 7 8

{¶26} For the reasons stated in the foregoing opinion, the decision of the Court

of Common Pleas, Fairfield County, Ohio, is hereby affirmed in part, reversed in part,

and remanded to the trial court to further review appellant’s driver’s license

suspension.

By: Wise, J.

Gwin, P. J., and

Edwards, J., concur.

___________________________________

___________________________________

___________________________________

JUDGES JWW/d 1031 Fairfield County, Case No. 12 CA 7 9

IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : DARL R. REYNOLDS, SR. : : Defendant-Appellant : Case No. 12 CA 7

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

judgment of the Court of Common Pleas of Fairfield County, Ohio, is affirmed in part,

reversed in part and remanded for further proceedings consistent with this opinion.

Costs to be split between the parties.

___________________________________

___________________________________

___________________________________

JUDGES