[Cite as State v. Varney,

.]

COURT OF APPEALS PERRY COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. Sheila G. Farmer, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. -vs- Case No. 13 CA 00002 FRANKLIN T. VARNEY, JR.

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 12 CR 0049

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT ENTRY: January 21, 2014

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOSEPH FLAUTT STEVEN P. SCHNITTKE PROSECUTING ATTORNEY SCHNITTKE & SMITH 111 North High Street, P. O. Box 569 114 South High Street, P. O. Box 536 New Lexington, Ohio 43764 New Lexington, Ohio 43764 Perry County, Case No. 13 CA 00002 2

Wise, J.

{¶1} Defendant-Appellant Franklin T. Varney, Jr. appeals his March 29, 2013,

sentence and conviction entered in the Perry County Court of Common Pleas following

a jury trial on one count of Breaking and Entering and one count of Attempted Theft.

{¶2} Appellee State of Ohio has not filed a brief in this matter.

STATEMENT OF THE FACTS AND CASE

{¶3} The facts as set forth by Appellee are as follows:

{¶4} On January 17, 2012, at approximately 2:00 pm., Robert Ford observed a

pickup truck near his barn at his residence located at 4728 Jackson Township Road,

Junction City, Ohio. (T. at 67-69). Mr. Ford drove down to his shed and observed two

people with "stuff” in their pickup truck. (T. at 70). The barn had been padlocked. (T. at

70). Mr. Ford recognized Appellant Franklin T. Varney, Jr. as one of the individuals

standing outside the barn. (T. at 71-73). Two roto-tillers and a cast iron pot belonging to

Mr. Ford had been loaded into the back of the pickup truck. (T. at 73). After some

discussion between Mr. Ford and Appellant, Appellant threw the *** on the ground. (T

at 74-75). Mr. Ford then called the Perry County Sheriff’s Office.

{¶5} Deputy Brent Tysinger, now Chief of Police of Crooksville, Ohio, and

Sergeant Keith Peck of the Perry County Sheriff’s Office responded to the call.

Photographs were taken of the scene, which were later introduced into evidence at trial.

{¶6} Robert Ford identified Appellant Varney by a photo lineup. (T. at 58, 62,

112).

{¶7} On June 15, 2012, Appellant was indicted by the Perry County Grand Jury

on one count of Breaking and Entering, in violation of R.C. §2911.13, a fifth degree Perry County, Case No. 13 CA 00002 3

felony, and one count of Attempted Theft, in violation of R.C. §2923.02, a second

degree misdemeanor.

{¶8} On January 31, 2013, this matter proceeded to a jury trial. The State of

Ohio presented the testimony of Chief Brent Tysinger of the Village of Crooksville, Ohio,

a former Deputy of the Perry County Sheriff’s Office; Robert Ford, the victim; and,

Sergeant Keith Peck of the Perry County Sheriff’s Office.

{¶9} Appellant did not present any witnesses.

{¶10} The Jury found Appellant guilty of Breaking and Entering and Attempted

Theft.

{¶11} On March 22, 2013, the trial court sentenced Appellant to a definite term

of eleven (11) months in prison and imposed a fine of One Thousand Dollars

($1,000.00) on the charge of Breaking and Entering. The trial court also imposed a

sentence of fifty-one (51) days in the Southeastern Ohio Regional Jail on the offense of

Attempted Theft, with said period of incarceration to be served consecutive to the

sentence imposed for Breaking and Entering. The Sentencing Entry was filed on March

29, 2013.

{¶12} Appellant now raises the following Assignment of Error on appeal:

ASSIGNMENT OF ERROR

{¶13} “I. DEFENDANT/APPELLANT WAS ERRONEOUSLY SENTENCED TO

CONSECUTIVE SENTENCES ON A FIFTH DEGREE FELONY AND SECOND

DEGREE MISDEMEANOR WHICH CONSTITUTES AN ABUSE OF DISCRETION BY

THE COURT.” Perry County, Case No. 13 CA 00002 4

I.

{¶14} Appellant, in his sole Assignment of Error, argues that the trial court’s

imposition of consecutive sentences was an abuse of discretion.

{¶15} More specifically, Appellant argues that the trial court was required to run

the misdemeanor sentence and the felony sentence in this matter concurrently.

{¶16} Revise Code §2929.41, Multiple sentences, provides in relevant part:

{¶17} “(B)(1) A jail term or sentence of imprisonment for a misdemeanor shall

be served consecutively to any other prison term, jail term, or sentence of imprisonment

when the trial court specifies that it is to be served consecutively or when it is imposed

for a misdemeanor violation of section 2907.322, 2921.34, or 2923.131 of the Revised

Code.

{¶18} “When consecutive sentences are imposed for misdemeanors under this

division, the term to be served is the aggregate of the consecutive terms imposed,

except that the aggregate term to be served shall not exceed eighteen months.”

{¶19} “* * *

{¶20} “(3) * * * When consecutive jail terms or sentences of imprisonment and

prison terms are imposed for one or more misdemeanors and one or more felonies

under this division, the term to be served is the aggregate of the consecutive terms

imposed, and the offender shall serve all terms imposed for a felony before serving any

term imposed for a misdemeanor.”

{¶21} Pursuant to R.C. §2929.41(B)(1), we find that the trial court had the

authority to specify that the misdemeanor and felony sentences herein run

consecutively. Perry County, Case No. 13 CA 00002 5

{¶22} Appellant also argues that the trial court failed to state its reasons why

consecutive sentences should be in imposed in this case.

{¶23} 2011 Am.Sub.H.B. No. 86, which became effective on September 30,

2011, revived language provided in former R.C. 2929.14(E) and moved it to R.C.

2929.14(C)(4). The General Assembly has thus expressed its intent to revive the

statutory fact-finding provisions pertaining to the imposition of consecutive sentences

that were effective pre-Foster. See State v. Wells, 8th Dist. Cuyahoga No. 98428,

2013–Ohio–1179, ¶ 11. These revisions to the felony sentencing statutes now require a

trial court to make specific findings when imposing consecutive sentences.

Nonetheless, “[a]lthough H.B. 86 requires the trial court to make findings before

imposing a consecutive sentence, it does not require the trial court to give its reasons

for imposing the sentence.” State v. Bentley, 3rd Dist. Marion No. 9–12–31, 2013–Ohio–

852, ¶ 12, citing State v. Frasca, 11th Dist. Trumbull No. 2011–T–0108, 2012–Ohio–

3746, ¶ 57. The record must clearly demonstrate that consecutive sentences are not

only appropriate, but are also clearly supported by the record. See State v. Queer, 5th

Dist. Ashland No. 12–COA–041, 2013–Ohio–3585, ¶ 21.

{¶24} R.C. §2929.14(C)(4) provides, in relevant part:

{¶25} “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: Perry County, Case No. 13 CA 00002 6

{¶26} “(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.

{¶27} “(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.

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

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

offender.”

{¶29} We have consistently stated the record must clearly demonstrate

consecutive sentences are not only appropriate, but are also clearly supported by the

record. See, State v. Fauntleroy, 5th Dist. No. CT2012–0001, 2012–Ohio–4955; State v.

Bonnell, 5th Dist. No. 12CAA3022, 2012–Ohio–515.

{¶30} In other words, in reviewing the record we must be convinced the trial

court imposed consecutive sentences because it had found consecutive sentences

were necessary to protect the public or to punish the offender, they are not

disproportionate to the seriousness of his conduct and the danger the offender poses to

the public. In addition, in reviewing the record we must be convinced that the trial court

found the offender's history of criminal conduct demonstrated consecutive sentences

were necessary to protect the public from future crime, or the offender committed one or Perry County, Case No. 13 CA 00002 7

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, or 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.

R.C. §2929.14(C)(4).

{¶31} Here, the trial court did not set forth any findings to support the imposition

of consecutive sentencing as required by R.C. §2929.14(C)(4). The trial court is

required to make the appropriate statutory findings prior to imposing consecutive

sentences. We therefore hold the trial court committed plain error as a matter of law

when it imposed consecutive sentences in this case.

{¶32} Appellant’s sole Assignment of Error is sustained.

{¶33} For the foregoing reasons, the judgment of the Court of Common Pleas,

Perry County, Ohio, is reversed and remanded to the trial court for resentencing due to Perry County, Case No. 13 CA 00002 8

the trial court's failure set forth proper findings to support the imposition of consecutive

sentencing as required by R.C. §2929.14(C)(4).

By: Wise, J.

Farmer, P. J., and

Baldwin, J., concur.