[Cite as State v. Alexander,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 102708

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

ANTONIO ALEXANDER

DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-12-559220-B

BEFORE: S. Gallagher, J., Stewart, P.J., and Boyle, J.

RELEASED AND JOURNALIZED: January 21, 2016 ATTORNEY FOR APPELLANT

Ruth R. Fischbein-Cohen 3552 Severn Road #613 Cleveland, Ohio 44118

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor By: Andrew J. Santoli Assistant Prosecuting Attorney Justice Center - 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 SEAN C. GALLAGHER, J.:

{¶1} In 2013, Antonio Alexander pleaded guilty to, among other counts irrelevant to the

current appeal, a misdemeanor child endangerment offense and a misdemeanor offense of

disseminating matter harmful to a juvenile. The court placed him on community control, with

the advisement that any violation could lead to a sentence to be served consecutive to the other.

After finding Alexander in violation of the terms of his community control sanctions, the trial

court sentenced him to six months on each misdemeanor count, to be served consecutive to the

other but credited him with 34 days of time served. Alexander’s sentences on the remaining

counts are to be served concurrently. His aggregate jail sentence is one year. In a single

assignment of error, Alexander complains that the trial court failed to make the

R.C. 2929.14(C)(4) findings required before the imposition of consecutive sentences.

{¶2} We find no merit to the assigned error. R.C. 2929.14(C)(4) does not apply to a

conviction that includes consecutive service of misdemeanor jail terms. R.C. 2929.41(B)

authorizes consecutive service of jail terms up to 18 months without findings.

{¶3} R.C. 2929.41(A) provides as follows:

Except as provided in division (B) of this section, division (C) 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.

(Emphasis added.) There are only three exceptions to the concurrent service of jail or prison

terms, or a sentence of imprisonment: (1) for misdemeanor sentences pursuant to R.C.

2929.41(B); (2) for felony prison terms pursuant to R.C. 2929.14(C)(4); or (3) for sentences for certain violent sex offenses pursuant to R.C. 2971.03. In consideration of the fact that the

second and third exceptions are inapplicable to the current case, our review is necessarily limited

to R.C. 2929.41(B) and whether the imposition of consecutive jail terms for misdemeanors was

an exception to the general rule of concurrent sentences.

{¶4} A trial court is authorized to impose misdemeanor jail sentences to be served consecutively pursuant to R.C. 2929.41(B). State v. Mitchell, 8th Dist. Cuyahoga No. 101542,

, ¶ 14, citing State v. Barker, 8th Dist. Cuyahoga No. 99320,

. R.C. 2929.41(B) provides as follows: 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.

When consecutive sentences are imposed for misdemeanor 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.

(Emphasis added.) Upon a plain reading, and in contrast to consecutive prison terms pursuant to

R.C. 2929.14(C)(4), the statute authorizes trial courts to order consecutive service of jail terms

for misdemeanor offenses up to 18 months without making findings.

{¶5} In support of his argument that the R.C. 2929.14(C)(4) findings are required before

imposing misdemeanor jail terms to be served consecutively, Alexander relies on Beachwood v.

Chatmon, 8th Dist. Cuyahoga Nos. 101767 and 101768,

, in which a panel from

this court reversed a conviction because the findings pursuant to R.C. 2929.14(C)(4) were not

included. In Chatmon, however, the state conceded that the findings were required and lacking.

Id. at ¶ 1. Although this concession was improvidently accepted, the concession nonetheless

limits any authoritative value of that panel’s decision. The majority opinion was devoid of any

discussion involving the applicability of R.C. 2929.41(B) and the inapplicability of R.C. 2929.14(C)(4) in reviewing the imposition of consecutive service of misdemeanor jail terms. As

such, Chatmon does not stand for the proposition that courts apply R.C. 2929.14(C)(4)

notwithstanding R.C. 2929.41(B), as Alexander argues. Chatmon is distinguishable and

accordingly must be limited in application.

{¶6} Contrary to the Alexander’s position, R.C. 2929.14(C)(4) is limited to the

imposition of consecutive “prison terms” and is not applicable to the current case. State v.

Peterson, 8th Dist. Cuyahoga No. 102428,

; State v. Maloney, 12th Dist.

Clermont No. CA99-01-006,

, *7 (Sept. 27, 1999); State v. Kroger,

12th Dist. Clermont No. CA99-05-050,

(Apr. 3, 2000). “Prison”

is defined as a residential facility used for the confinement of convicted felony offenders under

the control of the Department of Rehabilitation and Correction. R.C. 2929.01 (AA). On the

other hand, “jail term” is defined as a jail sentence imposed pursuant to the misdemeanor

sentencing statute, R.C. 2929.24. Prison and jail are two separate types of imprisonment.

{¶7} In this case, Alexander’s sentence included consecutive service of two six-month jail

terms pursuant to R.C. 2929.41(B)(1). R.C. 2929.14(C)(4), the statutory section authorizing the

imposition of consecutive service of prison terms, is not applicable. The trial court was not

required to make the R.C. 2929.14(C)(4) findings prior to ordering consecutive service of the

misdemeanor jail terms. We overrule the sole assigned error and affirm Alexander’s conviction.

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 issue out of this court directing the common pleas

court to carry this judgment into execution. The defendant’s conviction having been affirmed, any bail pending appeal is terminated. Case 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.

SEAN C. GALLAGHER, JUDGE

MELODY J. STEWART, P.J., and MARY J. BOYLE, J., CONCUR