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State of Ohio v. Cole Midlam

December 28, 2012

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
COLE MIDLAM, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: McFarland, J.

Cite as

State v. Midlam,

DECISION AND JUDGMENT ENTRY

{¶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 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.

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.

{¶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.

{ΒΆ8} 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 of the recently enacted ...


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