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State v. Pavlina

Court of Appeals of Ohio, Eighth District

August 22, 2013

STATE OF OHIO PLAINTIFF-APPELLEE
v.
MICHAEL J. PAVLINA DEFENDANT-APPELLANT

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-567544

Rick L. Ferrara ATTORNEY FOR APPELLANT

Timothy J. McGinty Cuyahoga County Prosecutor BY: Diane Russell Assistant County Prosecutor ATTORNEYS FOR APPELLEE

BEFORE: Jones, P.J., Kilbane, J., and E.T. Gallagher, J.

JOURNAL ENTRY AND OPINION

LARRY A. JONES, SR., P.J.

(¶ l} Defendant-appellant, Michael Pavlina, appeals from the trial court's sentencing judgment, wherein it sentenced Pavlina to a maximum 12-month prison term in this case, to be served consecutively to a 12-month prison term in another case, Cuyahoga C.P. Case No. CR-551609. We affirm in part and reverse in part, and remand.

(¶ 2} In October 2012, Pavlina was indicted by way of information on a single charge of drug possession, a felony of the fifth degree; he pleaded guilty to the charge. The charge in this case resulted in a violation of the terms of his community control sanctions in CR-551609. The trial court sentenced him on the two cases at the same hearing. The court sentenced him to the maximum term of 12 months on this case, and ordered that it be served consecutively to the other case. Pavlina now raises two assignments of error for our review:

I. The trial court committed plain error when it failed to make statutorily necessitated findings before imposing consecutive sentences.
II. The trial court abused its discretion in imposing maximum, consecutive sentences.

(¶ 3} In his first assignment of error, Pavlina contends that the trial court erred in sentencing him to consecutive terms without making the statutorily mandated findings.

(¶ 4} R.C. 2953.08(G)(2) provides two bases for a reviewing court to overturn the imposition of consecutive sentences: the sentence is "otherwise contrary to law" or the reviewing court clearly and convincingly finds that "the record does not support the sentencing court's findings" under R.C. 2929.14(C)(4).

(¶ 5} Under R.C. 2929.14(C)(4), consecutive sentences can be imposed if the court finds that (1) a consecutive sentence is necessary to protect the public from future crime or to punish the offender and (2) that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public. In addition to these two factors, the court must find 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 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 ...

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