[Cite as State v. Smith , 2014-Ohio-5547.] 

# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 101105

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. SANCHEZ K. SMITH

DEFENDANT-APPELLANT

JUDGMENT:

AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-10-535173-B

BEFORE: McCormack, J., Jones, P.J ., and S. Gallagher, J.

RELEASED AND JOURNALIZED: December 18, 2014ATTORNEY FOR APPELLANT

Patricia J. Smith 9442 State Route 43 Streetsboro, OH 44241

ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor By: Daniel T. Van Assistant County Prosecutor 9th Floor, Justice Center 1200 Ontario Street Cleveland, OH 44113TIM McCORMACK, J.: {¶1} Defendant-appellant, Sa nchez K. Smith, appeals from his sentence of September 21, 2010. For the following reasons, we affirm. Procedural History {¶2} On March 16, 2010, Smith was charged in a multiple count indictment. On August 26, 2010, he pleaded guilty to aggravated burglary (Counts 1 and 2), aggravated robbery (Counts 3 and 4), having weapons while under disability (Count 13) , and aggravated theft (Count 15). Smith also pleaded guilty to one- and three- year firearm specificati ons attendant to Counts 1, 2, 3, and 4, as well as forfeiture specifica tions attendant to Counts 1, 2, 3, 4, and 13. {¶3} On September 21, 2010, the tr ial court sentenced Smith as follows: nine years incarceration on each of Counts 1, 2, 3, and 4, to be run concurrently, plus three years on the attendant firearm specification, to be run consecutively; four y ears on Count 13; and 11 months

on Count 15. The court ordered the sentences in Counts 1 through 4, Count 13, and Count 15 to run consecutively to each other, for an aggregate prison term of 16 years, 11 months. The court also ordered forfeiture of the weapon. {¶4} On March 11, 2014, Smith filed this appeal, cl aiming that the tria l court erred when it imposed consecutive sentences without making the findings under R.C. 2929.14(C). Law and Analysis {¶5} In his sole assignment of error, Smith argues that the trial court, in sentencing him to consecutive sentences, failed to make the stat utorily mandated consecutive sentence findings. The state concedes that the trial court did not make any findings at the sentencing hearing, and

our review of the record substantiates the state’ s concession. The state cl aims, however, that the trial court in this case was not obligated to make such findings. We agree.{¶6} The record shows that Smith was se ntenced on September 21, 2010. Under the statutory law in effect at that time, the trial court was not required to make findings on the record in order to justify imposing consecutive sentences. State v. Foster , 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, paragr aph seven of the syllabus. At the time Smith was sentenced, trial courts still had the “discretion and inherent authority to determine whether a prison sentence within the statutory range [should] run consecutively or concurrently * * *.”

State v. Bates , 118 Ohio St.3d 174, 2008-Ohio-1983, 887 N.E.2d 328, ¶ 19. {¶7} On September 30, 2011, however, the Gene ral Assembly enacted H.B. 86, which, in effect, revived the requirement that trial courts make findings be fore imposing consecutive sentences under R.C. 2929.14(C). Accordingly, R.C. 2929.14(C)(4), as revived, now requires that a trial court, in order to impose consecu tive sentences, find that: (1) consecutive sentences are necessary to protect the public from future crime or to punish the offender; (2) consecutive sentences are not disproportionate to the serious ness of the offender’s c onduct and to the danger the offender poses to the public; and (3) at least one of the factors enumerated in R.C. 2929.14(C)(4)(a)-(c) applies. The Ge neral Assembly expressly provi ded in Section 4 of H.B. 86: “The amendments * * * apply to a person who commits an offense specified or penalized

under those sections on or after the effective da te of this section[.] ” (Emphasis added.) {¶8} Because Smith was sentenced prio r to September 30, 2011, the revived consecutive sentence findings provisi ons do not apply to him. The trial court therefore did not

err when it sentenced Smith to consecutive se ntences without making findings under R.C. 2929.14(C)(4). {¶9} Smith’s sole assignment of error is overruled. {¶10} It is ordered that appellee recove r of appellant co sts herein taxed.The court finds there were reas onable 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. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appella te Procedure.

______________________________________________ TIM McCORMACK, JUDGE LARRY A. JONES, SR., P.J., and SEAN C. GALLAGHER, J., CONCUR