[Cite as State v. Jones , 2011-Ohio-1984.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO STATE OF OHIO : Plaintiff-Appellee : C.A. CASE NO. 23926

v. : T.C. NO. 09CR623 ANTHONY WAYNE JONES : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

. . . . . . . . . . O P I N I O N Rendered on the 22 nd day of April , 2011.

. . . . . . . . . . ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W. Third Street, 5 th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee BRENT E. RAMBO, Atty. Reg. No. 0076969, 15 W. Fourth Street, Suite 250, Dayton, Ohio 45402 Attorney for Defendant-Appellant

. . . . . . . . . . FROELICH, J. {¶ 1} Defendant-appellant Ant hony Jones appeals from his convictions and sentences for two counts of aggravated burglar y, four counts of kidna pping, five counts of aggravated robbery, and two count s of felonious assault, all w ith firearm specifications, as well as three counts of assault, one count of having weapons under disability, and one count2 of tampering with evidence. For the following reasons, the judgment of the trial court will be Affirmed in part and Reversed in part and Remanded to the trial court for further proceedings.
I {¶ 2} On February 22, 2009, Jones and his co -defendant burglarized a Huber Heights home. The armed men tied up and beat the four occupants of the home, shooting one of them. As a result of those events, J ones was indicted on two counts of aggravated burglary, four counts of kidna pping, five counts of aggravat ed robbery, and two counts of felonious assault, all with fi rearm specifications. He was al so indicted on three counts of assault, one count of having weapons under disability, and one count of tampering with evidence. Jones filed a motion to suppress evidence seized from his home pursuant to a search warrant. The tria l court overruled the motion. {¶ 3} On February 8, 2010, Jones pled no contest to the charges. On February 23, 2010, the trial court sentenced Jone s to an aggregate term of 37 years in prison. Two days later, Jones filed a motion to withdraw his plea, claiming that he had been misled by the trial court and his defense attorney to believe th at he would receive a substantially lesser sentence. Prior to the trial court’s having the opportunity to schedule a hearing or rule on the motion, Jones filed this appeal, and the trial court did not c onsider the motion.
II {¶ 4} Although Jones has not argued on appeal that his kidnapping and aggravated robbery convictions should have been merged as allied offenses of similar import, we sua sponte take notice of this potential error since the record provides no evidence that the trial3 court considered the merger issu e prior to sentencing Jones. {¶ 5} We have previously held that a trial court’s failure to merge allied offenses of similar import constitutes plain error. State v. Coffey , Miami App. No. 2006 CA 6, 2007-Ohio-21, ¶14. See, also, State v. Puckett (March 27, 1998), Greene App. No. 97 CA 43. Furthermore, the Ohio Supreme Court ha s held that “R.C. 2941.25(A) clearly provides that there may be only one conviction for allied offenses of similar import. Because a defendant may be convicted of only one offense for such c onduct, the defendant may be sentenced for only one offense. Allied offenses of similar import are to be merged at sentencing. See State v. Brown, 119 Ohio St.3d 447, * * * ¶43; State v. McGuire (1997), 80 Ohio St.3d 390, 399, * * *. Thus, a trial cour t is prohibited from imposing individual sentences for counts that constitu te allied offenses of similar im port. A defendant’s plea to multiple counts does not affect th e court’s duty to merge those allied counts at sentencing. This duty is mandatory, not discretionary. Therefore, when a sentence is imposed on multiple counts that are allied offenses of similar import in violation of R.C. 2941.25(A), * * *” there is no bar to appellate review of that sentence. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶26 (emphasis in original). {¶ 6} Revised Code 2941.25, Ohio’s multiple count statute, provides: {¶ 7} “(A) Where the same conduc t by defendant can be c onstrued to constitute two or more allied offenses of s imilar import, the indictment or information may contain counts for all such offenses, but the defe ndant may be convicted of only one. {¶ 8} “(B) Where the defendant’s conduct c onstitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or4 similar kind committed separa tely or with a separate animus as to each, the indictment or information may contain counts for all such offe nses, and the defendant may be convicted of all of them.” {¶ 9} As we discussed in State v. Moore, Greene App. No. 2010 CA 13, 2011-Ohio-636, the Ohio Supreme Court has r ecently (and subsequent to imposition of sentence in this case) clarified the process by which courts should apply this statute in determining whether offenses are allied offenses of similar import. State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314. In Johnson, the Supreme Court overruled State v. Rance, 85 Ohio St.3d 632, 1999-Ohio-291, “to the extent th at it calls for a comparison of statutory elements solely in the abstract under R. C. 2941.25. [Now w]hen determining whether two offenses are allied offenses of similar im port subject to merger under R.C. 2941.25, the conduct of the accused must be c onsidered.” Id. at ¶44. {¶ 10} Further, “[u]nder R.C. 2941.25, the court mu st determine prior to sentencing whether the offenses were committed by the same conduct. Thus, the court need not perform any hypothetical or abstr act comparison of the offenses at issue in order to conclude that the offenses are subject to merger. {¶ 11} “In determining whether offenses are allied offenses of similar import under R.C. 2941.25(A), the question is whether it is possible to commit one offense and commit the other offense with the same conduct, not whether it is possible to commit one without committing the other. * * * If the offenses co rrespond to such a degree that the conduct of the defendant constituting commission of one offense constitutes commission of the other, then the offenses are of similar import.” Johnson, 2010-Ohio-6314, at ¶¶47-48 (emphasis5 in original), citing State v. Blankenship (1988), 38 Ohio St.3d 116, 119 (Whiteside, J., concurring). {¶ 12} “If the multiple offenses can be co mmitted by the same conduct, then the court must determine whether the offenses were committed by the sa me conduct, i.e., ‘a single act committed with a single state of mind.’” Id. at ¶49, quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, ¶50. {¶ 13} “Conversely, if the court determines that the commission of one offense will

never result in the commission of the other, or if the offenses are committed separately, or if the defendant has separate an imus for each offense, then, according to R.C. 2941.25(B), the offenses will not merge.” Id. at ¶52 (emphasis in original). {¶ 14} The trial court in this case failed to address whether Jone s’s kidnapping and aggravated robbery convictions should have been merged prior to sentencing. “‘[W]hen a defendant pleads guilty [or no contest] to multiple offenses of similar import and the trial court accepts the pleas, the trial court has a dut y to conduct a hearing to determine whether the crimes were committed separately or with a separate animus for each offense prior to entering judgment senten cing the defendant.’” State v. Jones (April 10, 1998), Darke App. No. 97-CA-1435, quoting State v. Mangrum (1993), 86 Ohio App.3d 156, 158. Because Jones pled no contest to the kidnapping and aggravated robbery charges, the record is insufficient to determine whether a separate animus existed for the commission of each offense. Accordingly, we conclude that the matter must be remanded to the trial court for a hearing on whether any of the offenses of kidnapping and aggravated robbery were committed with the same animus, requiring merger of the convictions prior to sentencing.6 III {¶ 15} Jones’s First Assignment of Error: {¶ 16} “THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION BY DENYING APPELLANT’S MOTION TO SUPPRESS BECAUSE THE WARRANT WAS DEFECTIVE.” {¶ 17} In his first assignment of error, Jones argues that the tria l court should have suppressed evidence seized from his home pursuan t to a search warrant which was issued without probable cause. Specifically, Jones insist s that the officer who prepared the warrant “relied on hearsay evidence from other officers, di d not disclose this to the judge issuing the warrant, and gave no statement as to the ve racity and basis of knowledge of the person supplying the hearsay information.” Additionally , Jones claims that the affidavit in support of the warrant failed to comply with Crim.R. 41 in that it failed to state a factual basis for believing that the stolen prope rty would be in his home. {¶ 18} When assessing the adequacy of an a ffidavit offered in support of a request for a search warrant, the issuing magistrate must make “a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” State v. Smith (2001), 146 Ohio App.3d 154, quoting State v. George (1989), 45 Ohio St.3d 325, paragraph one of the syllabus. In George, the Supreme Court outlined the standard of review that an appellate cour t should follow when assessing the sufficiency of a search warrant affidavit:7 {¶ 19} “In reviewing the sufficiency of probable cause in an affidavit submitted in support of a search warrant issued by a magist rate, neither the trial court nor an appellate court should substitute its judgment for that of the magistrate by conducting a de novo determination as to whether th e affidavit contains sufficien t probable cause upon which that court would issue the search warrant. Rather, the duty of a reviewing court is simply to ensure that the magistrate had a substantial ba sis for concluding that probable cause existed. In conducting any after-the-fact scrutiny of an affidavit submitted in support of a search warrant, trial and appe llate courts should accord great deference to the magistrate’s determination of probable cause , and doubtful or marginal cases in this area should be resolved in favor of upholding the warrant.” Id. at paragraph two of the syllabus. {¶ 20} Jones maintains that because Detective Noll, who prepared and signed the affidavit for the warrant, did not have firs t-hand knowledge of all of the information contained within the affidavit, the affidav it was not credible. Ho wever, courts have recognized the “collective knowledge doctrine, ” which permits police officers to rely on information provided to them by other officers in helping to establish probable cause or reasonable suspicion. See, e.g., State v. Harris (July 24, 1981), Lucas App. No. L-81-018, quoting United States v. Ventresca (1965), 380 U.S. 102, 111, 85 S.Ct. 741, 13 L.Ed.2d 684 (“observations of fellow officers of the Govern ment engaged in a common investigation are plainly a reliable basis fo r a warrant applied for by one of their number.”); United States v. Beck (6 th Cir. 1985), 765 F.2d 146 (the collective know ledge doctrine typically applied in determining probable cause to arrest “is equally applicable to a search warrant”). Similarly, we have held that “police officers are entitle d to rely on information received from other8 police officers” when determining whether reasonable suspicion exists to detain a suspect. State v. Wortham (2001), 145 Ohio App.3d 126, 130. Under the collective knowledge doctrine, Detective Noll was justified in relying on information provided to him from other officers involved in the investigation to prepar e the affidavit for the search warrant, and the magistrate was equally justified in considering that information in making her probable cause determination. {¶ 21} The affidavit stated that Jones was arrested at his home the day after the crimes occurred. It is reasonable for the police to believe, and for the issuing magistrate and trial court to agree, that evidence of the crimes, including the gun used during the commission of the recently-committed offenses a nd the property taken from the victims of those crimes, was likely to be found at Jones’s home. {¶ 22} Jones’s first assignment of error is overruled.
IV Jones’s Second Assignment of Error: {¶ 23} “THE TRIAL COURT JUDGE’S DISREGARD FOR THE AGREED UPON TERMS OF THE PLEA AGREEM ENT CONSTITUTED AN ABUSE OF DISCRETION.” Jones’s Third Assignment of Error: {¶ 24} “APPELLANT’S PLEA OF NO CONTEST WAS NOT GIVEN KNOWINGLY OR VOLUNTARILY AND HIS MOTION TO WITHDRAW PLEA SHOULD HAVE BEEN GRANTED.” {¶ 25} In his second assignment of error, Jone s maintains that the trial court abused9 its discretion in accepting his no contest plea. He insists that his plea was not knowingly or voluntarily entered because he relied upon his attorney’s repres entation of the trial court’s off-the-record, in-chambers statement that Jones would be sentenced in the range of 12 to 20 years. In his third assignment of error, Jone s argues that the trial court should have granted his motion to withdraw his plea. {¶ 26} When the trial court announced Jones’s 37-year sentence, Jones’s attorney objected without explanation. The trial c ourt acknowledged the obj ection and immediately moved on to the sentencing of Jones’s co-defenda nt. At the sentencing of his co-defendant, which is not a part of this appellate r ecord, a more detailed objection was raised. State v. Ewing, Montgomery App. No. 23949, ___ Ohio ___. {¶ 27} In Boykin v. Alabama (1969), 395 U.S. 238, 242-43, 89 S.Ct. 1709, the United States Supreme Court held that in orde r for a reviewing court to determine whether a guilty plea was voluntary, the record must show that the defendant knowingly, intelligently, and voluntarily waived his constitutional rights. See, also, State v. Nero (1990), 56 Ohio St.3d 106, 107. As a result, Crim.R. 11(C) was a dopted to ensure an adequate record for review in order to facilitate a more accura te determination of the voluntariness of a defendant’s plea. Id. {¶ 28} Crim.R. 11(C)(2) requires the trial court to personally inform a defendant of the constitutional guarantees that he waives by entering a guilty plea. That section also demands that the trial court en sure that the defendant understa nds the nature of the charges against him, the maximum penalty that he faces , and whether he is e ligible for probation. A defendant who claims that his no contes t plea was not knowingly, intelligently, and10 voluntarily made must show a prejudicial effect. Nero, supra, at 108. In other words, “[t]he test is whether the plea would have otherwise been made.” Id., citations omitted. {¶ 29} The record demonstrates that Jones wa s afforded a full and proper Crim.R. 11 hearing at the time of his plea. At that h earing Jones acknowledged that he understood and wanted to plead no contest to the charges against him. Jones affirmatively stated that he was satisfied with his attorney’s representati on. He acknowledged that he had read the plea form; he understood the form; and he signed it. The trial court f ound that Jones understood the rights that he was waiving by entering the plea. Moreover, Jones affirmatively stated that he was not coerced or forced to enter th e plea, that nobody threatened him, and that no one made any promises to him that we re not stated in open court. {¶ 30} In both his motion to withdraw his pl ea and on appeal, Jones claims that during the final pre-trial confer ence, which took place less than two weeks prior to his plea, sentencing was discussed in the context of a potential guilty plea. The conference took place in chambers and was not recorded; Jones was not present. The only information available in the record regarding the substance of the conference is found in an affidavit by Jones that was attached to his motion to withdraw his plea. In that affidavit, Jones states although the State offered a sentencing range of 15-25 years, he rejected the offer because he was told by his attorney that the trial court ha d indicated that the sent encing range would be 12-20 years. Because the conference and any conversation between J ones and his attorney are not part of the record belo w, the record before us cannot support Jones’s contention that his plea was not knowingly a nd intelligently made. {¶ 31} At the beginning of the plea hearing, Jones’s counsel stated that Jones was11 going to withdraw his former plea of not guilty, “and there’s no agreement as to sentencing.” Jones answered negatively to the question wh ether “any promises [have] been made....” The full colloquy appears to have meticulous ly complied with the requirements of the criminal rule and the constitution. No doubt, la wyers and judges could construct a more explicit conversation, 1 but not that is legally required, nor would it avoid the issue raised by
Jones. 2 One court has even inquired of a defendant whether there had been any “predictions, prophesies , or promises” made regarding the length of the sentence. Reinhart v. United States (W.D.La. Nov. 13, 2008), Case N o. 6:97-CR-60030 (em phasis added). {¶ 32} In any appeal we must decide ba sed on the record before us. The on-the-record discussion should not be viewed as a charade or verbal Potemkin Village. The record before us demonstr ates that Jones’s pleas were made knowingly, intelligently, and voluntarily and does not reflect any a buse of discretion by the trial court. {¶ 33} However, if the affidavit is believed, there may be facts outside this record affecting the knowing and voluntar y nature of the plea, which warrant a hearing on Jones’s motion to withdraw his plea. A defendant w ho files a post-sentence motion to withdraw his guilty plea bears the burden of establishi ng manifest injustice. Crim.R. 32.1; State

1 For hyperbolic example: “Court: You have been placed under oath. Has there been anything told or related to you, by your attorney or anyone else, that has created in you an expectation or impression as to what the sentence will be or has otherwise affected your decision to plead guilty or no contest? Have you been told by your attorney or anyone else to answer this question, or any other question, with anything othe r than the truth, the whole truth, and nothing but the truth? Do you understand that you must tell me the truth and that, if you do not, no matter what you believe or what anybody tells you, you will be forever from now until the end of the universe, prohibited from changing your mind or later saying you are not telling the truth today?”

2 A defendant could still file an affidavi t alleging his attorney told him to answer the questions in a certain way in order to receive the sentence that was promised.12 v. Harris, Montgomery App. No. 19013, 2002-Ohio-2278, at ¶ 7, citing State v. Smith (1977), 49 Ohio St.2d 261, paragraph one of the syllabus. Consider ation of “[t]he motion is ‘addressed to the sound discreti on’ of the trial court.” Harris, at ¶ 7, citing Smith, at paragraph two of the syllabus. Thus, an appe llate court reviews the trial court’s decision under an abuse of di scretion standard. Harris, at ¶ 7, citing State v. Adams (1980), 62 Ohio St.2d 151, 157. The abuse of discretion standard is defined as “‘[a]n appellate court’s standard for reviewing a deci sion that is asserted to be grossly unsound, unreasonable, illegal, or unsupported by the evidence.’” State v. Boles, Montgomery App. No. 23037, 2010-Ohio-278, ¶18, quoting Black’s Law Dicti onary, Eighth Edition (2004), at 11. {¶ 34} The trial court did not ha ve an opportunity to rule on Jones’s motion to withdraw his plea due to the filing of the instant appeal. Therefore, it is premature for us to address Jones’s claim that the trial court erred in failing to grant his motion. On remand, the trial court is also directed to consider Jones’s motion to withdraw his plea, upon which he appears to be entitled to a hearing. {¶ 35} Jones’s second assignment of error is overruled. His third assignment of error is overruled as premature, since the trial court has yet to rule on his motion to withdraw his plea.
V Jones’s Fourth Assignment of Error: {¶ 36} “THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING CONSECUTIVE RATHER THAN CONCURRENT SENTENCES AND THE SENTENCES ARE CONTRARY TO LAW.”13 Jones’s Fifth Assignment of Error: {¶ 37} “THE TRIAL COURT’S DECISION TO ORDER CONSECUTIVE RATHER THAN CONCURRENT SENTENCES WAS NOT SUPPORTED BY THE RECORD.” {¶ 38} In his fourth and fifth assignments of error, Jones challenges his sentence. We begin by noting that any challenge to hi s sentence with regard to the kidnapping and aggravated robbery charges is premature, as t hose convictions are bein g remanded to the trial court for consideration of whether any of t hose convictions should be merged as allied offenses of similar import prior to sentencing. Accordingly, we need only consider his remaining 19-year sentence for two counts of a ggravated burglary, two counts of felonious assault, three counts of assau lt, one count of having weapons under disability, and one count of tampering with evidence. {¶ 39} Jones argues that his sentence is contrary to law because the trial court failed to consider both the purposes and principles of sentencing set forth in R.C. 2929.11 and the seriousness and recidivism fact ors provided by R.C. 2929.12. He maintains that the trial court abused its discretion in imposing consecutive sentences , rather than concurrent sentences. He insists that the general public need not be protected from him since he victimized alleged drug dealers and the genera l public does not engage in such inherently risky behavior. Jones also claims that his sentence was “not consistent with sentences imposed for similar crimes committed by similar offenders.” {¶ 40} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, the Ohio Supreme Court explained that when reviewing challe nges to sentences pursuant to R.C. 2953.08(G),14 an appellant must prove that his sentence is cl early and convincingly contrary to law. On the other hand, when an appeal is based upon R.C. 2929.12, the standard of review is whether the trial court abused its discretion. The abuse of disc retion standard is defined as “[a]n appellate court’s standard for reviewing a decision that is asserted to be grossly unsound, unreasonable, illegal, or unsupported by the evidence.” State v. Boles, Montgomery App. No. 23037, 2010-Ohio-278, ¶18, quo ting Black’s Law Dictionary, Eighth Edition (2004), at 11. Jones purports to offer arguments under both statutes. {¶ 41} Pursuant to State v. Foster, 109 Ohio St.1, 2006-Ohio-856, a trial court is no longer required to make findings or give reasons for the sentences that it imposes; the court is vested with the full discretion to impose whatever prison term it chooses within the statutory range. State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, ¶37. Nevertheless, a trial court must still c onsider the statutory factors. Id. at ¶38. {¶ 42} Contrary to Jones’s claim to the contrary, the record illustrates that the trial court did fully consider both the purposes and pr inciples of sentencing set forth in R.C. 2929.11 and the seriousness and recidivism factors provided by R.C. 2929.12, and his sentence is not contrary to law. Prior to imposing sentence, the trial court stated: {¶ 43} “This is a crime that shocked the sensibilities of a community. This might be the type of crime that you would expect in Los Angeles or New York City where they have gangs and where it is said that th ere is a lot of crime running rampant. {¶ 44} “But we are Midwesterners. We ar e known for being law-abiding citizens, for being warm and generous and for having standards. {¶ 45} “And so the thing that – and it should go on record that I have struggled with15 this case. I have struggled to understand the whys. {¶ 46} “I understand that you tried to limit the cu lpability of your client by noting for me that this was a drug deal gone wrong, but that doesn’t give you any excuse because you went to their house. You drove there in your wi fe’s car. And I kind of resent the letter that you sent me saying I was desper ate; it was a desperate situati on. Because if you were that desperate, you wouldn’t have driven up. {¶ 47} “You created this situation, so you got to be held accountable for creating that situation. And this community cannot tolerate the be havior that you ha ve exhibited here. {¶ 48} “In considering the purposes and principl es of sentencing in Ohio Revised Code Section 2929.11 and the seri ousness and recidivism factor s in Ohio Revised Code 2929.12 and also pursuant to Ohio Revised Code Section 2929.12(F), a prison term is mandatory for a felony of the first or second de gree * * *. Therefore, it is ordered that the defendant, Anthony Wayne Jones, will be senten ced to a term of imprisonment at the Ohio Department or Rehab ilitation and Correction.” {¶ 49} Jones also argues that the court violated R.C. 2929.11(B), which requires that: “[a] sentence imposed for a felony * * * sh all be consistent with sentences imposed for similar crimes committed by similar offenders.” {¶ 50} “R.C. 2929.11(B) imposes a duty upon the tr ial court to ensu re consistency among the sentences that it imposes. * * * [It is ] also recognized, however, that trial courts are limited in their ability to address this consistency mandate, and appellate courts are hampered in their review of this issue, by th e lack of a reliable body of data upon which they can rely. * * * ‘[A]lthough a defendant cannot be expected to produce his or her own16 database to demonstrate the alleged inconsistency, the issue must at least be raised in the trial court and some evidence, however minimal, must be presented to the trial court to provide a starting point for analysis and to pres erve the issue for appeal.’ Having failed to raise this issue at sentencing, [the defendant ] cannot now argue that the sentence imposed by the trial court was inconsistent with those imposed on similar offenders.” State v. Bell, Greene App. No. 2004-CA-5, 2005-Ohio-655, ¶140, quoting State v. Roberts, Cuyahoga App. No. 84070, 2005-Ohio-28, ¶60, in ternal citations omitted. {¶ 51} Even if we accept Jones’s general statement that he objected to his sentence to be sufficient, Jones provided the trial court with no “evidence, however minimal” to use as a “starting point for analysis .” Furthermore, we note that Jones’s sentence was consistent with that of his co-defendant who was ordered to serve 31 y ears in prison; Jones’s greater sentence can be explained by the fact that he pled to an additional cr ime, and he was the man who shot one of the victims. {¶ 52} In support of his claim that his senten ce was not comparable to similar crimes committed by similar defendants, Jones directs our attention to just one case, State v. Loparo, Cuyahoga App. No. 88229, 2007-Ohio-2783, which we find easily distinguishable from the instant case. Loparo was sentenced to six years in prison after being convicted of eleven crimes, including three counts each of felonious assault and robbery, two counts of aggravated robbery, and one count each of theft, kidnapping, a nd abduction. Loparo committed fewer crimes against only one victim rather than four separate individuals. Additionally, although Loparo did seriously inju re his victim, he did not use a gun in the commission of his crimes, and we have no information concerning Loparo’s record or other17 sentencing factors. {¶ 53} Moreover, even if Loparo were a “similar offender” who committed “similar crimes,” which we cannot find, we have serious reservations that one dissimilar sentence - be it harsher or more leni ent - provides the inconsiste ncy prohibited by the law. {¶ 54} We conclude that Jones’s sentence was not clearly and convincingly contrary to law. Nor did the trial court abuse its discretion in imposing some consecutive sentences. In the absence of any statute to the contrary, “it is a matter solely within the discretion of the sentencing court as to whether sentences shall run consecutively or concurrently.” State v. Nunez, Montgomery App. No. 22208, 2008-Ohio-3376, ¶8, quoting Stewart v. Maxwell (1963), 174 Ohio St. 180, 181. See, also, State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320. {¶ 55} Jones’s fourth and fifth assi gnments of error are overruled.
VI {¶ 56} Jones’s convictions and sentence for four counts of ki dnapping and five counts of aggravated robbery are Reversed, a nd the judgment is Affirmed in all other respects. The matter is Remanded to the trial court for further proceedings consistent with this opinion, which shall include a hearing upon Jones’s motion to withdraw his plea, which remained pending when this appeal was taken.

. . . . . . . . . . GRADY, P.J. and BROGAN, J., concur. (Hon. James A. Brogan, retired from the Sec ond District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio). Copies mailed to:18

Andrew T. French Brent E. Rambo Hon. Frances E. McGee