[Cite as State v. Midlam , 2014-Ohio-1109.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY STATE OF OHIO : : Appellate Case No. 25731 Plaintiff-Appellee : : Trial Court Ca se No. 10-CR-1691 v. : : COLE MIDLAM : (Criminal Appeal from : ( Common Pleas Court) Defendant-Appellant : :

. . . . . . . . . . . O P I N I O N Rendered on the 21st day of March, 2014.

. . . . . . . . . . . MATHIAS H. HECK, JR., by APRIL F. CAMP BELL, Atty. Reg. #0089541, Montgomery County Prosecutor’s Office, Appellate Division, Montgo mery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee JEFFREY GRAMZA, Atty. Reg. #0053392, Talbott To wer, Suite 1210, 131 North Ludlow Street, Dayton, Ohio 45402 Attorney for Defendant-Appellant

. . . . . . . . . . . . . FAIN, J. {¶ 1} Defendant-appellant Cole Midlam appeals from his sentence for three counts of Aggravated Robbery. He contends that the tr ial court abused its di scretion by imposing a disproportionate, excessive, and unreasonable sentence. He also cont ends that the tria l court erred by 2

 imposing court costs without advising him that he might be required to perform community service if he does not pay the court costs. {¶ 2} We conclude that the sentence – three concurrent ten-year terms – is neither disproportionate, excessive, nor unreas onable. The State concedes, and we agree, that the trial court did err by imposing court costs without advising Mi dlam that he might have to perform community service if he does not pay the cour t costs. The State requests that the matter be remanded for a proper imposition of court costs. {¶ 3} Accordingly, the order to pay court costs is Reversed; and this cause is Remanded for a proper imposition of court costs. In all othe r respects, the judgment of the trial court is Affirmed.

I. The Course of Proceedings {¶ 4} Midlam was charged by indictment with three counts of Aggravated Robbery, by means of a deadly weapon, in violation of R.C. 2911.01( A)(1), felonies of the first degree. One of the offenses occurred in January, 2010; the other two in May, 2010. All th ree robberies were of pharmacies; Midlam demanded Oxycontin, to supply an addiction to that drug. During one of the robberies, Midlam told the employee: “Get all the Opana, if I have to say it again I’m gonna shoot you.” No firearm specifications were attached to any of the counts in the indictment. {¶ 5} Midlam pled guilty to the charges. The trial court ordered a pre-sentence investigation. Midlam was sentenced to impris onment for ten years on each of the three counts, to be served concurrently with each other, and also concurrently with a twenty-year sentence he was serving in Indiana. (Ten years of the I ndiana sentence had been suspended.) The court 3

 ordered restitution to CVS Pharmacy in the amount of $8,226, and the payment of extradition costs in the amount of $208.36. The court ordered the payment of court costs, in an amount subsequently to be dete rmined by the Montgomery County Cl erk of Courts. Finally, the trial court disapproved of shock incarcer ation and intensive program pr ison, and notified Midlam that he was subject, on each count, to five years of post-release control. {¶ 6} From the judgment, Midlam appeals.

II. The Trial Court Erred When it Failed to Advise Midlam that If he Did Not Pay Court Costs, He Might Be Requi red to Perform Community Service {¶ 7} Midlam’s First Assignment of Error is as follows:
THE TRIAL COURT PREJUDICIALLY ERRED BY FAILING TO NOTIFY APPELLANT THAT HE COULD BE ORDERED TO PERFORM COMMUNITY SERVICE IF HE DID NOT PAY THE ORDERED COURT COSTS. {¶ 8} Midlam asks that we modi fy the judgment of the tria l court to provide that he cannot be required to perform commun ity service if he fails to pay c ourt costs. In the alternative, he asks that this cause be remanded for a proper or der of court costs, to include the advice that he might be required to perform community service if he fails to pay the costs. The State concedes error in this regard, and asks that we remand this cause for a proper order of court costs. {¶ 9} On occasions where the trial court ha s failed to advise a defendant of the community service possibility, and the State has agreed to the remedy of simply excluding that possibility, we have modified a judgment to exclude the possibility of community service being 4

 required when ordered court costs are not paid. But where, as here, the State has requested a remand for a proper order of court costs with the advice of the possibility of community service, we have provided that remedy. See State v. Parson , 2d Dist. Montgomery No. 25123, 2013-Ohio-1069, ¶ 16, fn. 2. {¶ 10} Midlam’s First Assignment of Error is su stained. The order to pay court costs is Reversed, and this cause is Remanded for a prope r court costs order.

III. The Sentence in this Case Is Neither Disproportionate, Excessive, nor Unreasonable {¶ 11} Midlam’s Second Assignment of Error is as follows:
THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING UPON APPELLANT A DISPROPORTIONATE, EXCESSIVE, AND UNREASONABLE SENTENCE. {¶ 12} Until this court decided State v. Rodeffer , 2d Dist. Montgomery Nos. 25574, 25575, and 25576, 2013-Ohio-5759, we employed an abuse- of-discretion standard in reviewing a sentence that is not contrary to law. In Rodeffer , we employed as the test whether we clearly and convincingly find an absence of evidence on the record to support the sentence. Id . ¶ 33. {¶ 13} As evidenced by his dissenting opinion in Rodeffer , one member of the panel deciding the case before us is of the view that abuse-of-discretion is the proper standard of appellate review of a sentence that is not based upon R.C. 2953.08. We find it unnecessary, in this case, to determine which standard of appella te review is appropriate, because we conclude that Midlam’s sentence is not re versible under e ither standard. 5

 {¶ 14} The trial court imposed the maximum sentence – ten years – on each of the three counts, but it not only ordered those sentences to run concurrently with one another, which it was obligated to do absent making the findings set forth in R.C. 2929.14(C)(4), it also ordered those sentences to run concurrently w ith a prison sentence Midlam is currently serving in Indiana, thereby lessening the impact of the maximum sentence. {¶ 15} In setting forth its reasons for not maki ng the necessary findings to overcome the presumption of a prison sentence, the trial court indicated its c onsideration of both the serious nature of Midlam’s offenses, and his likelihood of re-offending: So, first the Court begins with th e nature of these offenses, three aggravated robberies committed betw een January and May 2010. Two CVS pharmacy robberies in Kettering, one at Wa lgreen’s in Huber Heights, all involve the theft of Oxycontin to which you were addicted. You represent to the victims in all three cases that you have a gun. You indicated in your statement to the Court that it was not a real gun, it was a plastic gun. The prosecutor didn’t add a firearm specification so I assume and take for granted that you didn’t have a real gun. But the victims in this case thought y ou had a real gun and in at least one of the robberies you threatened to shoot one of the victims. And here I refer to Page 1 of the pre-sentence report. And this is the Walgreen’s robbery. He re’s what the report says. On may 20, 2010, 11:17 a.m., Officer Robby Graham, Huber Heights Police Department dispatched to Walgreen’s located at 5000 Brandt Pike Huber Heights advise d the suspect later identified as Cole Midlam robbed the pharmacy of drugs at gunpoint. 6

 Pharmacist, Ericka Baxter, stated a short white male approached the pharmacy area and told her, give me all your Oxycontin and Opana ER 10. Miss Baxter stated that she then went to the pharmacy area and obtained an unknown amount of Oxycontin at which point Mr. Midlam stated, get all the Opana. If I have to say it again, I’m going to shoot you. Miss Baxter placed the Opana inside a bag and at that time Mr. Midlam stated, I’m really sorry about this. From the viewpoint of all three victims, th ey believed he had a real gun. They’re terrified. It’s a serious offense and it’s not a case of a single is olated robbery. These are three aggravated robberies and you have admitted during th is same time period committing, I believe, two other robberies, one in Greene County and one in Highland County. And I know Mr. Grove indicated to the C ourt this morning I think your pending sentencing in the Greene County cas e, I think, in three weeks so a robbery spree, at least five aggravated robberies. And the Court considers your record from 1998 to the present; eight juvenile offenses including a domestic violence, thr ee thefts, one burglary as a juven ile; as an adult, five adult misdemeanors and the most recent misdemeanor, you were on probation out of Pennsylvania on a charge of, I believe, forgery out of Cecil Town ship, Washington County Pennsylvania, so you’re on probation when you committed these offenses. And you have a prior felony for safe crackin g in the year 2000 for which you were placed on probation so the Court cannot overcome th e presumption [for a prison sentence]. {¶ 16} After this, the trial court imposed the concurrent ten-year sentences. {¶ 17} In his brief, Midlam acknowledg es that: “A trial c ourt has full discretion to impose any sentence within the statutory range, and the court is not require d to make any findings or give its reasons for imposing 7

 maximum or more than minimum sentences.” Midlam argues that the trial court, after having given careful consideration to whether to impose a pr ison sentence at all, appeared to give no consideration to the question of what prison sentence to impose. We disagree. {¶ 18} The trial court considered bot h the seriousness of Midlam’s o ffenses, and his inability, after previous juvenile and adu lt convictions, including both Safe Cracking and Forgery, to conduct himself within the limits imposed by criminal law. In our view, the fact that the trial court did not re-cover this same ground before pronouncing sentence does not i ndicate that it failed to consider the purposes and principles of sentencing. {¶ 19} Furthermore, we do not find unreas onable the concurrent ten-year sentences imposed by the trial court for the three Aggravated Robberies included with in his five-Aggravated-Robbery crime spree. Midlam did place his victims in deadly fear. He has a significant record of criminal offenses, and these offenses were committed while he was on probation for the Pennsylvania Forgery offense. {¶ 20} Because we find that the sentence the trial court imposed is not unreasonable, we perforce find that it is not clearly and convincingl y unsupported by the record – if it were clearly and convincingly unsupported by the record, the sentence would be unreasonable. Thus, under either standard of review, we c onclude that the trial court did not err in its imposition of sentence. Midlam’s Second Assignme nt of Error is overruled.

IV. Conclusion {¶ 21} Midlam’s First Assignment of Error having been sustained, and his Second Assignment of Error having been overruled, the tria l court’s order to pay c ourt costs is Reversed; the judgment of the trial court is Affirmed in all other respects; and this cause is Remanded for 8

 reconsideration of court costs, including any motion Midlam may ma ke for a waiver of costs.

. . . . . . . . . . . . . FROELICH, P.J., and HALL, J., concur.

Copies mailed to: Mathias H. Heck April F. Campbell Jeffrey T. Gramza Hon. Dennis J. Langer