State v. Marino, 2013 Ohio 113

Marino was charged with aggravated burglary, rape and sexual battery; he pled guilty to sexual battery, with other charges dismissed.
As part of the plea, the court ordered a 60-month sentence to run consecutively to Marino's unrelated four-year burglary sentence.
The burglary sentence was imposed by a different case and was not part of the sexual battery case.
Marino appealed arguing the court abused its discretion by imposing a consecutive sentence in violation of R.C. 2929.41(A).
The appellate court applies a two-step review: first, whether the sentence is clearly and convincingly contrary to law, then abuse of discretion if applicable.
The court held that because HB 86 amended R.C. 2929.41(A) to require concurrent sentences, Marino’s consecutive sentence was clearly and convincingly contrary to law, and reversed the judgment.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court erred by imposing a consecutive sentence.	Marino argues sentence must run concurrently.	State contends discretion to impose consecutive terms exists post-Foster and HB 86.	Consecutive sentence is clearly and convincingly contrary to law; reversed.

State v. Kalish, 120 Ohio St.3d 23 (2008-Ohio-4912) (mandatory sentencing considerations and standards for review)
State v. Foster, 109 Ohio St.3d 1 (2006-Ohio-856) (held R.C. 2929.41(A) unconstitutional and severed, restoring common-law presumptions)
State v. Bates, 118 Ohio St.3d 174 (2008-Ohio-1983) (addressed consecutive sentencing post-Foster)
State v. Fischer, 128 Ohio St.3d 92 (2010-Ohio-6238) (mandatory sentencing provisions must be followed; no authority to disregard)