{¶ 2} Between the dates of August 30, 2003 and August 31, 2003 Good and David Henry ("Henry"), in a continuing course of conduct, broke into a residence at 330 N. Oak Street in Lakeview, Ohio, vandalized another residence at 345 N. Oak Street in Lakeview, Ohio, stole a red Ford Ranger pickup truck from 410 N. Oak Street in Lakeview, Ohio and damaged two other motor vehicles in Lakeview, Ohio.
{¶ 3} An eyewitness, Chad Minnich ("Minnich") reported observing Good and Henry coming out of the residence at 330 N. Oak Street in Lakeview, Ohio on the night of August 30-31, 2003. The home was damaged and there was blood on a curtain in the residence. The blood was submitted to the laboratory for DNA testing, and the DNA in the sample matched Greg Good's DNA. Furthermore, other witnesses stated that Good made incriminating statements admitting to the damage that occurred that evening.
{¶ 4} At the time of the incident, Good was on community control as a result of another incident that does not appear to be disclosed in the record.1 The record does indicate that the trial court was aware of the previous case and Good's lengthy criminal record in Logan County. However, with regard to the previous offense for which he was on community control the record merely states that the previous incident was relatively similar to the case at hand and occurred in Logan County, Ohio, and that his current sentence would expire in 2007.
{¶ 5} On July 13, 2004 Good was indicted on one count of Burglary, a felony of the third degree, one count of Vandalism, a felony of the fifth degree, one count of Theft of a Motor Vehicle, a felony on the fourth degree, and two counts of criminal damaging, misdemeanors of the second degree. On October 11, 2004 Good pled guilty to count one of the indictment charging Burglary in violation of R.C.
{¶ 6} On November 9, 2004, the defendant-appellant filed a notice of appeal raising the following assignment of error:
The Common Pleas Court of Logan County erred in sentencing Good with asentence consecutive to his then existing sentence.
{¶ 7} In reviewing a felony sentence, an "appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing" if it finds by clear and convincing evidence:
That the record does not support the sentencing court's findings under division (B) or (D) of section
R.C.
{¶ 8} Pursuant to R.C.
If multiple prison terms are imposed on an offender for convictions ofmultiple offenses, the court may require the offender to serve the prisonterms consecutively if the court finds that the consecutive service isnecessary to protect the public from future crime or to punish theoffender and that consecutive sentences are not disproportionate to theseriousness of the offender's conduct and to the danger the offenderposes to the public, and if the court also finds any of the following:
The offender committed one or more of the multiple offenses while theoffender was awaiting trial or sentencing, was under a sanction imposedpursuant to section
{¶ 9} In State v. Comer (2003),
{¶ 10} In the case at hand, the trial court made the following findings and rationale at the sentencing hearing:
It will be the sentence of this Court that you receive a sentence ofthree years. Because you were on community control at the time, the Courtis going to make this sentence consecutive to the sentence you'recurrently serving. The Court finds that it is necessary to protect the public and topunish you, and that this sentence is not disproportionate to the othersentences this Court has imposed, and its not disproportionate to thefacts in this case. And this crime was committed while the defendant wasunder the sanction of community control, and, in fact, just within 40days of the time of being released. The — if a probationer can commit offenses after being given theprivilege of being on probation and receive no additional punishment forit, there is no protection for the public, and the Court feels duty boundin spite of the recommendation by the State to impose a consecutivesentence.
{¶ 11} Therefore, the trial court made the requisite statutory findings and supported those findings on the record for a consecutive sentence in an oral sentencing hearing.
{¶ 12} Good argues that the trial court relied on the wrong statutory sections when it imposed a consecutive sentence. Specifically, Good points to the trial court's recital of factors in the Judgment Entry of the "Defendant pos[ing] the greatest likelihood of recidivism" and the fact that the "Defendant committed the within offense while on community control" which pertain to R.C.
{¶ 13} However, the statutory sections that Good believes were improperly used by the court, were not being used for the purpose of imposing a consecutive sentence but rather in weighing the "seriousness of the conduct" and the "likelihood of the offender's recidivism." While the trial court was incorrect in citing R.C.
{¶ 14} Though the trial court did err in citing the wrong sections, the error is harmless because there was no prejudice to Good by using these findings. Specifically, the trial court did not impose a maximum sentence nor did it suggest that the crime should be a fourth or fifth degree felony. However, in its Judgment Entry, the trial court should have cited R.C.
{¶ 15} In sum, not withstanding these errors in the judgment entry, we nevertheless conclude that Good's argument is without merit because all of the foregoing factors cited by the trial court were in addition to the correct findings included in the sentencing record in this case. Because the trial court's findings were supported by the record we are unable to determine by clear and convincing evidence that the trial court's sentence was contrary to law.
{¶ 16} Based on the foregoing, we hold that the trial court did not err in ordering that Good's sentence be served consecutively to his prior sentence. The assignment of error is overruled, and the judgment of the trial court is affirmed.
Judgment affirmed. Cupp, P.J., and Rogers, J., concur.