The breaking and entering offense stemmed from an incident at a Dairy Queen. One of its employees, Keely Jaegar, told Miller and his brother, Wesley Miller, about the store's closing procedures, the location of the cash drawer, and the lack of any security cameras. Later, she drove them to the Dairy Queen, parking a short distance away. The brothers went to the store, broke in using a crowbar, and stole two to three thousand dollars.
The burglary offense happened a few days later and involved the Rushing residence. Because Mr. Rushing was a minister, the Miller brothers determined that he went to church services on Sunday evening. Outside the Rushing home, they used a *3 cell phone to call inside; they believed if no one answered, then no one was present. No one answered the phone; so, they went inside and stole jewelry.
{¶ 3} Later, police recovered this jewelry along with other jewelry stolen from other residences. Police found additional stolen property in a car belonging to one of the brothers and in a hotel room where they stayed. They used the fruits of these crimes to support themselves and pay for their hotel room. All totaled, the police investigation showed that Miller was involved in 11 thefts.
{¶ 4} At the sentencing hearing, the state read the pertinent facts of the investigation into the record. The court then asked Miller if the facts were true. Miller admitted that everything was true except that the jewelry found by the police in his vehicle was not in a shoebox. Miller also contended that they took $2,000 from the Dairy Queen, not $3,000. However, he admitted that he stole jewelry from various residences, instead of just one residence.
{¶ 5} In sentencing Miller, the trial court indicated that it considered the statutory guidelines as required by R.C.
{¶ 6} With regard to the seriousness of Miller's offenses, the court stated that Miller "caused economic harm to numerous victims * * * committed the offense for hire or as a part of an organized criminal activity."
{¶ 7} With regard to recidivism factors, the court first listed twenty-six prior adult and juvenile criminal convictions. The court found that Miller "demonstrated a pattern of drug or alcohol abuse related to the offense and refuses to acknowledge the pattern or *4 refuses treatment." The court next found that Miller "at the time of the offense was released on bail or awaiting sentencing, under another non-prison sanction, or under the control after being released from prison." The court further found that Miller "has failed to respond to community control in the past."
{¶ 8} Finally, the court found that its sentence was "reasonably calculated to achieve" the overriding purposes of felony sentencing. The court then imposed a twelve-year prison term as follows: one year for the breaking and entering, three years for the burglary, one year for the receiving stolen property, and seven years for the conspiring to engage in a pattern of corrupt activity. The court ordered the sentences to run consecutive to each other.
{¶ 9} Miller appeals and raises the following two assignments of error: I. "The trial court erred and abused its discretion when it ordered Mr. Miller to serve a twelve-year prison term. This error deprived Mr. Miller of his
{¶ 11} We first note that the trial court sentenced Miller after the Supreme Court of Ohio decided State v. Foster,
{¶ 12} In sentencing a felony offender, the sentencing court must consider the general guidance factors contained in R.C.
{¶ 13} Miller first contends that the trial court erred when it considered the seriousness factors. Specifically, he maintains that the court erred when it found that the offenses constituted "organized criminal activity." We disagree.
{¶ 14} Chapter 2929 of the Revised Code does not define "organized criminal activity." Griffin and Katz define the term as "a criminal activity which because of the number of participants and planned utilization of those participants poses more of a risk to the public order than an activity carried out by a single individual acting in isolation from other offenders or than multiple individuals acting together spontaneously or impulsively." Griffin and Katz, Ohio Felony Sentencing Law (2004), 563, Section 5:21. Several courts have used this definition. See, e.g., State v. Grays, Butler App. No. CA2005-07-187,
{¶ 15} Here, the record shows that the state outlined the facts at the sentencing hearing that involved the four offenses. The record shows that Miller, his brother, and his girlfriend broke into a Dairy Queen. Jaegar provided the Millers with the information they needed to successfully break in, and she provided them with transportation. Later, the Millers broke into the Rushing house. They planned the day and time, and then *7 they used a cell phone to double-check the efficacy of the plan. These incidents, and numerous others, i.e., burglaries of the Brown, Russell, Nine, Murphy, Venham, King, and Shutts residences plus break-ins at the Fair Board, the business in the Vincent area, and the Auto Mart, demonstrate that the crimes were pre-planned events that occurred over a four-month period with the intent to use all the participants.
{¶ 16} Based upon the above record, we find that these crimes were not the product of two or three individuals working loosely together, neither was anyone's participation in the crimes spontaneous or impulsive. See, e.g., Fimognari, supra, and State v. Martinez, Wood App. No. WD-01-027,
{¶ 17} Miller next contends that the court erred when it imposed a consecutive sentence for the receiving stolen property offense. He maintains that it is "hornbook law that a thief cannot be charged with committing two offenses — that is stealing and receiving the goods he has stolen." State v. Barnette, Mahoning App. No. 02CA65,
{¶ 18} We agree with Miller that the court cannot sentence him for an offense involving the theft of goods and with the separate offense of receiving those same goods. See, generally, State v. Botta (1971),
{¶ 19} Here, the court sentenced Miller for one burglary involving stolen jewelry from the Rushing residence and for receiving stolen jewelry taken from numerous residences. Miller admitted at sentencing that the jewelry came from various residences. Therefore, the stolen goods are not exclusively the product of the Rushing burglary. Consequently, we find that Miller has failed to show that the trial court abused its discretion when it imposed the consecutive sentence for receiving stolen property.
{¶ 20} Miller next contends that the trial court erred when it imposed a twelve-year prison term for the four offenses. He claims that he committed the offenses while under the influence of drugs, he harmed no person, and the court ordered him to make restitution.
{¶ 21} We find that the sentence is not excessive. The record shows that Miller had an extensive prior record. He apparently refuses to address his drug problem. He conspired with others in an organized and sustained fashion. In addition, economic harm occurred. Further, he did not receive the maximum sentence for each offense.
{¶ 22} Miller entered guilty pleas to breaking and entering, burglary, receiving stolen property, and conspiracy to engage in a pattern of corrupt activity. The trial court imposed a sentence that was within the statutory limits. The court properly considered the factors in R.C.
{¶ 23} Accordingly, we overrule Miller's first assignment of error.
{¶ 25} We first note that Miller did not raise this argument at his sentencing hearing on November 28, 2006, even though the Supreme Court of Ohio decided Foster on February 27, 2006. State v. Payne,
{¶ 26} In Foster, the Ohio Supreme Court considered the constitutionality of Ohio's sentencing statutes in light of the United States Supreme Court's holdings in Blakely and Apprendi v. NewJersey (2000),
{¶ 27} In State v. Grimes, Washington App. No. 04CA17,
{¶ 28} In finding that the Ohio Supreme Court's remedy inFoster does not violate the Due Process or Ex Post Facto clauses of the United States Constitution, we also expressed our approval of the reasoning set forth by the Third District in State v. McGhee, Shelby App. No. 17-06-05,
{¶ 29} Therefore, we find that the trial court did not commit any error, let alone plain error, when it sentenced Miller. *12
{¶ 30} Accordingly, we overrule Miller's second assignment of error and affirm the judgment of the trial court.
*13JUDGMENT AFFIRMED.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Washington County Court of Common Pleas to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted by the trial court or this court, it is continued for a period of sixty days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of proceedings in that court. The stay as herein continued will terminate in any event at the expiration of the sixty day period.
The stay shall terminate earlier if the appellant fails to file a notice of appeal with the Ohio Supreme Court in the forty-five day appeal period pursuant to Rule II, Sec.2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to expiration of said sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
*1Abele, P.J. and McFarland, J.: Concur in Judgment and Opinion.