author: BRUNNER, J.

text:
    The STATE EX REL. Sharon VONDERHEIDE, Relator, v. MULTI-COLOR CORPORATION and Industrial Commission of Ohio, Respondents.
    No. 16AP-493
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on May 3, 2018
    On brief: Clements, Taylor, Butkovich & Cohen LPA, Co., and Edward Cohen, Cincinnati, for relator.
    On brief: Michael DeWine, Attorney General, and John Smart, Cleveland, for respondent Industrial Commission of Ohio.
    DECISION
   BRUNNER, J.

{¶ 1} Relator, Sharon Vonderheide, filed this original action seeking a writ of mandamus that would order respondent, Industrial Commission of Ohio ("the commission"), to vacate the December 10, 2014 order of its staff hearing officer ("SHO") denying her application for temporary total disability ("TTD") compensation beginning July 31, 2012, and to find she is entitled to that compensation. At issue is whether the work Vonderheide performed at her family's farm qualifies as employment, such that she was a part of the active workforce immediately prior to the time for which she requested TTD compensation.

{¶ 2} Vonderheide argues "[t]here is no proper or competent evidence of the record which supports [the commission's] denial" of the TTD compensation she requests, and, therefore, the commission abused its discretion in denying her request. (Jul. 5, 2016 Compl. at ¶ 8.)

{¶ 3} We referred this matter to a magistrate of this Court pursuant to Civ.R. 53(C) and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the appended decision, including findings of fact and conclusions of law. The magistrate concluded the commission did not abuse its discretion in denying Vonderheide's application for TTD compensation and decided this Court should deny Vonderheide's request for a writ of mandamus.

{¶ 4} Vonderheide timely filed an objection to the magistrate's findings and memorandum in support. The commission timely filed a memorandum opposing Vonderheide's objection, asserting the objection lacked merit, and the magistrate had decided the matter correctly.

{¶ 5} Having examined the magistrate's decision, conducted an independent review of the record pursuant to Civ.R. 53, and undertaken due consideration of the objection, we sustain Vonderheide's objection and grant a writ of mandamus ordering the commission to vacate the SHO's order denying TTD compensation.

I. FACTS AND PROCEDURAL BACKGROUND

{¶ 6} No one disputes, on June 28, 1992, Vonderheide sustained an industrial injury claim in the course of and arising out of her employment with respondent, Multi-Color Corporation. Vonderheide's claim was allowed for "lumbar sprain ; medial collateral left knee ligament sprain ; right knee loose body /enthesopathy ; popliteal cyst both knees; contusion right knee; medial meniscus tear right knee; chondromalacia right knee; osteoarthritis lower leg, bilateral; right knee infection/hardware; and right knee instability." (Compl. at ¶ 4.) Vonderheide was awarded TTD compensation. That compensation was terminated on December 23, 2002, when Vonderheide had reached maximum medical improvement ("MMI") for the industrial injury.

{¶ 7} Vonderheide was enrolled in a vocational rehabilitation plan in 2003, but her rehabilitation file was closed on November 26, 2003 after she voluntarily withdrew from the rehabilitation program.

{¶ 8} Vonderheide filed for and began receiving Social Security retirement benefits in August 2002 and continues to receive those benefits to the present time.

{¶ 9} Vonderheide underwent surgery for her right knee on July 31 and November 6, 2012. Her claim was amended in January 2013 to include right knee infection/hardware.

{¶ 10} On March 12, 2014, Vonderheide filed a motion requesting TTD compensation be reinstated beginning July 31, 2012 based upon a significant change in circumstance. In support of the motion, Vonderheide provided medical evidence from various physicians, computer generated summaries of her Ohio tax returns from 2004 through 2007, and from 2009 through 2012, and Internal Revenue Service ("IRS") tax return transcripts for the years 2009 and 2010. The IRS forms evidenced income in the form of rent/royalty/partnership/estate.

{¶ 11} Vonderheide also supported her TTD request by providing affidavits of herself and her son, Michael Vonderheide. In her own affidavit, Vonderheide stated she had worked, sought work, or participated in vocational rehabilitation between 2002 and 2012. She described how she had worked with her husband on their farm while he was alive and how she had continued to work and help run the farm after his death. She stated she began working exclusively at the farm after her medical condition began to deteriorate in 2002. Michael Vonderheide's affidavit corroborated his mother's account of the worked she performed on the family farm. He averred, from 2003 through 2012, he had worked with his mother on their family farm year-round, during which time he had personally witnessed his mother "doing a variety of tasks involved with running and working the farm, including driving a tractor, running the business of the farm, organizing and ordering work crews, farming and stripping tobacco, etc." (M. Vonderheide Aff. at ¶ 3, Sept. 8, 2016 Stipulation of Evidence at 20950-L21.) He averred further, "[t]o my knowledge, my mother continued in this occupation until the end of July 2012 when she had serious knee surgery; to my knowledge, she has not worked on the farm since that date." Id. at ¶ 4.

{¶ 12} A commission district hearing officer ("DHO") heard Vonderheide's motion for TTD compensation on October 27, 2014. The DHO denied the motion by order issued on October 30, 2014 based on findings that Vonderheide: (1) had "not provided sufficient evidence" to corroborate her testimony she was working on the family farm from November 2003 through the time period immediately prior to the requested period of TTD in this claim, (2) had "not provided sufficient evidence that she worked or tried to be employed since November, 2003," (3) had been on Social Security retirement "since that time," and (4) "was not removed from the workforce as a result of the newly allowed condition in this claim." (Stipulation of Evidence at 20950-L11.) The DHO concluded Vonderheide had failed to satisfy her burden of proving by a preponderance of the evidence she was entitled to the award of TTD in this claim.

{¶ 13} A commission SHO heard Vonderheide's appeal of the DHO order on December 4, 2014. At the hearing, Vonderheide testified as to the year-round working nature of the family farm on which Vonderheide, her husband, and her son had grown hay and tobacco and, until her husband's death in 2009, raised cows. She described the work she performed on the farm before and after her husband's death. She testified how the income derived from the farming enterprise was distributed. Vonderheide also testified to her efforts to find employment away from the farm after her industrial injury. She testified she was actively working at the farm from 2009 until her surgery and had worked at the farm as recently as two weeks before the SHO hearing.

{¶ 14} Vonderheide's son also testified at the SHO hearing as to his involvement with the farm operation, the work he had seen Vonderheide perform at the farm, and how and when the farm income was distributed.

{¶ 15} By order issued December 10, 2014, the SHO affirmed the DHO order and denied Vonderheide's request for TTD compensation. The SHO stated the applicable legal standard as follows:

The Hearing Officer notes that [Vonderheide] has the burden of establishing with medical evidence that she is temporarily and totally disabled as a result of the allowed conditions in the claim and that she is legally entitled to the payment of [TTD] compensation because she is in the work force at the time that she is requesting compensation begin. The industrial injury must remove [Vonderheide] from the work force and the purpose of [TTD] compensation is to replace the wages she has lost.

(Stipulation of Evidence at 20950-L60.)

{¶ 16} The SHO found Vonderheide had not established she was legally eligible for TTD compensation because she had failed to meet her burden of proof establishing she was in the active workforce and had wages to replace as of July 31, 2012. The SHO was not persuaded by Vonderheide's claim she worked at the family farm, specifically noting Vonderheide's testimony she did not live at the farm and did not receive wages on a regular basis for her work. The SHO found Vonderheide had not established her ownership of, and participation in, the family farm evidenced she was in the workforce and receiving wages. The SHO stated:

The Hearing Officer concludes that the farm was, and continues to be, a passive investment that [Vonderheide] has which she sometimes performed chores on. The Hearing Officer finds that this is not evidence that [Vonderheide] was in the work force and actively working prior to the date that she is requesting [TTD] compensation begin. The Hearing Officer finds that there were no wages to replace as of 07/31/2012. Therefore, the Hearing Officer finds that [Vonderheide] is not entitled to the payment of temporary total disability compensation. The Hearing Officer orders that the C-86 Motion is denied.
This order is based upon the lack of evidence of employment, the BWC claim notes dated 03/21/2014, [ State ex rel. Pierron v. Indus. Comm. , 120 Ohio St.3d 40, 2008-Ohio-5245, 896 N.E.2d 140 ; State ex rel. Corman v. Allied Holdings, Inc., 132 Ohio St.3d 202, 2012-Ohio-2579, 970 N.E.2d 929 ; and State ex rel. Hoffman v. Rexam Beverage Can Co., 137 Ohio St.3d 129, 998 N.E.2d 442 (2013) ].

Id. at 20950-L61.

{¶ 17} Vonderheide's further appeal was refused by order of the commission mailed December 31, 2014.

{¶ 18} On July 5, 2016, Vonderheide filed this mandamus action asserting the commission's denial of her TTD compensation request is unsupported by "proper or competent evidence of record" and constitutes an abuse of discretion. (Compl. at ¶ 8.)

{¶ 19} The magistrate's decision discusses the law governing an award of TTD compensation:

TTD compensation awarded pursuant to R.C. 4123.56 has been defined as compensation for wages lost where a claimant's injury prevents a return to the former position of employment. Upon that predicate, TTD compensation shall be paid to a claimant until one of four things occurs: (1) claimant has returned to work; (2) claimant's treating physician has made a written statement that claimant is able to return to the former position of employment; (3) when work within the physical capabilities of claimant is made available by the employer or another employer; or (4) claimant has reached MMI. See R.C. 4123.56(A) ; State ex rel. Ramirez v. Indus. Comm. , 69 Ohio St.2d 630 [433 N.E.2d 586] (1982).

(App'x at ¶ 56.) The magistrate's decision indicates further "[t]here can be no lost wages, or even the potential for lost wages, if the injured worker is no longer a part of the active workforce. State ex rel. Pierron v. Indus. Comm. , 120 Ohio St.3d 40, 2008-Ohio-5245, 896 N.E.2d 140." Id. at ¶ 57.

{¶ 20} After reciting the findings on which the SHO relied to affirm the DHO's order denying Vonderheide's request for TTD compensation, the magistrate assessed the evidence Vonderheide had provided about her work at the farm, stating:

In the present case, the commission found that [Vonderheide] failed to establish that she was receiving wages immediately prior to her claimed period of disability and was, therefore, ineligible to receive TTD compensation. At the hearing before the SHO, [Vonderheide] specifically testified that, after her husband died in 2009, she sold the cattle and leased the farm property to others. From that time on, [Vonderheide] did continue to maintain the property by cutting the grass and performing upkeep on the family home located on the property. This activity does not necessarily constitute work for purposes of TTD compensation. Grass needs to be cut and a house must be maintained, but these are every day tasks everyone performs. [Vonderheide] did not testify that she still planted seeds, cut and hung the tobacco in the barn to dry, and remove the leaves from the stalks. None of [Vonderheide's] testimony nor the tax information she submitted, nor her affidavit, nor the affidavit of her son proves that, after she leased out the property and sold the cattle, that she actually worked on the farm. Although [Vonderheide] indicated that she was working until the surgeries in 2012, as the SHO said, the evidence was conflicting.

Id. at ¶ 58.

{¶ 21} The magistrate noted the paucity of tax records Vonderheide provided documenting farm income, commenting "[i]f [Vonderheide] had farm income, she should have presented the tax return to establish that fact. She did not." Id.

{¶ 22} The magistrate, deferring to the commission on questions of credibility and the weight to be given evidence, concluded the commission had not abused its discretion in denying Vonderheide's application for TTD compensation:

Based upon a review of the stipulation of evidence and the arguments of counsel, the magistrate concludes that the commission did not abuse its discretion when it determined that [Vonderheide] had failed to meet the burden of proof, by a preponderance of the evidence, that she worked immediately prior to the alleged period of disability and, as such, the commission did not abuse its discretion when it denied her application for TTD compensation. As such, this court should deny [Vonderheide]'s request for a writ of mandamus.

Id. at ¶ 60.

{¶ 23} Vonderheide timely filed an objection to the magistrate's decision. The commission timely filed a memorandum opposing Vonderheide's objection.

II. OBJECTION TO MAGISTRATE'S DECISION

{¶ 24} Vonderheide presents a sole objection to the magistrate's decision:

The Magistrate erred in denying Relator's requested writ of mandamus since the disputed Commission order was not based on "some evidence."

{¶ 25} Vonderheide asserts she submitted sufficient evidence to the commission to "shift the burden of proof back to her employer and the BWC to rebut her assertion that she was engaged in the work force at the time the requested temporary total disability began." (Emphasis omitted.) (Obj.to Mag.'s Decision at 1.)

III. LAW AND DISCUSSION

{¶ 26} To be entitled to relief in mandamus, Vonderheide must establish she has a clear legal right to relief, and the commission has a clear legal duty to provide such relief. State ex rel. Pressley v. Indus. Comm. , 11 Ohio St.2d 141, 228 N.E.2d 631 (1967), paragraph nine of the syllabus. To do so, Vonderheide must demonstrate the commission abused its discretion and, "in this context, abuse of discretion has been repeatedly defined as a showing that the commission's decision was rendered without some evidence to support it." State ex rel. Burley v. Coil Packing, Inc. , 31 Ohio St.3d 18, 20, 508 N.E.2d 936 (1987). Where the record contains some evidence to support the commission's findings, there has been no abuse of discretion, and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry Co. , 29 Ohio St.3d 56, 505 N.E.2d 962 (1987). To be successful in this mandamus action, Vonderheide must show the commission's decision is not supported by some evidence in the record. State ex rel. Elliott v. Indus. Comm. , 26 Ohio St.3d 76, 497 N.E.2d 70 (1986). Questions of credibility and the weight to be given evidence are clearly within the discretion of the commission as the factfinder. State ex rel. Teece v. Indus. Comm. , 68 Ohio St.2d 165, 429 N.E.2d 433 (1981).

{¶ 27} We find the commission focused on information Vonderheide did not provide rather than the information she did provide and, in so doing, abused its discretion in denying her request for TTD compensation.

{¶ 28} The magistrate's decision includes a comprehensive discussion of the statutory and case law regarding the award of TTD compensation and its application generally. We agree with the commission and the magistrate that TTD compensation awarded pursuant to R.C. 4123.56 is intended to provide compensation for wages lost where an injured worker's injury prevents a return to the former position of employment. We agree further, conversely, if an injured worker is no longer a part of the active workforce, there can be no lost wages, or even the potential for lost wages. State ex rel. Pierron v. Indus. Comm. , 120 Ohio St.3d 40, 2008-Ohio-5245, 896 N.E.2d 140.

{¶ 29} That said, however, we find the traditional understanding of what constitutes being a part of the active workforce for the purpose of awarding TTD benefits has not taken into account inherent differences in farm employment from other types of employment as applied to the facts contained in the record.

{¶ 30} We note at the outset of our discussion the Bureau of Labor Statistics of the U.S. Department of Labor collects current employment statistics ("CES") only from nonfarm employers and does not include statistics on self-employed individuals. The Bureau of Labor Statistics instead uses the Current Population Survey ("CPS") to measure employment in farming and vocation in self-employment.

The CPS has a broad definition of employment and provides detailed demographic characteristics on individuals by their labor force status. The CPS includes groups of workers that are not included in CES estimates: the self-employed, agricultural workers, unpaid family workers, workers on unpaid leave, and employees of private households. * * *
* * *
* * * In the CES survey, the employment estimate provides a count of all nonfarm jobs. This means that persons working at more than one job would appear on more than one payroll and thus would be counted for each job. In contrast, the [CPS] household survey provides an estimate of employed persons , and each worker is counted once regardless of how many jobs he or she holds. * * *
* * * The CPS counts a person as employed if the person performed at least 1 hour of work during the reference week, whether as a wage and salary worker, as a self-employed individual in his or her own business or farm, or as an employee of a private household. Unpaid family workers are counted if they worked at least 15 hours in a family-owned business. Workers away on temporary unpaid absences also are included as employed, falling into a category known as "with a job, not at work." This category includes workers who have a job at which they did not work during the survey week because they were on vacation, were ill, needed to take care of family or personal obligations, were on maternity or paternity leave, were involved in a labor dispute such as a strike, or could not work due to bad weather.

(Emphasis sic and added.) (Bowler and Marisi, Understanding Employment Measures from the CPS and CES Survey , Monthly Labor Review, 24, 26 (Feb. 2006), available at https://www.bls.gov/opub/mlr/2006/02/art2full.pdf (accessed Apr. 12, 2018).)

{¶ 31} From this information, it is clear Vonderheide was employed when she worked on the family farm, even if she did not receive a paycheck. From this information, it is also clear the Bureau of Labor Statistics recognizes people running or working a farm do not work a typical 40-hour work week and hours worked on a family farm typically do not translate into compensation in the form of a regular paycheck or the typical payday experienced by the majority of persons engaged in the work force and whose job statistics are counted by the Bureau of Labor Statistics based on data supplied by employers in nonfarm employment sectors. For the commission not to recognize this is an abuse of discretion.

{¶ 32} The record of this matter evidences Vonderheide submitted unrefuted testimonial and documentary evidence demonstrating she was engaged in running and working her family's farm in July 2012. Her testimony and the affidavits from her son and herself recounted the farm chores she personally performed up until the time of her surgery for her allowed claim in July 2012, work she was unable to perform after the surgery. At the hearing before the SHO, Vonderheide also testified about her participation in running and working the family farm before and after her husband's death, up until the time her industrial injury prevented her from work she had performed.

{¶ 33} With respect to the commission's reliance on the fact Vonderheide did not live at the farm, we are not aware of any legal provision that requires a person engaged in farming to reside at the farm in order for the person's labor to constitute "work" or employment so as to establish the person as being a part of the active workforce. In fact, the Bureau of Labor Statistics places self-employed persons in the same category as farm workers without distinction to their residence. Id. at 24. See also id. at 23, 26 ("[T]he CPS is a household survey, while the CES survey is a survey of businesses as well as government establishments. [T]he household survey provides an estimate of employed persons , and each worker is counted once regardless of how many jobs he or she holds."). (Emphasis sic.) In short, due to the nature of Vonderheide's claimed employment, she only needed to be counted by the household where she lived in order to be counted as employed working on the family farm.

{¶ 34} We hold the commission's decision was not based on some evidence and as such resulted in an abuse of discretion when it determined Vonderheide was not engaged in the active workforce immediately before the time for which she requests TTD compensation. The commission had a clear legal duty to consider Vonderheide's evidence of farm employment, not to disregard it. We disagree with the magistrate's conclusion that it was not an abuse of discretion for the commission to determine Vonderheide had failed to prove by a preponderance of the evidence that she worked immediately prior to the alleged period of disability, and, consequently, to deny Vonderheide's application for TTD compensation.

{¶ 35} Accordingly, we sustain Vonderheide's objection to the magistrate's decision.

IV. CONCLUSION

{¶ 36} Upon review of the magistrate's decision, an independent review of the record, and due consideration to Vonderheide's objection, we find the magistrate has properly stated many of the pertinent facts. We adopt those facts with which we agree and make the additional findings of fact based on the record and applicable law.

{¶ 37} However, we disagree with the magistrate's conclusions of law and do not adopt them. We thus sustain Vonderheide's objection to the magistrate's decision and find the commission abused its discretion in finding Vonderheide had not met her burden in showing she was eligible for TTD compensation as of July 31, 2012.

{¶ 38} Accordingly, we grant the requested writ of mandamus and order the commission to vacate the SHO order of December 10, 2014.

Objection sustained; writ of mandamus granted .

TYACK, J., concurs.

SADLER, J., dissents.

{¶ 39} I agree with the magistrate's conclusion that the commission did not abuse its discretion in determining relator had failed to meet her burden of proof, by a preponderance of the evidence, that she was entitled to an award of temporary total disability compensation, and I would adopt the magistrate's decision and deny the requested writ of mandamus. Because the majority holds otherwise, I respectfully dissent.

APPENDIX

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

The State ex rel. Sharon Vonderheide, Relator,

v.

Multi-Color Corporation and Industrial Commission of Ohio, Respondents.

No. 16AP-493

(REGULAR CALENDAR)

MAGISTRATE'S DECISION

Rendered on January 27, 2017

Clements, Taylor, Butkovich, & Cohen LPA, Co., and Edward Cohen, for relator.
Michael DeWine, Attorney General, and John Smart, for respondent Industrial Commission of Ohio.

IN MANDAMUS

{¶ 40} Relator, Sharon Vonderheide, has filed this original action requesting this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order which denied her application for temporary total disability ("TTD") compensation and ordering the commission to find that she is entitled to that compensation.

Findings of Fact:

{¶ 41} 1. Relator sustained a work-related injury on June 28, 1992, and her workers' compensation claim has been allowed for the following conditions:

Lumbar sprain ; medial collateral left knee ligament sprain ; right knee loose body /enthesopathy ; popliteal cyst both knees; contusion right knee; medial meniscus tear right knee; chondromalacia right knee; osteoarthritis lower leg, bilateral; right knee infection/hardware; right knee instability.

{¶ 42} 2. Relator received a period of TTD compensation which was terminated effective December 23, 2002 after the commission found that relator's then allowed conditions had reached maximum medical improvement ("MMI").

{¶ 43} 3. Relator was enrolled in a vocational rehabilitation plan in November 2003. Relator completed eight weeks of work conditioning followed by four weeks of work hardening. Thereafter, there was a one week non-medical interruption when relator was out of town followed by one or more missed appointments. Relator never began a job search due to ongoing symptoms of edema and numbness of her right foot, as well as personal family issues regarding healthcare for her adult son.

{¶ 44} 4. By letter dated November 26, 2003, relator's rehabilitation file was closed due to relator's request to withdraw.

{¶ 45} 5. It is undisputed that relator began receiving Social Security Retirement in 2002.

{¶ 46} 6. In 2012, relator underwent two knee surgeries.

{¶ 47} 7. In January 2013, relator's claim was additionally allowed for right knee infection/hardware.

{¶ 48} 8. Following her surgery, relator filed a motion seeking the payment of TTD compensation beginning July 31, 2012. Relator's motion was supported by medical evidence from various physicians. Relator also included computer generated summaries of her Ohio tax returns from 2004 through 2012 and Internal Revenue Service ("IRS") tax return transcripts for the years 2009 and 2010. Those IRS forms show income in the form of rent/royalty/partnership/estate. Although relator asserts she worked on her family farm, the tax documents she supplied do not show any farm income.

Relator also submitted an affidavit wherein she stated, in pertinent part, as follows:
[Two] Between 2002 and 2012, I have worked, sought work or participated in vocational rehabilitation; some of the places I sought work were at McDonald's & Pizza Hut.
[Three] On August 5, 2014 copies of my 2009 & 2010 Tax Return Transcripts were filed with the Industrial Commission as I am unable to locate all of my wages showing both rental income and farm income (bailing hay); however, I worked on and helped run the farm this entire time. Likewise;
[Four] My husband and I worked the farm together; however I did work additional jobs throughout our marriage. In October of 2001 I was permanently laid off by Standex Electronics and began working only on the farm when my medical condition began deteriorating in 2002.
[Five] Once my medical condition from this injury worsened in 2012, I was no longer able to continue with any work.
Relator also included the affidavit of her son, wherein he stated:
[Two] From 2003 through 2012, I personally worked with my mother on our family farm; this work was year around, weather permitting;
[Three] During this time, I personally witnessed my mother doing a variety of tasks involved with running and working the farm, including driving a tractor, running the business of the farm, organizing and ordering work crews, farming and stripping tobacco, etc.
[Four] To my knowledge, my mother continued in this occupation until the end of July 2012 when she had serious knee surgery; to my knowledge, she has not worked on the farm since that date.

{¶ 49} 9. Relator's motion for TTD compensation was heard before a district hearing officer ("DHO") on October 27, 2014. The DHO denied the request for TTD compensation finding that relator failed to satisfy her burden of proving by a preponderance of the evidence that she was entitled to that award; specifically, she failed to show that she was employed at the time of the beginning of the alleged period of disability. The DHO specifically noted that relator had been on Social Security Retirement since 2002 and failed to provide sufficient evidence that she worked or tried to be employed since November 2003.

{¶ 50} 10. Relator appealed and the matter was heard before a staff hearing officer ("SHO") on December 4, 2014. The SHO affirmed the prior DHO order and denied relator's request for TTD compensation finding that relator failed to meet her burden of proof establishing that she was in the workforce and that she had wages to replace beginning July 2012. The SHO explained:

In making this finding, the Hearing Officer relies on several factors. First, the Injured Worker applied for and began receiving social security retirement benefits beginning in 2002. The Injured Worker submitted an affidavit and testified at hearing that she made some attempts to look for work following the date that she started receiving social security benefits. However, there is no evidence that she has worked or looked for work in the years leading up to July of 2012.
The Injured Worker's attorney argued that the Injured Worker owned and ran a family farm and that this is evidence that she had not left the work force prior to the requested start date of temporary total disability compensation. The Hearing Officer finds that the evidence that has been submitted on the farm work is conflicting. The Injured Worker submitted an affidavit of her own and from her son, Mr. Michael Vonderheide, which indicated that she worked from 2003 to 2012 on her family farm. The Injured Worker also submitted tax information to show that she reported income for the period from 2003 through 2012.
The Injured Worker testified at hearing that she and her husband had owned the farm for years since before 2003. The Injured Worker did not live at the farm, although her husband did. Instead, she lived an hour and a half away from the farm. She testified to performing work and different farm chores on the farm on weekends when she had a full time job. She further testified to having employees who worked on the farm. Since her husband's death, she has begun leasing the farm out for someone else to farm. At hearing, when questioned about the last time she worked, she testified to performing work activities on the farm two weeks ago.
The tax records are also conflicting. The income reported from the family farm fluctuated from year to year. There does not appear to be any correlation with the amounts earned in the years that she worked on the farm compared to when she was unable to work on the farm. The Injured Worker testified that she did not receive wages on a regular basis for her work. Instead, she testified that her husband would give her money that remained at the end of the year after expenses were paid.
The Hearing Officer finds that the Injured Worker has not established that her ownership of, and participation in, the family farm is evidence that she was in the work force and receiving wags. The Hearing Officer concludes that the farm was, and continues to be, a passive investment that the Injured Worker has which she sometimes performed chores on. The Hearing Officer finds that this is not evidence that the Injured Worker was in the work force and actively working prior to the date that she is requesting temporary total disability compensation begin. The Hearing Officer finds that there were no wages to replace as of 07/31/2012. Therefore, the Hearing Officer finds that the Injured Worker is not entitled to the payment of temporary total disability compensation. The Hearing Officer orders that the C-86 Motion is denied.
This order is based upon the lack of evidence of employment, the BWC claim notes dated 03/21/2014, [ State ex rel. Pierron v. Indus. Comm. , 120 Ohio St.3d 40, 2008-Ohio-5245 [896 N.E.2d 140] ; State ex rel. Corman v. Allied Holdings, Inc., 132 Ohio St.3d 202, 2012-Ohio-2579 [970 N.E.2d 929] ; and State ex rel. Hoffman v. [Rexam ] Rexman Beverage Can Co., 137 Ohio St.3d 129 [998 N.E.2d 442] (2013) ].

{¶ 51} 11. Relator's further appeal was refused by order of the commission mailed December 31, 2014.

{¶ 52} 12. Thereafter, relator filed the instant mandamus action in this court.

Conclusions of Law:

{¶ 53} For the reasons that follow, it is this magistrate's decision that this court should deny relator's request for a writ of mandamus.

{¶ 54} The Supreme Court of Ohio has set forth three requirements which must be met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to the relief prayed for; (2) that respondent is under a clear legal duty to perform the act requested; and (3) that relator has no plain and adequate remedy in the ordinary course of the law. State ex rel. Berger v. McMonagle , 6 Ohio St.3d 28, 451 N.E.2d 225 (1983).

{¶ 55} In order for this court to issue a writ of mandamus as a remedy from a determination of the commission, relator must show a clear legal right to the relief sought and that the commission has a clear legal duty to provide such relief. State ex rel. Pressley v. Indus. Comm. , 11 Ohio St.2d 141, 228 N.E.2d 631 (1967). A clear legal right to a writ of mandamus exists where the relator shows that the commission abused its discretion by entering an order which is not supported by any evidence in the record. State ex rel. Elliott v. Indus. Comm. , 26 Ohio St.3d 76, 497 N.E.2d 70 (1986). On the other hand, where the record contains some evidence to support the commission's findings, there has been no abuse of discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry Co. , 29 Ohio St.3d 56, 505 N.E.2d 962 (1987). Furthermore, questions of credibility and the weight to be given evidence are clearly within the discretion of the commission as fact finder. State ex rel. Teece v. Indus. Comm. , 68 Ohio St.2d 165, 429 N.E.2d 433 (1981).

{¶ 56} TTD compensation awarded pursuant to R.C. 4123.56 has been defined as compensation for wages lost where a claimant's injury prevents a return to the former position of employment. Upon that predicate, TTD compensation shall be paid to a claimant until one of four things occurs: (1) claimant has returned to work; (2) claimant's treating physician has made a written statement that claimant is able to return to the former position of employment; (3) when work within the physical capabilities of claimant is made available by the employer or another employer; or (4) claimant has reached MMI. See R.C. 4123.56(A) ; State ex rel. Ramirez v. Indus. Comm. , 69 Ohio St.2d 630, 433 N.E.2d 586 (1982).

{¶ 57} It is undisputed that TTD compensation awarded pursuant to R.C. 4123.56 has been defined as compensation for wages lost where an injured worker's injury prevents a return to the former position of employment. There can be no lost wages, or even the potential for lost wages, if the injured worker is no longer a part of the active workforce. State ex rel. Pierron v. Indus. Comm. , 120 Ohio St.3d 40, 2008-Ohio-5245, 896 N.E.2d 140.

{¶ 58} In the present case, the commission found that relator failed to establish that she was receiving wages immediately prior to her claimed period of disability and was, therefore, ineligible to receive TTD compensation. At the hearing before the SHO, relator specifically testified that, after her husband died in 2009, she sold the cattle and leased the farm property to others. From that time on, relator did continue to maintain the property by cutting the grass and performing upkeep on the family home located on the property. This activity does not necessarily constitute work for purposes of TTD compensation. Grass needs to be cut and a house must be maintained, but these are every day tasks everyone performs. Relator did not testify that she still planted seeds, cut and hung the tobacco in the barn to dry, and remove the leaves from the stalks. None of relator's testimony nor the tax information she submitted, nor her affidavit, nor the affidavit of her son proves that, after she leased out the property and sold the cattle, that she actually worked on the farm. Although relator indicated that she was working until the surgeries in 2012, as the SHO said, the evidence was conflicting. Further, relator did not present tax records beyond 2010 because her husband prepared their tax returns. Her husband died in 2009. Thereafter, relator's taxes were prepared by someone other than her husband. If she had farm income, she should have presented the tax return to establish that fact. She did not.

{¶ 59} Credibility and the weight to be given the evidence are clearly within the discretion of the commission as fact finder and it is immaterial whether there is other evidence, even if greater in quality and/or quantity supports a decision contrary to the commission's. Teece ; State ex rel. Pass v. C.S.T. Extraction Co. , 74 Ohio St.3d 373, 658 N.E.2d 1055 (1996).

{¶ 60} Based upon a review of the stipulation of evidence and the arguments of counsel, the magistrate concludes that the commission did not abuse its discretion when it determined that relator had failed to meet the burden of proof, by a preponderance of the evidence, that she worked immediately prior to the alleged period of disability and, as such, the commission did not abuse its discretion when it denied her application for TTD compensation. As such, this court should deny relator's request for a writ of mandamus.

/S/ MAGISTRATE

STEPHANIE BISCA

NOTICE TO THE PARTIES

Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as error on appeal the court's adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely and specifically objects to that factual finding or legal conclusion as required by Civ.R. 53(D)(3)(b).

      For more information, see Bowler and Marisi, Understanding Employment Measures from the CPS and CES Survey , Monthly Labor Review, 24 (Feb. 2006), available at https://www.bls.gov/opub/mlr/2006/02/art2full.pdf (accessed Apr. 12, 2018) ("The CES survey is a Federal-State cooperative program in which the Bureau of Labor Statistics works with State employment security agencies to collect data each month on employment, hours, and earnings from a sample of nonfarm establishments, including government. The CES survey sample, which includes about 160,000 U.S. firms of all sizes, covers about 400,000 worksites. The survey counts nonfarm payroll jobs only-with no age restriction on the employed-and does not include the self-employed.").


source: Caselaw Access Project

author: LARRY A. JONES, SR., J.:

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee v. Emeric BOZSO, Defendant-Appellant
    No. 106149
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: May 3, 2018
    Daniel J. Misiewicz, 614 W. Superior Avenue, Suite 1300, Cleveland, Ohio 44113, ATTORNEY FOR APPELLANT
    Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Amy Venesile, Assistant County Prosecutor, The Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE
    BEFORE: Jones, J., Blackmon, P.J., and Laster Mays, J.
    JOURNAL ENTRY AND OPINION
   LARRY A. JONES, SR., J.:

{¶ 1} Defendant-appellant Emeric Bozso ("Bozso") appeals from the trial court's July 25, 2017 judgment denying his motion to withdraw his guilty plea. For the reasons that follow, we reverse.

Factual and Procedural History

{¶ 2} In June 2016, Bozso was charged in a 30-count indictment of 1996 for crimes pertaining to sexual assault against two victims. In November 2016, after negotiations with the state, Bozso pleaded guilty to one count of sexual battery and one count of attempted abduction. The trial court sentenced him to one year of prison for each count, but suspended the sentences, and ordered him to two years of community control sanctions for each conviction.

{¶ 3} In January 2017, Bozso, who is not a citizen of the United States, was detained by the Department of Homeland Security for immigration removal proceedings. In June 2017, he filed a motion to withdraw his guilty plea. In his motion, Bozso contended that his trial counsel was ineffective because he informed him that he "would be able to obtain potential relief from immigration or deportation issues and consequences resulting from the plea pursuant to § 212(c) of the Immigration and Nationality Act. [INA]"

{¶ 4} In an affidavit in support of his motion, Bozso averred that he had been "misinformed about the applicability of INA § 212(c) and that he [would] not be entitled to any potential relief under the statute despite advisements given to him prior to entering a guilty plea in [this case]." Bozso further averred that he "would not have pled guilty [in this case] had he known that relief from immigration consequences pursuant to INA § 212(c) was wholly unavailable to him."

{¶ 5} After a hearing on the motion, the trial court denied it. Bozso now appeals, presenting the following assignment of error for our review: "The trial court erred by denying appellant's motion to withdraw his previously entered guilty plea."

Standard of Review

{¶ 6} Generally, a Crim.R. 32.1 postsentence motion to withdraw a guilty plea is subject to a manifest injustice standard, State v. Xie , 62 Ohio St.3d 521, 526, 584 N.E.2d 715 (1992), and an appellate court will not reverse a trial court's denial of a motion to withdraw a plea absent an abuse of discretion. State v. Caver , 8th Dist. Cuyahoga Nos. 90945 and 90946, 2008-Ohio-6155, 2008 WL 5050137, citing State v. Smith , 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977).

{¶ 7} Although the standard of review for a postsentence motion under Crim.R. 32.1 is generally subject to the manifest injustice standard, this standard does not apply to plea withdrawal motions filed pursuant to R.C. 2943.031(D), which governs "advice as to possible deportation in guilty and no contest pleas." State v. Francis , 104 Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355, ¶ 26.

{¶ 8} R.C. 2943.031(D) requires that a trial court set aside a judgment of conviction and allow a defendant to withdraw his or her guilty plea if the defendant demonstrates:

(1) the court failed to provide the defendant with the advisement contained in R.C. 2943.031(A) ; (2) the advisement was required; (3) the defendant is not a United States citizen; and (4) the offense to which the defendant pled guilty may result in deportation under the immigration laws of the federal government.

State v. Weber , 125 Ohio App.3d 120, 126, 707 N.E.2d 1178 (10th Dist.1997), citing R.C. 2943.031(D).

{¶ 9} The Tenth District, citing the Ohio Supreme Court's decision in Francis , addressed the standard of review of a motion to withdraw a plea filed under R.C. 2943.03(D) in State v. Muhumed , 10th Dist. Franklin No. 11AP-1001, 2012-Ohio-6155, 2012 WL 6738337 :

The same abuse of discretion standard of review applies to the trial court's decision on a motion filed pursuant to R.C. 2943.031(D). Francis at ¶ 32. However, "when a defendant's motion to withdraw is premised on R.C. 2943.031(D), the standards within that rule guide the trial court's exercise of discretion." Id. at ¶ 33 ; see also [State v. ] Oluoch , [10th Dist. Franklin No. 07AP-45, 2007-Ohio-5560, 2007 WL 3027074] at ¶ 25. To clarify, the exercise of discretion "applies to the trial court's decision on whether the R.C. 2943.031(D) elements have been established (along with the factors of timeliness and prejudice * * *), not generally to the trial court's discretion once the statutory provisions have been met." Id. at ¶ 34. "[A] defendant seeking relief under R.C. 2943.031(D) must make his or her case before the trial court under the terms of that statute, * * * the trial court must exercise its discretion in determining whether the statutory conditions are met, and * * * an appellate court reviews a trial court's decision on the motion under an abuse-of-discretion standard in light of R.C. 2943.031(D)." Id. at ¶ 36.

Muhumed at ¶ 10.

{¶ 10} To establish ineffective assistance of counsel, an appellant must show "(1) deficient performance of counsel, i.e., performance falling below an objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that, but for counsel's errors, the proceeding's result would have been different." State v. Hale , 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204, citing Strickland v. Washington , 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." State v. Sanders , 94 Ohio St.3d 150, 151, 761 N.E.2d 18 (2002).

Hearing on Bozso's Motion

{¶ 11} At the hearing on Bozso's motion to withdraw his plea, the state presented the testimony of Bozso's trial counsel. Counsel testified that at the time he was representing Bozso, he was aware that Bozso was not a United States citizen. He was concerned that if Bozso were to plead guilty he would be deported, or if he ever left the United States he would not be permitted to return. Counsel testified that he was not versed in immigration law, so he had Bozso consult with an immigration attorney. Bozso consulted with the attorney, and as a result of their meeting, the immigration attorney sent the following email to defense counsel, which counsel shared with Bozso:

The sex offense conviction will lead to the client being placed into deportation. As an aggravated felony, the client would be subject to mandatory detention while the case proceeds through the immigration court. As a very preliminary conclusion, I would state that if the June date is adhered to rather than the November [date], that the client would have some relief available to him. Specifically, 212(c) relief. This relief is discretionary to the court and by no means should the client believe that it is assured that he would not be ordered * * * deported as a result of a conviction for this offense. I will supply a more comprehensive advisement for you shortly.

{¶ 12} Defense counsel testified that if there was a further advisement from the immigration attorney it went directly to Bozso; he did not receive any other information from the immigration attorney.

{¶ 13} Defense counsel further testified that, at the change of plea hearing, the trial court read the statutorily required advisement for noncitizens "verbatim," and he recalled his belief that the trial court "actually inquired of Mr. Bozso if he really understood the import of what that statutory language meant."

{¶ 14} In its judgment denying Bozso's motion to withdraw his plea, the court found that it gave Bozso the "required [immigration/deportation] advisement as to the consequences of said plea." The court further found that the immigration attorney's advisement to Bozso made it "clear that he should not have relied upon the possibility that he would obtain relief from deportation, and that [Bozso's] doing so appears to have been a case of hope over reality."

Law and Analysis

{¶ 15} The United States Supreme Court addressed the issue of whether counsel must discuss deportation issues with clients in Padilla v. Kentucky , 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). In Padilla , defense counsel failed to advise the defendant whatsoever that he may face deportation and, rather, advised the defendant that he would not be deported because of the period of time he had been in the United States. The Court found that counsel's failure to inform the defendant about the possibility of deportation was sufficient to meet the first prong of an ineffective assistance of counsel claim; that is, that counsel's performance fell below an objective standard of reasonable representation. Id. at 371, 130 S.Ct. 1473.

{¶ 16} In regard to the second prong-prejudice: a reasonable probability that, but for counsel's errors, the proceeding's result would have been different-the Court held that in order to prove prejudice the defendant must convince the court that under the circumstances it would have been rational to reject the plea agreement. Id. at 370, 130 S.Ct. 1473.

{¶ 17} The Court recognized that "[i]mmigration law can be complex, and it is a legal speciality of its own." Id. at 369, 130 S.Ct. 1473. Thus, the Court stated the following:

Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward, a criminal defense attorney need not do more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.

Id.

{¶ 18} Bozso contends that the law governing his possibility of relief was "succinct and straightforward" because in 2001, the United States Supreme Court held that the relief was available to noncitizen defendants whose "convictions were obtained through plea agreements prior to April 1, 1997 and who, notwithstanding those convictions would have been eligible for 212(c) relief at the time of their plea under the law then in effect." I.N.S. v. Cyr , 533 U.S. 289, 326, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001).

{¶ 19} We recognize that Bozso was represented by a well known and respected defense attorney who had been practicing for over 35 years. We further recognize that defense counsel, unlike counsel in Padilla , raised the issue of deportation with his client and had him seek advice from an immigration attorney. Our inquiry does not end there, however.

{¶ 20} As Padilla acknowledged, "immigration law can be complex," but there are times when it is "succinct and straightforward," and in those instances, defense counsel has the responsibility to advise his or her client what the consequences of his or her plea will be with respect to deportation. Id. at 369, 130 S.Ct. 1473. This case is one in which the law was "succinct and straightforward." Thus, counsel was deficient for not definitely determining the deportation consequences Bozso would face prior to him entering his plea.

{¶ 21} In regard to the prejudice aspect of an ineffective assistance of counsel claim, we recognize that Ohio courts, including this court, have previously held that a trial court's advisement under R.C. 2943.031 cures the prejudice resulting from counsel's deficient performance in cases implicating immigration status. See, e.g., State v. Bains , 8th Dist. Cuyahoga No. 94330, 2010-Ohio-5143, 2010 WL 4286167, ¶ 29 ; State v. Andreias , 6th Dist. Erie No. E-10-070, 2011-Ohio-5030, 2011 WL 4529116, ¶ 20.

{¶ 22} But more recently, Ohio and federal courts have started to back away from that principle and, instead, have started holding that a proper R.C. 2943.031 does not always preclude a finding of prejudice. See, e.g. , State v. Romero , 5th Dist. Stark No. 2016CA00201, 2017-Ohio-2950, 2017 WL 2256804, ¶ 30 ; State v. Avesta , 8th Dist. Cuyahoga No. 101383, 2015-Ohio-1695, 2015 WL 2091679, ¶ 20 ; State v. Yapp , 2015-Ohio-1654, 32 N.E.3d 996 ; State v. Kostyuchenko , 2014-Ohio-324, 8 N.E.3d 353, ¶ 15 (1st Dist.) ; see also United States v. Urias-Marrufo , 744 F.3d 361, 368-369 (5th Cir.2014) ("It is counsel's duty, not the court's, to warn of certain immigration consequences, and counsel's failure cannot be saved by a plea colloquy. Thus, it is irrelevant that the magistrate judge asked [the defendant] whether she understood that there might be immigration consequences and that she and her attorney had discussed the possible adverse immigration consequences of pleading guilty." (Footnotes omitted) ).

{¶ 23} "Thus, under the current view, compliance with R.C. 2943.031(A) is not determinative; it is merely one factor for the trial court to consider." Romero at ¶ 31.

{¶ 24} As mentioned, in his affidavit, Bozso averred that he "would not have pled guilty [in this case] had he known that relief from immigration consequences pursuant to INA § 212(c) was wholly unavailable to him." On this record, that averment was sufficient to establish that Bozso was prejudiced by his counsel's performance in this case.

{¶ 25} In light of the above, Bozso's sole assignment of error is well taken and hereby sustained.

{¶ 26} Judgment reversed.

PATRICIA ANN BLACKMON, P.J., and ANITA LASTER MAYS, J., CONCUR


author: SEAN C. GALLAGHER, J.:

text:
    STATE of Ohio, Plaintiff-Appellee v. Anthony GRANT, Defendant-Appellant
    No. 104918
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: May 3, 2018
    Thomas A. Rein, 820 West Superior Avenue, Suite 800, Cleveland, Ohio 44113, ATTORNEY FOR APPELLANT
    Michael C. O'Malley, Cuyahoga County Prosecutor, By: Blaise D. Thomas, Assistant Prosecuting Attorney, Justice Center-9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE
    BEFORE: S. Gallagher, J., Keough, P.J., and Stewart, J.
    JOURNAL ENTRY AND OPINION
   SEAN C. GALLAGHER, J.:

{¶ 1} Appellant Anthony Grant appeals the sentence imposed in three underlying cases, Cuyahoga C.P. Nos. CR-15-598262-A, CR-15-598310-A, and CR-15-599943-A, as well as the imposition of court costs. Upon review, we affirm.

Background

{¶ 2} Appellant was indicted and charged on multiple counts in each of the three underlying cases. He ultimately entered a plea agreement with the state and pleaded guilty to the following charges: in CR-15-598262-A, involuntary manslaughter in violation of R.C. 2903.03 with a three-year firearm specification; in CR-15-598310-A, attempted aggravated robbery in violation of R.C. 2911.01 with a one-year firearm specification; and in CR-15-599943-A, to the indictment as charged, which included two counts of having weapons while under disability and one count of carrying a concealed weapon, each with a forfeiture of weapon specification.

{¶ 3} With regard to the first two cases, CR-15-598262-A and CR-15-598310-A, there was an agreement to a sentencing range for the two offenses in the aggregate to a term of between 6 and 20 years, which is down from the maximum of up to 26 years. There was no agreement to a sentence in CR-15-599943-A, which was to be in addition to the other two cases.

{¶ 4} At sentencing, the trial court indicated it had reviewed the presentence investigation report and appellant's sentencing memorandum. The trial court heard from defense counsel, appellant, persons on appellant's behalf, members of the victims' families, and the assistant prosecutor. The trial court indicated it had considered all the information presented, all the principles and purposes of felony sentencing, and the appropriate recidivism and seriousness factors. The trial court reviewed appellant's criminal history, including his juvenile record. Further, the trial court considered the plea agreement and made the requisite findings for consecutive sentences.

{¶ 5} The trial court sentenced appellant as follows.

{¶ 6} In CR-15-598262-A, to eight years in prison for involuntary manslaughter, plus three years on the firearm specification to run prior to and consecutive with the eight-year sentence, for a total of 11 years.

{¶ 7} In CR-15-598310-A, to eight years in prison for attempted aggravated robbery, plus one year on the firearm specification to run prior to and consecutive with the eight-year sentence, for a total of nine years.

{¶ 8} In CR-15-599943-A, to 18 months in prison on each of the three counts, to run concurrent to each other.

{¶ 9} The trial court ordered the sentences in CR-15-598262-A and CR-15-598310-A to run consecutive to each other for an aggregate sentence of 20 years. The cases were also run consecutive with CR-15-599943-A, for a total of 21 and one-half years. The court imposed postrelease control and also found appellant responsible for court costs.

{¶ 10} Appellant timely filed this appeal.

Law and Analysis

R.C. 2953.08(D)(1) Reviewability-CR-15-598262-A and CR-15-598310-A

{¶ 11} Before reaching the assignments of error, we must first determine the reviewability of the sentence imposed in two of the underlying cases, CR-15-598262-A and CR-15-598310-A. In these two cases, there was an agreement to an aggregate sentence of 6 to 20 years, which is below the statutory maximum of 26 years. The trial court imposed an aggregate sentence of 20 years.

{¶ 12} R.C. 2953.08(D)(1) limits our ability to review an agreed sentence. R.C. 2953.08(D)(1) states:

A sentence imposed upon a defendant is not subject to review under this section if the sentence is authorized by law, has been recommended jointly by the defendant and the prosecution in the case, and is imposed by a sentencing judge.

{¶ 13} The initial question we must answer is whether an agreement to a sentencing range, as opposed to a specific term of incarceration, is a jointly recommended sentence for purposes of R.C. 2953.08(D)(1).

Jointly Recommended Sentencing Range

{¶ 14} Examining some basic realities from our current criminal justice system helps resolve the above question.

{¶ 15} As the number of trials has reduced over the past decade, criminal practitioners on both sides have increasingly turned their focus to sentencing proceedings. The uncertainty over what sentence a particular offender might receive has created a negotiation process involving sentencing that now rivals the efforts put into securing a plea. This effort is made for good reason.

{¶ 16} In cases involving serious crimes where guilt is found or admitted, consecutive sentencing is often in play. Defendants may wish to limit their potential exposure. Conversely, the state seeks to ensure the sentence will satisfy the victim or the prosecutor's sense of justice for the community as a whole. Sentences can vary widely. A mutual agreement on sentencing can be beneficial to both sides.

{¶ 17} Nevertheless, even where an agreement on sentencing can be reached between the parties, trial judges are sometimes reluctant to be bound by a specific number on a specific sentence agreed to by the parties at the time of the plea. Judges may have concerns about what a presentence investigation report may reveal or what may later be said during a sentencing hearing that may sway the judge's decision. Judges often prefer to retain sentencing discretion, and curbing or limiting their discretion is not something easily accomplished. For this reason, judges may reject agreed sentences involving a specific term. This has given way to the rise of agreed sentencing ranges, which create the needed flexibility for the parties to negotiate a resolution but allow the judge to retain discretion to impose a fair and just sentence within acceptable and agreed to parameters.

{¶ 18} Range agreements are no different than specific term agreements; they are both negotiated agreements based on a quid pro quo arrangement where each side gives up something in exchange for being bound by the terms of the agreement. Under either scenario, the defendant can "cap" or limit his exposure. When an agreed range is involved, the state is ensured the sentence will fall within the agreed range and the defendant is ensured the sentence will not exceed it. We cannot permit a defendant to agree to a term of imprisonment, whether expressed specifically or within a range, in exchange for lesser charges or having some charges dismissed, only to turn around and challenge that very agreement on appeal. Such practice would only serve to undermine the state's incentive to enter plea agreements in the first place.

{¶ 19} Thus, whether the joint recommendation is to a range or a specific term, the sentence is not reviewable. Other districts agree. So long as the sentence imposed within a jointly recommended sentencing range is authorized by law, the sentence is not reviewable on appeal. R.C. 2953.08(D)(1). See State v. Ramsey , 5th Dist. Licking No. 16-CA-91, 2017-Ohio-4398, 2017 WL 2644852, ¶ 15-17 ; State v. Essinger , 2d Dist. Montgomery No. 26593, 2016-Ohio-4977, 2016 WL 3862715, ¶ 10 ; State v. Connors , 2d Dist. Montgomery No. 26721, 2016-Ohio-3195, 2016 WL 3032681, ¶ 4 ; State v. James , 8th Dist. Cuyahoga Nos. 104006 and 104169, 2016-Ohio-7889, 2016 WL 6906306, ¶ 9 ;

State v. Scurles , 6th Dist. Lucas Nos. L-07-1108 and L-07-1109, 2008-Ohio-2480, 2008 WL 2152567, ¶ 7-9 (all finding sentence imposed within a jointly recommended sentencing range that was authorized by law was not subject to review on appeal).

{¶ 20} Accordingly, we find that an agreement to a sentencing range is a jointly recommended sentence and is not reviewable under R.C. 2953.08(D)(1) if the sentence is authorized by law.

Authorized by Law

{¶ 21} Pursuant to R.C. 2953.08(D)(1), if a jointly recommended sentence imposed by a sentencing judge is "authorized by law," then it is not subject to review on appeal. State v. Sergent , 148 Ohio St.3d 94, 2016-Ohio-2696, 69 N.E.3d 627, ¶ 15. The Supreme Court of Ohio has held that "[a] sentence is 'authorized by law' and is not appealable within the meaning of R.C. 2953.08(D)(1) only if it comports with all mandatory sentencing provisions." (Emphasis added.) State v. Underwood , 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, paragraph two of the syllabus.

{¶ 22} In Underwood , the court found that an agreed sentence is not "authorized by law" simply if it falls within the statutory range for the offense and that when a sentence fails to include a mandatory provision, it may be appealed. Id. at ¶ 19-21. The reason the sentence within the acceptable range in Underwood was deemed not "authorized by law" was because the state previously conceded the counts at issue were allied offenses of similar import, yet the trial court failed to merge the sentences and sentenced on those counts individually. See id. at ¶ 30. The court recognized that the decision to impose consecutive sentences is a discretionary decision that does not involve a mandatory sentencing provision. See id. at ¶ 27. As the court indicated in Underwood , "Our holding does not prevent R.C. 2953.08(D)(1) from barring appeals that would otherwise challenge the court's discretion in imposing a sentence, such as * * * whether consecutive * * * sentences were appropriate under certain circumstances." Id. at ¶ 22. In Sergent , the Supreme Court of Ohio determined that a jointly recommended sentence that includes nonmandatory consecutive sentences is "authorized by law" and not appealable even if consecutive-sentencing findings have not been made. Sergent at ¶ 29-30, citing Underwood and State v. Porterfield , 106 Ohio St.3d 5, 2005-Ohio-3095, 829 N.E.2d 690.

{¶ 23} It follows that a sentence that is within the authorized statutory ranges for the offenses and comports with all mandatory sentencing provisions is authorized by law. That appellant agreed to a sentencing range or sentencing cap, as opposed to a specific sentence, is immaterial. A sentence that is authorized by law and imposed within a jointly recommended sentencing range is not subject to appellate review. See Ramsey , 5th Dist. Licking No. 16-CA-91, 2017-Ohio-4398, at ¶ 15-17 ; Essinger , 2d Dist. Montgomery No. 26593, 2016-Ohio-4977, at ¶ 10 ; Connors , 2d Dist. Montgomery No. 26721, 2016-Ohio-3195, at ¶ 4 ; James , 8th Dist. Cuyahoga Nos. 104006 and 104169, 2016-Ohio-7889, at ¶ 9 ; Scurles , 6th Dist. Lucas Nos. L-07-1108 and L-07-1109, 2008-Ohio-2480, at ¶ 7-9.

{¶ 24} Accordingly, when a trial judge imposes nonmandatory consecutive sentences within a jointly recommended sentencing range, the sentence is "authorized by law" and is not subject to review on appeal pursuant to R.C. 2953.08(D)(1), regardless of any express agreement to consecutive sentences. Several other districts that have reviewed this issue have agreed. Ramsey at ¶ 15 (Fifth District finding that the defendant implicitly agreed to nonmandatory consecutive sentences within a jointly recommended sentencing range and that the sentence was authorized by law and not appealable); Essinger at ¶ 8 -10 (Second District recognizing that consecutive-sentence findings are unnecessary when the court imposes a sentence within a jointly recommended sentencing range and that such a sentence is not subject to appellate review); Connors at ¶ 4 (Second District recognizing "a sentence within an agreed-upon range is a jointly-recommended sentence"); Scurles at ¶ 8 (Sixth District finding sentence within agreed statutory range was authorized by law despite no specific agreement to consecutive sentences); see also State v. Griffin , 4th Dist. Athens No. 16CA4, 2017-Ohio-6877, 2017 WL 3049992, ¶ 38-39 (finding the community-control notice requirement in R.C. 2929.19(B)(4) is like the consecutive-sentencing findings and not a "mandatory sentencing provision" for purposes of determining whether a jointly recommended sentence is "authorized by law").

{¶ 25} The rationale expressed by the Supreme Court of Ohio applies equally in this matter: "The General Assembly intended a jointly agreed-upon sentence to be protected from review precisely because the parties agreed that the sentence is appropriate. Once a defendant stipulates that a particular sentence is justified, the sentencing judge no longer needs to independently justify the sentence." Porterfield, 106 Ohio St.3d 5, 2005-Ohio-3095, 829 N.E.2d 690, at ¶ 25.

{¶ 26} Here, the parties agreed to an aggregate sentence of 6 to 20 years for case Nos. CR-15-598262-A and CR-15-598310-A. Appellant agreed that any sentence within that range is appropriate, and therefore, the trial court was permitted to impose nonmandatory consecutive sentences within the agreed sentencing range. As the trial court recognized, "that range would anticipate that there will be some consideration of consecutive sentences." At sentencing, the state requested that "in light of the consideration that the state gave in the range, we do ask for the maximum consecutive under the plea agreement." The trial court indicated it had considered the information presented, all the principles and purposes of felony sentencing, all appropriate recidivism and seriousness factors, and whether consecutive sentences were appropriate. The record also reflects that the trial court made the findings for consecutive sentences.

{¶ 27} The dissent disagrees with the majority view that a sentence within a jointly recommended sentencing range that is authorized by law and necessarily includes consecutive sentences is not reviewable, regardless of any express agreement as to consecutive sentences. The dissent traces the majority view to the unbinding dicta from State v. Akins-Daniels , 8th Dist. Cuyahoga No. 103817, 2016-Ohio-7048, 2016 WL 5630672. The dissent is opposed to any reference to Akins-Daniels and rejects the logic that has since been adopted in other decisions.

{¶ 28} It is agreed that Akins-Daniels has no precedential value on the question of our review of sentences under R.C. 2953.08(D)(1). Akins-Daniels was decided on other grounds, but this writer's portion of the opinion did reference the use of sentencing range agreements. Id. Despite the lack of binding authority in Akins-Daniels , there is nothing that precludes a panel of appellate judges from this district or any other from applying the proposition being discussed. Indeed, other districts have considered the reviewability of sentencing range agreements under R.C. 2953.08(D)(1), and their decisions were free to follow this logic. Although the roots may well be traced to Akins-Daniels , this writer's view remains the same and other districts have agreed.

{¶ 29} Upon our consideration of the cases from the Supreme Court of Ohio and the rationale adopted by other districts that have considered sentencing range agreements, we conclude that a trial court's imposition of nonmandatory consecutive sentences within an agreed sentencing range is a jointly recommended sentence that is authorized by law and not reviewable on appeal under R.C. 2953.08(D)(1).

{¶ 30} We recognize that the dissent does not agree with the majority's view and that taken by the other districts cited herein. Significantly, the dissent has not answered or responded to the preliminary question of whether a sentencing range agreement amounts to a jointly recommended sentence under R.C. 2953.08(D)(1). Under the dissent's view, even where the only way to cover the sentences within a recommended range requires the imposition of consecutive sentences, this agreement is somehow invalid unless the defendant expressly agrees to be sentenced consecutively. We respectfully disagree with the dissent's view.

{¶ 31} Where a defendant agrees to a sentencing range, he implicitly agrees to all definite sentencing possibilities within that range, including nonmandatory consecutive sentences. Ramsey , 5th Dist. Licking No. 16-CA-91, 2017-Ohio-4398, at ¶ 15, citing Webster at ¶ 5, and Underwood , 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, at ¶ 22. "If [the defendant] believed a sentence at the top end of that range was improper, [he] should not have accepted a plea deal that authorized it." Connors , 2d Dist. Montgomery No. 26721, 2016-Ohio-3195, at ¶ 4.

{¶ 32} In 2016, the Supreme Court of Ohio decided Sergent , 148 Ohio St.3d 94, 2016-Ohio-2696, 69 N.E.3d 627, which interpreted R.C. 2953.08 in the context of consecutive sentences. Defendant Sergent agreed to a definite, aggregate term of 24 years consisting of three consecutive eight-year terms for three rape counts. Id. at ¶ 2-3. The Supreme Court of Ohio held "[i]f a jointly recommended sentence includes nonmandatory consecutive sentences, and the trial judge fails to make the consecutive-sentence findings * * *, the sentence is nevertheless 'authorized by law,' and therefore is not appealable pursuant to R.C. 2953.08(D)(1)." Id. at ¶ 30.

{¶ 33} The same logic can be applied to jointly recommended sentencing ranges that are authorized by law and that contemplate nonmandatory consecutive sentences. The inherent understanding in some agreed ranges is that they are inclusive of consecutive sentences that may be imposed. If a defendant agrees to a range that allows for the imposition of more than 11 years on any counts involving an F-1 offense and any other crime, that defendant has agreed to consecutive sentences.

{¶ 34} We conclude that a sentence imposed within a jointly recommended sentencing range that is authorized by law is not subject to appellate review under R.C. 2953.08(D)(1), regardless of whether there is any specific agreement to nonmandatory consecutive sentences. Because the 20-year aggregate sentence imposed in CR-15-598262-A and CR-15-598310-A was an agreed or jointly recommended sentence that was authorized by law, it is not reviewable on appeal.

{¶ 35} In light of the above determination, we shall consider the assignments of error only as they relate to the 18-month sentence in CR-15-599943-A. In CR-15-599943-A, appellant was convicted of two counts of having weapons while under disability, both felonies of the third degree, and one count of carrying a concealed weapon, a felony of the fourth degree, each count having a forfeiture of weapon specification. The trial court sentenced appellant to a prison term of 18 months on each count, to run concurrent to each other and consecutive to the sentences imposed in the other two cases. The court also imposed court costs.

Assignments of Error-CR-15-599943-A

{¶ 36} Under his first assignment of error, appellant claims the trial court failed to make the appropriate findings to justify a consecutive sentence.

{¶ 37} A trial court must both make the statutory findings required for consecutive sentences at the sentencing hearing and incorporate those findings into its sentencing journal entry. State v. Bonnell , 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. A trial court is not required to state reasons to support its decision to impose consecutive sentences. Id. at ¶ 27. Further, in making the requisite findings, a word-for-word recitation of the statutory language is not required. Id. at ¶ 29. As long as the reviewing court can discern from the record that the trial court engaged in the correct analysis and can determine that the record contains evidence to support the findings, consecutive sentences should be upheld. Id.

{¶ 38} The record reveals that the court "considered those factors carefully" and made the required findings under R.C. 2929.14(C) for imposing consecutive sentences on the record, stating as follows:

So I've considered those factors carefully and I find that consecutive sentences are necessary to protect and punish. Protect our community to punish you. It's not disproportionate to the harm that was caused in this matter. And I do find that harm was so great or unusual, a single term would not adequately reflect the seriousness of your conduct.

The court also incorporated the consecutive-sentence findings in the sentencing entry.

{¶ 39} Although appellant's counsel acknowledges this fact, he nevertheless advocates against the imposition of consecutive sentences. Counsel merely states that "the trial court failed to comply with Ohio statutory requirements in attempting to justify a consecutive sentence" and raises the issue to preserve appellant's rights.

{¶ 40} The record reflects that appellant committed the crimes in the three cases in a short time, over a span of three to four months. As the state argued, "[t]wo people dead, and then a gun, a gun concealed on him, right near this bar where this shooting * * * happened. What was going to happen next with that gun?" Upon imposing consecutive sentences, the trial court commented upon appellant's criminal history, including his juvenile record, and recognized appellant has "been on this path, unfortunately, for some time" and had been bound over to adult court in these matters "because you're not amenable to the system anymore." The court found "the record is replete with valid reasons for consecutive sentences." Upon our review of the record, we are unable to clearly and convincingly find that the record does not support the sentencing court's findings, and appellant makes no persuasive argument on this point. See R.C. 2953.08(G)(2)(a).

{¶ 41} Accordingly, the first assignment of error is overruled.

{¶ 42} Under his second assignment of error, appellant claims the trial court improperly considered his prior juvenile history when imposing a consecutive sentence. In support of his argument, appellant cites to State v. Hand , 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448. The Hand decision pertains to the use of juvenile adjudications in the context of sentence enhancement and has no application to our analysis for consecutive sentencing. Hand did not involve the imposition of consecutive sentences under R.C. 2929.14(C)(4). It is well settled that a defendant's juvenile record may be considered as part of an offender's "criminal history" for R.C. 2929.14(C)(4) purposes in determining whether to impose consecutive sentences. State v. Carney, 1st Dist. Hamilton No. C-160660, 2017-Ohio-8585, 2017 WL 5517708, ¶ 19-20 ; State v. McCray , 8th Dist. Cuyahoga No. 102852, 2015-Ohio-4689, 2015 WL 7078639, ¶ 17-19 ; State v. Bromagen , 1st Dist. Hamilton No. C-120148, 2012-Ohio-5757, 2012 WL 6085369, ¶ 8. Appellant's second assignment of error is overruled.

{¶ 43} Appellant's third and fourth assignments of error relate to the trial court's decision to require appellant to pay court costs. Under the third assignment of error, appellant claims the court did not comply with R.C. 2947.23. Upon imposing court costs, the trial court indicated that appellant "may be required to do community work service" while incarcerated or on postrelease control.

{¶ 44} R.C. 2947.23(A)(1) requires the sentencing court in all criminal cases to "include in the sentence the costs of prosecution * * * and render a judgment against the defendant for such costs." The statute requires a trial court to assess costs against all criminal defendants, even those who are indigent. State v. Dean , 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 231. Nevertheless, pursuant to R.C. 2947.23(C), the court retains jurisdiction to waive the costs of prosecution, and may do so at the time of sentencing or any time thereafter. State v. Beasley , 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 265. Waiver of costs is permitted, though not required, if the defendant is indigent. State v. White , 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 14.

{¶ 45} If the judge imposes a community-control sanction or other nonresidential sanction, then the court is to provide certain notifications under R.C. 2947.23(A)(1)(a). Pursuant to R.C. 2947.23(A)(1)(b), the failure to provide the notifications "does not negate or limit the authority of the court to order the defendant to perform community service if the defendant fails to pay the judgment." Furthermore, the current version of the statute does not require the notifications when a trial court imposes a prison term. State v. Davis , 8th Dist. Cuyahoga No. 104574, 2017-Ohio-8222, 2017 WL 4711399, ¶ 53. Such is the case herein.

{¶ 46} Accordingly, the trial court did not err when it ordered appellant to pay court costs in this matter. Appellant's third assignment of error is overruled.

{¶ 47} Under his fourth assignment of error, appellant claims the imposition of court costs infringes upon his constitutional rights. He argues that the trial court should have considered his ability to pay before imposing any court costs. Appellant's reliance upon R.C. 2929.19 and 2947.14 is misplaced. These provisions have no application to the imposition of court costs, which are not financial sanctions. See State v. Dawson , 2017-Ohio-965, 86 N.E.3d 672, ¶ 42 (8th Dist.) ; State v. Brock , 8th Dist. Cuyahoga No. 104334, 2017-Ohio-97, 2017 WL 121752, ¶ 20. Appellant's fourth assignment of error is overruled.

{¶ 48} Judgment affirmed.

MELODY J. STEWART, J., CONCURS;

KATHLEEN ANN KEOUGH, P.J., CONCURS IN PART, CONCURS IN JUDGMENT ONLY IN PART, AND DISSENTS IN PART WITH SEPARATE OPINION

{¶ 49} I respectfully dissent from that part of the majority opinion that finds that a sentence imposed within a jointly recommended sentencing range that is authorized by law is not subject to appellate review under R.C. 2953.08(D)(1), even if the defendant did not expressly agree to the imposition of nonmandatory consecutive sentences. I would hold that the trial court's imposition of nonmandatory consecutive sentences is reviewable on appeal where, as part of a plea agreement, the defendant agreed to a sentencing range or cap, but did not specifically agree to the imposition of consecutive sentences.

{¶ 50} A sentence imposed upon a defendant is not subject to appellate review if the sentence is authorized by law, has been recommended jointly by the defendant and the prosecution, and is imposed by a sentencing judge. R.C. 2953.08(D)(1). The majority asserts that an agreement to a sentencing range is an agreed sentence, and that a sentence imposed within a jointly recommended sentencing range is not reviewable under R.C. 2953.08(D)(1) if the sentence is authorized by law. It then concludes that when a trial judge imposes nonmandatory consecutive sentences within an agreed sentencing range, the sentence is authorized by law and not subject to review on appeal pursuant to R.C. 2953.08(D)(1), even where there is no express agreement to consecutive sentences. I cannot agree.

{¶ 51} The gist of the majority's argument is that a specific stipulation to consecutive sentences is not necessary to render a sentence authorized by law because "[w]here a defendant agrees to a sentencing range, he implicitly agrees to all definite sentencing possibilities within that range, including nonmandatory consecutive sentences." The majority cites State v. Ramsey , 5th Dist. Licking No. 16-CA-91, 2017-Ohio-4398, 2017 WL 2644852, ¶ 15, as support for this proposition. It is apparent, however, that this proposition of law comes directly from State v. Akins-Daniels , 8th Dist. Cuyahoga No. 103817, 2016-Ohio-7048, 2016 WL 5630672, a case with no precedential value. Indeed, Ramsey quotes State v. Webster , 8th Dist. Cuyahoga No. 104484, 2017-Ohio-932, 2017 WL 1026282, ¶ 5, for this proposition, which in turn cites Akins-Daniels .

{¶ 52} But this court did not recognize or adopt the above-stated principle in Akins-Daniels . First, the statement was made without citation to any case law or legal authority. Further, Akins-Daniels has no precedential value. Two judges concurred in judgment only in Akins-Daniels . More specifically, those judges concurred with the lead opinion's analysis as set forth in Section I of the opinion, but specifically "disagree[d]" with the analysis set forth in Section II of the opinion, wherein the lead opinion held that all appellate review of Akins-Daniels's sentence was precluded under R.C. 2953.08(D) because the imposed sentence was the product of a negotiated plea deal in which Akins-Daniels had agreed to a sentencing range. Id. at ¶ 18. In their separate opinion, the two judges noted that Akins-Daniels had agreed only to a sentencing floor, not to a sentencing range, and accordingly, had not agreed to any and all sentences in the range specified in the lead opinion. Id. at ¶ 19. Nevertheless, the two judges found that the lead opinion correctly determined, as set forth in Section I of the opinion , that Akins-Daniels's appeal lacked merit because he had not clearly and convincingly demonstrated that his sentence was contrary to law. Id. at ¶ 9, 21. Accordingly, the two judges concurred in judgment only with the decision.

{¶ 53} The proposition stated in Akins-Daniels -that "[i]f the state and defendant jointly recommend a sentencing range, the defendant implicitly agrees to all definite sentencing possibilities within that range"-comes directly from Section II of the Akins-Daniels opinion, with which two judges specifically disagreed. Id. at ¶ 12. Thus, that section of the opinion necessarily has no precedential value and cannot be cited as authority for that proposition.

{¶ 54} Although the majority says it "agree[s] that Akins-Daniels has no precedential value on the question of our review of sentences under R.C. 2953.08(D)(1)," it is apparent that its central premise comes directly from Akins-Daniels . The majority tries to hide its reliance on Akins-Daniels by citing Ramsey , which relies on Webster , which relies on Akins-Daniels .

{¶ 55} The majority attempts another end run around Akins-Daniels by citing paragraph nine of State v. James , 8th Dist. Cuyahoga Nos. 104006 and 104169, 2016-Ohio-7889, 2016 WL 6906306, as support for its conclusion that "a sentence that is authorized by law and imposed within a jointly recommended sentencing range is not subject to appellate review." Paragraph nine of James cites paragraph 14 of Akins-Daniels as authority for this proposition, and paragraph 14 comes from Section II of the Akins-Daniels opinion, with which no judges concurred and which consequently has no precedential value. It is apparent that the majority view can be traced directly to the nonbinding dicta in Akins-Daniels . But to "apply the proposition being discussed" in Akins-Daniels to this case, as the majority admits it is doing, that proposition should be based on precedent-not merely "unbinding dicta."

{¶ 56} In addition to relying on a case with no precedential value to resolve the reviewability question, the majority misstates the holding in State v. Sergent , 148 Ohio St.3d 94, 2016-Ohio-2696, 69 N.E.2d 627. The majority opines that "[i]n Sergent , the Ohio Supreme Court determined that a jointly recommended sentence that includes nonmandatory consecutive sentences is 'authorized by law' and not appealable even if consecutive-sentencing findings have not been made." The actual holding, however, was that when nonmandatory consecutive sentences are jointly recommended by the parties, the consecutive-sentence findings required by R.C. 2929.14(C)(4) are not required; and thus, when a trial judge imposes nonmandatory consecutive sentences without making the required findings, the sentence is nevertheless authorized by law and unreviewable on appeal. Id. at ¶ 43-44. Indeed, the question addressed by the Supreme Court in Sergent was "when jointly recommended consecutive sentences are imposed and the trial judge fails to make the findings required in R.C. 2929.14(C), is the sentence 'authorized by law'?" Id. at ¶ 15. (Emphasis added.)

{¶ 57} In analyzing the question, the Supreme Court first noted its holding in State v. Porterfield , 106 Ohio St.3d 5, 2005-Ohio-3095, 829 N.E.2d 690, which the Court stated "stands for the proposition that a joint recommendation to impose consecutive sentences eliminates the need for a trial judge to make the consecutive-sentencing findings set out in R.C. 2929.14(C)(4), and that such a sentence, once imposed, is not subject to review under R.C. 2953.08(D) (now (D)(1)." (Emphasis added.) Id. at ¶ 22. The Supreme Court acknowledged that such a sentence is "authorized by law" pursuant to State v. Underwood , 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, even though it involves a discretionary decision to impose consecutive sentences, rather than a mandatory sentencing provision. Therefore, noting that " Porterfield controls," the Supreme Court held that "[i]f a jointly recommended sentence includes nonmandatory consecutive sentences and the trial judge fails to make the consecutive-sentence findings set out in R.C. 2929.14(C)(4), the sentence is nevertheless 'authorized by law,' and therefore is not appealable pursuant to R.C. 2953.08(D)(1)." Id. at ¶ 30.

{¶ 58} Despite Sergent's instruction that "a joint recommendation to impose consecutive sentences eliminates the need for a trial judge to make the consecutive-sentence findings set out in R.C. 2929.14(C)(4) and that such a sentence, once imposed, is not subject to review under R.C. 2953.08(D)," id. at ¶ 22, several districts have concluded that where a defendant has agreed to a sentencing range, even where he or she did not expressly agree to the imposition of consecutive sentences, no findings are required because such a sentence is authorized by law. The majority cites these cases with approval to support its resolution of the reviewability question. Notably, however, one of these cases- Ramsey -cites Webster and Akins-Daniels for the proposition that "if the state and defendant jointly recommend a sentencing range, the defendant implicitly agrees to all definite sentencing possibilities within that range"-a proposition that, as discussed above, is unsupported by legal authority and comes from a case with no precedential value.

{¶ 59} Furthermore, these cases are inconsistent with Sergent , which held that consecutive-sentence findings were not required only where the defendant and the state specifically agreed to them, thus making their imposition authorized by law and unreviewable. Id. at ¶ 30. It is significant that in paragraph 31 of the Sergent opinion, the Supreme Court cited nine Ohio cases that had "reached the same result" as in Sergent . In all nine cases, the defendant's sentence was held unreviewable because the defendant and the state had jointly agreed to the imposition of consecutive sentences or to the sentence that was imposed. None of the cases involved an agreement only to a sentencing range.

{¶ 60} The majority opines that the rationale expressed by the Supreme Court of Ohio in Porterfield resolves the reviewability question: "The General Assembly intended a jointly agreed-upon sentence to be protected from review precisely because the parties agreed that the sentence is appropriate. Once a defendant stipulates that a particular sentence is justified, the sentencing judge no longer needs to independently justify the sentence." Porterfield , 106 Ohio St.3d 5, 2005-Ohio-3095, 829 N.E.2d 690, at ¶ 25.

{¶ 61} But that is precisely the point. Where a defendant does not agree to the imposition of nonmandatory consecutive sentences, even where the defendant has agreed to a sentencing range, the sentence is not an agreed-upon sentence. The rationale expressed in Porterfield was apt because, as the court noted, the defendant "agreed to the precise sentence imposed," which included consecutive sentences. Porterfield at ¶ 25. He also stipulated to the consecutive-sentence findings. Id. at ¶ 2. Thus, the sentence imposed was indeed a "jointly recommended sentence that was authorized by law" and not subject to review. Id. at ¶ 26. The Porterfield rationale does not apply, however, where there is no agreement to nonmandatory consecutive sentences.

{¶ 62} The disturbing but logical extension of the majority's view is that any sentence imposed when a defendant pleads guilty to a felony is unreviewable, because any time a defendant pleads guilty to a felony, he agrees to be sentenced to the range appropriate for that felony. The majority's view, apparently, is that such sentences are never reviewable because they involve a range.

{¶ 63} Accordingly, I dissent from the majority's conclusion that a sentence imposed within a jointly recommended sentencing range that is authorized by law is not subject to appellate review, even where the defendant did not expressly agree to the imposition of nonmandatory consecutive sentences. Thus, because Grant did not agree to consecutive sentences, I would find that the first and second assignments of error, which challenge the imposition of consecutive sentences in CR-15-598310-A and CR-15-598262 are reviewable. Nevertheless, the first and second assignments of error lack merit because the trial court made the required findings to impose consecutive sentences and properly considered Grant's juvenile history when imposing sentence. Therefore, I concur in judgment only with the majority on its disposition of these assignments of error. I concur with the majority's resolution of the third and fourth assignments of error.

      In Akins-Daniels , it was stated by this writer in a separate opinion that "[i]f the state and defendant jointly recommend a sentencing range, the defendant implicitly agrees to all definite sentencing possibilities within that range." Id. at ¶ 12 ; see also State v. Webster , 8th Dist. Cuyahoga No. 104484, 2017-Ohio-932, 2017 WL 1026282, ¶ 7, citing Akins-Daniels at ¶ 12. Although two of the judges in Akins-Daniels disagreed over the nature of the range agreement and dissented from that portion of the opinion, all three judges affirmed the 14-year sentence on other grounds. Thereafter, in Webster , a panel of this court applied the proposition expressed in Akins-Daniels to preclude review of a sentence imposed within an agreed range of between 10 and 20 years. The language of the range agreement in Webster was far clearer than the language in Akins-Daniels .

      In Hand , the Ohio Supreme Court held that a juvenile adjudication cannot be treated as the equivalent of an adult conviction for purposes of enhancing a penalty for a later crime. Id. at ¶ 1.