COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66992 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : MARTIN MARTINEZ : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MARCH 2, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-298067. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Blaise D. Thomas, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Anthony J. Vegh, Esq. 720 Leader Building Cleveland, OH 44114 -2- DAVID T. MATIA, J.: Martin Martinez, defendant-appellant, appeals from the sentence imposed by the Cuyahoga County Court of Common Pleas. Defendant- appellant assigns one error for this court's review. Defendant-appellant's appeal is not well taken. I. STATEMENT OF THE CASE AND FACTS On July 7, 1993 Martin Martinez, defendant-appellant, was indicted by the Cuyahoga County Grand Jury for two counts of aggravated drug trafficking in violation of R.C. 2925.03 and for one count of possession of criminal tools in violation of R.C. 2923.24. Defendant-appellant was arraigned on September 30, 1993 whereupon a not guilty plea was entered as to all three counts contained in the indictment. On January 11, 1994, defendant-appellant withdrew his formerly entered plea of not guilty and entered a plea of guilty to aggravated drug trafficking in violation of R.C. 2925.03 as amended in counts one and two of the indictment and guilty to possession of criminal tools in violation of R.C. 2923.24 as charged in count three. On February 14, 1994, defendant-appellant was sentenced to the Lorain Correctional Institution for a term of three years actual incarceration to run consecutively to a four to fifteen year indefinite term of incarceration on count one. Defendant-appellant was sentenced to a two year term of incarceration on count two and an eighteen month term of incarceration on count three. The -3- sentences imposed in counts two and three were to run concurrently with the sentence imposed in count one. On March 9, 1994 defendant-appellant filed a timely notice of appeal of the judgment of the trial court. II. ASSIGNMENT OF ERROR Defendant-appellant's first and only assignment of error states: THE TRIAL COURT ERRED BY SENTENCING APPELLANT TO A THREE YEAR ACTUAL TERM CALLED FOR BY R.C. 2925.03 SEPARATE FROM AND CONSECUTIVE TO AN INDEFINITE SECOND DEGREE FELONY SENTENCE. A. THE ISSUE RAISED: WHETHER APPELLANT'S SENTENCE WAS IMPOSED CONTRARY TO LAW Defendant-appellant argues that the trial court incorrectly sentenced him to a three year actual term of incarceration to be served consecutively to a four to fifteen year indefinite term of incarceration. Defendant-appellant claims that his sentence is invalid because an actual term of incarceration cannot be made to run consecutive to an indefinite term of incarceration. It is defendant-appellant's position that the trial court should have ordered that the three year actual term of incarceration be served concurrently with the four to fifteen year indefinite term. Defendant-appellant also requests that this court revisit its decision in State v. Odubanjo (1992), 80 Ohio App.3d 329, wherein this court held that an indefinite term of imprisonment prescribed by general felony sentencing statute would be served -4- in addition to a period of actual incarceration for trafficking in drugs. R.C. 2925.03, 2929.11 and 2929.11(B)(4). Defendant-appellant's first and only assignment of error is not well taken. B. STANDARD OF REVIEW In State v. Arnold (1991), 61 Ohio St.3d 175, the Ohio Supreme Court, in dealing with a similar factual scenario, stated: Where a defendant has been convicted of trafficking in drugs in violation of R.C. 2925.03(A), the indefinite term of imprisonment prescribed by R.C. 2929.11(B) is imposed in addition to a period of actual incarceration prescribed by R.C. 2925.03(C). Id., at syllabus. In State v. Odubanjo, supra, this court followed the holding in Arnold, supra, requiring that trial courts sentence defendants under both R.C. sentencing guidelines as set forth in R.C. 2925.03 and R.C. 2929.11. In State v. Nunn (Aug. 25, 1994), Cuyahoga App. No. 66221, unreported, this court rejected the argument that Arnold and Odubanjo require the trial court to impose an actual term of incarceration mandated by R.C. 2925.03 consecutively to an indefinite term of incarceration. This court stated: *** we again emphasize that the holdings of Arnold and Odubanjo do not require trial courts to impose either concurrent or consecutive sentences. They do however require trial courts to utilize both Revised Code guidelines when sentencing defendants convicted of certain R.C. 2925.03 crimes. -5- In State v. Brown (Dec. 1, 1994), Cuyahoga App. No. 67017, unreported, this court reasserted the holding that the trial court has discretion in sentencing defendants convicted of certain crimes pursuant to R.C. 2925.03. In Brown, supra, this court found: It should be emphasized that the trial court, in its discretion, may impose consecutive sentences when sentencing a defendant to a term of actual incarceration pursuant to R.C. 2925.03(C)(6) and to an indefinite term of incarceration pursuant to R.C. 2929.11(B). Our holding today merely points out that such sentences are not required to be served consecutively. C. APPELLANT'S SENTENCE WAS PROPER In this case, defendant-appellant pleaded guilty to aggravated drug trafficking in heroin, a violation of R.C. 2925.03, a felony of the second degree. R.C. 2929.11 provides that a second degree felony carries with it a possible term of incarceration of two, three, four, or five to fifteen years. R.C. 2925.03(C)(3) states: Where the offender has violated division (A)(3) of this section, aggravated trafficking is a felony of the second degree, and the court shall impose a sentence of actual incarceration of three years ***. Pursuant to the Ohio Supreme Court's holding in Arnold and this court's holdings in Nunn and Brown, the trial court clearly has discretion to impose consecutive sentences when sentencing a defendant to a term of actual incarceration under R.C. 2925.03 and to an indefinite term of incarceration pursuant to R.C. 2929.11. Contrary to defendant-appellant's assertion, the trial -6- court is not required to impose the three year actual term of incarceration concurrently with the indefinite term of incarceration, although the trial court does have the option of ordering concurrent sentences if, in its judgment, concurrent sentences would be appropriate. Accordingly, the trial court did not err in sentencing defendant-appellant to a three year term of actual incarceration to be served consecutively with the indefinite term. Defendant-appellant's sole assignment of error is not well taken. Judgment of the trial court is affirmed. -7- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SPELLACY, P.J. and HARPER, J., CONCUR. DAVID T. MATIA JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .