COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72689 STATE OF OHIO : ACCELERATED DOCKET : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION SHELTON LUNDY : : PER CURIAM Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: JUNE 4, 1998 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-347152 JUDGMENT: AFFIRMED DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: PATRICK LAVELLE (0061107) Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: ROBERT A. DIXON (0022466) 1280 West Third St., #100 Cleveland, Ohio 44113 PER CURIAM: Defendant-appellant Shelton Lundy ( appellant ) appeals from the order of the trial court that he serve his sentence in case -2- number CR-347152 consecutive to his previously-imposed term of incarceration in two earlier cases. Appellant assigns the following error for review: I. THE LOWER COURT ERRED IN IMPOSING A TERM OF INCARCERATION CONSECUTIVE TO APPELLANT'S PREVIOUSLY IMPOSED SENTENCES. Finding the appeal to lack merit, the judgment of the trial court is affirmed. I. On February 5, 1997, appellant was indicted for trafficking in cocaine (one gram or less) with a schoolyard specification, possession of drugs (crack cocaine, one gram or less), trafficking in cocaine (more than one gram but less than five grams) with a schoolyard specification, possession of drugs (crack cocaine, more than one gram but less than five grams), and possessing criminal tools. On April 15, 1997, appellant appeared before the trial court and entered a plea of guilty to the first count of the indictment for drug trafficking (less than one gram) with a schoolyard specification. The remaining four counts were nolled. On May 14, 1997, appellant appeared before the trial court for sentencing. During the hearing the trial court stated: What concerns me about this case is the fact you have a lengthy arrest record dating back a number of years to 1992. In the short period of time between `92 and `97 you have had a flurry of criminal activity in Common Pleas Court and also have prior convictions in addition to prior arrest and prior convictions include sentences in terms of incarceration. Therefore, it is this Court's opinion you are not a suitable candidate for community control and the Court is sentencing you to a period of 12 months incarceration at Lorain Correctional Institute on this matter. -3- (Tr. 23-24). The trial court asked appellant's attorney if he had any objections to place on the record. Defense counsel renewed an objection to the bad time provisions of the new sentencing guidelines as being unconstitutional. The trial court then ordered appellant's sentence to be served consecutively to his current term for case numbers CR-343065 and CR-345860. No objection was made to the consecutive sentence. II. In his assignment of error, appellant contends the trial court erred by ordering his sentence to be served consecutive to appellant's previously imposed sentences. Appellant relies on R.C. 2929.14(E)(3) to support his argument. R.C. 2929.14(E)(3) provides: (3) If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public, and if the court also finds any of the following: (a) The offender committed the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense. (b) The harm caused by the multiple offenses was so great or unusual that no single course of conduct adequately reflects the seriousness of the offender's conduct. (c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender. -4- Appellant asserts that R.C. 2929.14(E)(3) mandates that the trial court find one of the enumerated factors before imposing a consecutive sentence. Appellant points out that the trial court made no reference to R.C. 2929.14(E)(3) during his sentencing or made any findings on the record showing consideration of the factors set forth in the statute. Appellant made no objection to the sentence imposed by the trial court. Therefore, this court must apply the plain error analysis set forth in Crim.R. 52(B) which states that plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court. The purpose behind the plain error rule is to ensure that a defendant received a fair trial even though he failed to object to the error at trial. State v. Wolery (1976), 46 Ohio St.2d 316. In order to raise plain error, it must appear on the face of the record not only that the error was committed but that, except for the error, the result of the trial clearly would have been otherwise and that not to consider the error would result in a clear miscarriage of justice. State v. Williford (1990), 49 Ohio St.3d 247, 253. An appellate court is to take notice of plain error only under exceptional circumstances and only to prevent a manifest miscarriage of justice. State v. Long (1978), 53 Ohio St.2d 91, syllabus. A review of the record clearly reflects that the trial court was concerned about appellant's history of criminal conduct and the pattern of his behavior over a period of years. The trial court noted that appellant had many prior arrests and convictions, some -5- of which included periods of incarceration. The trial court's statements mirror R.C. 2929.14(E)(3)(c). Based on these statements, it is highly unlikely that appellant's sentence would have been otherwise had he objected or if the trial court had specifically mentioned R.C. 2929.14(E)(3) on the record or in its journal entry. Appellant's assignment of error lacks merit. Judgment affirmed. It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DIANE KARPINSKI, PRESIDING JUDGE CONCURS IN JUDGMENT ONLY (SEE CONCURRING OPINION) LEO M. SPELLACY, JUDGE MICHAEL J. CORRIGAN, JUDGE (TWO JUDGES CONCUR; ONE JUDGE CONCURS IN JUDGMENT ONLY) N.B. This is an announcement of the court's decision. See App.R. 22(B),22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(B) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(B). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72689 STATE OF OHIO : : : Plaintiff-Appellee : : CONCURRING v. : : OPINION SHELTON LUNDY : : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: KARPINSKI, J., CONCURRING IN JUDGMENT ONLY: I concur in judgment only, for the following reasons. I agree that because the defendant failed to object, the question before this court is whether plain error occurred, and the standard for this question is whether the result would have clearly I disagree, however, with the majority's analysis of what findings are required under (E)(3).1 In addressing only (E)(3)(c), the majority opinion treats multiple requirements as if the trial judge may choose between them. Consecutive prison terms may be imposed, however, only if the court makes a finding that (1) consecutive sentences are necessary to protect the public from future crime or to punish the offender and (2) consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public, and if the court also finds one of three factors, the latter of which is a history of criminal conduct demonstrating that consecutive sentences are necessary to protect the public from future crime by the offender. The conjunctive nature of these three criteria is important. The majority discusses only the last criterion, which admittedly duplicates the first criterion listed above. The majority's analysis, however, overlooks the second criterion--that the sentence be proportionate to the seriousness of the offender's conduct and to the danger the offender poses. Because defendant pled guilty to trafficking crack cocaine on or within 1000 feet of a school and because he has a lengthy criminal record, I believe that criterion was satisfied. Thus I concur in the decision to affirm the sentence, but note an omission in the analysis. .