State v. Payne , 2019 Ohio 2852 ( 2019 )

[Cite as State v. Payne, 2019-Ohio-2852.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HENRY COUNTY
STATE OF OHIO,
CASE NO. 7-19-02
PLAINTIFF-APPELLEE,
v.
ADAM PAYNE, OPINION
DEFENDANT-APPELLANT.
Appeal from Henry County Common Pleas Court
Trial Court No. 18 CR 0104
Judgment Reversed and Cause Remanded
Date of Decision: July 15, 2019
APPEARANCES:
Brian A. Smith for Appellant
Gwen Howe-Gebers for Appellee
Case No. 7-19-02
WILLAMOWSKI, J.
{¶1} Defendant-appellant Adam Payne (“Payne”) appeals the judgment of
the Henry County Court of Common Pleas, alleging that the trial court failed to
make the findings require by R.C. 2929.14(C)(4). For the reasons set forth below,
the judgment of the trial court is reversed.
Facts and Procedural History
{¶2} On August 22, 2018, Payne was indicted on one count of aggravated
robbery in violation of R.C. 2911.01(A)(3); one count of escape in violation of R.C.
2921.34(A)(1); and one count of attempted vandalism in violation of R.C.
2923.02(A), 2909.05(B)(1)(b). Doc. 1. These charges were the basis of case 18-
CR-0104. Doc. 1. On November 26, 2018, Payne pled guilty to one count of
aggravated robbery in violation of 2911.01(A)(3). Doc. 19. Change of Plea Hearing
Tr. 2. Pursuant to a plea agreement, the other two counts against Payne were
dismissed. Id.
{¶3} On December 18, 2018, Payne appeared before the trial court for
sentencing. Doc. 21. Prior to this hearing, Payne had been sentenced in a Defiance
County case to a prison term of twenty-three months. Sentencing Hearing Tr. 3.
The trial court ordered that Payne’s sentence in case 18-CR-0104 be served
consecutively to the sentence he received in the Defiance County case. Id. at 10.
Doc. 21. On January 16, 2019, appellant filed his notice of appeal. Doc. 30. On
appeal, Payne raises the following assignments of error:
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Case No. 7-19-02
First Assignment of Error
Because the trial court failed to make the findings required under
R.C. 2929.14(C)(4) before imposing a consecutive sentence,
Appellant’s sentence was in violation of R.C. 2929.41(A) and,
therefore, contrary to law.
Second Assignment of Error
Because the record, as shown by clear and convincing evidence,
does not support the trial court’s findings under the relevant
statutes, pursuant to R.C. 2953.08(G)(2), the trial court’s sentence
of Appellant was not supported by the record.
First Assignment of Error
{¶4} Payne argues that the trial court did not make the findings that are
required to impose consecutive sentences under R.C. 2929.14(C)(4).
Legal Standard
R.C. 2929.41(A) reads, in its relevant part as follows:
Except as provided in * * * division (C) of section 2929.14 * * *, a
prison term, jail term, or sentence of imprisonment shall be
served concurrently with any other prison term, jail term, or
sentence of imprisonment imposed by a court of this state, another
state, or the United States.
R.C. 2929.41(A). “In order to impose consecutive sentences pursuant to R.C.
2929.14(C), the “trial court is required to make certain findings for the record and
to incorporate these findings into the judgment entry.” State v. Taflinger, 3d Dist.
Logan No. 8-17-20, 2018-Ohio-456, ¶ 10, citing R.C. 2929.14(C)(4). See State v.
Noble, 3d Dist. Logan No. 8-14-06, 2014-Ohio-5485, ¶ 6 (applying R.C.
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Case No. 7-19-02
2929.14(C)(4) in a situation where a sentence in one case was ordered to be served
consecutively to a sentence from a separate case).
{¶5} Under R.C. 2929.14(C)(4), “the trial court must find that 1) consecutive
sentences are necessary to either protect the public or punish the offender, 2) the
sentences would not be disproportionate to the offense committed, and 3) one of the
factors set forth in R.C. 2929.14(C)(4)(a, b, or c).” State v. Ackles, 3d Dist. Allen
No. 1-18-16, 2018-Ohio-3718, ¶ 6, quoting State v. Peddicord, 3d Dist. Henry No.
7-12-24, 2013-Ohio-3398, ¶ 33. The three factors listed under R.C.
2929.14(C)(4)(a-c) read as follows:
(a) The offender committed one or more of 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) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or
more of the multiple offenses so committed was so great or
unusual that no single prison term for any of the offenses
committed as part of any of the courses 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.
R.C. 2929.14(C)(4)(a-c).
When imposing consecutive sentences, a trial court must state the
required findings as part of the sentencing hearing * * *. See
Crim.R. 32(A)(4). And because a court speaks through its
journal, State v. Brooke, 113 Ohio St. 3d 199, 2007-Ohio-1533, 863
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Case No. 7-19-02
N.E.2d 1024, ¶ 47, the court should also incorporate its statutory
findings into the sentencing entry. However, a word-for-word
recitation of the language of the statute is not required, and as
long as the reviewing court can discern 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.
A trial court’s inadvertent failure to incorporate the statutory
findings in the sentencing entry after properly making those
findings at the sentencing hearing does not render the sentence
contrary to law; rather, such a clerical mistake may be corrected
by the court through a nunc pro tunc entry to reflect what actually
occurred in open court. See State v. Qualls, 131 Ohio St. 3d 499,
2012-Ohio-1111, 967 N.E.2d 718, ¶ 15 * * *. But a nunc pro tunc
entry cannot cure the failure to make the required findings at the
time of imposing sentence. See State v. Miller, 127 Ohio St. 3d 407,
2010-Ohio-5705, 940 N.E.2d 924, ¶ 16.
(Citations omitted.) State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, 16
N.E.3d 659, ¶ 29-30.
Legal Analysis
{¶6} While the trial court is not obligated to recite any talismanic language,
the record must still indicate that the trial court made all of the findings required by
R.C. 2929.14(C)(4). Bonnell at ¶ 37. In this case, the trial court did not make all of
the findings that are required to impose consecutive sentences under R.C.
2929.14(C)(4). Further, the trial court did not incorporate the R.C. 2929.14(C)(4)
findings into its judgment entry of sentencing. Doc. 21. “Accordingly, the
imposition of consecutive sentences in this case is contrary to law.” Bonnell, supra,
at ¶ 37. For this reason, we “reverse the judgment of the [trial] court, vacate the
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Case No. 7-19-02
sentence, and remand the matter to the trial court for resentencing.” Id. Payne’s
first assignment of error is sustained.
Second Assignment of Error
{¶7} In his second assignment of error, Payne argues that the sentence he
received is not supported by the record and is, therefore, contrary to law. However,
our ruling on Payne’s first assignment of error has rendered this argument moot as
we have already vacated his sentence and remanded this case for resentencing. For
this reason, we decline to address these issues pursuant to App.R. 12(A)(1)(c).
Conclusion
{¶8} Having found error prejudicial to the appellant in the particulars
assigned and argued, the judgment of the Henry County Court of Common Pleas is
reversed. This cause is remanded to the trial court for further proceedings consistent
with this opinion.
Judgment Reversed
And Cause Remanded
SHAW and PRESTON, J.J., concur.
/hls
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