State v. Maple , 2019 Ohio 2091 ( 2019 )

[Cite as State v. Maple, 2019-Ohio-2091.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2018-A-0091
- vs - :
DENNIS S. MAPLE, :
Defendant-Appellant. :
Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2016 CR
00672.
Judgment: Affirmed and remanded.
Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047 (For Plaintiff-Appellee).
Eric D. Hall, P. O. Box 232, Medina, OH 44258 (For Defendant-Appellant).
MARY JANE TRAPP, J.
{¶1} Appellant, Dennis S. Maple, appeals from the judgment of the Ashtabula
County Court of Common Pleas imposing consecutive sentences of 36 months each on
five counts of unlawful sexual conduct with a minor following his written plea of guilty
pursuant to North Carolina v. Alford, 400 U.S. 25 (1970).
{¶2} We find the trial court properly made the required statutory findings for
consecutive sentences at the sentencing hearing but failed to include one of them in its
subsequent sentencing entry.
{¶3} For the reasons that follow, we affirm but remand for the issuance of a nunc
pro tunc entry.
Substantive History and Procedural Background
{¶4} On November 30, 2016, the Ashtabula County Grand Jury indicted
appellant, Dennis S. Maple (“Mr. Maple”), on five counts of rape in violation of R.C.
2907.02(A)(2), felonies of the first degree (Counts 1 through 5); one count of pandering
sexually oriented matter involving a minor in violation of R.C. 2907.322(A)(1), a felony of
the second degree (Count 6); five counts of sexual battery in violation of R.C.
2907.03(A)(5), felonies of the third degree (Counts 7 through 11); one count of gross
sexual imposition in violation R.C. 2907.05(A)(1) and (C)(1), a felony of the fourth degree,
(Count 12); and five counts of unlawful sexual conduct with a minor in violation of R.C.
2907.04(A) and (B)(3), felonies of the third degree (Counts 13 through 17).
{¶5} Mr. Maple initially pleaded not guilty to the charges. On the eve of the jury
trial, Mr. Maple entered a written plea of guilty pursuant to Alford, supra, to five counts of
unlawful sexual conduct with a minor (Counts 13 through 17). Under this type of plea,
known as an Alford plea, a defendant pleads guilty but maintains actual innocence of the
charges. State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, ¶13. The remaining
counts of the indictment were dismissed pursuant to a plea agreement.
{¶6} The trial court subsequently sentenced Mr. Maple to 36 months in prison on
each of the five counts, to be served consecutively, for a total prison term of 15 years.
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{¶7} Mr. Maple now appeals, asserting the following assignment of error:
{¶8} “The trial court erred when it sentenced Appellant to consecutive sentences
when Appellant’s prior criminal history did not demonstrate that consecutive sentences
were necessary to protect the public from future crime and constituted and [sic] abuse of
discretion.”
Standard of Review
{¶9} On appeals involving the imposition of consecutive sentences, R.C.
2953.08(G)(2)(a) directs the appellate court to review the record, including the findings
underlying the sentence, and to modify or vacate the sentence if it clearly and convincingly
finds that the record does not support the sentencing court's findings under R.C.
2929.14(C)(4). State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶28; R.C.
2953.08(G)(2)(a).
Law and Analysis
{¶10} In his sole assignment of error, Mr. Maple claims the trial court erred by
sentencing him to consecutive sentences. According to Mr. Maple, he lacked any
significant criminal history that would make consecutive sentences necessary to protect
the public from future crime pursuant to R.C. 2929.14(C)(4)(c).
{¶11} R.C. 2929.14(C)(4) permits the trial court to order an offender to
consecutively serve separate prison terms for multiple offenses if the trial court finds (1)
“consecutive service is necessary to protect the public from future crime or to punish the
offender,” (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 (3) any of the
following factors is present:
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{¶12} “(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.
{¶13} “(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.
{¶14} “(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime by the
offender.”
{¶15} The trial court is required to make the findings mandated by R.C.
2929.14(C)(4) at the sentencing hearing and to incorporate its findings into its sentencing
entry. Bonnell at ¶37. However, “a word-for-word recitation of the language of the statute
is not required.” Id. at ¶29. “[A]s 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.” Id.
{¶16} The trial court made the following findings regarding consecutive sentences
at Mr. Maple’s sentencing hearing:
{¶17} “But I do agree with the assertion that the State has made that these multiple
offenses which have been charged and to which the plea has been entered were part of
a continuous course of conduct that extended over roughly a year, according to the dates
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that the Court was given. And that the harm caused by these multiple offenses is so great
that a single term of imprisonment for these offenses would not adequately reflect the
seriousness of the Defendant’s conduct. * * * But I find that consecutive sentences will be
necessary to protect the public from future crime and to adequately punish this offender.
That consecutive sentences are not disproportionate to the seriousness of the offender’s
conduct and the danger that the Defendant poses to the public. So I think again in order
to protect the public from future crime given the nature of these serious offenses, each of
the counts will be ordered to run consecutively to one another * * *.”
{¶18} The trial court’s sentencing entry states, in relevant part:
{¶19} “The Court further finds that consecutive sentences are necessary to protect
the public from future crime and 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. The court also finds that the nature of the offender’s
criminal conduct demonstrates that consecutive sentences are necessary to protect the
public from future crime by the offender.”
{¶20} Mr. Maple does not appear to dispute that the trial court properly made the
two findings required under (C)(4), which address protecting the public/punishing the
defendant and proportionality. Rather, Mr. Maple argues that given his sparse criminal
history, consecutive sentences were not necessary to protect the public from future crime
under subsection (c).
{¶21} Mr. Maple misconstrues the trial court’s findings and the statute. The trial
court’s third finding must contain only one of the alternative factors set forth in subsections
(a), (b), and (c). While subsection (c) addresses an offender’s criminal history, the trial
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court did not find that Mr. Maple’s criminal history supported the imposition of consecutive
sentences. Instead, the trial court issued its third finding pursuant to subsection (b), which
provides: “[a]t 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.”
{¶22} The record reflects the trial court made all three required statutory findings
at the sentencing hearing. However, the trial court’s subsequent sentencing entry does
not contain its finding under subsection (b) that Mr. Maple’s multiple offenses were
committed as part of a course of conduct and that the harm caused by the multiple
offenses was so great that a single term of imprisonment for the offenses would not
adequately reflect the seriousness of Mr. Maple’s conduct. Rather, the trial court
essentially duplicated a portion of the first finding required under (C)(4).
{¶23} According to the Supreme Court of Ohio, “[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.” Bonnell at ¶30. See also State v. Olp, 11th
Dist. Ashtabula Nos. 2015-A-0033 & 2015-A-0034, 2016-Ohio-3508, ¶19.
{¶24} Accordingly, we determine the trial court’s imposition of consecutive
sentences was not contrary to law, but we remand this matter to the trial court for the
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limited purpose of issuing a nunc pro tunc entry incorporating the findings from the
sentencing hearing.
{¶25} Mr. Maple’s sole assignment of error is without merit.
{¶26} Based on the foregoing, the judgment of the Ashtabula County Court of
Common Pleas is affirmed, but we remand for the issuance of a nunc pro tunc entry.
CYNTHIA WESTCOTT RICE, J.,
TIMOTHY P. CANNON, J.,
concur.
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