State v. Spence , 2014 Ohio 4691 ( 2014 )

[Cite as State v. Spence, 2014-Ohio-4691.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 101154
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JAMES H. SPENCE, JR.
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-574274-A
BEFORE: Rocco, J., Celebrezze, P.J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: October 23, 2014
-i-
ATTORNEY FOR APPELLANT
Russell S. Bensing
1350 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: John D. Kirkland
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:
{¶1} In this appeal assigned to the accelerated calendar pursuant to App.R. 11.1
and Loc.App.R. 11.1, defendant-appellant James H. Spence, Jr. appeals from the sentence
imposed upon him after he pleaded guilty to charges of felonious assault with a firearm
specification and improper discharge of a firearm into a habitation.
{¶2} Spence presents one assignment of error, arguing that the trial court failed to
make the necessary findings before imposing consecutive prison terms for his
convictions. The record does not support his argument. However, the journal entry of
sentence is inadequate to comply with the Ohio Supreme Court’s directive in State v.
Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, 16 N.E.3d 659, and also contains a
clerical error. Consequently, while Spence’s assignment of error is overruled and his
sentence is affirmed, this case is remanded with instructions to the trial court to correct
the journal entry of sentence nunc pro tunc to incorporate the consecutive sentences
findings made at the sentencing hearing and to reflect that Spence was sentenced on
“Count 3” rather than on “Count 2.”
{¶3} Spence was indicted in this case on five counts. He was charged with
attempted murder, two counts of felonious assault, one count of improper discharge of a
firearm into a habitation, and one count of improper discharge of a firearm on or near
prohibited premises. All of the counts carried one-year and three-year firearm
specifications.
{¶4} Spence ultimately agreed to the state’s offer to amend the charges in
exchange for his guilty pleas. Spence pleaded guilty to Count 3, amended to delete the
three-year firearm specification, and to Count 4, improper discharge of a firearm into a
habitation, with the specifications deleted. The state dismissed the other counts.
{¶5} After accepting Spence’s guilty pleas, the trial court called the case for
sentencing, and imposed a prison term on Count 3 of one year for the firearm
specification, to be served prior to and consecutive with four years, and a consecutive
term of four years on Count 4. The journal entry of sentence, however, states that
Spence received a total of five years on “Count 2.”
{¶6} Spence filed a timely appeal and challenges only the sentence imposed. He
argues in his sole assignment of error that the trial court failed to comply with R.C.
2929.14(C)(4) when imposing consecutive terms. The record, however, does not support
his argument, therefore, his assignment of error is overruled.
{¶7} Appellate courts review consecutive sentences using the standard set forth in
R.C. 2953.08. State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 10. R.C.
2953.08(G)(2) provides two grounds for an appellate court to overturn the imposition of
consecutive sentences: (1) the appellate court, upon its review, clearly and convincingly
finds that “the record does not support the sentencing court’s findings” under R.C.
2929.14(C)(4), or (2) the sentence is “otherwise contrary to law.” See also Venes at ¶ 11.
{¶8} R.C. 2929.14(C)(4) requires a trial court to make specific findings when
imposing consecutive sentences. Thus, the record must demonstrate that the trial court
imposed consecutive sentences because it found: (1) consecutive sentences were
necessary to protect the public or to punish the offender, (2) they are not disproportionate
to the seriousness of the offender’s conduct and the danger the offender poses to the
public, and (3) either, (a) the offender’s history of criminal conduct demonstrated
consecutive sentences were necessary to protect the public from future crime, or, (b) 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 postrelease control for a prior offense, or, (c)
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. R.C. 2929.14(C)(4). If these findings are not made, the sentence is “contrary
to law.” Venes at ¶ 12, citing State v. Jones, 93 Ohio St. 3d 391, 399, 2001-Ohio-1341,
754 N.E.2d 1252 (2001).1
{¶9} The trial court’s comments in this case were adequate to comply with R.C.
2929.14(C)(4). See State v. Greene, 8th Dist. Cuyahoga No. 100542, 2014-Ohio-3713.
The court stated in pertinent part:
1Prior
to the Ohio Supreme Court’s decision in State v. Bonnell, 140 Ohio
St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, this court interpreted the statute’s
requirements in a strict manner. See State v. Nia, 8th Dist. Cuyahoga No. 99387,
2014-Ohio-2527.
* * * [Y]ou chose to use violence to protect your family and, in
particular, your niece * * * .
Your choice was inappropriate. And the choice which you chose to
execute was probably one of the most dangerous things you could have
done short of killing the victim in this case.
***
* * * [Y]ou chose to execute a crime in one of the most dangerous
fashions possible, which makes you incredibly dangerous to the community.
[Finding: necessary to protect the public.]
***
I don’t find that concurrent sentences are going to be appropriate in
this matter. There were two separate victims, two separate, completely
separate situations. The harm to [one victim] was so great, it’s clear to the
Court he almost died as a result of these injuries.
The photographs depict a surgical incision that basically leads from his Adam’s
apple, all the way down to his navel and maybe even further than that. It’s clear to the
Court that those injuries were so severe that a concurrent sentence is not warranted.
[Finding: not disproportionate to the seriousness of the offender’s conduct.]
* * * The harm was so great * * * that I am going to impose a consecutive
sentence in this case. [Finding: R.C. 2929.14(C)(4)(c).]
{¶10} The foregoing comments were sufficient to meet the statutory requirements. State v.
Evans, 8th Dist. Cuyahoga No. 100151, 2014-Ohio-3584, ¶ 29.2 Therefore, Spence’s assignment of
error is overruled.
{¶11} However, the Ohio Supreme Court decision in State v. Bonnell, Slip Opinion No.
2014-Ohio-3177, requires that the trial court not only make the statutory findings to impose consecutive
sentences, but that the court also incorporate those findings into its sentencing entry. Id. at syllabus.
2Compare Nia, 8th Dist. Cuyahoga No. 99387, 2014-Ohio-2527.
The court stated that a trial court’s failure to do so is a clerical mistake and does not render the sentence
contrary to law, therefore, the omission “may be corrected * * * through a nunc pro tunc entry to reflect
what actually occurred in open court.” Id. at ¶ 30, citing State v. Qualls, 131 Ohio St. 3d 499,
2012-Ohio-1111, 967 N.E.2d 718, ¶ 15. In light of Bonnell, this case is remanded for the limited
purpose of having the trial court incorporate nunc pro tunc in its consecutive sentence findings in the
sentencing entry. In addition, the trial court must correct the journal entry to reflect that Spence is
sentenced on “Count 3” rather than on “Count 2.”
It is ordered that appellee recover from appellant 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. Case remanded to the trial court for
further proceedings.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
__________________________________________
KENNETH A. ROCCO, JUDGE
EILEEN T. GALLAGHER, J., and
FRANK D. CELEBREZZE, JR., P.J., CONCUR