State v. Price , 2014 Ohio 4696 ( 2014 )

[Cite as State v. Price, 2014-Ohio-4696.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Nos. 13AP-1088
Plaintiff-Appellee, : (C.P.C. No. 12CR-4512)
13AP-1089
v. : (C.P.C. No. 13CR-3718)
and 13AP-1090
Maurice T. Price, : (C.P.C. No. 13CR-4319)
Defendant-Appellant. : (ACCELERATED CALENDAR)
D E C I S I O N
Rendered on October 23, 2014
Ron O'Brien, Prosecuting Attorney, and Michael P. Walton,
for appellee.
Barney DeBrosse, LLC, and David J. Fetters, for appellant.
APPEALS from the Franklin County Court of Common Pleas
CONNOR, J.
{¶ 1} In this consolidated appeal, defendant-appellant, Maurice T. Price, appeals
from a judgment of the Franklin County Court of Common Pleas convicting him of one
count of attempted aggravated burglary, with a three-year firearm specification, and ten
counts of aggravated robbery with eight three-year firearm specifications. For the reasons
that follow, we affirm the judgment of the trial court.
A. Facts and Procedural History
{¶ 2} The cases on appeal arise out of four separate robberies committed by
appellant on three different dates. At appellant's two plea hearings, the prosecutor set out
the basic facts underlying the four incidents. The first incident occurred on December 30,
2011, at approximately 9:00 p.m. On that evening, appellant approached his victim in a
Nos. 13AP-1088, 13AP-1089 & 13AP-1090 2
store parking lot armed with a knife. He ordered the victim to the ground and took his
credit cards, cell phone and some cash.
{¶ 3} The second incident occurred on July 22, 2012. On that occasion,
appellant's brother, Anthony Price, robbed a Red Skye cell phone store on High Street in
Whitehall. An investigation by the Columbus Police Department ("CPD") revealed that
appellant "helped plan and knew the location of a new safe in the back room." (Nov. 25,
2013, Tr. 12.)
{¶ 4} The third and fourth incidents occurred on August 26, 2012. On that
evening, appellant committed numerous robberies with Anthony and his other brother,
Joshua Price. At around 9:30 p.m., Joshua pointed a gun at an employee of Noodles &
Company, as he took trash out to the dumpster. When the victim turned and ran toward
the store, Joshua gave chase threatening to shoot the victim if he did not stop. When the
victim rounded the storefront, he was met by appellant and Anthony Price.
{¶ 5} The Store Manager, John Lane, saw the three armed men from inside the
store. When Lane opened the door, he saw the three men approaching with one of the
men pointing a gun at the victim's head. Lane heard one of the men say "we're killing."
(June 11, 2013, Tr. 5.) Lane immediately locked the door and called police. At that point,
the three men threw the victim to the ground and fled the parking lot in a motor vehicle.
Lane described the vehicle to police as a dark blue Kia Amanti, and he gave CPD a partial
license plate number of "FPN."
{¶ 6} Approximately one hour later, at a nearby Chipotle, two store employees
were taking out the trash when Joshua confronted them with a hand gun. Appellant and
Anthony then emerged from the bushes pointing hand guns at the two victims. The three
men ordered the two victims to the ground and held guns to their heads while they asked
if there had been a money drop and whether the two were store managers. The three
suspects took the two victims back inside the store at gunpoint. Joshua and Anthony
forced the first two victims and a third employee into the walk-in cooler and robbed them
of their personal property. Joshua then robbed another employee and placed her in the
cooler with the other victims.
{¶ 7} Meanwhile, appellant confronted two other store employees in the store
manager's office as they counted the money taken in that day. Appellant stole that money
Nos. 13AP-1088, 13AP-1089 & 13AP-1090 3
and the three men put the two store managers in the cooler with the other victims. The
men told the victims to wait 20 minutes before calling police. After waiting about ten
minutes, one of the victims called police.
{¶ 8} Upper Arlington Police Officer, J. Kulp, heard a call go out about a dark blue
Kia Amanti with the partial license plate number "FPN" and he ran the number through
the Ohio LEADS system.1 Kulp discovered a vehicle registered to Joshua Price fitting that
description with a license plate number of FPN7214. Officers from CPD proceeded to
Joshua's address and saw the suspect's vehicle sitting in the driveway.
{¶ 9} When the three suspects subsequently left the residence in the vehicle, CPD
stopped the vehicle and arrested all three occupants. A search of the vehicle uncovered
evidence linking appellant to the robbery at Chipotle. Victim identification, witness
accounts and other physical evidence tied appellant to the robberies at Noodles &
Company, Red Skye, and the earlier parking-lot robbery on December 30, 2011.
{¶ 10} As a result of these incidents, a Franklin County Grand Jury issued three
indictments against appellant, charging him with more than 40 felonies, including
aggravated robbery, robbery, aggravated burglary, attempted aggravated burglary, and
kidnapping, with a total of ten firearm specifications.2 On September 5, 2012, the Grand
Jury indicted appellant in case No. 12CR-4512, on charges arising from the August 26,
2012 robberies at Noodles & Company and Chipotle. On June 11, 2013, the trial court
conducted a plea hearing relative to those charges whereupon appellant pleaded guilty to
attempted aggravated burglary, with a firearm specification, and eight counts of
aggravated robbery, each with a firearm specification.
{¶ 11} Thereafter, on July 16, 2013, the Grand Jury indicted appellant in case No.
13CR-3718 on multiple felony charges, including aggravated robbery, with a three-year
firearm specification. On August 15, 2013, the Grand Jury indicted appellant in case No.
13CR-4319, for aggravated robbery and tampering with evidence in connection with the
parking-lot robbery on December 30, 2011.
{¶ 12} On November 25, 2013, the trial court combined the plea hearing in case
Nos. 13CR-3718 and 13CR-4319 with the sentencing hearing in all three of the cases. As a
1 Law Enforcement Automated Data System.
2 12CR-4512, 13CR-3718 and 13CR-4319.
Nos. 13AP-1088, 13AP-1089 & 13AP-1090 4
result of that hearing, appellant pleaded guilty to the charges in case Nos. 13CR-3718 and
13CR-4319, and the trial court sentenced him on both of those cases as well as case No.
12CR-4512. Specifically, the trial court sentenced appellant to a prison term of three years
each on seven aggravated robbery convictions and four years for aggravated robbery as
charged in Count 8 of the indictment in case No. 12CR-4512. The trial court ordered
appellant to serve consecutive three-year prison terms on four of the eight firearm
specifications and ordered appellant to serve three of the aggravated robbery convictions
consecutively to each other and to the firearm specifications. Finally, the trial court
ordered appellant to serve the prison terms for the remaining convictions concurrently
with each other and with the convictions in the other two cases, for a total prison term of
22 years. At the request of the State, the trial court dismissed all other counts in the
indictments.
{¶ 13} Appellant filed a timely notice of appeal to this court on December 27, 2013.
B. Assignments of Error
{¶ 14} Appellant assigns the following as error:
[I.] The trial court erred by sentencing Mr. Price to
consecutive sentences without making the findings of fact
required by R.C. 2929.14(C)(4).
[II.] During the plea colloquy, the trial court erred by
misstating how the firearm specifications would be sentenced,
and ultimately sentenced Mr. Price beyond the possible range
mentioned in the plea colloquy.
[III.] Mr. Price's guilty pleas in all three cases were not made
knowingly, intelligently, and voluntarily because the State
unfairly induced Mr. Price to plead guilty in the 12 CR 4512
case without informing him of additional pending charges
that the State intended to bring.
C. Standard of Review
{¶ 15} We will presume that a guilty plea is neither knowing nor voluntary when
the record shows that the trial court failed to adequately inform a defendant of his
constitutional rights. State v. Williams, 10th Dist. No. 10AP-1135, 2011-Ohio-6231, ¶ 36,
citing State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, ¶ 12. However, a defendant's
understanding of the maximum penalty is not constitutionally required for a knowing,
Nos. 13AP-1088, 13AP-1089 & 13AP-1090 5
intelligent, and voluntary plea. Id., citing State v. Johnson, 40 Ohio St.3d 130, 133 (1988).
Accordingly, when we consider appellant's contention that his guilty plea is not knowing,
intelligent and voluntary because the trial court failed to correctly inform him of the
maximum sentence, we must determine whether the trial court substantially complied
with the provisions of Crim.R. 11(C)(2)(a). State v. Vinson, 10th Dist. No. 08AP-903,
2009-Ohio-3240, ¶ 6. Substantial compliance means that, under the totality of the
circumstances, appellant subjectively understood the implications of his plea and the
rights he waived. Id., citing State v. Carter, 60 Ohio St.2d 34, 38 (1979). Additionally, a
failure to comply with Crim.R. 11(C) with regard to non-constitutional rights does not
invalidate a plea unless the defendant suffers prejudice. Id. See also State v. Phipps, 10th
Dist. No. 13AP-640, 2014-Ohio-2905. The test for prejudice is "whether the plea would
have otherwise been made." Id.{¶ 16} With respect to the imposition of consecutive sentences, we have
consistently determined " 'that when the record demonstrates that the trial court failed to
make the findings required by R.C. 2929.14(C)(4) before imposing consecutive sentences
on multiple offenses, "appellant's sentence is contrary to law and constitutes plain
error." ' " State v. F.R., 10th Dist. No. 13AP-525, 2014-Ohio-799, quoting State v. Wilson,
10th Dist. No. 12AP-551, 2013-Ohio-1520, ¶ 18. When the trial court makes the required
findings, an appellate court may overturn the imposition of consecutive sentences only if
it finds, clearly and convincingly, that the record does not support the sentencing court's
findings, or that the sentence is otherwise contrary to law. R.C. 2953.08(G); State v.
Adams, 10th Dist. No. 13AP-783, 2014-Ohio-1809, ¶ 7.
D. Legal Analysis
{¶ 17} For purposes of clarity, we will first consider appellant's second and third
assignments of error challenging the validity of his guilty plea.
1. Guilty Plea
{¶ 18} When the trial judge addressed appellant at his initial plea hearing he
informed him that "[d]epending on how the law is argued, there's going to be a minimum
of at least one firearm specification, possibly three." (June 11, 2013, Tr. 11-12.) In
appellant's second assignment of error, appellant contends that his plea of guilty was not
knowing, intelligent and voluntary because the trial court misinformed him that he could
Nos. 13AP-1088, 13AP-1089 & 13AP-1090 6
impose a consecutive sentence on "at least one * * * possibly three" of the firearm
specifications, when in fact, Ohio law required that the trial court impose a consecutive
sentence for at least four of the firearm specifications. See State v. Price, 10th Dist. No.
13AP-1085, 2014-Ohio-4065, ¶ 11.3 Under the statutory sentencing scheme, because at
least two of appellant's convictions for aggravated robbery arise from the incident at
Chipotle, and at least two others arise from the separate incident at Noodles & Company,
the trial court was legally required to impose a consecutive three-year prison term for at
least four of the attendant firearm specifications. Id.4
{¶ 19} Crim.R. 11(C) provides, in relevant part:
(2) In felony cases the court may refuse to accept a plea of
guilty or a plea of no contest, and shall not accept a plea of
guilty or no contest without first addressing the defendant
personally and doing all of the following:
(a) Determining that the defendant is making the plea
voluntarily, with understanding of the nature of the charges
and of the maximum penalty involved, and if applicable, that
the defendant is not eligible for probation or for the
imposition of community control sanctions at the sentencing
hearing.
(Emphasis added.)
{¶ 20} While we agree that the trial court incorrectly informed appellant that he
faced "at least one * * * possibly three" consecutive prison terms for the firearm
specifications, the record shows that appellant, nevertheless, understood the maximum
penalty involved. Indeed, the transcript of the June 11, 2013 plea hearing demonstrates
that the trial court expressly informed appellant that the prison terms imposed on each of
the three-year firearm specifications are mandatory and that such prison terms are
consecutive to the sentence imposed on the underlying offenses. Further, the signed guilty
plea form in case No. 12CR-4512 specifically advised appellant that he was pleading guilty
3 R.C. 2929.14(B)(1)(g) provides: "If an offender * * * pleads guilty to two or more felonies, if one or more of
those felonies are * * * aggravated robbery, * * * and if the offender * * * pleads guilty to a [firearm]
specification * * * in connection with two or more of the felonies, the sentencing court shall impose on the
offender the [mandatory three-year] prison term * * * for each of the two most serious specifications of
which the offender * * * pleads guilty and, in its discretion, also may impose on the offender the prison term
specified under that division for any or all of the remaining specifications."
4 Appealed to this court by appellant's brother and co-defendant, Joshua L. Price.
Nos. 13AP-1088, 13AP-1089 & 13AP-1090 7
to a total of nine three-year firearm specifications and that R.C. 2929.13(F) required
mandatory prison terms for each firearm specification. The form specifically states: "I
understand the maximum prison term(s) for my offense(s) to be as follows: Up to 11 years
on each F1, up to 8 years on the F2, with an additional 3 year firearm specification on each
count." Moreover, during the plea hearing on June 11, 2013, the trial court advised
appellant that if a consecutive sentence were imposed "the minimum prison term is 26
years [and] goes up to 96 years." (Tr. 11.) As noted above, the trial court imposed a prison
term of 22 years.
{¶ 21} In Phipps, the trial court failed to inform appellant that the prison term for
firearm specifications was to be served consecutively to the prison term for appellant's
other felony convictions. Id. at ¶ 25. In his appeal to this court, we found that even though
the trial court misinformed appellant regarding the maximum sentence, appellant's plea
was still valid inasmuch as appellant failed to demonstrate prejudice resulting from the
trial court error. Id. at ¶ 26. In so holding, we noted that the record contained no evidence
that appellant would not have pleaded guilty had the trial court correctly informed him of
the maximum prison term; that appellant's guilty plea resulted in the dismissal of 20
additional felony counts, many of which carried firearm specifications; and that the
record contained no evidence indicating appellant did not understand the consequences
of his decision to plead guilty. Id.
{¶ 22} This case stands on similar footing to Phipps. Appellant has pointed to
nothing in this record suggesting that he would not have pleaded guilty had the trial court
correctly informed him that he faced a consecutive prison term on 4 of the firearm
specifications. Moreover, appellant's guilty plea resulted in the dismissal of more than 30
counts in the 3 indictments as well as the attendant firearm specifications. Though the
trial court convicted appellant of the 5 other firearm specifications to which he pleaded
guilty, the trial court elected to impose concurrent prison terms for those convictions.
Finally, there is no indication in the transcript of the 2 plea hearings, or elsewhere in the
record, that appellant lacked understanding of the maximum penalty he faced. Appellant
did not ask any questions of the court during the plea colloquy nor did his counsel
interpose any relevant objections.
Nos. 13AP-1088, 13AP-1089 & 13AP-1090 8
{¶ 23} In short, the record demonstrates substantial compliance with the provision
of Crim.R. 11(C)(2)(a). Accordingly, appellant's second assignment of error is overruled.
{¶ 24} In his third assignment of error, appellant argues that his plea of guilty in
case No. 12CR-4512 could not have been knowing, intelligent and voluntary because he
had not been informed of the pending indictments in case Nos. 13CR-3718 and 13CR-
4319. Appellant also argues that his plea of guilty in case Nos. 13CR-3718 and 13CR-4319
was not voluntary inasmuch as he had no choice but to plead guilty to those charges
having already pleaded guilty to the more serious charges in case No. 12CR-4512.
{¶ 25} Although appellant claims that the trial court erred in accepting his guilty
plea in each case, our review of the plea colloquy in all three cases reveals that the trial
court complied with Crim.R. 11 and that appellant entered a knowing, intelligent and
voluntary plea of guilty in each case. Indeed, the record suggests that appellant's plea was
the result of a joint effort by the parties and the court:
I needed to make the sentence severe enough to show how
serious what it was that you did. The fact that you're from a
good family doesn't make the victims feel any better. I can't
imagine what it must be like to have a gun stuck at your head.
But yet I wanted to temper it with some sort of mercy. I think
the sentences that we've crafted here together meets that.
(Emphasis added.) (Nov. 25, 2013 Sentencing Hearing, Tr. 32.)
{¶ 26} In our opinion, appellant's third assignment of error alleges either
prosecutorial misconduct or ineffective assistance of counsel, rather than trial court error.
And, when viewed in the proper context, appellant's argument is both factually and legally
flawed.
{¶ 27} First, the record shows that the prosecutor informed appellant's counsel of
the other possible charges prior to the June 11, 2013 plea hearing. The transcript contains
the following exchange:
[The Court:] Anything else on behalf of the state?
Mr. Zeyen: Only, Your Honor, that defense counsel has been
made aware of the possible charges involving cell phone stores
that have not yet been filed yet. Whatever comes of that, that
is not part of this deal here.
Nos. 13AP-1088, 13AP-1089 & 13AP-1090 9
The Court: Anything else on behalf of the defendant?
Mr. Rigg: No, Your Honor.
(June 11, 2013 Plea Hearing, Tr. 15.)
{¶ 28} The above-cited exchange also shows that appellant's counsel knew of the
other possible charges before he advised appellant to enter a plea of guilty in case No.
12CR-4512. Although appellant submits that the record does not affirmatively show that
his counsel made him aware of the other charges prior to the time he entered his plea in
case No. 12CR-4512, proof of such a fact necessarily exists outside the record. Such
evidence, if it exists, is not an appropriate matter for this court to consider in a direct
appeal. Moreover, appellant never moved the court to withdraw his guilty plea after the
Grand Jury handed down the other two indictments even though he had ample time
before the November 25, 2013 sentencing hearing in which to do so.
{¶ 29} In short, the record shows that appellant's guilty plea was a knowing,
intelligent and voluntary waiver of his constitutional and statutory rights. Accordingly,
appellant's third assignment of error is overruled.
2. Consecutive Sentence
{¶ 30} In his first assignment of error, appellant contends that the trial court failed
to make the findings of fact that are necessary to sustain a consecutive sentence for
attempted aggravated burglary as charged in Count 1 of the indictment and the two
convictions for aggravated robbery as charged in Counts 7 and 8 of the indictment. Counts
7 and 8 of the indictment pertain to the robbery and burglary at Chipotle and Count 1
arises out of the Noodles & Company robbery.
{¶ 31} Pursuant to R.C. 2929.14(C)(4), as amended by H.B. No. 86, in order to
impose a consecutive sentence, the trial court is required to make at least three distinct
findings: (1) that consecutive sentences are necessary to protect the public from future
crime or to punish the offender; (2) 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 (3) that one of the subsections (a), (b) or (c) applies. State v. Bonnell, 140
Ohio St.3d 209, 2014-Ohio-3177. See also Adams at ¶15, citing State v. Bailey, 10th Dist.
Nos. 13AP-1088, 13AP-1089 & 13AP-1090 10
No. 12AP-699, 2013-Ohio-3596, ¶ 43. The relevant subsection in this case is R.C.
2929.14(C)(4)(b), which reads as follows: "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."
{¶ 32} The trial court made the following findings when it imposed a consecutive
sentence:
[THE COURT:] This is one of the most difficult, saddest cases
I can remember dealing with in my years on either this bench
or any bench because of that. I mean, you have always
appeared as three nice young men from a good family. And I
can't figure out what happened or what you were thinking. I
guess I could figure out the event at most just a dumb
decision. You go out there and live a TV show or something.
But then it goes bad. And you get away. You think why in the
world didn't you just go: Oh my gosh. We got away home free.
We made a stupid mistake. Let's calm down. Instead you
turned around and did it again that very night.
Again I can't remember working any harder trying to fashion
a sentence that I thought was fair. I could have gotten 50
years on this case for each of you. And there's a couple of my
colleagues that would have gotten to 50 and kept on going. I
mean that sincerely. I hope you all appreciate what your
attorneys did for you. I hope I was a part of that. The
question is what Mr. Thomas said: Whether you appreciate it
today. Hopefully you will some day, because it really was a
very, very difficult case for me.
I needed to make the sentence severe enough to show how
serious what it was that you did. The fact that you're from a
good family doesn't make the victims feel any better. I can't
imagine what it must be like to have a gun stuck at your head.
But yet I wanted to temper it with some sort of mercy. I think
the sentences that we've crafted here together meets that.
(Nov. 25, 2013 Sentencing Hearing, Tr. 31-32.)
{¶ 33} Appellant argues that the trial court did not make the required statutory
findings in this case inasmuch as the transcript does not show that the trial court
Nos. 13AP-1088, 13AP-1089 & 13AP-1090 11
employed the statutory language in handing down a consecutive sentence. In Bonnell, the
Supreme Court of Ohio made the following comments regarding a consecutive sentence:
In order to impose consecutive terms of imprisonment, a trial
court is required to make the findings mandated by R.C.
2929.14(C)(4) at the sentencing hearing and incorporate its
findings into its sentencing entry, but it has no obligation to
state reasons to support its findings. Nor is it required to give
a talismanic incantation of the words of the statute, provided
that the necessary findings can be found in the record and are
incorporated in the sentencing entry.
Id. at ¶ 37.
{¶ 34} Although we agree that the trial court did not recite the statutory language,
"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." Id. at ¶ 29. Our review of the comments made by the trial
court at the sentencing hearing convinces us that the trial court engaged in the correct
analysis and made the required findings. We are also able to determine that the record
contains support for the trial court's findings.
{¶ 35} With respect to the first requirement of the statute, the trial court must find
either that consecutive sentences are necessary to protect the public from future crime or
to punish the offender. In this instance, the trial judge specifically stated: "I needed to
make the sentence sever enough to show how serious what it was that you did. The fact
that you're from a good family doesn't make the victims feel any better. I can't imagine
what it must be like to have a gun stuck at your head." In our opinion, the trial court made
a finding that a consecutive sentence was necessary to punish appellant given the
seriousness of the offenses he committed. See Id. at ¶ 33 ("We can discern from the trial
court's statement that Bonnell had 'shown very little respect for society and the rules of
society' that it found a need to protect the public from future crime or to punish
Bonnell.").
{¶ 36} With regard to the proportionality analysis required by R.C. 2929.24, the
trial judge made the following statement: "I can't remember working any harder trying to
Nos. 13AP-1088, 13AP-1089 & 13AP-1090 12
fashion a sentence that I thought was fair. I could have gotten 50 years on this case for
each of you. And there's a couple of my colleagues that would have gotten to 50 and kept
on going. I mean that sincerely. * * * But yet I wanted to temper it with some sort of
mercy. I think the sentences that we've crafted here together meets that."
{¶ 37} These comments demonstrate that the trial judge engaged in the correct
proportionality analysis when imposing a consecutive sentence. Indeed, it is evident that
the trial judge weighed the seriousness of appellant's conduct and the danger such
conduct posed to the public against the concept of "mercy," and that he crafted a sentence
that adequately punished appellant for his crimes. The fact that the trial court did not use
the precise statutory language in making its finding does not mean that the trial court
failed to engage in the correct proportionality analysis. See Adams ("[T]he trial court's use
of the phrase 'does not discredit the conduct or danger imposed by the defendant' shows
that the trial court employed the required proportionality analysis in imposing a
consecutive sentence * * * even though the trial court eschewed the phrase 'not
disproportionate.' "). Id. at ¶ 21.
{¶ 38} While appellant maintains that a 22-year sentence is disproportionate to the
seriousness of the offenses, as we have previously noted in this decision, the trial court
was required to impose a consecutive prison term on at least 4 of the 3-year firearm
specifications. Price; R.C. 2929.14(B)(1)(a) and (g). Consequently, the mandatory firearm
specifications make up more than half of appellant's prison term.
{¶ 39} Finally, with regard to the requirements of R.C. 2929.14(C)(4)(b), the trial
court found as follows: "And I can't figure out what happened or what you were thinking.
I guess I could figure out the event at most just a dumb decision. You go out there and
live a TV show or something. But then it goes bad. And you get away. You think why in
the world didn't you just go: Oh my gosh. We got away home free. We made a stupid
mistake. Let's calm down. Instead you turned around and did it again that very night."
(Emphasis added.) These comments constitute a finding that appellant committed his
crimes as part of one or more courses of conduct. See State v. Oliver, 3d Dist. No. 16-14-
02, 2014-Ohio-3982, ¶ 13 (Trial court's statement that "the unlawful activity was
repeated" and "recurring" is sufficient to satisfy the requirements of R.C.
2929.14(C)(4)(b)).
Nos. 13AP-1088, 13AP-1089 & 13AP-1090 13
{¶ 40} Additionally, as noted above, the trial court specifically stated: "I needed to
make the sentence sever enough to show how serious what it was that you did. * * * I
can't imagine what it's like to have a gun pointed at your head." This comment shows that
the trial judge considered the nature of the harm appellant caused to his numerous
victims as "great and unusual" and that he considered that harm in determining that a
consecutive sentence was appropriate. Oliver at ¶ 13 (Trial court's statement that
defendant "raped a 10 year old child and that he ultimately impregnated her resulting in a
cesarean section to deliver the child" indicates a finding of great and unusual harm). The
record in this case confirms that appellant pointed a handgun at the head of multiple
victims during the commission of the robberies on August 26, 2012.
{¶ 41} In short, even though the trial court did not employ the precise statutory
language in making its findings in support of a consecutive sentence, we are able to
discern from the trial court's commentary that it engaged in the appropriate statutory
analysis and did, in fact, make the findings required by R.C. 2929.14(C)(4). We further
conclude that the facts of the case, as set out by the prosecutor, provide adequate support
for each of the factual findings made by the trial court in imposing a consecutive sentence.
Accordingly, appellant's first assignment of error is overruled.
{¶ 42} We note, however, that the relevant portion of the trial court's
November 27, 2013 judgment entry states only that "the Court has weighed the factors as
set forth in the applicable provisions of * * * R.C. 2929.14." Thus, the trial court failed to
incorporate the relevant findings into the sentencing entry. Pursuant to Bonnell, "[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." Id. at ¶ 30.
Accordingly, we shall remand this case to the trial court for "a nunc pro tunc entry
incorporating findings stated on the record." Id. at ¶ 31.
E. Conclusion
{¶ 43} Having overruled each of appellant's assignments of error, but having
found that the trial court's judgment entry contains a clerical error, we affirm the
judgment of the Franklin County Court of Common Pleas and remand the case for the
Nos. 13AP-1088, 13AP-1089 & 13AP-1090 14
issuance of a corrected judgment entry consistent with this decision and the rule of law in
Bonnell.
Judgment affirmed;
case remanded with instructions.
DORRIAN and O'GRADY, JJ., concur.
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