State v. Williams , 2019 Ohio 4873 ( 2019 )

[Cite as State v. Williams, 2019-Ohio-4873.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ADAMS COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 19CA1090
:
vs. :
:
JESSE LEE WILLIAMS : DECISION AND JUDGMENT
: ENTRY
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:
Brian T. Goldberg. Cincinnati, Ohio, for Appellant.
David Kelley, Adams County Prosecutor, and Kris D. Blanton, Assistant
Adams County Prosecutor, West Union, Ohio, for Appellee.
_____________________________________________________________
Smith, P.J.
{¶1} Pursuant to a voluntary plea of guilty, Jesse Lee Williams was
convicted of involuntary manslaughter with a specification and tampering
with evidence. Williams now appeals the judgment entry of sentence of the
Court of Common Pleas, Adams County, dated February 22, 2019.
On appeal, Williams asserts that the trial court erred with regard to
imposition of a maximum consecutive prison sentence of seventeen years.
Upon review, we find no merit to Williams’ arguments. Accordingly, we
overrule the assignments of error and affirm the judgment of the trial court.
Adams App. No. 19CA1090 2
FACTS AND PROCEDURAL HISTORY
{¶2} Jesse Lee Williams, “Appellant,” pled guilty to one count of
involuntary manslaughter with specification, a violation of R.C. 2901.04(A)
and R.C. 2941.145, a felony of the first degree. The specification was for
his use of a firearm while committing the offense of involuntary
manslaughter. He also entered a guilty plea to one count of tampering with
evidence, a violation of R.C. 2921.12(A)(1), a felony of the third degree. On
February 22, 2019, he was sentenced to a maximum consecutive prison
sentence of seventeen years.
{¶3} Appellant’s indictment and convictions stemmed from tragic
events which occurred in May 2018 at Appellant’s grandmother’s garage in
Peebles, Ohio. The underlying facts are limited and, as the trial court later
commented, a mystery. Appellant, age 20 at the time, killed his seventeen-
year-old friend, Bladyn Skaggs, by shooting him at close range with a Smith
& Wesson .38 special.
{¶4} During the trial court proceedings, Appellant maintained that the
two were close friends who often discussed their emotional issues with each
other. Appellant explained to investigating officers that on the incident date,
Bladyn Skaggs came over to “hang out” after Skaggs got off work.
Appellant initially told responding officers that the two had been talking and
Adams App. No. 19CA1090 3
“horseplaying.” Inexplicably, the victim committed suicide when Appellant
walked out of the garage to use the bathroom. Then, Appellant later
informed that the victim charged him with pruning shears and Appellant
accidentally shot him. The most Appellant would explain about the young
men’s discussion with each other that evening was that “I got involved in
somebody else’s relationship and it was taken the wrong way. He came to
confront me about that.”
{¶5} The record indicates that much of the physical evidence at the
scene did not match Appellant’s version of the events. For example, the
victim’s car’s motor was running the entire time the young men were
together, a matter of possibly 2-6 hours. Skaggs’ car was pulled up in the
front yard in a peculiar manner, with the passenger door open, windshield
wipers and headlights running. The pruning shears Appellant claimed the
victim charged toward him with were found lying on a shelf with unbroken
cobwebs on the handles. In addition to the blood found on and around
Skaggs’ body, multiple abrasions were discovered on his forehead above
both eyes.
{¶6} At sentencing, the trial court asked Appellant if he wanted to
“clear up exactly what happened” and Appellant declined. When he spoke
on his own behalf, Appellant stated: “The only thing I would like to say is
Adams App. No. 19CA1090 4
that Bladyn was my best friend and I loved him like a brother. * * * I wish
none of it would ever have occurred. * * * I never purposely did this.” After
the trial court imposed sentence, Appellant timely appealed.
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT ERRED TO THE PREJUDICE OF
APPELLANT BY IMPROPERLY SENTENCING HIM TO
CONSECUTIVE PRISON TERMS.”
“II. THE TRIAL COURT ERRED BY IMPOSING A
MAXIMUM CONSECUTIVE PRISON SENTENCE THAT
WAS NOT SUPPORTED BY THE RECORD.”
“III. THE TRIAL COURT ERRED BY INCLUDING IN THE
SENTENCING ENTRY THAT MR. WILLIAMS SHALL BE
RESERVED FOR DENIAL FOR TRANSITIONAL
CONTROL AND IPP.”
A. STANDARD OF REVIEW
{¶7} R.C. 2953.08(G)(2) defines appellate review of felony sentences
and provides, in relevant part, as follows:
The court hearing an appeal under division (A), (B), or (C) of
this section shall review the record, including the findings
underlying the sentence or modification given by the sentencing
court.
The appellate court may increase, reduce, or otherwise modify a
sentence that is appealed under this section or may vacate the
sentence and remand the matter to the sentencing court for
Adams App. No. 19CA1090 5
resentencing. The appellate court's standard for review is not
whether the sentencing court abused its discretion. The
appellate court may take any action authorized by this division
if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court's
findings under division (B) or (D) of section 2929.13,
division (B)(2)(e) or (C)(4) of section 2929.14, or
division (I) of section 2929.20 of the Revised Code,
whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
State v. Pierce, 4th Dist. Pickaway No. 18CA4, 2018-Ohio-4458, at
¶ 6.
{¶8} “[A]n appellate court may vacate or modify a felony sentence on
appeal only if it determines by clear and convincing evidence that the record
does not support the trial court's findings under relevant statutes or that the
sentence is otherwise contrary to law.” Pierce, supra, at ¶ 7, quoting, State
v. Marcum, 146 Ohio St. 3d 516, 2016–Ohio–1002, 59 N.E.3d 1231, 1. This
is a deferential standard. Id. at 23. Furthermore, “appellate courts may not
apply the abuse-of-discretion standard in sentencing-term challenges.” Id. at
10. Additionally, although R.C. 2953.08(G) does not mention R.C. 2929.11
Adams App. No. 19CA1090 6
or 2929.12, the Supreme Court of Ohio has determined that the same
standard of review applies to findings made under those statutes. Id. at 23
(stating that “it is fully consistent for appellate courts to review those
sentences that are imposed solely after consideration of the factors in R.C.
2929.11 and 2929.12 under a standard that is equally deferential to the
sentencing court,” meaning that “an appellate court may vacate or modify
any sentence that is not clearly and convincingly contrary to law only if the
appellate court finds by clear and convincing evidence that the record does
not support the sentence”). “Clear and convincing evidence is that measure
or degree of proof which is more than a mere ‘preponderance of the
evidence,’ but not to the extent of such certainty as is required ‘beyond a
reasonable doubt’ in criminal cases, and which will produce in the mind of
the trier of facts a firm belief or conviction as to the facts sought to be
established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954),
paragraph three of the syllabus; Id. at 22.
{¶9} Further, as noted by the Eighth District Court of Appeals:
It is important to understand that the “clear and convincing”
standard applied in R.C. 2953.08(G)(2) is not discretionary.
Adams App. No. 19CA1090 7
In fact, R.C. 2953.08(G)(2) makes it clear that “[t]he appellate
court's standard for review is not whether the sentencing court
abused its discretion.” As a practical consideration, this
means that appellate courts are prohibited from substituting
their judgment for that of the trial judge.
It is also important to understand that the clear and convincing
standard used by R.C. 2953.08(G)(2) is written in the negative.
It does not say that the trial judge must have clear and
convincing evidence to support its findings. Instead, it
is the court of appeals that must clearly and convincingly
find that the record does not support the court's findings.
In other words, the restriction is on the appellate court,
not the trial judge. This is an extremely deferential standard
of review.
Pierce, supra, at ¶ 8, quoting State v. Venes, 8th Dist. Cuyahoga No.
98682, 2013–Ohio–1891, 992 N.E.2d 453, 20-21.
B. LEGAL ANALYSIS
1. Consecutive Sentence
{¶10} Appellant argues that the trial court could not impose
Adams App. No. 19CA1090 8
consecutive sentences in this matter because the court did not make
the appropriate findings in the sentencing entries as required.
Appellant acknowledges that the trial court did make the consecutive
sentence findings in open court and on the record. However, because
the sentencing entry is deficient, Appellant concludes the court should
order that his involuntary manslaughter sentence be served concurrent
to his tampering with evidence sentence or, in the alternative, the
matter should be remanded to the trial court for a new sentencing
hearing. Appellee concedes that the trial court made the findings on
the record but did not set forth the findings in the judgment entry of
sentence, but asserts that this court should direct the trial court to issue
a nunc pro tunc entry to adequately resolve the deficiency.
{¶11} Under R.C. 2929.14(C)(4), a trial court must engage
in a three-step analysis and make certain findings before it may impose
consecutive sentences. State v. Robinson, 4th Dist. Meigs No. 18CA10 &
18CA11, 2019-Ohio-2155, at ¶ 33; State v. Blanton, 4th Dist. Adams No.
16CA1031, 2018-Ohio-1275, at ¶ 96; State v. Bever, 4th Dist. Washington
No. 13CA21, 2014-Ohio-600, at ¶ 16; State v. Clay, 4th Dist. Lawrence No.
11CA23, 2013-Ohio-4649, at ¶ 64. In particular, a trial court must find that
(1) consecutive sentences are necessary to protect the public from future
Adams App. No. 19CA1090 9
crime or to punish the offender; (2) the 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) the harm caused by two or
more multiple offenses is so great or unusual that no single prison term for
any of the offenses committed adequately reflects the seriousness of the
offender's conduct. R.C. 2929.14(C)(4). A trial court is required to make the
findings mandated by R.C. 2929.14(C)(4), but is not required to recite “a
word-for-word recitation of the language of the statute * * *.” State v.
Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. 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. A failure to make the R.C. 2929.14(C)(4) findings renders a consecutive
sentence contrary to law. Id. at ¶ 37; Blanton at ¶ 96; Bever at ¶ 17. Also,
the findings must be separate and distinct, in addition to any findings that
relate to the purposes and goals of criminal sentencing. Blanton, supra;
Bever, supra, at ¶ 17.
{¶12} Because a court speaks through its journal, State v. Brooks, 113
Ohio St. 3d 199, 2007-Ohio-1533, 863 N.E.2d 10224, at ¶ 47, the court
should also incorporate its statutory findings in the sentencing entry. State v.
Adams App. No. 19CA1090 10
Bonnell, supra, 2014-Ohio-3177, 16 N.E.3d 659, at ¶ 29; State v Hart, 4th
Dist. Athens No. 13CA8, 2014-Ohio-3733, at ¶ 38. The findings required
by the statute must be separate and distinct findings; in addition to any
findings relating to the purposes and goals of criminal sentencing. Bever,
supra, at ¶ 17; State v. Nia, 8th Dist. Cuyahoga No. 99387, 2013-Ohio-5424,
at ¶ 22.
{¶13} In this case, the trial court not only made the required findings,
but also fully explained the reasons in open court as it imposed the
consecutive sentence. These specific findings will be more fully discussed
below. However, given that the trial court made all of the necessary findings
on the record before imposing consecutive sentences, we view the failure to
incorporate the statutory findings into the sentencing entry as a simple
clerical mistake. In State v Moore, 4th Dist. Adams No. 18CA1070, 2019-
Ohio-1467, we observed at ¶ 20, “[S]uch a clerical mistake may be corrected
by the court through a nunc pro tunc entry to reflect what actually occurred
in open court.” Bonnell, supra, 2014-Ohio-3177, 16 N.E.3d 659, at ¶ 30.
{¶14} Based on the foregoing, it appears that we need not vacate nor
remand the trial court’s judgment. We hereby overrule Appellant’s first
assignment of error, and the judgment of the trial court is affirmed.
However, pursuant to App.R. 9(E), we instruct the trial court to issue a nunc
Adams App. No. 19CA1090 11
pro tunc sentencing entry that includes the required findings so as to
accurately reflect the sentence imposed on the record during the sentencing
hearing. State v. Scoggins, 4th Dist. Scioto No. 16CA3767, 2018-Ohio-
8989, at ¶ 109.
2. Maximum Sentence
{¶15} Appellant was sentenced to eleven years, the maximum
allowable sentence for involuntary manslaughter, and a stated prison term of
three years on the specification for using a firearm to commit the offense of
involuntary manslaughter. He was also sentenced to a prison term of three
years for the tampering with evidence conviction. A sentencing court must
consider the purposes and principles of sentencing in accordance with R.C.
2929.11; the seriousness and recidivism factors set forth in R.C. 2929.12;
and the appropriate consecutive sentence requirements enumerated in R.C.
2929.14(C)(4). State v. Morgan, 4th Dist. Meigs No. 18CA13, 2019-Ohio-
2385, at ¶ 34. Appellant acknowledges that the sentences he received are
within the statutory ranges for each offense.
{¶16} As set forth above, appellate courts review felony sentences
under the standard set forth in R.C. 2953.08(G)(2). State v. Shankland, 4th
Dist. Washington No. 2019-Ohio-404, at ¶ 18; State v. Marcum, 146 Ohio
St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1. Although R.C.
Adams App. No. 19CA1090 12
2953.08(G)(2)(a) does not mention R.C. 2929.11 and 2929.12, the Supreme
Court of Ohio has determined that the same standard of review applies to
those statutes. Morgan, supra, at ¶ 35; State v. Yost, 4th Dist. Meigs No.
17CA10, 2018-Ohio-2719, at ¶ 11; Marcum at ¶ 23 (although “some
sentences do not require the findings that R.C. 2953.08(G)[2][a] specifically
addresses[,] * * * it is fully consistent for appellate courts to review those
sentences that are imposed solely after consideration of the factors in R.C.
2929.11 and 2929.12 under a standard that is equally deferential to the
sentencing court”); State v. Butcher, 4th Dist. Athens No. 15CA33, 2017-
Ohio-1544, at ¶ 84.
{¶17} R.C. 2929.11 provides:
(A) A court that sentences an offender for a felony shall
be guided by the overriding purposes of felony sentencing.
The overriding purposes of felony sentencing are to
protect the public from future crime by the offender
and others, to punish the offender, and to promote the
effective rehabilitation of the offender using the minimum
sanctions that the court determines accomplish those
purposes without imposing an unnecessary burden on
state or local government resources. To achieve those
Adams App. No. 19CA1090 13
purposes, the sentencing court shall consider the need for
incapacitating the offender, deterring the offender and
others from future crime, rehabilitating the offender,
and making restitution to the victim of the offense,
the public, or both.
(B) A sentence imposed for a felony shall be reasonably
calculated to achieve the three overriding purposes
of felony sentencing set forth in division (A) of this
section, commensurate with and not demeaning to the
seriousness of the offender's conduct and its impact
upon the victim, and consistent with sentences imposed
for similar crimes committed by similar offenders.
(C) A court that imposes a sentence upon an offender
for a felony shall not base the sentence upon the race,
ethnic background, gender, or religion of the offender.
Morgan, supra, at ¶ 36.
{¶18} R.C. 2929.12 sets forth factors to consider in determining the
appropriate sentence. The statute contains a nonexclusive list of factors that
render an offender's conduct more serious than conduct normally
constituting the offense and factors that render an offender's conduct less
Adams App. No. 19CA1090 14
serious than conduct normally constituting the offense. R.C. 2929.12(B)(C).
Likewise, the statute sets forth a nonexclusive list of factors indicating the
offender is more likely to commit future crimes and factors indicating
recidivism is less likely. R.C. 2929.12(D)(E). Morgan, supra, at ¶ 37.
“Once the trial court considers R.C. 2929.11 and 2929.12, the burden is on
the defendant to demonstrate by clear and convincing evidence that the
record does not support his sentence.” Morgan, supra, at ¶ 38, quoting,
Yost, supra, at ¶ 12, quoting, State v. Akins-Daniels, 8th Dist. Cuyahoga No.
103817, 2016-Ohio-7048, at ¶ 9; State v. O'Neill, 3d Dist. Allen No. 1-09-
27, 2009-Ohio-6156, at fn. 1.
{¶19} In this case, both the sentencing transcript and sentencing entry
reflect that the trial court considered the record; the oral statements of
counsel and Appellant; the oral statements of the victim’s mother,
grandmother, and older sister; a letter from the victim’s eight-year old sister
read into the record; twenty-five letters written on behalf of Appellant; and
the presentence investigation report. The trial court commented that the
presentence investigation report was the “ largest, most voluminous
presentence investigation report the Court has considered. And I think, for
the right reasons. Thoroughness of the preparation of it by the probation
department.” The record reflects the trial court also considered the
Adams App. No. 19CA1090 15
overriding purposes of felony sentencing pursuant to R.C. 2929.11, and
considered all relevant seriousness and recidivism factors of R.C. 2929.12.
While Appellant's eleven-year term for involuntary manslaughter, three-year
term for the specification, and three-year term for tampering with evidence
do constitute maximum sentences for those counts, the sentences are within
the statutory range for each offense. Therefore, we initially conclude that
Appellant's overall maximum sentence is not contrary to law.
{¶20} Appellant’s chief argument, however, is that his sentence
is not clearly and convincingly supported by the record. Appellant asserts
that the trial court did not adequately consider the statutory sentencing
factors. Appellant points to his very limited criminal record; his limited
education; and his lack of history for alcohol or drug abuse.1 Because of
these facts, Appellant concludes that the seventeen-year maximum sentence
is excessive and not supported by the record. For the reasons which follow,
we disagree.
{¶21} We have reviewed the entire record, including the presentence
investigation report. The trial court read from it at length during sentencing.
Then, the trial court spoke of balancing the recidivism factors and stated that
he could not find genuine remorse. While the trial court acknowledged the
1
Appellant had only two minor traffic infractions on his record.
Adams App. No. 19CA1090 16
letters written on behalf of Appellant also emphasizing the practically
nonexistent criminal record, his good grades in school, lack of substance
abuse history, and characterizing his personality as gentle and respectful, the
trial court stated:
Mr. Williams, where I take exception to the remorse is those
of us that toil in this room, we seek only the truth. And you
have refused to give the truth. * * * There’s not a person
that could figure out what happened because you refuse to
tell us. What we know didn’t happen is that Mr. Bladyn
Skaggs did not have a weapon. * * * The physical evidence
defies your words. And so we will always be left to wonder.
And I think it’s so unfair to Ms. Parker, to the sisters, to the
father, to your own mother that you would leave them with
such uncertainty. But what we know didn’t happen is what
you say happened. You talk about he approaches you and
perceive that he had a knife and so you shield your face
with a gun, you reach for a gun and shield your face and he
gets shot in the side of the head in the left ear. It defies all
logic.
Adams App. No. 19CA1090 17
{¶22} This is the point at which the trial court asked if Appellant
would like the opportunity to clearly explain the underlying facts of the
incident, ostensibly meaning: “What were you talking about? Why did you
shoot him?” As indicated, Appellant declined. The trial court then
commented that it did not appear that Appellant was a bad man and pointed
out he was the exception of most defendants he saw in the courtroom. As
the trial court imposed the consecutive portion of Appellant’s sentence, the
court commented:
The Court in its determination finds that two of the multiple
offenses were committed as part of one or more courses of
conduct. The senseless murder and then the senseless blame
of suicide and then the senseless tampering with the evidence
and the multiple lies about the same.
{¶23} The court further found:
And the harm caused by two or more of these multiple offenses
is so great and so unusual that no single prison term for any
of the offenses committed as part of this course of conduct
on this evening would adequately reflect the seriousness of
the offender’s conduct. Again, it would be disingenuous
to ever suggest that any of us would be able to understand
Adams App. No. 19CA1090 18
the pain of the Skaggs’ family, having not been through that.
But the profound impact that you have had on the mother,
the sister, the grandmother, the little sister is so great and
so unusual that the sentences will be consecutive.
{¶24} We are required to afford deference to the trial court's broad
discretion in making sentencing decisions; trial courts have great latitude
and discretion in formulating the appropriate sentence. State v. Rahab, 150
Ohio St. 3d 152, 2017-Ohio-1401, 80 N.E.3d 431, ¶ 10. Precedent refutes
any contention that each statutory or other relevant factor is entitled to equal
or a certain weight in the balancing process. Yost, supra, at ¶ 19; See State
v. Graham, 4th Dist. Adams No. 17CA1046, 2018-Ohio-1277, at ¶ 25,
rejecting the argument that because each of the statutory sentencing factors
are mandatory, each is entitled to equal weight on balance, citing State v.
Bailey, 4th Dist. Highland No. 11CA7, 2011-Ohio-6526, at ¶ 34, quoting
State v. Arnett, 88 Ohio St. 3d 208, 215, 724 N.E.2d 793 (2000) (“in
considering the factors set forth in R.C. 2929.12, the trial court has ‘the
discretion to determine the weight to assign a particular statutory factor’ ”).
Furthermore, “ ‘Simply because the court did not balance the factors in the
manner appellant desires does not mean that the court failed to consider
them, or that clear and convincing evidence shows that the court's findings
Adams App. No. 19CA1090 19
are not supported by the record.’ ” Yost, supra, at ¶ 20, quoting, State v.
Graham, 4th Dist. Meigs No. 17CA10, 2018-Ohio-1277, at ¶ 26, quoting
State v. Butcher, 4th Dist. Athens No. 15CA33, 2017-Ohio-1544, at ¶ 87.
{¶25} Here, we decline to second-guess the trial court's sentencing
decision. The trial court was faced with a factual scenario in which one
promising young life has been lost, another young life will be spent behind
prison bars, and two families’ lives have been forever altered. Given the
facts herein and the standard of review, we cannot conclude that Appellant's
sentence is clearly and convincingly unsupported by the record. Therefore,
we also find no merit to Appellant's second assignment of error. As such, it
is hereby overruled.
3. Prison programming.
{¶26} The language of the trial court’s order states the trial
court has “reserved for denial” his participation in transitional control and
IPP (“Intensive Program Prison”). Appellant asserts this “automatic” denial
is improper. Appellant directs our attention to the Fifth Appellant District’s
decision in State v. Spears, 5th Dist. Licking No. 10CA-95, 2011-Ohio-1538,
which held that it is error for the trial court to deny placement into prison
programming at the time of sentencing. Appellant concludes that the matter
should be remanded to the trial court for a new sentencing hearing. In
Adams App. No. 19CA1090 20
response, Appellee points out that any error in the language of the court’s
order is harmless error at best because Appellant is not qualified for such
programs.
{¶27} We begin with the trial court’s order as to IPP. IPP
“ ‘ refers to several ninety-day programs, for which certain inmates are
eligible, that are characterized by concentrated and rigorous specialized
treatment services. An inmate who successfully completes an IPP will have
his/her sentence reduced to the amount of time already served and will be
released on post-release supervision for an appropriate time period.’ ’’ State
v. Turner, 8th Dist. Cuyahoga Nos. 103610, 1103611, 2016-Ohio-3325, at
¶ 28, quoting, State v. Peltier, 2d Dist. Champaign No. 2018-CA-21, 2019-
Ohio-569, at ¶ 20, quoting, State v. Howard, 190 Ohio App. 3d 734, 2010-
Ohio-5283, 944 N.E.2d 258, at ¶ 12 (2d Dist.), quoting the Ohio
Department of Correction and Rehabilitation website. IPPs focus on
“ ‘educational achievement, vocational training, alcohol and other drug
abuse treatment, community service and conservation work, and other
intensive regimens or combinations of intensive regimens.’ ’’ Howard,
supra, at ¶ 10, quoting R.C. 5120.032. Trial courts have discretion to
recommend placement of an offender into an IPP pursuant to R.C. 5120.032.
Adams App. No. 19CA1090 21
{¶28} However, in this case, Appellant’s argument is moot. R.C.
5120.032(B)(2)(a) provides that a prisoner who is serving a prison term for a
felony of the first degree is not eligible to participate in an intensive program
prison. State v. Jones, 2d Dist. Montgomery No. 24075, 2011-Ohio-4013, at
¶ 43. Appellant was convicted and sentenced for involuntary manslaughter,
a felony of the first degree. R.C. 5120.032(B)(2)(a) specifically excludes
individuals, serving prison terms for first and second-degree felonies from
participating in an IPP. Hence, Appellant is not eligible for IPP.
{¶29} The trial court also “reserved for denial,” Appellant’s ability to
participate in the transitional control program. R.C. 2967.26 allows for the
creation of a transitional control program for those nearing the end of their
prison sentence. The statute reads, in pertinent part:
“(2) * * * the adult parole authority shall give notice of the
pendency of the transfer to transitional control to the court of
common pleas of the county in which the indictment against the
prisoner was found and of the fact that the court may
disapprove the transfer of the prisoner to transitional control
and shall include a report prepared by the head of the state
correctional institution in which the prisoner is confined. * * *
If the court disapproves of the transfer of the prisoner to
Adams App. No. 19CA1090 22
transitional control, the court shall notify the authority of the
disapproval within thirty days after receipt of the notice. If the
court timely disapproves the transfer of the prisoner to
transitional control, the authority shall not proceed with the
transfer. If the court does not timely disapprove the transfer of
the prisoner to transitional control, the authority may transfer
the prisoner to transitional control.”
See also, State v. Toennissen, 12th Dist. Butler Nos. CA-2010-11-307,
CA2010-11-308, and CA-2010-11-309, 2011-Ohio-5869, at ¶ 29.
{¶30} As explained above, once the trial court is notified of the
pendency to transitional control, the court still retains discretion to
deny the transfer. When the legislature has meant for the judiciary to
have the discretion to deny eligibility for prison programs, it has made
its intent clear. State v. Livingston, 2014-Ohio-1637, 9 N.E.3d 1117,
(1st Dist.), at ¶ 8. Furthermore, the trial court’s language does not
“automatically” deny participation. See Toennissen, supra, (Trial
court retained the power to reconsider and, if prudent, overturn its
initial objection to transitional control.) Given the language of the
prison programming statute, the trial court’s language is unnecessary
Adams App. No. 19CA1090 23
and may hint that he disfavors Appellant’s entry into IPP, but it did
not automatically deny IPP at the time of sentencing.
{¶31} For the foregoing reasons, we find no merit to Appellant’s third
assignment of error. Accordingly, it is hereby overruled.
{¶32} Having overruled all assignments of error, we affirm the
judgment of the trial court. However, in our analysis of the first assignment
of error, we have found a clerical mistake. Therefore, pursuant to App.R.
9(E), we instruct the trial court to issue a nunc pro tunc sentencing entry that
includes the required findings so as to accurately reflect the sentence
imposed on the record during the sentencing hearing.
JUDGMENT AFFIRMED
WITH INSTRUCTIONS
Adams App. No. 19CA1090 24
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED WITH
INSTRUCTIONS and costs be assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Adams County Common Pleas Court to carry this judgment into
execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Abele, J. & McFarland, J.: Concur in Judgment and Opinion.
For the Court,
BY: __________________________________
Jason P. Smith, Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.