State v. Hinze ( 2022 )

[Cite as State v. Hinze, 2022-Ohio-2602.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 29290
:
v. : Trial Court Case No. 2019-CR-4108/2
:
AMANDA HINZE : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 29th day of July, 2022.
...........
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, 301
West Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
DENNIS A. LIEBERMAN, Atty. Reg. No. 0029460 & RICHARD HEMPFLING, Atty. Reg.
No. 0029986, 10 North Ludlow Street, Suite 200, Dayton, Ohio 45402
Attorneys for Defendant-Appellant
.............
DONOVAN, J.
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{¶ 1} Amanda Hinze appeals from her convictions, following her guilty pleas, to
three counts of endangering children and one count of involuntary manslaughter. Hinze
asserts that the trial court’s judgment entry of conviction incorrectly calculated of her
maximum aggregate sentence under the Reagan Tokes Act and did not reflect the court’s
oral pronouncement of her sentence. The State concedes error. Therefore, we reverse
the judgment in part and remand for resentencing consistent with this opinion. In all other
respects, the judgment is affirmed.
{¶ 2} On December 27, 2019, Hinze was indicted on one count of endangering
children (parent-serious harm), in violation of R.C. 2919.22(A) (Count 1); one count of
endangering children (serious physical harm), in violation of R.C. 2919.22(B)(1) (Count
2); one count of endangering children (torture-serious harm), in violation of R.C.
2919.22(B)(2) (Count 3); and one count of endangering children (corporal punishment-
serious harm), in violation of R.C. 2919.22(B)(3) (Count 4). Count 1 was a felony of the
third degree, and the other offenses were felonies of the second degree.
{¶ 3} On July 1, 2020, a reindictment was issued. Hinze was indicted on four
counts of involuntary manslaughter, in violation of R.C. 2903.04(A), felonies of the first
degree (Counts 1-4); one count of kidnapping (terrorize/physical harm), in violation of
R.C. 2905.01(A)(3), a felony of the first degree (Count 5); and two counts of endangering
children (parent-serious harm), in violation of R.C. 2919.22(A), felonies of the third degree
(Counts 6-7).
{¶ 4} On September 9, 2021, after her motion to suppress was overruled, Hinze
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pled guilty to Counts 3 and 4 in the original indictment and to Counts 1 and 6 in the
reindictment. At the plea hearing, the following exchange occurred:
THE COURT: And I do believe there’s been a plea agreement
reached between the State and the Defendant. So [Prosecutor], would you
please recite what that plea agreement is?
[THE PROSECUTOR]: * * * Your Honor, I’m going to read from the
email, so that we get it correct, that I’d sent to counsel. Amanda Hinze
would be pleading to Count I of the B indictment, felony 1 manslaughter;
Count III of the original indictment, F-2 in child endangering, torture; Count
IV of the original indictment, F-2, child endangering, restraint; Count VI of
the B indictment, F-3, child endangering. The total potential that she could
face by terms of this agreement would be 9 to - - 9 months to 30 years.
She will be going to prison under the terms of the agreement within that
range. The parties agree to no merger for these counts. She will waive
all waivable appeals and post-conviction proceedings. She’ll withdraw all
pending motions. She’ll be sentenced to prison. Both parties can argue
and present evidence to request sentencing within the 9 months to 30-year
range. She’ll execute and has executed a full proffer agreement to testify.
The sentencing will be deferred until after Codefendant McLean’s trial.
She would have no eligibility for early release pending the sentence
imposed by the Court.
The full proffer agreement is State’s Exhibit 1 that has been provided
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to counsel. It has been signed by Defendant who is present with her
attorney, * * * and has been signed by the State of Ohio’s attorneys and the
State’s detective. It has also been initialed, each and every paragraph by
the Defendant Amanda Hinze to indicate that she has gone over each
specific paragraph with her counsel.
Defense counsel acknowledged his understanding of the plea agreement, as did Hinze.
Hinze’s plea form for Count 1 of the reindictment set forth a maximum term of 16.5 years,
and her plea form for Counts 3 and 4 of the original indictment set forth a maximum term
of 12 years.
{¶ 5} Sentencing occurred on September 29, 2021. The court pronounced
sentence as follows:
In regards to the B indictment, under Count I, manslaughter, I
sentence you to a minimum term of 11 years to a maximum term of 16-1/2
years. Under Count VI of the B indictment, endangering children, I
sentence you to a term of 36 months in the Ohio Reformatory for Women.
Under original indictment referred to as A, Count III, endangering
children, a felony of the second degree, I’m going to sentence you to a
minimum term of 8 years and a maximum term of 12 years. Under Count
IV of that same indictment, endangering children, I sentence you to a term
of 8 years - - minimum term of 8 years to a maximum term of 12 years.
Counts I and VI of the B indictment are to run consecutive to each
other. Counts III and IV of the original indictment are to run concurrently
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with each other but consecutive to the B indictment, Counts I and VI, for a
total sentence of minimum of 22 years.
{¶ 6} On September 30, 2021, the court issued a judgment entry of conviction that
provided as follows:
Sentenced to indefinite prison term under Reagan Tokes law (SB 201) effective
March 20, 2019.
WHEREFORE, it is the JUDGMENT and SENTENCE of the Court that the
defendant herein be delivered to the OHIO REFORMATORY FOR WOMEN
there to be imprisoned and confined for a term of
A INDICTMENT: CT 3: MINIMUM EIGHT (8) YEARS to MAXIMUM TWELVE (12)
YEARS,
A INDICTMENT: CT 4: MINIMUM EIGHT YEARS to MAXIMUM TWELVE (12)
YEARS.
B INDICTMENT: CT 1: MINIMUM ELEVEN (11) YEARS to MAXIMUM SIXTEEN AND
A HALF (16.5) YEARS MAXIMUM,
B INDICTMENT: CT 6: THIRTY-SIX (36) MONTHS.
COUNTS 3 AND 4 TO BE SERVED CONCURRENT TO EACH OTHER AND
CONSECUTIVE TO CT 1 AND 6.
COUNTS 1 AND 6 TO BE SERVED CONSECUTIVE TO EACH OTHER AND
CONCURRENT TO COUNTS 3 AND 4.
***
TOTAL SENTENCE IMPOSED: 22 YEARS MINIMUM TO 28 YEARS MAXIMUM
{¶ 7} On October 13, 2021, the trial court issued a second judgment entry of
conviction that was identical to the initial one except that it provided as follows: “TOTAL
SENTENCE IMPOSED: 22 YEARS MINIMUM TO 31.5 YEARS MAXIMUM[.]”
{¶ 8} On November 1, 2021, Hinze filed her notice of appeal, listing both judgments
as judgments on appeal.
{¶ 9} As a preliminary matter, we question whether the trial court had the authority
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to file an amended judgment entry that made a substantive change to the sentence it had
imposed. But we need not resolve that question, because we are reversing the trial
court’s judgment. Further, either the September 30 judgment was the final judgment or
the October 13 judgment superseded that judgment and that was the final judgment, but
both were not effective final judgments. (The notice of appeal was timely as to either
judgment.) Thus, we will refer to only a single judgment entry of conviction in this
opinion.
{¶ 10} Hinze asserts the following assignment of error:
THE SENTENCE SET FORTH IN THE TRIAL COURT’S
TERMINATION ENTRY DIFFERED FROM THAT WHICH WAS
ANNOUNCED AT THE TIME OF SENTENCING AND WAS CONTRARY
TO LAW AND LOGIC.
{¶ 11} Hinze asserts that the trial court’s calculation of the total minimum term of
22 years was correct, but that the total maximum term “should have been the sum of that
total minimum plus one half of only the longest minimum of the most serious felony being
sentenced.” Hinze asserts that the “most serious felony was Count 1 of the ‘B’
Indictment, a felony of the first degree. The minimum for that was 11 years. Thus, only
one half of that 11 years (i.e. 5.5 years) should have been added to the total minimum,
resulting in a total maximum sentence of 27.5 years.” Hinze asserts that the judgment
entry “exceeded that permissible maximum term” and therefore was contrary to law, and
this matter must be remanded for resentencing.
{¶ 12} Hinze further asserts that the trial court’s statements regarding concurrent
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and consecutive sentences differed from what was announced in open court and were
also “illogical and impossible to achieve.” She asserts:
At the time of sentencing, the Court stated that the first and sixth
counts of the “B” Indictment were to be consecutive to each other, and that
the third and fourth counts of the “A” Indictment were to be concurrent to
each other, but consecutive to the two counts of the “B” Indictment. On the
other hand, both the September 30, 2021 and the October 13, 2021
Termination Entries state, inter alia, that Counts 3 and 4 are to be
concurrent to each other and consecutive to Counts 1 and 6, while at the
same time stating that Counts 1 and 6 are to be consecutive to each other
but concurrent to Counts 3 and 4. This is inconsistent with the
announcement at the time of sentencing, and it is impossible for both
statements to be true. Thus, resentencing is necessary on this basis as
well.
(Emphasis sic.) Appellant’s Brief p. 4.
{¶ 13} The State concedes error and asks that this matter be remanded to the trial
court with an instruction that it correct its mistakes by filing an amended judgment entry.
According to the State, because the trial court correctly announced the sentence at the
sentencing hearing, and the only error occurred in the judgment entry, Hinze does not
need to be re-sentenced; the error can be corrected through the filing of an amended
judgment entry that reflects the maximum sentence as being 27.5 years.
{¶ 14} This Court recently summarized the Reagan Tokes Act as follows:
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The Reagan Tokes Law, effective on March 22, 2019, “ ‘significantly
altered the sentencing structure for many of Ohio's most serious felonies’ by
implementing an indefinite sentencing system for those non-life felonies of
the first and second degree, committed on or after the effective date.” State
v. Polley, 6th Dist. Ottawa No. OT-19-039, 2020-Ohio-3213, ¶ 5, fn. 1. The
Law requires the sentencing judge to impose a “minimum term” from within
the currently established sentencing range and a “maximum term” of an
additional fifty percent of the imposed minimum term. See R.C.
2929.144(B). “Release [from prison] is presumed to occur at the expiration
of the ‘minimum term,’ however the Department of Rehabilitation and
Corrections [DRC] may, under certain circumstances, rebut that release
presumption and impose additional prison time up to the ‘maximum
term.’ ” The Ohio Criminal Sentencing Commission, SB 201 Quick
Reference Guide July 2019. The DRC may also reduce the minimum term,
with the approval of the sentencing court. Id.State v. Leamman, 2d Dist. Champaign Nos. 2021-CA-30 and 2021-CA-35, 2022-Ohio-
2057, ¶ 9, quoting State v. Ferguson, 2d Dist. Montgomery No. 28644, 2020-Ohio-4153,
¶ 20.
{¶ 15} R.C. 2929.144 provides:
***
(B) The court imposing a prison term on an offender under division
(A)(1)(a) or (2)(a) of section 2929.14 of the Revised Code for a qualifying
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felony of the first or second degree shall determine the maximum prison
term that is part of the sentence in accordance with the following:
***
(2) If the offender is being sentenced for more than one felony, if one
or more of the felonies is a qualifying felony of the first or second degree,
and if the court orders that some or all of the prison terms imposed are to
be served consecutively, the court shall add all of the minimum terms
imposed on the offender under division (A)(1)(a) or (2)(a) of section 2929.14
of the Revised Code for a qualifying felony of the first or second degree that
are to be served consecutively and all of the definite terms of the felonies
that are not qualifying felonies of the first or second degree that are to be
served consecutively, and the maximum term shall be equal to the total of
those terms so added by the court plus fifty per cent of the longest minimum
term or definite term for the most serious felony being sentenced.
{¶ 16} As the parties assert, the court correctly calculated Hinze’s minimum
prison term of 22 years (11 years for the felony of the first degree in the reindictment, plus
eight years for the concurrent endangering children offenses in the initial indictment, plus
the three year sentence for the third degree felony in the reindictment, equals 22 years.)
At the sentencing hearing, the court failed to calculate the maximum term which, as the
parties agree, is 27.5 years (the 22 year minimum sentence, plus fifty percent of the 11-
year sentence, or 5.5). The trial court incorrectly calculated the maximum term in each
of the judgments it filed. We also agree with the parties that the imposition of the
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concurrent and consecutive sentences was internally inconsistent and incorrect.
{¶ 17} The record before us further reflects that the trial court failed to comply with
R.C. 2929.19, which governs sentencing hearings, and provides:
(2) Subject to division (B)(3) of this section, if the sentencing court
determines at the sentencing hearing that a prison term is necessary or
required, the court shall do all of the following:
***
(c) If the prison term is a non-life felony indefinite prison term, notify the
offender of all of the following:
(i) That it is rebuttably presumed that the offender will be released from
service of the sentence on the expiration of the minimum prison term
imposed as part of the sentence or on the offender's presumptive earned
early release date, as defined in section 2967.271 of the Revised Code,
whichever is earlier;
(ii) That the department of rehabilitation and correction may rebut
the presumption described in division (B)(2)(c)(i) of this section if, at a
hearing held under section 2967.271 of the Revised Code, the department
makes specified determinations regarding the offender's conduct while
confined, the offender's rehabilitation, the offender's threat to society, the
offender's restrictive housing, if any, while confined, and the offender's
security classification;
(iii) That if, as described in division (B)(2)(c)(ii) of this section, the
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department at the hearing makes the specified determinations and rebuts
the presumption, the department may maintain the offender's incarceration
after the expiration of that minimum term or after that presumptive earned
early release date for the length of time the department determines to be
reasonable, subject to the limitation specified in section 2967.271 of the
Revised Code;
(iv) That the department may make the specified determinations and
maintain the offender's incarceration under the provisions described in
divisions (B)(2)(c)(i) and (ii) of this section more than one time, subject to
the limitation specified in section 2967.271 of the Revised Code;
(v) That if the offender has not been released prior to the expiration of the
offender's maximum prison term imposed as part of the sentence, the
offender must be released upon the expiration of that term.
(Emphasis added.) See also State v. Thompson, 2d Dist. Clark No. 2020-CA-60, 2021-
Ohio-4027, ¶ 27-31. The trial court failed to make the required indefinite sentencing
notifications at the sentencing hearing, and they are not included in its judgment entry.
{¶ 18} For the foregoing reasons, Hinze’s sentence is contrary to law. The
judgment is reversed in part and the matter is remanded to the trial court for the sole
purpose of resentencing Hinze based upon the conceded errors herein and pursuant to
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R.C. 2929.19(B)(2)(c).1 In all other respects, the judgment is affirmed.
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TUCKER, P.J. and LEWIS, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Andrew T. French
Dennis A. Lieberman
Richard Hempfling
Hon. Dennis J. Adkins
1
We note that the trial court filed a third judgment entry on November 15, 2021, after the
notice of appeal was filed. This judgment corrected the maximum sentence to 27.5 years
and clarified the concurrent/consecutive nature of the sentences, but it did not address
the failure to provide the required notifications at sentencing. Moreover, insofar as a
notice of appeal had been filed, the trial court clearly lacked jurisdiction to take further
action at that time, and this judgment was a nullity.