Animal Control v. Keller

[Cite as Animal Control v. Keller, 2022-Ohio-2164.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
ANIMAL CONTROL :
:
Plaintiff-Appellee : Appellate Case Nos. 2021-CA-34,
: 2021-CA-35, 2021-CA-36
v. :
: Trial Court Case Nos. CRB2100837A,
NICOLE M. KELLER : CRB2100966A, CRB2100966B,
: CRB2100965A, CRB2100965B
Defendant-Appellant :
: (Criminal Appeal from Municipal Court)
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OPINION
Rendered on the 24th day of June, 2022.
...........
BETSY A. DEEDS, Atty. Reg. No. 0076747, Assistant City of Fairborn Prosecuting
Attorney, 510 West Main Street, Fairborn, Ohio 45324
Attorney for Plaintiff-Appellee
DONALD K. POND, Atty. Reg. No. 0068880, 567 East Turkeyfoot Lake Road, Suite 107,
Akron, Ohio 44319
Attorney for Defendant-Appellant
.............
TUCKER, P.J.
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{¶ 1} Nicole M. Keller appeals from her conviction on multiple misdemeanor
charges of failure to confine or control a dog in three cases.
{¶ 2} Keller contends the trial court erred in each case by journalizing a sentence
that conflicts with the sentence orally imposed at her sentencing hearing. The State
effectively concedes error and “does not object” to Keller’s request for resentencing.
{¶ 3} We agree that the trial court’s journalized sentence in each case differs from
the sentence it orally imposed. Accordingly, we will reverse the trial court’s judgment in
each case and remand for resentencing.
I. Background
{¶ 4} In Fairborn M.C. No. CRB2100837, Keller pled no contest to one count of
failure to confine or control a dog, a fourth-degree misdemeanor, and was found guilty.
{¶ 5} In Fairborn M.C. No. CRB2100965, Keller pled guilty to two counts of failure
to confine or control a dangerous dog, a third-degree misdemeanor.
{¶ 6} In Fairborn M.C. No. CRB2100966, Keller pled guilty to two counts of failure
to confine or control a dangerous dog, a third-degree misdemeanor.
{¶ 7} The trial court held a September 30, 2021 sentencing hearing for all three
cases. In Case No. CRB2100837, the trial court imposed and suspended a 30-day jail
sentence along with a fine, restitution, and an order to pay costs.
{¶ 8} In Case No. CRB2100965, the trial court imposed and suspended a 30-day
jail sentence on each charge “running concurrently or consecutively to the other cases.”
The trial court also ordered Keller to pay a fine and costs.
{¶ 9} In Case No. CRB2100966, the trial court imposed and suspended “30 days
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of jail running cons—concurrently or consecutively to the other case.” It also ordered
Keller to pay a fine and costs.
{¶ 10} The trial court’s subsequent journal entry in Case No. CRB2100837 ordered
the suspended jail sentence to be served consecutive to the sentences in the other two
cases.
{¶ 11} The journal entry in Case No. CRB2100965 ordered the two suspended jail
sentences to be served concurrent to each other and consecutive to the sentences in the
other two cases.
{¶ 12} Finally, the journal entry in Case No. CRB2100966 ordered the two
suspended jail sentences to be served concurrent to each other and consecutive to the
sentences in the other two cases.
{¶ 13} The trial court stayed execution of sentence pending appeal in each case.
II. Analysis
{¶ 14} In her sole assignment of error, Keller contends the sentences imposed in
the three judgment entries differ from the sentences imposed at her sentencing hearing.
Keller notes that the journal entry in Case No. CRB2100837 made her sentence
consecutive to the sentences in the other two cases, whereas the trial court did not
mention consecutive service at the sentencing hearing. In Case No. CRB2100965, the
journal entry made her two sentences concurrent with each other and consecutive to the
sentences in the other two cases, whereas at the sentencing hearing the trial court
imposed two sentences “running concurrently or consecutively to the other cases.” In
Case No. CRB2100966, the journal entry made her two sentences concurrent with each
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other and consecutive to the sentences in the other two cases, whereas the trial court
orally imposed “30 days of jail running cons—concurrently or consecutively to the other
case.”
{¶ 15} The primary problem in Case No. CRB2100837 is that the trial court did not
mention consecutive service at the sentencing hearing. The primary problem in Case No.
CRB2100965 is that the trial court orally imposed her sentences “concurrently or
consecutively” with the other cases, which does not make sense. It also did not specify
whether the two suspended sentences in that case were to be served concurrently or
consecutively with each other. The problems in Case No. CRB2100966 are three-fold.
First, the trial court orally imposed “30 days of jail” without making clear whether that was
on one or both convictions. Second, the trial court stated that the suspended 30-day
sentence was to be served “concurrently or consecutively,” which makes no sense. Third,
the trial court stated that the sentence was to be served concurrently or consecutively “to
the other case,” which is unclear because there were two other cases. The trial court later
journalized sentences in all three cases that varied from the terms recited at the
sentencing hearing.
{¶ 16} We have recognized that “ ‘a trial court errs when it issues a judgment entry
imposing a sentence that differs from the sentence pronounced in the defendant’s
presence.’ ” State v. Culver, 160 Ohio App.3d 172, 2005-Ohio-1359, 826 N.E.2d 367,
¶ 70 (2d Dist.), quoting State v. Aliane, 10th Dist. Franklin No. 03AP-840, 2004-Ohio-
3730, ¶ 8; see also State v. Walker, 2d Dist. Clark Nos. 2013-CA-8, 2013-CA-9, 2014-
Ohio-526, ¶ 22. In such a case, one remedy is a remand for resentencing with the
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defendant present. Culver at ¶ 70, citing State v. Ranieri, 84 Ohio App.3d 432, 434, 616
N.E.2d 1191 (8th Dist. 1992). A second possible remedy is the appellate court’s
modification of a judgment entry to impose a more lenient sentence pronounced at the
sentencing hearing. State v. Rutledge, 2d Dist. Montgomery No. 11961, 1991 WL 21508,
*3 (Feb. 21, 1991).
{¶ 17} We agree with the parties that the terms of the judgment entries differed
from the sentences orally imposed in Keller’s presence. To some extent, the judgment
entries needed to modify what was imposed at the sentencing hearing because orally
imposing sentences “consecutively or concurrently” to other sentences effectively says
nothing. Therefore, it is impossible for us to modify the judgment entries to impose the
sentences pronounced at sentencing. In light of the parties’ mutual request for
resentencing and the other problems identified above, we find a remand for resentencing
appropriate. Accordingly, Keller’s assignment of error is sustained.
III. Conclusion
{¶ 18} We reverse the trial court’s judgment in Case Nos. CRB2100837,
CRB2100965, and CRB2100966 and remand for resentencing with a new sentencing
hearing in each case.
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DONOVAN, J. and EPLEY, J., concur.
Copies sent to:
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Betsy A. Deeds
Donald K. Pond
Hon. Beth W. Cappelli