State v. Bell

[Cite as State v. Bell, 2016-Ohio-5379.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. John W. Wise, J.
-vs- :
:
JOSHUA R. BELL : Case No. 16-COA-012
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 14-CRI-158
JUDGMENT: Sentence Vacated; Remanded
DATE OF JUDGMENT: August 15, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHRISTOPHER E. BALLARD MATTHEW J. MALONE
110 Cottage Street 10 East Main Street
Third Floor Ashland, OH 44805
Ashland, OH 44805
Ashland County, Case No. 16-COA-012 2
Farmer, P.J.
{¶1} On August 7, 2015, appellant, Joshua Bell, pled guilty to two counts of
drug possession (heroin) in violation of R.C. 2925.11 and one count of possessing
criminal tools in violation of R.C. 2923.24, all felonies in the fifth degree. By nunc pro
tunc judgment entry filed August 20, 2015, the trial court sentenced appellant to one
hundred eighty-days on the each of the drug counts, to be served consecutively, and
imposed a period of four years of community control.
{¶2} On April 4, 2016, appellant pled guilty to violating community control. By
judgment entry filed April 18, 2016, the trial court sentenced appellant to twelve months
on each of the three counts, to be served consecutively, for a total term of thirty-six
months in prison.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶4} "THE TRIAL COURT'S SENTENCE IMPOSED ON APPELLANT FOR
VIOLATING HIS COMMUNITY CONTROL WAS CLEARLY AND CONVINCINGLY
CONTRARY TO LAW."
I
{¶5} Appellant claims the trial court erred in sentencing him to consecutive
sentences in violation of the dictates of State v. Bonnell, 140 Ohio St.3d 209, 2014-
Ohio-3177. We agree.
{¶6} Pursuant to the Supreme Court of Ohio's recent holding in State v.
Marcum, ___ Ohio St.3d ___, 2016–Ohio–1002, ¶ 7, this court will review a felony
Ashland County, Case No. 16-COA-012 3
sentence using the standard set forth in R.C. 2953.08, and will no longer apply the
abuse of discretion standard under State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912.
R.C. 2953.08 governs appeals based on felony sentencing guidelines. Subsection
(G)(2) sets forth this court's standard of review as follows:
(2) 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 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.
{¶7} "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
Ashland County, Case No. 16-COA-012 4
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 (1954), paragraph three of the
syllabus.
{¶8} R.C. 2929.14(C)(4) governs consecutive sentences and states the
following:
(4) If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the offender to
serve the prison terms consecutively if the court finds that the consecutive
service is necessary to protect the public from future crime or to punish
the offender and 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 if the court also finds any of the following:
(a) 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 post-release control for a prior offense.
(b) 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.
Ashland County, Case No. 16-COA-012 5
(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
{¶9} Appellant concedes the trial court made the necessary findings to support
consecutive sentences at the sentencing hearing, but argues the trial court failed to
include the necessary findings in the sentencing entry pursuant to Bonnell, supra at ¶
29:
When imposing consecutive sentences, a trial court must state the
required findings as part of the sentencing hearing, and by doing so it
affords notice to the offender and to defense counsel. See Crim.R.
32(A)(4). And because a court speaks through its journal, State v.
Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, 863 N.E.2d 1024, ¶ 47, the
court should also incorporate its statutory findings into the sentencing
entry. However, 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.
{¶10} In its appellate brief at 1, appellee concedes the issue. Pursuant to
Bonnell, supra at ¶ 30-31:
Ashland County, Case No. 16-COA-012 6
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. See State v.
Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 15
(where notification of postrelease control was accurately given at the
sentencing hearing, an inadvertent failure to incorporate that notice into
the sentence may be corrected by a nunc pro tunc entry without a new
sentencing hearing). But a nunc pro tunc entry cannot cure the failure to
make the required findings at the time of imposing sentence. See State v.
Miller, 127 Ohio St.3d 407, 2010–Ohio–5705, 940 N.E.2d 924, ¶ 16 ("a
nunc pro tunc order cannot cure the failure of a judge to impose restitution
in the first instance at sentencing").
And a sentencing entry that is corrected by a nunc pro tunc entry
incorporating findings stated on the record at the sentencing hearing does
not extend the time for filing an appeal from the original judgment of
conviction and does not create a new final, appealable order. See State v.
Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, ¶ 20 ("a
nunc pro tunc judgment entry issued for the sole purpose of complying
with Crim.R. 32(C) to correct a clerical omission in a final judgment entry
is not a new final order from which a new appeal may be taken").
Ashland County, Case No. 16-COA-012 7
{¶11} Upon review, we vacate the sentence and remand the matter to the trial
court to issue a nunc pro tunc judgment entry on sentencing to include the requisite
findings.
{¶12} The sole assignment of error is granted.
{¶13} The sentence of the Court of Common Pleas of Ashland County, Ohio is
hereby vacated, and the matter is remanded to said court for the limited purpose of
issuing a nunc pro tunc sentencing entry in accordance with the law and this opinion.
By Farmer, P.J.
Hoffman, J. and
Wise, J. concur.
SGF/sg 8/5