State v. Gordon

[Cite as State v. Gordon, 2023-Ohio-887.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY
STATE OF OHIO, CASE NO. 2022-P-0024
Plaintiff-Appellee,
Criminal Appeal from the
-v- Court of Common Pleas
JERRIMIE A. GORDON,
Trial Court No. 2020 CR 00701
Defendant-Appellant.
OPINION
Decided: March 20, 2023
Judgment: Affirmed and remanded
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Donald K. Pond, Jr., 567 East Turkeyfoot Lake Road, Suite 107, Akron, OH 44319
(For Defendant-Appellant).
EUGENE A. LUCCI, J.
{¶1} Appellant, Jerrimie A. Gordon, appeals the judgment of the Portage County
Court of Common Pleas, resentencing him to consecutive sentences on two counts of
felony-three sexual battery. At issue is whether the trial court complied with its obligation
to set forth the necessary statutory findings included in R.C. 2929.14(C)(4) in its judgment
entry. The matter is affirmed but remanded for the trial court to file a nunc pro tunc
judgment incorporating the sentencing findings it properly made at the resentencing
hearing.
{¶2} In September 2020, appellant was indicted on one count of rape, in violation
of R.C. 2907.02, a felony of the first degree and one count of sexual battery, in violation
of R.C. 2907.03, a felony of the third degree. In January 2021, a supplemental indictment
was filed alleging an additional count of rape, under the same code section, and an
additional count of sexual battery, also under the same code section. Appellant ultimately
entered a plea of guilty to two counts of sexual battery, felonies of the third degree. The
trial court accepted appellant’s plea and nollied the remaining counts. Appellant was
sentenced to two terms of 48 months of imprisonment, to be served consecutively and
was categorized a Tier III Sex Offender.
{¶3} Appellant appealed the sentence in State v. Gordon, 11th Dist. Portage No.
2021-P-0061, 2022-Ohio-337. This court reversed and remanded the matter for
resentencing. This court determined the trial court failed to make the necessary statutory
findings to support consecutive sentences both at the sentencing hearing and in its
judgment entry. Id. at ¶ 6.
{¶4} The trial court conducted a resentencing hearing during which it made the
requisite statutory findings. The trial court, however, failed to incorporate the findings into
its sentencing entry. Appellant again appeals assigning the following error:
{¶5} “The trial court erred by imposing consecutive sentences upon appellant,
absent the findings required by law in accordance with R.C. 2929.14 and State v.
Bonnell.”
{¶6} This court reviews consecutive felony sentences pursuant to R.C.
2953.08(G)(2). That subsection provides, in pertinent part:
The court hearing an appeal under division (A), (B), or (C) of
this section shall review the record, including the findings
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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 of
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 * * * (C)(4) of section 2929.14 * * *;
(b) That the sentence is otherwise contrary to law.
{¶7} Pursuant to R.C. 2929.14(C)(4), separate prison terms for multiple
offenses may be ordered to be served consecutively if the court finds it is necessary to
protect the public from future crime or to punish the offender; 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 factors in R.C.
2929.14(C)(4)(a)-(c) are present. Those factors include 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.
(c) The offender’s history of criminal conduct demonstrates
that consecutive sentences are necessary to protect the
public from future crime by the offender.
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{¶8} 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[.]” State v. Bonnell, 140 Ohio St.3d 209,
2014-Ohio-3177, 16 N.E.3d 659, ¶ 37.
{¶9} At the sentencing hearing, after ordering appellant serve 48 months on each
count consecutively, the trial court made the following statutory findings:
The Court finds that consecutive sentences are necessary to
protect the public from future crimes and to punish the
defendant. The consecutive sentences are not
disproportionate to the seriousness of the defendant’s
conduct and to the danger the defendant poses to the public
and the victim.
At least two or more of the offenses were committed as part
of the one or more courses of conduct, and the harm caused
by two or more of the multiple offenses committed was so
great or unusual that no single prison term adequately reflects
the seriousness of the conduct.
{¶10} The foregoing findings, however, were not incorporated into the court’s final
judgment on sentence.
{¶11} Appellant does not take issue with the nature of the court’s statutory
findings; he instead merely asserts the trial court committed error by failing to incorporate
the findings into the judgment. The state concedes the error and recommends this court
remand the matter to hold another resentencing hearing and either: (1) make the
necessary findings and incorporate the same into the ultimate entry or (2) impose
concurrent sentences. We agree the failure to properly incorporate the required findings
rendered the court’s action incomplete; because the trial court made the necessary
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findings at the sentencing hearing, however, an additional sentencing hearing is
unnecessary.
{¶12} “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.”
Bonnell, 2014-Ohio-3177, at ¶ 30; see also State v. Moore, 11th Dist. Geauga No. 2014-
G-3195, 2014-Ohio-5183, ¶ 18.
{¶13} Based upon the foregoing, we affirm the trial court’s imposition of
consecutive sentences but remand the matter and instruct the trial court to issue a nunc
pro tunc sentencing entry which includes the court’s consecutive sentence findings. See
State v. Olp, 11th Dist. Ashtabula Nos. 2015-A-0033, 2015-A-0034, 2016-Ohio-3508,
¶ 19, and 25. See also App.R. 9(E) (“If anything material to either party is omitted from
the record by error or accident or is misstated * * * the court of appeals, on proper
suggestion or of its own initiative, may direct that omission or misstatement be corrected
* * *.”).
{¶14} Appellant’s assignment of error lacks merit.
{¶15} For the reasons stated in this opinion, the judgment of the trial court is
affirmed, but the matter is remanded for the issuance of a nunc pro tunc entry to correct
the court’s clerical error, consistent with this opinion.
MARY JANE TRAPP, J.,
MATT LYNCH, J.,
concur.
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