[Cite as State v. Bates, 2021-Ohio-1966.]
COURT OF APPEALS HOLMES COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES: : Hon. Craig R. Baldwin, P.J. Plaintiff - Appellee : Hon. W. Scott Gwin, J. : Hon. John W. Wise, J. -vs- : : JAMIE E. BATES, : Case No. 20-CA-015 : 20-CA-016 : Defendant - Appellant : OPINION
NUNC PRO TUNC
CHARACTER OF PROCEEDING: Appeal from the Holmes County Court of Common Pleas, Case Nos. 17CR084 and 19CR063
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: June 14, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ROBERT K. HENDRIX DAVID M. HUNTER Assistant Prosecuting Attorney 244 West Main Street Holmes County, Ohio Loudonville, Ohio 44842 164 E Jackson Street Millersburg, Ohio 44654 Holmes County, Case Nos. 20-CA-015, 20-CA-016 2
Baldwin, J.
{¶1} Defendant-appellant Jamie Bates appeals her sentence issued by the
Holmes County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On October 10, 2017, the Holmes County Grand Jury indicted appellant in
Case No. 17CR084 on one count of aggravated possession of drugs in violation of R.C.
2925.11(A) and 2925.11(C)(1)(a), a felony of the fifth degree, one count of driving under
suspension in violation of R.C. 4510.16(A) and 4510.16(D)(1), an unclassified
misdemeanor, one count of signals before turning or stopping in violation of R.C.
4511.39(A) and 4511.39(B), a minor misdemeanor, one count of violation of lanes of
travel on roadways in violation of R.C. 4511.33(A) and 4511.33(B), a minor
misdemeanor, one count of possession of marijuana in violation of R.C. 2925.11(A) and
2925.11(C)(3)(a), a minor misdemeanor, and one count of illegal use or possession of
marijuana drug paraphernalia in violation of R.C. 2925.141(C) and 2925.141(F), a minor
misdemeanor. The indictment also contained three forfeiture specifications. At her
arraignment on October 19, 2017, appellant entered a plea of not guilty to the charges.
{¶3} On May 17, 2019, appellant withdrew her former not guilty plea and entered
a plea of guilty to the offenses of aggravated possession of drugs and driving under
suspension along with a forfeiture specification. The remaining charges were dismissed.
{¶4} Pursuant to a Judgment Entry filed on July 12, 2018, appellant was
sentenced to serve 180 days in jail or the Stark Regional Community Corrections Center
(SRCCC) and two (2) years of community control. Appellant was advised that if she
violated her community control sanctions, she could face a stated prison term of eleven Holmes County, Case Nos. 20-CA-015, 20-CA-016 3
(11) months on the aggravated possession of drugs charge. Appellant also was fined
$100.00.
{¶5} On June 3, 2019, appellant was indicted by the Holmes County Grand Jury
in Case No. 19CR063 on one count of theft in violation of R.C. 2913.02(A)(3) and
2913.02(B)(2), a felony of the fifth degree, and one count of forgery in violation of R.C.
2913.31(A)(1) and 2913.31(C)(1)(b), a felony of the fifth degree. At her arraignment on
June 5, 2019, appellant entered a plea of not guilty to the charges.
{¶6} As memorialized in a Judgment Entry filed on February 13, 2020, appellant
was sentenced to serve six (6) months in jail and five (5) years of community control and
was advised that a violation of her community control sanctions could result in a stated
prison term of eleven (11) months on the forgery charge. Appellant also was ordered to
pay restitution in the amount of $5,090.00
{¶7} On July 16, 2020, the State filed a Motion to Revoke/Modify Community
Control/Probation in both cases. Appellant admitted to the violations and the trial court
found that she had violated the terms and conditions of her community control. On
September 3, 2020, the trial court sentenced appellant for her community control
violations. Appellant was ordered to serve both eleven (11) month sentences
consecutively. The trial court, however, suspended the prison sentences and placed
appellant back on community control.
{¶8} Appellant now raises the following assignment of error on appeal:
{¶9} “I. THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO
CONSECUTIVE SENTENCES.” Holmes County, Case Nos. 20-CA-015, 20-CA-016 4
I
{¶10} Appellant, in her sole assignment of error, argues that the trial court erred
in sentencing her to consecutive sentences.
{¶11} “An 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.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1.
{¶12} Appellant argues that the trial court could not impose consecutive
sentences on her for her violation of community control because the trial court failed to
advise her of the possibility of consecutive sentences at the time of her sentencing in
Case No. 19CR063.
{¶13} In State v. Jones (7th Dist.) Harrison No. 19-HA3, 2020-Ohio-762, the
court held that a court need not notify a defendant, at the time it imposes a community
control sanction, of the consecutive nature of the sentences. However, in imposing
consecutive sentences, the trial court still must comply with R.C. 2929.14(C).
{¶14} R.C. 2929.14(C)(4) governs consecutive sentences and states the
following:
{¶15} (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: Holmes County, Case Nos. 20-CA-015, 20-CA-016 5
{¶16} (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.
{¶17} (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.
{¶18} (c) The offender's history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the offender.
{¶19} “In order 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, but it has no obligation to state
reasons to support its findings.” State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177,
16 N.E.3d 659, syllabus. “[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
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[Cite as State v. Bates, 2021-Ohio-1966.]
COURT OF APPEALS HOLMES COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES: : Hon. Craig R. Baldwin, P.J. Plaintiff - Appellee : Hon. W. Scott Gwin, J. : Hon. John W. Wise, J. -vs- : : JAMIE E. BATES, : Case No. 20-CA-015 : 20-CA-016 : Defendant - Appellant : OPINION
NUNC PRO TUNC
CHARACTER OF PROCEEDING: Appeal from the Holmes County Court of Common Pleas, Case Nos. 17CR084 and 19CR063
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: June 14, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ROBERT K. HENDRIX DAVID M. HUNTER Assistant Prosecuting Attorney 244 West Main Street Holmes County, Ohio Loudonville, Ohio 44842 164 E Jackson Street Millersburg, Ohio 44654 Holmes County, Case Nos. 20-CA-015, 20-CA-016 2
Baldwin, J.
{¶1} Defendant-appellant Jamie Bates appeals her sentence issued by the
Holmes County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On October 10, 2017, the Holmes County Grand Jury indicted appellant in
Case No. 17CR084 on one count of aggravated possession of drugs in violation of R.C.
2925.11(A) and 2925.11(C)(1)(a), a felony of the fifth degree, one count of driving under
suspension in violation of R.C. 4510.16(A) and 4510.16(D)(1), an unclassified
misdemeanor, one count of signals before turning or stopping in violation of R.C.
4511.39(A) and 4511.39(B), a minor misdemeanor, one count of violation of lanes of
travel on roadways in violation of R.C. 4511.33(A) and 4511.33(B), a minor
misdemeanor, one count of possession of marijuana in violation of R.C. 2925.11(A) and
2925.11(C)(3)(a), a minor misdemeanor, and one count of illegal use or possession of
marijuana drug paraphernalia in violation of R.C. 2925.141(C) and 2925.141(F), a minor
misdemeanor. The indictment also contained three forfeiture specifications. At her
arraignment on October 19, 2017, appellant entered a plea of not guilty to the charges.
{¶3} On May 17, 2019, appellant withdrew her former not guilty plea and entered
a plea of guilty to the offenses of aggravated possession of drugs and driving under
suspension along with a forfeiture specification. The remaining charges were dismissed.
{¶4} Pursuant to a Judgment Entry filed on July 12, 2018, appellant was
sentenced to serve 180 days in jail or the Stark Regional Community Corrections Center
(SRCCC) and two (2) years of community control. Appellant was advised that if she
violated her community control sanctions, she could face a stated prison term of eleven Holmes County, Case Nos. 20-CA-015, 20-CA-016 3
(11) months on the aggravated possession of drugs charge. Appellant also was fined
$100.00.
{¶5} On June 3, 2019, appellant was indicted by the Holmes County Grand Jury
in Case No. 19CR063 on one count of theft in violation of R.C. 2913.02(A)(3) and
2913.02(B)(2), a felony of the fifth degree, and one count of forgery in violation of R.C.
2913.31(A)(1) and 2913.31(C)(1)(b), a felony of the fifth degree. At her arraignment on
June 5, 2019, appellant entered a plea of not guilty to the charges.
{¶6} As memorialized in a Judgment Entry filed on February 13, 2020, appellant
was sentenced to serve six (6) months in jail and five (5) years of community control and
was advised that a violation of her community control sanctions could result in a stated
prison term of eleven (11) months on the forgery charge. Appellant also was ordered to
pay restitution in the amount of $5,090.00
{¶7} On July 16, 2020, the State filed a Motion to Revoke/Modify Community
Control/Probation in both cases. Appellant admitted to the violations and the trial court
found that she had violated the terms and conditions of her community control. On
September 3, 2020, the trial court sentenced appellant for her community control
violations. Appellant was ordered to serve both eleven (11) month sentences
consecutively. The trial court, however, suspended the prison sentences and placed
appellant back on community control.
{¶8} Appellant now raises the following assignment of error on appeal:
{¶9} “I. THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO
CONSECUTIVE SENTENCES.” Holmes County, Case Nos. 20-CA-015, 20-CA-016 4
I
{¶10} Appellant, in her sole assignment of error, argues that the trial court erred
in sentencing her to consecutive sentences.
{¶11} “An 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.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1.
{¶12} Appellant argues that the trial court could not impose consecutive
sentences on her for her violation of community control because the trial court failed to
advise her of the possibility of consecutive sentences at the time of her sentencing in
Case No. 19CR063.
{¶13} In State v. Jones (7th Dist.) Harrison No. 19-HA3, 2020-Ohio-762, the
court held that a court need not notify a defendant, at the time it imposes a community
control sanction, of the consecutive nature of the sentences. However, in imposing
consecutive sentences, the trial court still must comply with R.C. 2929.14(C).
{¶14} R.C. 2929.14(C)(4) governs consecutive sentences and states the
following:
{¶15} (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: Holmes County, Case Nos. 20-CA-015, 20-CA-016 5
{¶16} (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.
{¶17} (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.
{¶18} (c) The offender's history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the offender.
{¶19} “In order 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, but it has no obligation to state
reasons to support its findings.” State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177,
16 N.E.3d 659, syllabus. “[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.” Id. at ¶ 29.
{¶20} In the case sub judice, the trial court found on the record that consecutive
sentences were necessary to protect the public or to punish the offender and were not
disproportionate to the seriousness of the crimes that appellant committed and the danger Holmes County, Case Nos. 20-CA-015, 20-CA-016 6
that appellant posed to the public. The trial court also found that that appellant had a
history of criminal conduct.
{¶21} However, we note that the trial court did not incorporate all of its R.C.
2929.14(C)(4) findings into its judgment entry. In the instant case, the sentence was not
authorized by law because the court failed to incorporate the findings required by R.C.
2929.14 in its judgment entry. Because the court made the findings from the bench during
the sentencing hearing, the error may be corrected by a nunc pro tunc entry pursuant
to Bonnell, supra. However, appellant's claim that the evidence in the record does not
support the imposition of consecutive sentences is not reviewable pursuant to R.C.
2953.08(D)(1). The assignment of error is accordingly sustained in part and overruled in
part.
{¶22} This judgment is reversed and remanded to the trial court with instructions
to correct the sentencing entry in the instant case by virtue of a nunc pro tunc order.
By: Baldwin, P.J.
Gwin, J. and
Wise, John, J. concur.