State v. Clay

2025 Ohio 4905

Opinion

[Cite as State v. Clay, 2025-Ohio-4905.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY

STATE OF OHIO, CASE NO. 8-25-01 PLAINTIFF-APPELLEE,

v.

AUDRIC D. CLAY, OPINION AND JUDGMENT ENTRY DEFENDANT-APPELLANT.

Appeal from Logan County Common Pleas Court General Division Trial Court No. CR 24 01 0010

Judgment Affirmed

Date of Decision: October 27, 2025

APPEARANCES:

Brian A. Smith for Appellant

Eric C. Stewart for Appellee Case No. 8-25-01

WALDICK, P.J.

{¶1} Defendant-appellant, Audric Clay (“Clay”), appeals the December 17,

2024 judgment of sentence entered against him in the Logan County Court of

Common Pleas. For the reasons set forth below, we affirm.

Procedural History

{¶2} This case originated on January 9, 2024, when a Logan County grand

jury returned a nine-count indictment against Clay, charging him as follows: Count

1 – Trafficking in Cocaine, a fourth-degree felony in violation of R.C.

2925.03(A)(1) and (C)(4)(c); Count 2 – Trafficking in Cocaine, a fourth-degree

felony in violation of R.C. 2925.03(A)(1) and (C)(4)(c); Count 3 – Trafficking in

Cocaine, a third-degree felony in violation of R.C. 2925.03(A)(1) and (C)(4)(d);

Count 4 – Trafficking in Cocaine, a fifth-degree felony in violation of R.C.

2925.03(A)(1) and (C)(4)(a); Count 5 – Failure to Comply with an Order or Signal

of a Police Officer, a third-degree felony in violation of R.C. 2921.331(B) and

(C)(5)(a)(ii), with a vehicle forfeiture specification; Count 6 – Possession of

Cocaine, a first-degree felony in violation of R.C. 2925.11(A) and (C)(4)(e); Count

7 – Possession of a Fentanyl-Related Compound, a second-degree felony in

violation of R.C. 2925.11(A) and (C)(11)(d); Count 8 – Having Weapons While

Under Disability, a third-degree felony in violation of R.C. 2923.13(A)(3), with a

firearm specification pursuant to R.C. 2941.141(A) and a firearm forfeiture

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specification; and Count 9 – Tampering with Evidence, a third-degree felony in

violation of R.C. 2921.12(A).

{¶3} On August 23, 2024, an arraignment was held and Clay entered a plea

of not guilty to all counts in the indictment.

{¶4} On October 31, 2024, the case was resolved with a negotiated plea. At

that time, Clay pled guilty to Count 4, Count 6, and an amended version of Count

8, which had been amended by stipulation of the parties from the charge of Having

Weapons While Under Disability, a third-degree felony in violation of R.C.

2923.13(A)(3), to one of Carrying Concealed Weapons, a fourth-degree felony in

violation of R.C. 2923.12(A)(2) and (F)(1). In exchange for Clay’s guilty pleas as

outlined, the prosecution dismissed the remaining counts of the indictment, as well

as the firearm and forfeiture specifications in Count 8. The trial court accepted

Clay’s negotiated plea of guilty and ordered a presentence investigation.

{¶5} On December 17, 2024, a sentencing hearing was held. Clay was

sentenced to a prison term of 12 months on Count 4, an indefinite prison term of 11

years to a potential 16 and 1/2 years on Count 6, and a prison term of 18 months on

Count 8. The trial court ordered that the prison terms imposed on Count 6 and Count

8 be served consecutively to each other but concurrently with Count 4.

{¶6} On January 2, 2025, Clay filed the instant appeal, in which he raises

two assignments of error for our review.

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First Assignment of Error

Because the record does not support the trial court’s findings pursuant to R.C. 2929.14(C)(4), the trial court’s imposition of consecutive sentences was not supported by the record.

Second Assignment of Error

Because the trial court did not conduct a sentencing hearing with regard to Appellant’s sentence on Count Eight as amended, Carrying a Concealed Weapon, and instead sentenced Appellant on “Attempted Having Weapons Under Disability, which was incorrectly named and to which Appellant did not plead guilty, the trial court violated Appellant’s right to a sentencing hearing under R.C. 2929.19 and Appellant’s right to Due Process under the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 16 of the Ohio Constitution.

Factual Background

{¶7} With regard to the three crimes to which Clay pled guilty and was

sentenced upon, the presentence investigation sets forth the following facts:

On 7-10-2023 investigators made a controlled purchase of cocaine from Audric Clay. A confidential informant made a recorded telephone call to Clay and arranged to purchase $50 worth of cocaine.

The confidential informant was outfitted with recording equipment and provided money by investigators to purchase the cocaine. The CI made the transaction and turned the drugs and recording equipment over to investigators.

Investigators submitted the drugs for testing and results confirmed the substance to be cocaine that weighed .66 grams.

* * *

On 10-19-2023 investigators learned Clay was traveling from Columbus to Bellefontaine. They had an active warrant for his arrest and waited on him to return. Investigators observed Clay driving on US RT 33 near CR 10. As Clay exited onto CR 10 Deputy Sheeley -4- Case No. 8-25-01

attempted to initiate a traffic stop and activated his emergency lights and siren. Clay sped off at a high rate of speed and passed numerous vehicles to avoid the deputy. Clay failed to yield at multiple traffic control devices and traveled at a high rate of speed through residential areas. Clay nearly struck another vehicle head on as he attempted to pass in a no passing zone. As Clay’s vehicle veered back into the westbound lane of travel, it lost control and traveled off the northside of the road and came to a rest in a cornfield. Clay then fled on foot, evading officers.

Officers recovered a backpack Clay had thrown from his vehicle on West Chillicothe Avenue. Inside the bag was a large amount of suspected crack cocaine and suspected fentanyl. Investigators later submitted the substances for testing and learned the items tested positive for cocaine weighing 97.68 grams and xylazine/fentanyl weighting 13.98 grams. DNA found on the bag opening was found to be consistent with Clay.

Officers also recovered a 9mm Taurus handgun that Clay had thrown from his vehicle on West Columbus Avenue.

Officers searched Clay’s vehicle and located a substantial amount of marijuana, a box of 9mm rounds and firearm lockbox. Inside the lockbox was a loaded 9mm Helwan. A spare Taurus magazine belonging to the weapon found on West Columbus Avenue was also found in the vehicle. A shoe was found in the back seat of the vehicle [sic] it was found to have a wallet with several cards that had Clay’s name on them inside.

Analysis of Assignments of Error

{¶8} In the first assignment of error, Clay argues that the imposition of

consecutive sentences on Counts 6 and 8 was not supported by the record in this

case.

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{¶9} The standard of review applicable to this sentence-related claim is

whether the sentence is clearly and convincingly contrary to law. State v. Marcum,

2016-Ohio-1002; R.C. 2953.08. With regard to sentencing-review generally, the

Supreme Court of Ohio has limited that review by holding that R.C.

2953.08(G)(2)(b) “does not provide a basis for an appellate court to modify or

vacate a sentence based on its view that the sentence is not supported by the record

under R.C. 2929.11 and 2929.12.” State v. Jones, 2020-Ohio-6729, ¶ 39.

Additionally, a trial court has full discretion to impose any sentence within the

statutory range. State v. Johnson, 2021-Ohio-1768, ¶ 9 (3d Dist). “A sentence

imposed within the statutory range is not contrary to law as long as the trial court

considered the purposes and principles of felony sentencing contained in R.C.

2929.11 and the sentencing factors contained in R.C. 2929.12. Id., citing State v.

Dorsey, 2021-Ohio-76, ¶ 15 (2d Dist.).

{¶10} In order to impose consecutive sentences, “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, 2014-Ohio-

3177, syllabus.

R.C. 2929.14(C)(4) provides:

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

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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.

(c) The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

{¶11} When reviewing consecutive sentences on appeal, “[t]he plain

language of R.C. 2953.08(G)(2) requires an appellate court to defer to a trial court’s

consecutive-sentence findings, and the trial court’s findings must be upheld unless

those findings are clearly and convincingly not supported by the record.” State v.

Gwynne, 2023-Ohio-3851, ¶ 5.

{¶12} In the instant case, both on the record at the sentencing hearing and in

the judgment entry of sentencing, the trial court made findings pursuant to R.C.

2929.14(C)(4), as well as under subsections (b) and (c) of that statutory section, in

support of the consecutive sentences, and Clay does not contest that fact on appeal.

Additionally, upon reviewing the entire record before us, we cannot clearly and

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convincingly find that the record does not support the trial court’s findings with

regard to consecutive sentences.

{¶13} The record is replete with factors that support the consecutive

sentences imposed by the trial court, and the findings made by the trial court when

imposing those sentences. Specifically, in support of the trial court’s findings that

consecutive sentences are necessary to protect the public from future crime and 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 that Clay’s history of criminal conduct demonstrates that consecutive

sentences are necessary to protect the public from future crime by the offender, the

record reflects that Clay has a decades-long history of criminal adjudications and

convictions, for both misdemeanor and felony crimes.

{¶14} As a juvenile in 2000, Clay was adjudicated delinquent for committing

Disorderly Conduct after challenging another student to a fight while on a moving

school bus, and for damaging the bus, and in 2002, while still a juvenile, Clay was

adjudicated delinquent for Assault after he punched and kicked a teacher.

{¶15} As an adult, from 2005 through 2021, Clay was convicted of numerous

felony-level crimes in at least nine separate cases, including Receiving Stolen

Property, Robbery, Attempted Failure to Appear, Having Weapons While Under

Disability, three counts of Trafficking in Cocaine, Attempted Escape, Tampering

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with Evidence, and multiple counts of Possession of Drugs. As an adult, Clay also

had three misdemeanor convictions, all offenses of violence.

{¶16} Clay also has not responded favorably to sanctions previously

imposed, having violated probation as a juvenile and, as an adult, having been

terminated unsuccessfully from a community-based correctional facility, having

served multiple prison sentences, and having violated the terms of both post-release

control and transitional control that had been imposed following his prison terms.

The presentence investigation reflects that Clay had an ORAS score of 24 at the

time of his sentencing, which indicates a high risk of reoffending. Those facts

relating to Clay’s history of criminal conduct and lack of rehabilitation, when

considered in conjunction with the circumstances of the offenses committed in this

case, fully support the findings made by the trial court in support of consecutive

sentences. In sum, when considering the record as a whole, Clay has not

demonstrated by clear and convincing evidence that his consecutive sentences are

contrary to law.

{¶17} The first assignment of error is overruled.

{¶18} In the second assignment of error, Clay asserts that his sentence must

be reversed because he was denied his right to a sentencing hearing as to Count 8.

{¶19} In this regard, as previously noted, Count 8 of the original indictment

charged Clay with Having Weapons While Under Disability, a third-degree felony

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in violation of R.C. 2923.13(A)(3). When the case was resolved with a negotiated

plea of guilty on October 31, 2024, in addition to pleading guilty to Counts 4 and 6

as originally indicted, Clay pled guilty to Count 8 as amended by agreement of the

parties to a charge of Carrying Concealed Weapons, a fourth-degree felony in

violation of R.C. 2923.12(A)(2) and (F)(1). However, during the sentencing

hearing on December 17, 2024, the record reflects that the trial court erroneously

referred to amended Count 8 as being a charge of Attempted Having Weapons

While Under Disability. Clay argues on appeal that this misnomer by the trial court

resulted in the failure to conduct a sentencing hearing on the charge of Carrying

Concealed Weapons, therefore depriving him of his right to due process as

guaranteed by the United States and Ohio Constitutions, and resulting in the trial

court giving improper weight to Clay’s prior record, particularly his firearm

disability.

{¶20} In analyzing this claim for reversible error, we first note that the record

of the October 31, 2024 change of plea hearing supports the conclusion that the trial

court was fully aware of the crime to which Clay actually pled guilty in Count 8 as

amended, being Carrying Concealed Weapons, as well as being aware of the

elements thereof. Prior to accepting the negotiated guilty plea, the trial court noted

as to Count 8:

That is the count that is being amended to possess – carrying a concealed weapon. It allegedly occurred here on 19th of October, 2023 in Logan County. Carrying a concealed weapon is a pretty self-

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explanatory charge. It means that you had a firearm on you that worked and was, you know, usable – it wasn’t a toy or a broken gun or anything like that – and you had concealed it. In other words, it wasn’t, you know, visible or out in the open or anything like that.

(10/31/24 Tr., 9-10).

{¶21} Secondly, the presentence investigation clearly and accurately sets

forth the fact that Clay pled guilty in Count 8 to the crime of Carrying Concealed

Weapons, a felony of the fourth degree. At the sentencing hearing, just prior to

imposing sentence, the trial court stated:

The Court will then proceed to sentencing. In doing so, I note that I have reviewed and analyzed the presentence investigation report in this case and incorporate the facts and information contained in the PSI report by reference as part of the basis for this sentence.

(12/17/24 Tr., 9).

{¶22} We also note that Carrying Concealed Weapons in violation of R.C.

2923.12(A)(2), the crime to which Clay pled guilty in Count 8, and Attempted

Having Weapons While Under Disability, the name of the crime referenced by the

trial court at sentencing, are both felonies of the fourth degree. See R.C.

2923.12(F)(1); R.C. 2923.02(E)(1); R.C. 2923.13(B).

{¶23} In light of the above facts, and because Clay was originally charged

with Weapons Under Disability in Count 8, prior to the amendment of that count at

the time of his guilty plea, we conclude that the trial court’s misstatement of the

crime’s name at the sentencing hearing was merely a slip of the tongue.

Additionally, regardless of the trial court’s misnomer at sentencing of the crime at

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issue in Count 8, as amended, the record is clear that Clay was sentenced for a

fourth-degree felony on Count 8, with a sentence imposed from within the

permissible statutory range for the offense to which he pled guilty.

{¶24} More importantly, the trial court’s judgment entry of sentencing, filed

on December 17, 2024, reflects that Clay was sentenced on Count 8 for the charge

of Carrying a Concealed Weapon, a fourth-degree felony in violation of R.C.

2923.12(A)(2) and (F)(1). As this Court stated in State v. Eitzman, 2022-Ohio-574

(3d Dist.):

[T]he axiomatic rule is that a court speaks through its journal entries.” State v. Miller, 127 Ohio St.3d 407, 2010-Ohio-5705, 940 N.E.2d 924, ¶ 12. “Accordingly, it is the trial court’s judgment entry and not the oral pronouncement of a sentence at a sentencing hearing (or a resentencing hearing) that is ‘the effective instrument for sentencing a defendant.’” State v. Roscoe, 8th Dist. Cuyahoga No. 102191, 2015-Ohio-3876, ¶ 7, quoting State v. Rodriguez-Baron, 7th Dist. Mahoning No. 10-MA-176, 2012-Ohio-1473, ¶ 13. See State v. Brown, 3d Dist. Allen No. 1-06-66, 2007-Ohio-1761, ¶ 3 (“A trial court speaks only through its journal entries and not by oral pronouncement.”).

“[I]f the journal entry and the judge’s comments conflict, the journal entry controls.” State v. Potter, 6th Dist. Fulton No. F-21-002, 2021- Ohio-3502, ¶ 13, quoting State v. Hankins, 89 Ohio App.3d 567, 569, 626 N.E.2d 965 (3d Dist. 1993). See also State v. Swiergosz, 197 Ohio App.3d 40, 2012-Ohio-830, 965 N.E.2d 1070, ¶ 49 (6th Dist.) (concluding that “verbal miscues or misstatements in open court during sentencing are harmless”).

Id, at ¶¶ 30-31.

{¶25} Finally, contrary to Clay’s argument on appeal, the record of the

sentencing hearing does not reflect that the trial court gave improper weight to

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Clay’s prior record, particularly his firearm disability, as a result of misstating the

name of the crime in Count 8. There is no indication that the trial court considered

the actual elements of Attempted Having a Weapon While under Disability, and

specifically the fact that Clay was under disability, in formulating the sentence that

was ordered on Count 8, as opposed to merely considering – and accurately so – the

fact that Clay was being sentenced on Count 8 for a felony of the fourth degree.

Moreover, as Clay has a multitude of prior felony convictions, of which the trial

court was aware from the presentence investigation, and which were relevant to

sentencing generally, Clay fails to establish how prejudice resulted from his

speculative assertion that a legal disability relating to firearms was erroneously

considered by the trial court in sentencing Clay on Count 8. Put another way, to the

extent that being under disability may conceivably be an aggravating factor as to

sentence, not that there is any indication that the trial court here considered the same

as such, Clay was in fact under disability as a result of at least a half-dozen of his

prior felony convictions.

{¶26} In sum, this Court finds that all of the facts and circumstances

referenced above support the conclusion that, in imposing sentence in this case, the

trial court properly considered the crime to which Clay pled guilty in Count 8, and

the facts relating to that crime, as opposed to erroneously sentencing Clay for wrong

crime or considering aggravating factors not properly before the court at the time of

sentencing. Accordingly, for all the reasons stated, this Court finds that,

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notwithstanding the trial court’s incorrect recitation of the name of the crime at

issue, Clay was properly sentenced for the felony of the fourth degree to which he

pled guilty in Count 8.

{¶27} The second assignment of error is overruled.

Conclusion

{¶28} Having found no error prejudicial to the defendant-appellant, Audric

Clay, in the particulars assigned and argued, the judgment of sentence entered

against him in the Logan County Court of Common Pleas is affirmed.

ZIMMERMAN, J., concurs.

WILLAMOWSKI, J., dissents.

{¶29} I respectfully dissent from the majority opinion as to the second

assignment of error. No one disputes that the trial court misspoke at the sentencing

hearing. A review of the record shows that at no point in time during that hearing

did the trial court correctly identify the charge for which Clay was convicted.

Instead the trial court repeatedly indicated that Clay had been convicted of

attempted having weapons under a disability rather than the correct charge.

Pursuant to the statements made at the sentencing hearing, Clay was sentenced for

a conviction that never occurred.1

1 A review of the transcript also shows that the trial court also incorrectly stated that Clay had been convicted on count three at the beginning of the hearing. The trial court corrected this later to indicate that Clay was convicted on count four. Then when imposing the sentence on count four, the trial court stated “[o]n Count

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{¶30} Crim.R. 43(A)(1) provides that a defendant has the right to be

physically present at every stage of the criminal proceedings and trial, including the

imposition of sentence. This includes any modification of a sentence announced at

the hearing. State v. Patrick, 2013-Ohio-3821 (4th Dist.). “A defendant thus has a

due-process right, embodied in Crim.R. 43(A), to be present when the court imposes

sentence, and a trial court cannot abrogate a defendant's due-process rights by

sentencing the defendant in his absence.” State v. Railey, 2012-Ohio-4233, ¶ 20

(1st Dist.). “A trial court cannot impose a sentence in the sentencing entry that

differs from what it imposed at the sentencing hearing.” State v. Sanbridge, 2020-

Ohio-1629, ¶ 6 (8th Dist.).

{¶31} Under the facts of this case, no sentence was imposed for the

conviction of carrying a concealed weapon at the sentencing hearing because the

trial court stated the wrong offense throughout the entire hearing. Although the

journal entry of sentence corrected the error, it does not change the fact that by not

allowing the defendant to be present when he was sentenced for the charge for which

he was actually convicted, he is denied his due process right to be present when

correctly sentenced. For this reason, I would sustain the second assignment of error

and remand the matter for resentencing. Having found error in the second

assignment of error, the first would become moot and I would not rule on it.

Four, trafficking in cocaine, a felony of the fifth degree, the defendant is sentenced to a nonmandatory 12- month prison term to be served concurrently with Count Four.”

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JUDGMENT ENTRY

For the reasons stated in the opinion of this Court, the assignments of error

are overruled and it is the judgment and order of this Court that the judgment of the

trial court is affirmed with costs assessed to Appellant for which judgment is hereby

rendered. The cause is hereby remanded to the trial court for execution of the

judgment for costs.

It is further ordered that the Clerk of this Court certify a copy of this Court’s

judgment entry and opinion to the trial court as the mandate prescribed by App.R.

27; and serve a copy of this Court’s judgment entry and opinion on each party to the

proceedings and note the date of service in the docket. See App.R. 30.

Juergen A. Waldick, Judge

William R. Zimmerman, Judge

DISSENTS John R. Willamowski, Judge

DATED: /jlm

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