State v. Hupp

2025 Ohio 2698

• Court: Ohio Court of Appeals
• Decided: July 30, 2025
• Docket: 24CA000036
• Status: Published

Opinion

[Cite as State v. Hupp, 2025-Ohio-2698.]

COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES: : Hon. Craig R. Baldwin, P.J. Plaintiff - Appellee : Hon. Robert G. Montgomery, J. : Hon. Kevin W. Popham, J. -vs- : : MATTHEW D. HUPP, : Case No. 24CA000036 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Guernsey County Court of Common Pleas, Case No. 24 CR 086

JUDGMENT: Affirmed

DATE OF JUDGMENT: July 30, 2025

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

MARK A. PERLAKY MICHAEL GROH Assistant Guernsey County 1938 E. Wheeling Avenue Prosecuting Attorney Cambridge, Ohio 43725 627 Wheeling Avenue Cambridge, Ohio 43725 Baldwin, P.J.

{¶1} The appellant, Matthew D. Hupp, appeals the November 1, 2024, sentence

of the Court of Common Pleas of Guernsey County, Ohio. The appellee is the State of

Ohio.

STATEMENT OF THE FACTS AND THE CASE

{¶2} On May 14, 2024, the appellant was indicted for three counts of Aggravated

Trafficking in Drugs in violation of R.C. 2925.03(C)(1)(c), one count of Aggravated

Possession of Drugs in violation of R.C. 2925.11(C)(1)(b), one count of Tampering with

Evidence in violation of R.C. 2921.12(A)(1), and one count of Aggravated Trafficking in

Drugs in violation of R.C. 2925.03(C)(1)(a).

{¶3} On May 30, 2024, the appellant entered a plea of not guilty to the indictment.

{¶4} On September 4, 2024, the appellant changed his plea to guilty to two

counts of Aggravated Trafficking in Drugs in violation of R.C. 2925.03(C)(1)(c), one count

of Aggravated Possession of Drugs in violation of R.C. 2925.11(C)(1)(b), and one count

of Tampering with Evidence in violation of R.C. 2921.12(A)(1).

{¶5} On October 28, 2024, the appellant was sentenced to twenty-four months

in prison on one of the counts of Aggravated Trafficking in Drugs in violation of R.C.

2925.03(C)(1)(c) and twelve months in prison on each of the remaining counts to be

served consecutively. The trial court stated the appellant’s aggregate sentence was

seventy-two months in prison.

{¶6} On November 1, 2024, the trial court held a hearing to correct the sentence.

The appellant’s counsel and the State’s counsel were present. The appellant appeared

remotely from the county jail. The trial court indicated that it inadvertently stated at the sentencing hearing that one of the counts of Aggravated Trafficking in Drugs in violation

of R.C. 2925.03(C)(1)(c) had a twelve-month sentence instead of the intended twenty-

four-month sentence. The correction did not change the appellant’s aggregate sentence

of seventy-two months.

{¶7} The appellant filed a timely notice of appeal and raises the sole assignment

of error:

{¶8} “I. THE TRIAL COURT ERRED IN HAVING A SECOND SENTENCE

HEARING THAT WAS NOT A DE NOVO HEARING.”

I.

{¶9} In the appellant’s sole assignment of error, the appellant argues that the

trial court erred by not holding a second de novo sentencing hearing after inadvertently

stating the wrong sentence at the initial sentencing hearing. We disagree.

STANDARD OF REVIEW

{¶10} “It is axiomatic that a court speaks through its journal entries.” State v.

Smith, 2018-Ohio-3875, ¶7 (10th Dist.), citing State v. Miller, 2010-Ohio-5705, ¶12.

However, Crim.R. 43(A)(1) provides that “the defendant must be physically present at

every stage of the criminal proceeding and trial, including * * * the imposition of

sentence[.]” Consequently, a substantive discrepancy between the sentence announced

at a sentencing hearing and the sentence reflected in a sentencing entry requires a new

hearing. State v. Liddy, 2022-Ohio-4282, ¶65 (11th Dist.). ANALYSIS

{¶11} The appellant argues that the trial court must hold a de novo sentencing

hearing if there is a substantive discrepancy between the judgment entry and the

sentence imposed by the trial court at the sentencing hearing. We disagree.

{¶12} The appellant relies on two cases: State v. Liddy, 2022-Ohio-4282 (11th

Dist.) and State v. Stutes, 2023-Ohio-4582 (4th Dist.).

{¶13} In Liddy, the trial court found at the sentencing hearing that the defendant

was entitled to 425 days of jail-time credit. Liddy at ¶66. However, the sentencing entry

did not include any jail-time credit. Id. The trial court also failed to hold a corrective

sentencing hearing. The Eleventh District Court of Appeals found this to be a substantive

difference requiring a new sentencing hearing. Id.

{¶14} In Stutes, the Fourth District Court of Appeals similarly found a substantive

discrepancy between the sentence announced at the sentencing hearing and the

sentence reflected in the sentencing entry. Stutes at ¶39. Again, the trial court did not

hold a corrective sentencing hearing. The Fourth District Court of Appeals remanded the

case for a new sentencing hearing.

{¶15} In the case sub judice, unlike in Liddy and Stutes, the trial court did hold a

second sentencing hearing to correct a mistake made at the original sentencing hearing.

The trial court informed the parties that it had inadvertently stated at the sentencing

hearing that one of the counts of Aggravated Trafficking in Drugs in violation of R.C.

2925.03(C)(1)(c) had a twelve-month sentence, rather than the intended twenty-four-

month sentence. The aggregate sentence of seventy-two months remained unchanged. The trial court corrected the sentence and allowed both parties the opportunity to address

the court. The appellant did not object to or argue the sentence at that time.

{¶16} Furthermore, the appellant has not supported his contention that a second

hearing held to correct a misstatement must be a de novo hearing with citations to legal

authority. Accordingly, we find the trial court did not err when it held a sentencing hearing

to correct a discrepancy between the sentence imposed on an individual charge at the

original sentencing hearing and the sentence reflected in the sentencing entry. The trial

court corrected the sentence and provided the appellant with an opportunity to be heard.

{¶17} The appellant’s sole assignment of error is overruled.

CONCLUSION

{¶18} Based upon the foregoing reasons, the judgment of the Court of Common

Pleas of Guernsey County, Ohio, is hereby affirmed.

By: Baldwin, P.J.

Montgomery, J. and

Popham, J. concur.