State v. Jeremy

2022 Ohio 1621

• Court: Ohio Court of Appeals
• Decided: May 13, 2022
• Docket: L-21-1085
• Status: Published

Opinion

[Cite as State v. Jeremy, 2022-Ohio-1621.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio Court of Appeals No. L-21-1085

Appellee Trial Court No. CR0201701892

v.

Jessica Jeremy DECISION AND JUDGMENT

Appellant Decided: May 13, 2022

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.

Lawrence A. Gold, for appellant

OSOWIK, J.

{¶ 1} This is an appeal from an April 29, 2021 judgment of the Lucas County

Court of Common Pleas, sentencing appellant to two, four-year terms of incarceration,

ordered to be served consecutively, arising from appellant’s January 23, 2018 conviction on two counts of aggravated robbery, in violation of R.C. 2911.01, felonies of the first

degree. The sentence was imposed following appellant’s community control revocation

and unsuccessful termination from the Lucas County Drug Court (“drug court”).

{¶ 2} For the reasons set forth more fully below, this court remands the case to the

trial court for issuance of a nunc pro tunc sentencing entry, reflecting R.C.

2929.14(C)(4)(b) findings in support of the consecutive sentences.

{¶ 3} The record reflects the necessity of a nunc pro tunc in this case as the trial

court’s September 24, 2021 written sentencing entry cites R.C. 2929.14(C)(4)(a) findings

in support of the consecutive sentences, in contrast to the R.C. 2929.14(C)(4)(b) oral

findings made at the sentencing hearing and contained in the transcript of the sentencing

hearing.

{¶ 4} Appellant, Jessica Jeremy, sets forth the sole assignment of error:

“The trial court did not properly impose appellant’s consecutive

sentence pursuant to R.C. 2929.14(C).”

{¶ 5} The following undisputed facts are relevant to this appeal. On May 7, 2017,

appellant communicated via social media with several people in the Toledo area,

ostensibly for purposes of acquiring a used smart phone from them.

{¶ 6} However, appellant’s representations were a ruse. Upon arriving at the

designated times and locations, the victims were ambushed and robbed of their smart

phones, cash, and jewelry.

2. {¶ 7} On May 25, 2017, appellant was indicted on two counts of aggravated

robbery, along with accompanying firearm specifications, in violation of R.C. 2911.01,

both counts being felonies of the first degree.

{¶ 8} On January 23, 2018, appellant entered negotiated pleas to the offenses and

a presentence investigation was ordered. On February 13, 2018, appellant was sentenced

to a three-year term of community control. The trial court reserved an 11-year term of

incarceration on each of the two convictions.

{¶ 9} On December 20, 2019, following community control violations, appellant’s

case was referred to the drug court. On August 6, 2020, an opening became available and

appellant’s case was admitted to the drug court. On February 8, 2021, appellant was

found to be in breach of the drug court’s terms and conditions.

{¶ 10} On April 29, 2021, appellant’s community control was revoked and she

was sentenced to serve two, four-year terms of incarceration, ordered to be served

consecutively. Timely notice of appeal was filed.

{¶ 11} In the sole assignment of error, appellant maintains that the trial court’s

consecutive sentencing was not properly imposed pursuant to R.C. 2929.14(C).

{¶ 12} In support, while appellant acknowledges that the trial court properly made

R.C. 2929.14(C)(4)(b) findings at the April 29, 2021 sentencing hearing, in support of the

consecutive sentences, appellant submits that the trial court incongruously alternated to

3. an R.C. 2929.19(C)(4)(a) sentencing finding, in support of the consecutive sentences, in

the corresponding written September 24, 2021 sentencing entry.

{¶ 13} Appellant argues that the consecutive sentence findings of the written

sentencing entry not aligning with the findings made at the underlying sentencing hearing

is not proper. We concur.

{¶ 14} R.C. 2929.14(C)(4)(a)-(c) governs the consecutive sentences imposed in

this case. It establishes that a trial court may impose consecutive prison terms for

convictions of multiple offenses if:

[T]he court finds that the consecutive sentences are necessary to

protect the public from future crimes or to punish the offender and the

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 [], or was under post-

release control.

(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

4. 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.

{¶ 15} As specifically relevant to this appeal, the transcript of the April 29, 2021,

sentencing hearing reflects that the trial court determined at sentencing, in support of the

imposition of consecutive sentences, “Those sentences are ordered to be served

consecutive to one another * * * given the nature of these offenses, no one prison term is

sufficient to mete out justice required in this case.” (Emphasis added).

{¶ 16} Accordingly, at the sentencing hearing, the trial court imposed the

consecutive sentences on the basis of R.C. 2929.14(C)(4)(b).

{¶ 17} By contrast, the subsequent September 24, 2021, written sentencing entry

stated, “The court further finds that the defendant was on community control, * * *

therefore[,] the sentences are ordered to be served consecutively,” in support of the

imposition of consecutive sentences. (Emphasis added).

{¶ 18} As such, the corresponding written sentencing entry imposed the

consecutive sentences on the basis of R.C. 2929.14(C)(4)(a), rather than the R.C.

2929.14(C)(4)(b) basis announced at the sentencing hearing.

5. {¶ 19} In conjunction, the trial court must make the requisite findings both at the

sentencing hearing and in the sentencing entry. State v. Whitman, 6th Dist. Sandusky No.

S-21-003, 2021-Ohio-4510, 182 N.E.3d 506, ¶ 42-43, citing State v. Bonnell, 140 Ohio

St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37.

{¶ 20} Given these facts and circumstances, we find that this case must be

remanded to the trial court for purposes of the issuance of a nunc pro tunc sentencing

entry reflecting that consecutive sentences were imposed by the trial court based upon an

R.C. 2929.14(C)(4)(b) determination at the sentencing hearing that one prison term was

not sufficient in this case.

{¶ 21} On consideration whereof, we find appellant’s assignment of error well-

taken. The judgment of the Lucas County Court of Common Pleas is hereby reversed

and the case is remanded to the trial court. Appellee is ordered to pay the costs of this

appeal pursuant to App.R. 24.

Judgment reversed and remanded.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

6. State of Ohio v. Jessica Jeremy L-21-1085

Mark L. Pietrykowski, J. ____________________________ JUDGE Thomas J. Osowik, J. ____________________________ Gene A. Zmuda, J. JUDGE CONCUR. ____________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

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