[Cite as State v. Nowlin, 2013-Ohio-2593.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. Sheila G. Farmer, J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : -vs- : : Case No. CT2013-0001 TERRELL M. NOWLIN : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Muskingum County Court of Common Pleas, Case No. CR2010-0155
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 20, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ROBERT SMITH DAVID SAMS Box 189 Box 40 Zanesville, OH 43701 West Jefferson, OH 43162 [Cite as State v. Nowlin, 2013-Ohio-2593.]
Gwin, P.J.
{¶1} Defendant-appellant Terrell M. Nowlin (“Nowlin”) appeals from the
Muskingum County Court of Common Pleas resentencing after remand by this Court.
Facts and Procedural History
{¶2} A jury convicted Nowlin of conspiracy to commit aggravated murder (R.C.
2923.01(A)(1)), conspiracy to commit kidnapping (R.C. 2923.01(A)(1)), kidnapping with
a firearm specification (R.C. 2905.01(A)(2), R.C. 2941.145), aggravated murder with a
firearm specification (R.C. 2903.01(A), R.C. 2941.145), three counts of tampering with
evidence (R.C. 2921.12(A)(1)), and gross abuse of a corpse (R.C. 2927.01(B)). The
charges arose in connection with his role in the death of Tyler Hardin, who was lured to
a remote area, shot with a handgun, and buried in a shallow grave. For a complete
statement of the underlying facts, see State v. Nowlin, 5th Dist. No. CT2012–0015,
2012-Ohio-4923 [“Nowlin I”].
{¶3} Appellant was sentenced on January 30, 2012, pursuant to the newly
enacted House Bill 86, which became effective on September 30, 2011. The trial court
merged the conspiracy to commit aggravated murder conviction with the aggravated
murder conviction, merged the conspiracy to commit kidnapping conviction with the
kidnapping conviction, and merged one count of tampering with evidence with abuse of
a corpse. The state elected to proceed under the aggravated murder, kidnapping and
tampering with evidence convictions. The trial court sentenced appellant to a term of
eleven years incarceration for kidnapping, life without the possibility of parole for
aggravated murder, three years’ incarceration for the firearm specification for
aggravated murder, and 36 months on each of the three tampering with evidence Muskingum County, Case No. CT2013-0001 3
convictions. The court ordered that all terms be served consecutively. The court later
issued a nunc pro tunc entry to clarify that the court had merged the firearm
specifications for kidnapping and aggravated murder. Nowlin I, ¶17.
{¶4} On October 19, 2012, this Court upheld Nowlin's convictions. However,
this Court found that “a review of the judgment of sentence and the sentencing
transcript reveals that the trial court did not make the required findings to impose
consecutive sentences.” Nowlin I, ¶71. Accordingly, we remanded the case for
resentencing.
{¶5} On November 13, 2012, the trial court conducted the re-sentencing
hearing. The trial court acknowledged the order of remand and the reasons for the
remand. After imposing sentence the same sentence on Nowlin that it had originally
imposed, the trial court stated:
The Court will also order that all those separate sentences be
served consecutive to each other. The Court finds that this is necessary to
protect the public and to — punishment is not disproportionate to the
seriousness of the offense and the danger that the defendant poses to the
general public.
The Court also finds that at least two of the multiple offenses were
committed as part of one course of conduct and the harm caused by the
two or more offenses 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. Muskingum County, Case No. CT2013-0001 4
This was a premeditated murder. It was not done cleanly. There
was a lot of harm and hurt involved. The attempt at trying to dispose of the
body and buried it and the evidence is feeble at best and outraged the
entire community and anybody that’s involved in the case.
***
The record should reflect that the Court imposed the appropriate
sentence given the nature and extent of the injuries and what happened
and the seriousness and outrage that occurred in committing this offense.
Sent. T. filed Jan. 3, 2013 at 5-6.
Assignment of Error
{¶6} Nowlin raises one assignment of error,
{¶7} “I. THE DEFENDANT-APPELLANT WAS DENIED DUE PROCESS BY A
SENTENCE WHICH IS CONTRARY TO OHIO LAW AND THE STATE AND FEDERAL
CONSTITUTIONS.”
Analysis
{¶8} In his sole assignment of error, Nowlin challenges his consecutive
sentences imposed after remand.
{¶9} In 2003, the Ohio Supreme Court held in State v. Comer, 99 Ohio St.3d
463, 2003-Ohio-4165, a court may not impose consecutive sentences unless it “finds”
three statutory factors enumerated in then 2929.14(E)(4). The statutory factors were the
same as those now enumerated in the revised version of R.C. 2929.14(C)(4) following
enactment of 2011 Am.Sub.H.B. No. 86. The revised version of the statute again
requires the trial court to “find” the factors enumerated. Muskingum County, Case No. CT2013-0001 5
{¶10} The Court in Comer, supra, read R.C. 2929.14(E)(4), as it existed then, in
conjunction with then R.C. 2929.19(B) to reach its conclusion the trial court must also
state its reasons for the sentence imposed. Then R.C. 2929.19(B) stated the trial court
“shall impose a sentence and shall make a finding that gives its reasons for selecting
the sentence imposed in any of the following circumstances...(c) if it imposes
consecutive sentences under R.C. 2929.14.”
{¶11} 2011 Am.Sub.H.B. No. 86, which became effective on September 30,
2011, revived the language provided in former R.C. 2929.14(E) and moved it to R.C.
2929.14(C)(4). The revisions to the felony sentencing statutes under 2011 Am.Sub.H.B.
No. 86 now require a trial court to make specific findings when imposing consecutive
sentences. R.C. 2929.14(C)(4) provides, in relevant part:
(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:
(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. Muskingum County, Case No. CT2013-0001 6
(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
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[Cite as State v. Nowlin, 2013-Ohio-2593.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. Sheila G. Farmer, J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : -vs- : : Case No. CT2013-0001 TERRELL M. NOWLIN : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Muskingum County Court of Common Pleas, Case No. CR2010-0155
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 20, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ROBERT SMITH DAVID SAMS Box 189 Box 40 Zanesville, OH 43701 West Jefferson, OH 43162 [Cite as State v. Nowlin, 2013-Ohio-2593.]
Gwin, P.J.
{¶1} Defendant-appellant Terrell M. Nowlin (“Nowlin”) appeals from the
Muskingum County Court of Common Pleas resentencing after remand by this Court.
Facts and Procedural History
{¶2} A jury convicted Nowlin of conspiracy to commit aggravated murder (R.C.
2923.01(A)(1)), conspiracy to commit kidnapping (R.C. 2923.01(A)(1)), kidnapping with
a firearm specification (R.C. 2905.01(A)(2), R.C. 2941.145), aggravated murder with a
firearm specification (R.C. 2903.01(A), R.C. 2941.145), three counts of tampering with
evidence (R.C. 2921.12(A)(1)), and gross abuse of a corpse (R.C. 2927.01(B)). The
charges arose in connection with his role in the death of Tyler Hardin, who was lured to
a remote area, shot with a handgun, and buried in a shallow grave. For a complete
statement of the underlying facts, see State v. Nowlin, 5th Dist. No. CT2012–0015,
2012-Ohio-4923 [“Nowlin I”].
{¶3} Appellant was sentenced on January 30, 2012, pursuant to the newly
enacted House Bill 86, which became effective on September 30, 2011. The trial court
merged the conspiracy to commit aggravated murder conviction with the aggravated
murder conviction, merged the conspiracy to commit kidnapping conviction with the
kidnapping conviction, and merged one count of tampering with evidence with abuse of
a corpse. The state elected to proceed under the aggravated murder, kidnapping and
tampering with evidence convictions. The trial court sentenced appellant to a term of
eleven years incarceration for kidnapping, life without the possibility of parole for
aggravated murder, three years’ incarceration for the firearm specification for
aggravated murder, and 36 months on each of the three tampering with evidence Muskingum County, Case No. CT2013-0001 3
convictions. The court ordered that all terms be served consecutively. The court later
issued a nunc pro tunc entry to clarify that the court had merged the firearm
specifications for kidnapping and aggravated murder. Nowlin I, ¶17.
{¶4} On October 19, 2012, this Court upheld Nowlin's convictions. However,
this Court found that “a review of the judgment of sentence and the sentencing
transcript reveals that the trial court did not make the required findings to impose
consecutive sentences.” Nowlin I, ¶71. Accordingly, we remanded the case for
resentencing.
{¶5} On November 13, 2012, the trial court conducted the re-sentencing
hearing. The trial court acknowledged the order of remand and the reasons for the
remand. After imposing sentence the same sentence on Nowlin that it had originally
imposed, the trial court stated:
The Court will also order that all those separate sentences be
served consecutive to each other. The Court finds that this is necessary to
protect the public and to — punishment is not disproportionate to the
seriousness of the offense and the danger that the defendant poses to the
general public.
The Court also finds that at least two of the multiple offenses were
committed as part of one course of conduct and the harm caused by the
two or more offenses 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. Muskingum County, Case No. CT2013-0001 4
This was a premeditated murder. It was not done cleanly. There
was a lot of harm and hurt involved. The attempt at trying to dispose of the
body and buried it and the evidence is feeble at best and outraged the
entire community and anybody that’s involved in the case.
***
The record should reflect that the Court imposed the appropriate
sentence given the nature and extent of the injuries and what happened
and the seriousness and outrage that occurred in committing this offense.
Sent. T. filed Jan. 3, 2013 at 5-6.
Assignment of Error
{¶6} Nowlin raises one assignment of error,
{¶7} “I. THE DEFENDANT-APPELLANT WAS DENIED DUE PROCESS BY A
SENTENCE WHICH IS CONTRARY TO OHIO LAW AND THE STATE AND FEDERAL
CONSTITUTIONS.”
Analysis
{¶8} In his sole assignment of error, Nowlin challenges his consecutive
sentences imposed after remand.
{¶9} In 2003, the Ohio Supreme Court held in State v. Comer, 99 Ohio St.3d
463, 2003-Ohio-4165, a court may not impose consecutive sentences unless it “finds”
three statutory factors enumerated in then 2929.14(E)(4). The statutory factors were the
same as those now enumerated in the revised version of R.C. 2929.14(C)(4) following
enactment of 2011 Am.Sub.H.B. No. 86. The revised version of the statute again
requires the trial court to “find” the factors enumerated. Muskingum County, Case No. CT2013-0001 5
{¶10} The Court in Comer, supra, read R.C. 2929.14(E)(4), as it existed then, in
conjunction with then R.C. 2929.19(B) to reach its conclusion the trial court must also
state its reasons for the sentence imposed. Then R.C. 2929.19(B) stated the trial court
“shall impose a sentence and shall make a finding that gives its reasons for selecting
the sentence imposed in any of the following circumstances...(c) if it imposes
consecutive sentences under R.C. 2929.14.”
{¶11} 2011 Am.Sub.H.B. No. 86, which became effective on September 30,
2011, revived the language provided in former R.C. 2929.14(E) and moved it to R.C.
2929.14(C)(4). The revisions to the felony sentencing statutes under 2011 Am.Sub.H.B.
No. 86 now require a trial court to make specific findings when imposing consecutive
sentences. R.C. 2929.14(C)(4) provides, in relevant part:
(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:
(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. Muskingum County, Case No. CT2013-0001 6
(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.
(Emphasis added). In Section 11, the legislature explained that in amending former R.C.
2929.14(E)(4), it intended “to simultaneously repeal and revive the amended language
in those divisions that was invalidated and severed by the Ohio Supreme Court's
decision in State v. Foster (2006), 109 Ohio St.3d 1.” The General Assembly further
explained that the amended language in those divisions “is subject to reenactment
under the United States Supreme Court's decision in Oregon v. Ice (2009), 555 U.S.
160, and the Ohio Supreme Court's decision in State v. Hodge (2010), ––– Ohio St.3d –
–––, Slip Opinion No. 2010–Ohio–6320.” Thus, it is the legislature's intent that courts
interpret the language in R.C. 2929.14(C)(4) in the same manner as the courts did prior
to State v. Foster, 109 Ohio St.3d 1, 2006–Ohio–856, 845 N.E.2d 470.
{¶12} When it is clear from the record that the trial court engaged in the
appropriate analysis, little can be gained by sending the case back for the trial court to,
in essence, recite the “magic” or “talismanic” words when imposing consecutive
sentences. In other words, because the record supports the trial court’s imposition of
consecutive sentences, the trial court cannot err in imposing consecutive sentences Muskingum County, Case No. CT2013-0001 7
after remand. Our review on appeal of any subsequent resentencing will be directed at
looking at the entire trial court record to determine if that record supports the trial court’s
findings that the R.C. 2929.14(C) factors were met. See, State v. Alexander, 1st Dist.
Nos. C–110828, C–110829, 2012–Ohio–3349, ¶18; State v. Frasca, 11th Dist. 2011–T–
0108, 2012–Ohio–3746, ¶57.
{¶13} The transcript and sentencing entries reveal that the trial court reviewed
Nowlin’s presentence investigation report. Further, the trial court heard the evidence
presented during Nowlin’s jury trial. Upon review of the sentencing entries and the
pertinent transcripts, we find the trial court properly considered the purposes and
principles of felony sentencing, the factors of seriousness and recidivism and the R.C.
2929.14(C) factors when it re-sentenced Nowlin on November 13, 2012.
{¶14} Nowlin’s sole assignment of error is overruled and the judgment of the
Muskingum County Court of Common Pleas is affirmed.
By Gwin, P.J.,
Farmer, J., and
Baldwin, J., concur
_________________________________ HON. W. SCOTT GWIN
_________________________________ HON. SHEILA G. FARMER
_________________________________ HON. CRAIG R. BALDWIN WSG:clw 0529 [Cite as State v. Nowlin, 2013-Ohio-2593.]
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : TERRELL M. NOWLIN : : : Defendant-Appellant : CASE NO. CT2013-0001
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Muskingum County Court of Common Pleas is affirmed. Costs to appellant.
_________________________________ HON. CRAIG R. BALDWIN