State v. Owens

2016 Ohio 1203

• Court: Ohio Court of Appeals
• Decided: March 21, 2016
• Docket: 15-CA-00015
• Status: Published

Opinion

[Cite as State v. Owens, 2016-Ohio-1203.]

COURT OF APPEALS PERRY COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff - Appellee : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. -vs- : : DIXIE OWENS : Case No. 15-CA-00015 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Perry County Court of Common Pleas, Case No. 14-CR- 0083

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT: March 21, 2016

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOSEPH A. FLAUTT JAMES S. SWEENEY Perry County Prosecuting Attorney James Sweeney Law, LLC 111 North High Street 341 South Third Street, Suite 300 P.O. Box 569 Columbus, Ohio 43215 New Lexington, Ohio 43764 Perry County, Case No. 15-CA-00015 2

Baldwin, J.

{¶1} Appellant Dixie Owens appeals a judgment of the Perry County Common

Pleas Court sentencing her to three years incarceration for complicity to illegal

manufacture of drugs (R.C. 2925.04(A), (C)(3)) and one year incarceration for child

endangering (R.C. 2919.22(B)(6)), to be served consecutively. Appellee is the State of

Ohio.

STATEMENT OF FACTS AND CASE

{¶2} On March 10, 2015, appellant entered a plea of guilty to complicity to illegal

manufacture of drugs and child endangering. The plea agreement included a

recommended sentence of three years on the charge of complicity to illegal manufacture

of drugs, and one year on the charge of child endangering, to be served consecutively.

The State dismissed the remaining charges of complicity to illegal assembly or

possession of chemicals for the manufacture of drugs, and complicity to aggravated

possession of drugs. The trial court ordered a presentence investigation. On May 26,

2015, the court sentenced appellant in accordance with the agreed upon recommended

sentence. She assigns a single error on appeal:

{¶3} “THE TRIAL COURT ERRED WHEN IT IMPOSED CONSECUTIVE

SENTENCES.”

{¶4} Appellant argues that the court erred in imposing consecutive sentences

without including the requisite statutory findings in the judgment entry. Appellant and

appellee agree that the court did make these findings when the court orally pronounced

sentence from the bench, and the error in the written entry may be corrected by means Perry County, Case No. 15-CA-00015 3

of a nunc pro tunc entry. Appellant also argues that the record does not include evidence

to support the court’s imposition of consecutive sentences.

{¶5} At the plea hearing, the State represented to the court that the parties

agreed to the sentencing recommendation, and counsel for appellant stated that the

State’s representation was correct. Plea Tr. 2. Again at the sentencing hearing, the State

asked for a sentence of three years on the charge of complicity to illegal manufacture of

drugs and one year on child endangering, to be served consecutively. Sent. Tr. 2.

Counsel for appellant stated, “That is my understanding of the plea negotiations those

negotiations have been discussed with Ms. Owens and she understands those to be the

case.” Sent. Tr. 3.

{¶6} R.C. 2929.14(C)(4) provides for the imposition of consecutive sentences as

follows:

(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. Perry County, Case No. 15-CA-00015 4

(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.

{¶7} In State v. Bonnell, 140 Ohio St.3d 209, 16 N.E.3d 659, 2014–Ohio–3177,

syllabus, the Supreme Court of Ohio stated that 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, but it has

no obligation to state reasons to support its findings. A failure to make the findings

required by R.C. 2929.14(C)(4) renders a consecutive sentence contrary to law. Bonnell,

¶ 34. Although the findings are to be made at the sentencing hearing and incorporated

into the sentencing entry, a trial court's inadvertent failure to incorporate the statutory

findings in the sentencing entry after properly making those findings at the sentencing

hearing does not render the sentence contrary to law; rather, such a clerical mistake may

be corrected by the court through a nunc pro tunc entry to reflect what actually occurred

in open court. Bonnell, ¶ 30.

{¶8} Pursuant to R.C. 2953.08(D)(1), a sentence imposed upon a defendant is

not subject to review if the sentence is authorized by law, has been jointly recommended

by the prosecutor and the defendant, and is imposed by a sentencing judge. A sentence Perry County, Case No. 15-CA-00015 5

is “authorized by law” and not appealable within the meaning of R.C. 2953.08(D)(1) only

if it comports with all mandatory sentencing provisions. State v. Underwood, 124 Ohio

St. 3d 365, 922 N.E.2d 923, 2010-Ohio-1. In Underwood, the Supreme Court concluded

that R.C. 2953.08(D)(1) did not prohibit appellate review of a sentence for allied offenses

of similar import. However, in so holding, the court stated, “Our holding does not prevent

R.C. 2953.08(D)(1) from barring appeals that would otherwise challenge the court's

discretion in imposing a sentence, such as whether the trial court complied with statutory

provisions like R.C. 2929.11 (the overriding purposes of felony sentencing), 2929.12 (the

seriousness and recidivism factors), and/or 2929.13(A) through (D) (the sanctions

relevant to the felony degree) or whether consecutive or maximum sentences were

appropriate under certain circumstances.” Id. at ¶22.

{¶9} In applying Underwood to cases where consecutive sentences were

imposed in accordance with a joint recommendation of the prosecutor and the defendant,

we have concluded that consecutive sentences are not “authorized by law” where the trial

court fails to make the findings required by R.C. 2929.14. State v. Fisher, 5th Dist. Stark

No. 2012CA00031, 2013-Ohio-2081, ¶23. However, we have concluded that a claim that

the court misapplied the consecutive sentencing factors under the facts and

circumstances of the case is not properly reviewable pursuant to R.C. 2953.08(D)(1)

where the sentence was jointly recommended. State v. Barnett, 5th Dist. Perry No. 12-

CA-00010, 2013-Ohio-4936.

{¶10} 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 Perry County, Case No. 15-CA-00015 6

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.

{¶11} 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.

Costs are to be divided evenly between the parties.

By: Baldwin, J.

Hoffman, P.J. and

Wise, J. concur.