[Cite as State v. Payne, 2019-Ohio-2852.]




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




STATE OF OHIO,
                                                          CASE NO. 7-19-02
         PLAINTIFF-APPELLEE,

    v.

ADAM PAYNE,                                               OPINION

         DEFENDANT-APPELLANT.



                  Appeal from Henry County Common Pleas Court
                            Trial Court No. 18 CR 0104

                       Judgment Reversed and Cause Remanded

                              Date of Decision: July 15, 2019



APPEARANCES:

         Brian A. Smith for Appellant

         Gwen Howe-Gebers for Appellee
Case No. 7-19-02


WILLAMOWSKI, J.

       {¶1} Defendant-appellant Adam Payne (“Payne”) appeals the judgment of

the Henry County Court of Common Pleas, alleging that the trial court failed to

make the findings require by R.C. 2929.14(C)(4). For the reasons set forth below,

the judgment of the trial court is reversed.

                           Facts and Procedural History

       {¶2} On August 22, 2018, Payne was indicted on one count of aggravated

robbery in violation of R.C. 2911.01(A)(3); one count of escape in violation of R.C.

2921.34(A)(1); and one count of attempted vandalism in violation of R.C.

2923.02(A), 2909.05(B)(1)(b). Doc. 1. These charges were the basis of case 18-

CR-0104. Doc. 1. On November 26, 2018, Payne pled guilty to one count of

aggravated robbery in violation of 2911.01(A)(3). Doc. 19. Change of Plea Hearing

Tr. 2. Pursuant to a plea agreement, the other two counts against Payne were

dismissed. Id.

       {¶3} On December 18, 2018, Payne appeared before the trial court for

sentencing. Doc. 21. Prior to this hearing, Payne had been sentenced in a Defiance

County case to a prison term of twenty-three months. Sentencing Hearing Tr. 3.

The trial court ordered that Payne’s sentence in case 18-CR-0104 be served

consecutively to the sentence he received in the Defiance County case. Id. at 10.

Doc. 21. On January 16, 2019, appellant filed his notice of appeal. Doc. 30. On

appeal, Payne raises the following assignments of error:

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                            First Assignment of Error

       Because the trial court failed to make the findings required under
       R.C. 2929.14(C)(4) before imposing a consecutive sentence,
       Appellant’s sentence was in violation of R.C. 2929.41(A) and,
       therefore, contrary to law.

                          Second Assignment of Error

       Because the record, as shown by clear and convincing evidence,
       does not support the trial court’s findings under the relevant
       statutes, pursuant to R.C. 2953.08(G)(2), the trial court’s sentence
       of Appellant was not supported by the record.

                             First Assignment of Error

       {¶4} Payne argues that the trial court did not make the findings that are

required to impose consecutive sentences under R.C. 2929.14(C)(4).

                                  Legal Standard

       R.C. 2929.41(A) reads, in its relevant part as follows:

       Except as provided in * * * division (C) of section 2929.14 * * *, a
       prison term, jail term, or sentence of imprisonment shall be
       served concurrently with any other prison term, jail term, or
       sentence of imprisonment imposed by a court of this state, another
       state, or the United States.

R.C. 2929.41(A). “In order to impose consecutive sentences pursuant to R.C.

2929.14(C), the “trial court is required to make certain findings for the record and

to incorporate these findings into the judgment entry.” State v. Taflinger, 3d Dist.

Logan No. 8-17-20, 2018-Ohio-456, ¶ 10, citing R.C. 2929.14(C)(4). See State v.

Noble, 3d Dist. Logan No. 8-14-06, 2014-Ohio-5485, ¶ 6 (applying R.C.



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Case No. 7-19-02


2929.14(C)(4) in a situation where a sentence in one case was ordered to be served

consecutively to a sentence from a separate case).

       {¶5} Under R.C. 2929.14(C)(4), “the trial court must find that 1) consecutive

sentences are necessary to either protect the public or punish the offender, 2) the

sentences would not be disproportionate to the offense committed, and 3) one of the

factors set forth in R.C. 2929.14(C)(4)(a, b, or c).” State v. Ackles, 3d Dist. Allen

No. 1-18-16, 2018-Ohio-3718, ¶ 6, quoting State v. Peddicord, 3d Dist. Henry No.

7-12-24, 2013-Ohio-3398, ¶ 33.           The three factors listed under R.C.

2929.14(C)(4)(a-c) read as follows:

       (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.

R.C. 2929.14(C)(4)(a-c).

       When imposing consecutive sentences, a trial court must state the
       required findings as part of the sentencing hearing * * *. See
       Crim.R. 32(A)(4). And because a court speaks through its
       journal, State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, 863

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Case No. 7-19-02


       N.E.2d 1024, ¶ 47, the court should also incorporate its statutory
       findings into the sentencing entry. However, a word-for-word
       recitation of the language of the statute is not required, and as
       long as the reviewing court can discern that the trial court
       engaged in the correct analysis and can determine that the record
       contains evidence to support the findings, consecutive sentences
       should be upheld.

       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. See State v. Qualls, 131 Ohio St.3d 499,
       2012-Ohio-1111, 967 N.E.2d 718, ¶ 15 * * *. But a nunc pro tunc
       entry cannot cure the failure to make the required findings at the
       time of imposing sentence. See State v. Miller, 127 Ohio St.3d 407,
       2010-Ohio-5705, 940 N.E.2d 924, ¶ 16.

(Citations omitted.) State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16

N.E.3d 659, ¶ 29-30.

                                   Legal Analysis

       {¶6} While the trial court is not obligated to recite any talismanic language,

the record must still indicate that the trial court made all of the findings required by

R.C. 2929.14(C)(4). Bonnell at ¶ 37. In this case, the trial court did not make all of

the findings that are required to impose consecutive sentences under R.C.

2929.14(C)(4). Further, the trial court did not incorporate the R.C. 2929.14(C)(4)

findings into its judgment entry of sentencing.        Doc. 21.     “Accordingly, the

imposition of consecutive sentences in this case is contrary to law.” Bonnell, supra,

at ¶ 37. For this reason, we “reverse the judgment of the [trial] court, vacate the


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sentence, and remand the matter to the trial court for resentencing.” Id. Payne’s

first assignment of error is sustained.

                            Second Assignment of Error

       {¶7} In his second assignment of error, Payne argues that the sentence he

received is not supported by the record and is, therefore, contrary to law. However,

our ruling on Payne’s first assignment of error has rendered this argument moot as

we have already vacated his sentence and remanded this case for resentencing. For

this reason, we decline to address these issues pursuant to App.R. 12(A)(1)(c).

                                     Conclusion

       {¶8} Having found error prejudicial to the appellant in the particulars

assigned and argued, the judgment of the Henry County Court of Common Pleas is

reversed. This cause is remanded to the trial court for further proceedings consistent

with this opinion.

                                                                Judgment Reversed
                                                              And Cause Remanded

SHAW and PRESTON, J.J., concur.

/hls




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