[Cite as State v. Maple, 2019-Ohio-2091.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                     ASHTABULA COUNTY, OHIO


 STATE OF OHIO,                                  :       OPINION

                  Plaintiff-Appellee,            :
                                                         CASE NO. 2018-A-0091
         - vs -                                  :

 DENNIS S. MAPLE,                                :

                  Defendant-Appellant.           :


 Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2016 CR
 00672.

 Judgment: Affirmed and remanded.


 Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
 Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
 44047 (For Plaintiff-Appellee).

 Eric D. Hall, P. O. Box 232, Medina, OH 44258 (For Defendant-Appellant).



MARY JANE TRAPP, J.

        {¶1}      Appellant, Dennis S. Maple, appeals from the judgment of the Ashtabula

County Court of Common Pleas imposing consecutive sentences of 36 months each on

five counts of unlawful sexual conduct with a minor following his written plea of guilty

pursuant to North Carolina v. Alford, 400 U.S. 25 (1970).
       {¶2}   We find the trial court properly made the required statutory findings for

consecutive sentences at the sentencing hearing but failed to include one of them in its

subsequent sentencing entry.

       {¶3}   For the reasons that follow, we affirm but remand for the issuance of a nunc

pro tunc entry.

                   Substantive History and Procedural Background

       {¶4}   On November 30, 2016, the Ashtabula County Grand Jury indicted

appellant, Dennis S. Maple (“Mr. Maple”), on five counts of rape in violation of R.C.

2907.02(A)(2), felonies of the first degree (Counts 1 through 5); one count of pandering

sexually oriented matter involving a minor in violation of R.C. 2907.322(A)(1), a felony of

the second degree (Count 6); five counts of sexual battery in violation of R.C.

2907.03(A)(5), felonies of the third degree (Counts 7 through 11); one count of gross

sexual imposition in violation R.C. 2907.05(A)(1) and (C)(1), a felony of the fourth degree,

(Count 12); and five counts of unlawful sexual conduct with a minor in violation of R.C.

2907.04(A) and (B)(3), felonies of the third degree (Counts 13 through 17).

       {¶5}   Mr. Maple initially pleaded not guilty to the charges. On the eve of the jury

trial, Mr. Maple entered a written plea of guilty pursuant to Alford, supra, to five counts of

unlawful sexual conduct with a minor (Counts 13 through 17). Under this type of plea,

known as an Alford plea, a defendant pleads guilty but maintains actual innocence of the

charges. State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, ¶13. The remaining

counts of the indictment were dismissed pursuant to a plea agreement.

       {¶6}   The trial court subsequently sentenced Mr. Maple to 36 months in prison on

each of the five counts, to be served consecutively, for a total prison term of 15 years.




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       {¶7}    Mr. Maple now appeals, asserting the following assignment of error:

       {¶8}    “The trial court erred when it sentenced Appellant to consecutive sentences

when Appellant’s prior criminal history did not demonstrate that consecutive sentences

were necessary to protect the public from future crime and constituted and [sic] abuse of

discretion.”

                                   Standard of Review

       {¶9}    On appeals involving the imposition of consecutive sentences, R.C.

2953.08(G)(2)(a) directs the appellate court to review the record, including the findings

underlying the sentence, and to modify or vacate the sentence if it clearly and convincingly

finds that the record does not support the sentencing court's findings under R.C.

2929.14(C)(4).    State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶28; R.C.

2953.08(G)(2)(a).

                                    Law and Analysis

       {¶10} In his sole assignment of error, Mr. Maple claims the trial court erred by

sentencing him to consecutive sentences.         According to Mr. Maple, he lacked any

significant criminal history that would make consecutive sentences necessary to protect

the public from future crime pursuant to R.C. 2929.14(C)(4)(c).

       {¶11} R.C. 2929.14(C)(4) permits the trial court to order an offender to

consecutively serve separate prison terms for multiple offenses if the trial court finds (1)

“consecutive service is necessary to protect the public from future crime or to punish the

offender,” (2) “consecutive sentences are not disproportionate to the seriousness of the

offender’s conduct and to the danger the offender poses to the public,” and (3) any of the

following factors is present:




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       {¶12} “(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.

       {¶13} “(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.

       {¶14} “(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} The trial court is required to make the findings mandated by R.C.

2929.14(C)(4) at the sentencing hearing and to incorporate its findings into its sentencing

entry. Bonnell at ¶37. However, “a word-for-word recitation of the language of the statute

is not required.” Id. at ¶29. “[A]s 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.” Id.

       {¶16} The trial court made the following findings regarding consecutive sentences

at Mr. Maple’s sentencing hearing:

       {¶17} “But I do agree with the assertion that the State has made that these multiple

offenses which have been charged and to which the plea has been entered were part of

a continuous course of conduct that extended over roughly a year, according to the dates




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that the Court was given. And that the harm caused by these multiple offenses is so great

that a single term of imprisonment for these offenses would not adequately reflect the

seriousness of the Defendant’s conduct. * * * But I find that consecutive sentences will be

necessary to protect the public from future crime and to adequately punish this offender.

That consecutive sentences are not disproportionate to the seriousness of the offender’s

conduct and the danger that the Defendant poses to the public. So I think again in order

to protect the public from future crime given the nature of these serious offenses, each of

the counts will be ordered to run consecutively to one another * * *.”

       {¶18} The trial court’s sentencing entry states, in relevant part:

       {¶19} “The Court further finds that consecutive sentences are necessary to protect

the public from future crime and 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. The court also finds that the nature of the offender’s

criminal conduct demonstrates that consecutive sentences are necessary to protect the

public from future crime by the offender.”

       {¶20} Mr. Maple does not appear to dispute that the trial court properly made the

two findings required under (C)(4), which address protecting the public/punishing the

defendant and proportionality. Rather, Mr. Maple argues that given his sparse criminal

history, consecutive sentences were not necessary to protect the public from future crime

under subsection (c).

       {¶21} Mr. Maple misconstrues the trial court’s findings and the statute. The trial

court’s third finding must contain only one of the alternative factors set forth in subsections

(a), (b), and (c). While subsection (c) addresses an offender’s criminal history, the trial




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court did not find that Mr. Maple’s criminal history supported the imposition of consecutive

sentences. Instead, the trial court issued its third finding pursuant to subsection (b), which

provides: “[a]t 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.”

       {¶22} The record reflects the trial court made all three required statutory findings

at the sentencing hearing. However, the trial court’s subsequent sentencing entry does

not contain its finding under subsection (b) that Mr. Maple’s multiple offenses were

committed as part of a course of conduct and that the harm caused by the multiple

offenses was so great that a single term of imprisonment for the offenses would not

adequately reflect the seriousness of Mr. Maple’s conduct.           Rather, the trial court

essentially duplicated a portion of the first finding required under (C)(4).

       {¶23} According to the Supreme Court of Ohio, “[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 at ¶30. See also State v. Olp, 11th

Dist. Ashtabula Nos. 2015-A-0033 & 2015-A-0034, 2016-Ohio-3508, ¶19.

       {¶24} Accordingly, we determine the trial court’s imposition of consecutive

sentences was not contrary to law, but we remand this matter to the trial court for the




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limited purpose of issuing a nunc pro tunc entry incorporating the findings from the

sentencing hearing.

      {¶25} Mr. Maple’s sole assignment of error is without merit.

      {¶26} Based on the foregoing, the judgment of the Ashtabula County Court of

Common Pleas is affirmed, but we remand for the issuance of a nunc pro tunc entry.



CYNTHIA WESTCOTT RICE, J.,

TIMOTHY P. CANNON, J.,

concur.




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