[Cite as State v. Noble, 2014-Ohio-5485.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 8-14-06

        v.

JUSTIN DYLAN NOBLE,                                       OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Logan County Common Pleas Court
                           Trial Court No. CR13-07-0178

                                      Judgment Affirmed

                          Date of Decision: December 15, 2014




APPEARANCES:

        Natalie J. Bahan for Appellant

        William T. Goslee for Appellee
Case No. 8-14-06


ROGERS, J.

       {¶1} Defendant-Appellant, Justin Noble, appeals the judgment of the Court

of Common Pleas of Logan County convicting him of complicity to grand theft of

a motor vehicle, complicity to theft, theft of a motor vehicle, and possessing

criminal tools and sentencing him to an 18-month prison sentence. On appeal,

Noble argues that the trial court erred in running his 18-month sentence

consecutive to a separate 10-year prison sentence he is serving out of Clinton

County. Noble contends that the trial court erred by failing to make the statutorily

required findings and by imposing the maximum sentence. For the reasons that

follow, we affirm in part and reverse in part the trial court’s judgment.

       {¶2} On June 27, 2013, a complaint was filed in the Bellefontaine

Municipal Court charging Noble with theft of a motor vehicle in violation of R.C.

2919.02(A)(1)(5), a felony of the fourth degree. Subsequently, Noble was bound

over to the Court of Common Pleas of Logan County and was released on his own

recognizance.

       {¶3} On July 9, 2013, the Logan County Grand Jury indicted Noble on two

counts of complicity to grand theft of a motor vehicle in violation of R.C.

2923.03(A) and 2913.02(A)(1)(5), felonies of the fourth degree; one count of

complicity to theft in violation of R.C. 2923.03(A), 2913.02(A)(1), and

2913.71(A), a felony of the fifth degree; 12 counts of complicity to theft in


                                         -2-
Case No. 8-14-06


violation of R.C. 2923.03(A) and 2913.02(A)(1), misdemeanors of the first

degree; one count of complicity to criminal damaging or endangering in violation

of R.C. 2923.03(A) and 2909.06(A)(1), a misdemeanor of the second degree; and

one count of complicity to grand theft in violation of R.C. 2923.03(A) and

2913.02(A)(1)/(B)(4), a felony of the third degree.     On September 11, 2013, the

State filed an amended indictment and charged Noble with theft of a motor vehicle

in violation of R.C. 2913.02, a felony of the fourth degree; and one count of

possession of criminal tools in violation of R.C. 2923.24(A), a felony of the fifth

degree. The indictment arose from Noble’s alleged participation in a string of

break-ins throughout Logan County.

       {¶4} While Noble was released on his own recognizance and awaiting trial

in this matter, he allegedly participated in another string of break-ins from July 9

to July 20, 2013.     The break-ins occurred in Clinton, Greene, Warren, and

Highland Counties. Noble’s conduct in Clinton County resulted in the return of an

indictment with more than 50 counts.          Noble subsequently pled guilty to 35

separate offenses with 35 separate victims. As a result of his guilty plea, Noble

received a 10-year prison sentence out of Clinton County in Case No. 2013-5229.

       {¶5} On February 5, 2014, pursuant to a plea agreement, Noble entered

guilty pleas to counts I (complicity to grand theft of a motor vehicle), III

(complicity to theft), XVIII (theft of a motor vehicle), and XIX (possession of


                                        -3-
Case No. 8-14-06


criminal tools).   The State dismissed the remaining counts of the amended

indictment.

      {¶6} On February 7, 2014, the trial court sentenced Noble to an 18-month

prison sentence for Counts I and XVIII, and a 12-month prison sentence for

Counts III and XIX. The court ordered that the prison terms run concurrently for a

total prison term of 18-months. However, the court found that the 18-month

prison term should run consecutive to Noble’s 10-year prison sentence he received

for Case No. 2013-5229 out of Clinton County. On March 28, 2014, the trial court

issued a judgment entry journalizing Noble’s conviction and sentence.

      {¶7} Noble timely appealed this judgment, presenting the following

assignment of error for our review.

                              Assignment of Error

      THE RECORD DOES NOT SUPPORT THE IMPOSITION OF
      CONSECUTIVE SENTENCES, THE TRIAL COURT DID
      NOT MAKE THE SPECIFIC FINDINGS NECESSARY TO
      SUPPORT THE    IMPOSITION OF CONSECUTIVE
      SENTENCES, AND THE SENTENCE IS CLEARLY AND
      CONVINCINGLY CONTRARY TO LAW.

      {¶8} In his sole assignment of error, Noble argues that the trial court erred

by imposing a maximum and consecutive sentences and by failing to make the

statutory findings required by R.C. 2929.14(C)(4). We disagree.




                                       -4-
Case No. 8-14-06


                                 Maximum Sentence

       {¶9} Trial courts have full discretion to impose any sentence within the

statutory range. State v. Saldana, 3d Dist. Putnam No. 12-12-09, 2013-Ohio-1122,

¶ 20. Since Noble was convicted of fourth and fifth degree felonies, the relevant

prison sentence range is between six and eighteen months for a felony of the

fourth degree and between six and twelve months for a felony of the fifth degree.

R.C. 2929.14(A)(4), (5). “A trial court’s sentence will not be disturbed on appeal

absent a defendant’s showing by clear and convincing evidence that the sentence

is unsupported by the record or otherwise contrary to law.” State v. Barrera, 3d

Dist. Putnam No. 12-12-01, 2012-Ohio-3196, ¶ 20.              Clear and convincing

evidence is that “which will produce in the mind of the trier of facts a firm belief

or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio

St. 469 (1954), paragraph three of the syllabus. An appellate court should not,

however, substitute its judgment for that of the trial court because the trial court is

in a better position to judge the defendant’s chances of recidivism and determine

the effects of the crime on the victim. State v. Watkins, 3d Dist. Auglaize No. 2-

04-08, 2004-Ohio-4809, ¶ 16.

       {¶10} R.C. Chapter 2929 governs sentencing. R.C. 2929.11 provides, in

pertinent part, that the “overriding purposes of felony sentencing are to protect the

public from future crime and to punish the offender.” R.C. 2929.11(A).              In


                                         -5-
Case No. 8-14-06


advancing these purposes, sentencing courts are instructed to “consider the need

for incapacitating the offender, deterring the offender and others from future

crime, rehabilitating the offender, and making restitution to the victim of the

offense, the public, or both.” Id. Meanwhile, R.C. 2929.11(B) states that felony

sentences must be “commensurate with and not demeaning to the seriousness of

the offender's conduct and its impact upon the victim” and also be consistent with

sentences imposed in similar cases. In accordance with these principles, the trial

court must consider the factors set forth in R.C. 2929.12(B)-(E) relating to the

seriousness of the offender’s conduct and the likelihood of the offender’s

recidivism. R.C. 2929.12(A). However, the trial court is not required to make

specific findings of its consideration of the factors. State v. Kincade, 3d Dist.

Wyandot No. 16–09–20, 2010–Ohio–1497, ¶ 8.

      {¶11} Here, the trial court sentenced Noble to 18 months for his fourth

degree felonies and 12 months for his fifth degree felonies, which fall within the

statutory range for fourth and fifth degree felonies. While the trial court did not

state on the record that it considered the required statutory factors at the

sentencing hearing, it made clear in its judgment entry that it did consider R.C.

2929.11 and 2929.12. After reviewing the record, we cannot find that the trial

court erred in imposing this sentence. Although the record does not indicate that

Noble’s offenses were more serious than others, it does reveal that he is at a high


                                        -6-
Case No. 8-14-06


risk of recidivism. In addition to the Presentence Investigation Report indicating

that Noble was a “very high risk” for recidivism, a finding that he is likely to

commit future crimes is also supported by several statutory factors under R.C.

2929.12(D).     Specifically, Noble has an extensive criminal record, R.C.

2929.12(D)(2); he has failed to conform his conduct to the law despite previously

being adjudicated a delinquent child, R.C. 2929.12(D)(3); he has failed to

adequately seek treatment for his drug use, R.C. 2929.12(D)(4); and he has not

offered remorse for his crimes, R.C. 2929.12(D)(5). In light of the extensive

evidence suggesting the likelihood of Noble’s recidivism, we find no error in the

trial court’s imposition of a maximum sentence.

                              Consecutive Sentences

      {¶12} The revisions to the felony sentencing statutes under H.B. 86 now

require a trial court to make specific findings on the record, as set forth in R.C.

2929.14(C)(4), when imposing consecutive sentences. State v. Hites, 3d Dist.

Hardin No. 6-11-07, 2012-Ohio-1892, ¶ 11. Revised Code 2929.14(C)(4) now

provides:

      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:

                                        -7-
Case No. 8-14-06



       (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.

       {¶13} When imposing consecutive sentences, Crim.R. 32(A)(4) provides

that “a trial court must state the required findings as part of the sentencing hearing,

and by doing so it affords notice to the offender and to defense counsel.” State v.

Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 30.          Further, the court should

also include its statutory findings in the sentencing entry because a court speaks

through its journal. Id. at ¶ 29, citing State v. Brooke, 113 Ohio St.3d 199, 2007-

Ohio-1533, ¶ 47. However, a trial court is not required to give a “talismanic

incantation” of R.C. 2929.14(C)(4), nor is it required to state reasons that support

its finding. Bonnell at ¶ 37.

       {¶14} At Noble’s sentencing hearing, the court stated:

       Court finds that a consecutive sentence between the two counties is
       necessary to protect the public, to punish the defendant, and that

                                         -8-
Case No. 8-14-06


        such finding is not disproportionate. Court finds that in Logan
        County the harm was so great or unusual that a single term does not
        adequately reflect the seriousness of the conduct. The court finds
        that defendant’s criminal history shows that consecutive terms are
        needed to protect the public.

Sentencing Tr., p. 20.          Thus, the trial court made the three statutorily required

findings. First, the court found that a consecutive sentence was necessary to

protect the public and to punish Noble. It also found that the sentence was not

disproportionate to the crime. Lastly, the court found that Noble’s criminal history

demonstrated that consecutive sentences were necessary to protect the public.1

        {¶15} On appeal, Noble argues that these findings are not supported on the

record. He argues that he does not have a significant criminal history because his

convictions in Case No. 2013-5229 from Clinton County were his first adult

felony convictions and he was only 19-years old at the time. However, Noble fails

to acknowledge that he has five separate cases from juvenile court, and that his

“first adult felony convictions” were for 24 different felonies with 24 separate

victims. In the same case, he also pled guilty to 11 first degree misdemeanor

charges. Clearly, Noble’s time spent in juvenile court did not deter him from

committing future crimes as a 19-year old.




1
 We also note that the trial court made another finding that Noble’s conduct resulted in a great or unusual
harm but failed to find that the offenses were committed as part of Noble’s course of criminal conduct.
However, because the trial court properly made a finding pursuant to R.C. 2929.14(C)(4)(c), it does not
matter to our analysis.

                                                   -9-
Case No. 8-14-06


       {¶16} Noble also argues that consecutive sentences are disproportionate to

the offenses he committed. However, Noble does not explain why his sentences

are disproportionate, either by citing to the sentences of his codefendants or other

defendants in similar cases. We note that Noble was originally indicted on 17

different counts in this case, and pursuant to a plea agreement, the State dismissed

all but four counts. Further, Noble was originally indicted on over 50 counts in

Clinton County, and Noble eventually pled guilty to 35 counts. Noble’s criminal

conduct is extensive and running his 18-month sentence in this case to his prison

sentence in Case No. 2013-5229, was not disproportionate to the offenses he

committed.

       {¶17} Noble states that “there is simply nothing in the record to indicate

that this was anything other than a bunch of kids out after dark breaking into cars

stealing spare change, cd’s and the like, and ultimately, driving away in a car that

was vulnerable to theft.” (Appellant’s Br., p. 7). It is apparent from this statement

that Noble lacks any accountability for his actions and his failure to show any

remorse supports the trial court’s conclusion that Noble is a danger to the public

and is likely to recidivate.   See State v. Upkins, 3d Dist. Shelby No. 17-13-02,

2013-Ohio-3986, ¶ 22.

       {¶18} Lastly, Noble contends that he is being punished “twice for the same

behavior.” (Appellant’s Br., p. 7). While certainly both trial courts considered all


                                        -10-
Case No. 8-14-06


of Noble’s criminal history when imposing his sentence, it is what they were

statutorily required to do. Further, Noble is not being punished twice for the same

behavior, but being punished twice for different sets of crimes that happened on

different dates, and in different locations.     Noble also claims that he likely

received a longer sentence in Clinton County because that court was aware of his

pending charges in Logan County. We cannot find that this argument is supported

by the record. Indeed, it appears that the court in Clinton County was rather

lenient toward Noble. For example, Noble pled guilty to five separate counts of

burglary in Clinton County, facing a maximum sentence of eight years for each

count, a total of 40 years in prison. The sentencing court in Clinton County did

not impose the maximum sentence, but instead sentenced Noble to a five-year

prison term and ran his burglary convictions concurrently to one another.

       {¶19} Accordingly, we find that the imposition of maximum and

consecutive sentences was not clearly and convincingly contrary to law.

                                  Sentencing Entry

       {¶20} Albeit making the statutorily required findings at the sentencing

hearing, the trial court failed to incorporate these findings in its sentencing entry.

Pursuant to Bonnell, a trial court must not only make the statutory findings at the

sentencing hearing, but incorporate those findings into its sentencing entry.

Bonnell, 2014-Ohio-3177, ¶ 29.       However, Bonnell also stated that “[a] trial


                                        -11-
Case No. 8-14-06


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.” Id. at ¶ 30, citing State v. Qualls, 131 Ohio St.3d 499,

2012-Ohio-111, ¶ 15. In this case, the court made the requisite findings in open

court but did not incorporate those findings into its sentencing entry. Therefore,

we sustain Noble’s sole assignment of error only to the extent that the trial court

failed to include the statutory findings in its sentencing entry. Otherwise, we

overrule Noble’s sole assignment of error.2

         {¶21} In conclusion, we find that the record supports maximum and

consecutive sentences, that the trial court made the necessary consecutive-sentence

findings at the sentencing hearing, and that Noble’s sentence is not contrary to

law. However, we find that the trial court erred insofar as it failed to incorporate

its findings into its judgment entry. Therefore, we affirm Noble’s sentence but

reverse as to the clerical mistake omitted from the judgment entry, and remand this

2
  Moreover, the trial court did not identify Noble’s prior conviction from Clinton County to which the
sentence in this case was to be consecutively served. In situations where the trial court is ordering a
sentence to be served consecutive to a sentence in a different case, we have found that a trial court should
make clear the nature of the previous offense and the length of the current sentence as well as the case
number for the previous offense. See State v. Good, 3d Dist. Logan No. 8-04-37, 2005-Ohio-2660, ¶ 4, fn.
1; see also State v. Raymond, 3d Dist. Allen No. 1-13-23, 2014-Ohio-556, ¶ 29 (Rogers, J., dissenting)
(“[A]n order imposing a consecutive sentence is incomplete when it cannot be determined from a reading
of the sentencing entry as to what case the current sentence is to be served consecutive.”). Therefore, the
trial court made another clerical error by failing to identify Noble’s prior conviction to which his sentence
was to be served consecutively and the trial court should also correct this error when issuing a nunc pro
tunc sentencing entry.

                                                   -12-
Case No. 8-14-06


matter for the trial court to incorporate its consecutive-sentence findings into its

judgment entry.

                                                       Judgment Affirmed in Part
                                                            Reversed in Part and
                                                               Cause Remanded

SHAW and PRESTON, J.J., concur.

/jlr




                                       -13-
