[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. W. SCOTT GWIN


                                                     _________________________________
                                                     HON. SHEILA G. FARMER


                                                     _________________________________
                                                     HON. CRAIG R. BALDWIN
