[Cite as State v. Bell, 2016-Ohio-5379.]


                                         COURT OF APPEALS
                                      ASHLAND COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT



STATE OF OHIO                                 :       JUDGES:
                                              :       Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                    :       Hon. William B. Hoffman, J.
                                              :       Hon. John W. Wise, J.
-vs-                                          :
                                              :
JOSHUA R. BELL                                :       Case No. 16-COA-012
                                              :
        Defendant-Appellant                   :       OPINION




CHARACTER OF PROCEEDING:                              Appeal from the Court of Common
                                                      Pleas, Case No. 14-CRI-158




JUDGMENT:                                             Sentence Vacated; Remanded




DATE OF JUDGMENT:                                     August 15, 2016




APPEARANCES:

For Plaintiff-Appellee                                For Defendant-Appellant

CHRISTOPHER E. BALLARD                                MATTHEW J. MALONE
110 Cottage Street                                    10 East Main Street
Third Floor                                           Ashland, OH 44805
Ashland, OH 44805
Ashland County, Case No. 16-COA-012                                                     2

Farmer, P.J.

      {¶1}     On August 7, 2015, appellant, Joshua Bell, pled guilty to two counts of

drug possession (heroin) in violation of R.C. 2925.11 and one count of possessing

criminal tools in violation of R.C. 2923.24, all felonies in the fifth degree. By nunc pro

tunc judgment entry filed August 20, 2015, the trial court sentenced appellant to one

hundred eighty-days on the each of the drug counts, to be served consecutively, and

imposed a period of four years of community control.

      {¶2}     On April 4, 2016, appellant pled guilty to violating community control. By

judgment entry filed April 18, 2016, the trial court sentenced appellant to twelve months

on each of the three counts, to be served consecutively, for a total term of thirty-six

months in prison.

      {¶3}     Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                            I

      {¶4}     "THE TRIAL COURT'S SENTENCE IMPOSED ON APPELLANT FOR

VIOLATING HIS COMMUNITY CONTROL WAS CLEARLY AND CONVINCINGLY

CONTRARY TO LAW."

                                            I

      {¶5}     Appellant claims the trial court erred in sentencing him to consecutive

sentences in violation of the dictates of State v. Bonnell, 140 Ohio St.3d 209, 2014-

Ohio-3177. We agree.

      {¶6}     Pursuant to the Supreme Court of Ohio's recent holding in State v.

Marcum, ___ Ohio St.3d ___, 2016–Ohio–1002, ¶ 7, this court will review a felony
Ashland County, Case No. 16-COA-012                                                         3


sentence using the standard set forth in R.C. 2953.08, and will no longer apply the

abuse of discretion standard under State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912.

R.C. 2953.08 governs appeals based on felony sentencing guidelines.                 Subsection

(G)(2) sets forth this court's standard of review as follows:



              (2) The court hearing an appeal under division (A), (B), or (C) of

       this section shall review the record, including the findings underlying the

       sentence or modification given by the sentencing court.

              The appellate court may increase, reduce, or otherwise modify a

       sentence that is appealed under this section or may vacate the sentence

       and remand the matter to the sentencing court for resentencing.              The

       appellate court's standard for review is not whether the sentencing court

       abused its discretion. The appellate court may take any action authorized

       by this division if it clearly and convincingly finds either of the following:

              (a) That the record does not support the sentencing court's findings

       under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of

       section 2929.14, or division (I) of section 2929.20 of the Revised Code,

       whichever, if any, is relevant;

              (b) That the sentence is otherwise contrary to law.



       {¶7}   "Clear and convincing evidence is that measure or degree of proof which

is more than a mere 'preponderance of the evidence,' but not to the extent of such

certainty as is required 'beyond a reasonable doubt' in criminal cases, and which will
Ashland County, Case No. 16-COA-012                                                       4


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.

       {¶8}   R.C. 2929.14(C)(4) governs consecutive sentences and states the

following:



              (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.

              (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.
Ashland County, Case No. 16-COA-012                                                    5


             (c) The offender's history of criminal conduct demonstrates that

      consecutive sentences are necessary to protect the public from future

      crime by the offender.



      {¶9}   Appellant concedes the trial court made the necessary findings to support

consecutive sentences at the sentencing hearing, but argues the trial court failed to

include the necessary findings in the sentencing entry pursuant to Bonnell, supra at ¶

29:



             When imposing consecutive sentences, 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.          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 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.



      {¶10} In its appellate brief at 1, appellee concedes the issue.         Pursuant to

Bonnell, supra at ¶ 30-31:
Ashland County, Case No. 16-COA-012                                                     6




            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

     (where notification of postrelease control was accurately given at the

     sentencing hearing, an inadvertent failure to incorporate that notice into

     the sentence may be corrected by a nunc pro tunc entry without a new

     sentencing hearing). 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 ("a

     nunc pro tunc order cannot cure the failure of a judge to impose restitution

     in the first instance at sentencing").

            And a sentencing entry that is corrected by a nunc pro tunc entry

     incorporating findings stated on the record at the sentencing hearing does

     not extend the time for filing an appeal from the original judgment of

     conviction and does not create a new final, appealable order. See State v.

     Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, ¶ 20 ("a

     nunc pro tunc judgment entry issued for the sole purpose of complying

     with Crim.R. 32(C) to correct a clerical omission in a final judgment entry

     is not a new final order from which a new appeal may be taken").
Ashland County, Case No. 16-COA-012                                                     7


       {¶11} Upon review, we vacate the sentence and remand the matter to the trial

court to issue a nunc pro tunc judgment entry on sentencing to include the requisite

findings.

       {¶12} The sole assignment of error is granted.

       {¶13} The sentence of the Court of Common Pleas of Ashland County, Ohio is

hereby vacated, and the matter is remanded to said court for the limited purpose of

issuing a nunc pro tunc sentencing entry in accordance with the law and this opinion.

By Farmer, P.J.

Hoffman, J. and

Wise, J. concur.




SGF/sg 8/5
