[Cite as State v. Baker, 2018-Ohio-4027.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                       No. 106716



                                      STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                     MICHAEL BAKER
                                                       DEFENDANT-APPELLANT




                                    JUDGMENT:
                              AFFIRMED AND REMANDED


                                    Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                          Case Nos. CR-11-550445-A, CR-11-552482-A,
                                     and CR-16-602937-A

               BEFORE:          Blackmon, J., Stewart, P.J., and Laster Mays, J.

              RELEASED AND JOURNALIZED:                    October 4, 2018
                                         -i-


ATTORNEY FOR APPELLANT

Craig W. Smotzer
Law Office of Craig W. Smotzer, L.L.C.
11510 Buckeye Road
Cleveland, Ohio 44104


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

By: Glen Ramdhan
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113




PATRICIA ANN BLACKMON, J.:
       {¶1} Michael Baker (“Baker”) appeals from the trial court’s imposition of a

270-day prison sentence and its ordering restitution and assigns the following errors for

our review:

       I.       The trial court erred in imposing consecutive sentences.

       II.      The trial court erred by sentencing the appellant to a prison term in a
                duration of days.

       III.     The restitution amount ordered by the trial court is in error.

       {¶2} Having reviewed the record and pertinent law, we affirm the decision of the

trial court but remand for the limited purpose of issuing a nunc pro tunc order

incorporating the required statutory findings for consecutive sentences. The apposite

facts follow.

       {¶3} On November 26, 2012, Baker pled guilty to two fifth-degree felonies, and

the court sentenced him to five years of community control sanctions in Cuyahoga C.P.

Nos. CR-11-550445-A and CR-11-552482-A. On May 26, 2016, Baker pled guilty to a

fourth-degree felony and two misdemeanors, and the court sentenced him to two years of

community control sanctions in Cuyahoga C.P. No. CR-16-602937-A.

       {¶4} On December 14, 2017, the court found Baker to be in violation of his

community control sanctions in all three cases and sentenced him to 90 days in prison for

each felony, to run consecutively, for a total of 270 days in prison. Additionally, the trial

court ordered Baker to pay restitution, although the court failed to include this in the

sentencing journal entry.
       {¶5} Baker appealed, and on May 8, 2018, this court sua sponte remanded the

two 2011 cases to the trial court to issue “nunc pro tunc entries incorporating the amount

of restitution into the journal entries of sentence.” On June 21, 2018, the court issued the

nunc pro tunc entries, ordering that Baker pay restitution in the amount of $57,384.41 in

CR-11-550445-A, and $32,262.04 in CR-11-552482-A, for a total of $89,464.45.

                                 Consecutive Sentences

       {¶6} “[T]o impose consecutive terms of imprisonment, a trial court is required to

make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and

incorporate its findings into its sentencing entry * * *.” State v. Bonnell, 140 Ohio St.3d

209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. Pursuant to R.C. 2929.14(C)(4), the court

must find consecutive sentences are “necessary to protect the public from future crime or

to punish the offender”; “not disproportionate to the seriousness of the offender’s conduct

and to the danger the offender poses to the public”; and at least one of the following three

factors:

       (a) The offender committed one or more of the multiple offenses while the
       offender was awaiting trial or sentencing, was under a sanction * * *, 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.
       {¶7} In running Baker’s three 90-day prison sentences consecutively, the trial

court stated the following at the sentencing hearing:

       And I find that it’s necessary for a consecutive sentence in order to punish

       the offender and that it is not disproportionate to the seriousness of the

       conduct. And that two or more of the offenses are a part of one or more

       courses of conduct. And the harm caused is so great or unusual that a

       single prison term would not adequately reflect the seriousness of the

       conduct.

       {¶8} Upon review, we find that the trial court’s findings satisfy R.C.

2929.14(C)(4).    However, the state concedes that the court failed to incorporate its

findings into the sentencing journal entry.       “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.” State v. Bonnell, 140 Ohio St.3d 209,

2014-Ohio-3199, 16 N.E.2d 659, ¶ 30.

       {¶9} Accordingly, Baker’s first assigned error is overruled in part and sustained

in part. Case remanded for the limited purpose of issuing a nunc pro tunc entry in

compliance with Bonnell.
[Cite as State v. Baker, 2018-Ohio-4027.]
                                   R.C. 2929.15(B)(1)(c)(i) and (ii)

        {¶10} R.C. 2929.15(B) governs the penalties a court may impose on an offender

who violates his or her community control sanctions. One of the discretionary penalties

is a prison term. R.C. 2929.15(B)(1)(c). If the violation is “technical” in nature, and the

community control sanction stemmed from a fifth-degree felony, “the prison term shall

not exceed ninety days.” R.C. 2929.15(B)(1)(c)(i). If the violation is “technical” in

nature, and the community control sanction stemmed from a fourth-degree felony “that is

not an offense of violence and is not a sexually oriented offense * * *, the prison term

shall not exceed one hundred eighty days.” R.C. 2929.15(B)(1)(c)(ii).

        {¶11} R.C. 2953.08(G)(2) provides, in part, that when reviewing felony sentences,

the appellate court’s standard is not whether the sentencing court abused its discretion;

rather, if this court “clearly and convincingly” finds that (1) “the record does not support

the sentencing court’s findings under” R.C. Chapter 2929 or (2) “the sentence is

otherwise contrary to law,” then we may conclude that the court erred in sentencing. See

also State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002, 59 N.E.3d 1231.

        {¶12} A sentence is not clearly and convincingly contrary to law “where the trial

court considers the purposes and principles of sentencing under R.C. 2929.11 as well as

the seriousness and recidivism factors listed in R.C. 2929.12, properly applies

post-release control, and sentences a defendant within the permissible statutory range.”

State v. A.H., 8th Dist. Cuyahoga No. 98622, 2013-Ohio-2525, ¶ 10.

        {¶13} Baker first argues that his 270-day sentence,
       in its aggregate form, falls outside the statutory range recently set by the

       Ohio legislature. HB 49 had restricted felonies of the fifth degree to be not

       served any longer than ninety days in prison. The trial court has attempted

       to sidestep the recent caps on sentences for fourth and fifth-degree felonies

       and issued a sentence contrary to law.

However, the Ohio Supreme Court has held that a

       defendant has no constitutional right to concurrent sentences for two

       separate crimes involving separate acts. [Additionally,] if the sentence for a

       particular offense is not disproportionately long, it does not become so

       merely because it is consecutive to another sentence for a separate offense

       or because the consecutive sentences are lengthy in aggregate.

State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073, ¶ 18, quoting

State v. Berger, 212 Ariz. 473, 479, 134 P.3d 378 (2006).

       {¶14} Upon review, we find that each of Baker’s three 90-day prison sentences is

within the statutory range for violating a community control sanction imposed for a

fourth- or fifth-degree felony.

       {¶15} Baker next argues that “there is a uniformity issue,” because by imposing

90-day sentences pursuant to R.C. 2929.15(B), the court failed to comply with R.C.

2929.14(A)(5).    This argument is without merit. R.C. 2929.14(A)(5) sets the basic

prison term for a fifth-degree felony conviction. However, Baker was sentenced for a
community control sanction violation, and the court need not comply with R.C.

2929.14(A)(5) in imposing this sentence.

       {¶16} Accordingly, Baker’s second assigned error is overruled.

                                       Restitution

       {¶17} Baker argues that, although the court ordered him to pay restitution as part

of his sentence, “the sentencing journal entry reflects no set amount of restitution.” This

error was corrected via a nunc pro tunc entry as a result of this court’s sua sponte remand.

 “The rule is well established in this state that a court of record speaks only through its

journal [entries] and not by oral pronouncement or a mere minute or memorandum.”

Schenley v. Kauth, 160 Ohio St. 109, 111, 113 N.E.2d 625 (1953).

       {¶18} As stated earlier in this opinion, the trial court issued nunc pro tunc journal

entries in the two 2011 cases ordering Baker to pay $89,464.45 in restitution for unpaid

child support. We note that, at the December 14, 2017 sentencing hearing, the court

talked about an additional $6,907.69 that Baker also allegedly owed for child support;

however, this amount is not reflected in the court’s journal entries.            Therefore,

$89,464.45 is the proper amount of restitution according to the record before us.

       {¶19} Baker’s third and final assigned error is overruled.

       {¶20} Sentence affirmed. Case remanded for the limited purpose of issuing a

nunc pro tunc entry incorporating the required statutory findings for consecutive

sentences.
[Cite as State v. Baker, 2018-Ohio-4027.]
        It is ordered that appellee recover of appellant costs herein taxed.

        The court finds there were reasonable grounds for this appeal.

        It is ordered that a special mandate be sent to the Cuyahoga County Court of

Common Pleas to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for the issuance of a nunc pro tunc entry and for execution of sentence.

        A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




PATRICIA ANN BLACKMON, JUDGE

MELODY J. STEWART, P.J., and
ANITA LASTER MAYS, J., CONCUR
