[Cite as State v. Ackles, 2018-Ohio-3718.]




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




STATE OF OHIO,
                                                          CASE NO. 1-18-16
       PLAINTIFF-APPELLEE,

       v.

TREY LEE ACKLES,                                          OPINION

       DEFENDANT-APPELLANT.



                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR20170194

                                      Judgment Reversed

                          Date of Decision: September 17, 2018



APPEARANCES:

        Michael J. Short for Appellant

        Jana E. Emerick for Appellee
Case No. 1-18-16


WILLAMOWSKI, P.J.

       {¶1} Defendant-appellant Trey L. Ackles (“Ackles”) appeals the judgment

of the Allen County Court of Common Pleas. For the reasons set forth below, the

judgment of the trial court is reversed.

                           Facts and Procedural History

       {¶2} On June 15, 2017, Ackles was charged with two counts of trafficking

in marihuana in violation of R.C. 2925.03(A)(1) and one count of possession of

marihuana in violation of R.C. 2925.11(A). Doc. 1. These charges formed the basis

of case 2017-CR-0194. As a result of these charges, Ackles was the subject of a

motion for a community control revocation in case 2016-CR-0423. Tr. 1. On March

28, 2018, Ackles appeared before the court for a change of plea hearing in case

2017-CR-0194 and a hearing on his community control violation in case 2016-CR-

0423. Tr. 1. He pled guilty in open court to two felony charges: count one—

trafficking in marihuana—and count three—possession of marihuana. Doc. 31. Tr.

2-3. Count two—trafficking in marihuana—was dismissed. Doc. 31. Tr. 2-3.

       {¶3} The trial court accepted Ackles’s guilty plea and then proceeded to

sentencing. Doc. 33. For the charges against Ackles in case 2017-CR-0194, the

trial court ordered a sentence of thirty-six months in prison for the first count and a

sentence of six months in prison for the third count. Doc. 33. These two sentences

were to be served concurrently. Doc. 33. The trial court then sentenced Ackles to

twelve months in prison for his community control violation in case 2016-CR-0423.

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Tr. 31. The trial court ordered that the prison term in case 2017-CR-0194 be served

consecutively to the prison term of twelve months imposed in case 2016-CR-0423.

Doc. 33. Tr. 31-32.

       {¶4} Appellant filed his notice of appeal on March 30, 2018. Doc. 34. On

appeal, appellant raises one assignment of error:

       The sentence is not supported by the record and is contrary to
       law.

Ackles argues that the trial court failed to make the findings required to impose

consecutive sentences.

                                  Legal Standard

       {¶5} Appellate review of issues related to felony sentencing guidelines is

governed by R.C. 2953.08(G)(2), which reads 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;


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Case No. 1-18-16


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

R.C. 2953.08(G)(2). Thus, “an appellate court will reverse a sentence ‘only if it

determines by clear and convincing evidence that the record does not support the

trial court’s findings under relevant statutes or that the sentence is otherwise

contrary to law.’” State v. Nienberg, 3d Dist. Putnam No. 12-16-15 and 12-16-16,

2017-Ohio-2920, ¶ 8, quoting State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-

1002, 59 N.E.3d 1231, ¶ 1.

      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 produce in the
      mind of the trier of facts a firm belief or conviction as to the facts
      sought to be established.

State v. Sullivan, 2017-Ohio-8937, 102 N.E.3d 86 (3d Dist.), ¶ 12, quoting Cross v.

Ledford, 161 Ohio St. 469, 120 N.E.2d 118, at paragraph three of the syllabus

(1954).

      {¶6} “In order to impose consecutive sentences, a trial court is required under

R.C. 2929.14(C)(4) to make certain findings for the record and to incorporate these

findings into the judgment entry.” State v. Taflinger, 3d Dist. Logan No. 8-17-20,

2018-Ohio-456, ¶ 10.

      (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

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Case No. 1-18-16


       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.

       (c) The offender’s history of criminal conduct demonstrates that
       consecutive sentences are necessary to protect the public from
       future crime by the offender.

R.C. 2929.14(C)(4). Thus, “the trial court must find that 1) consecutive sentences

are necessary to either protect the public or punish the offender, 2) the sentences

would not be disproportionate to the offense committed, and 3) one of the factors

set forth in R.C. 2929.14(C)(4)(a, b, or c).” State v. Peddicord, 3d Dist. Henry No.

7-12-24, 2013-Ohio-3398, ¶ 33.

       [A] trial court must state the required findings as part of the
       sentencing hearing * * *. And because a court speaks through its
       journal 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.



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         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. But a nunc pro tunc entry cannot cure
         the failure to make the required findings at the time of imposing
         sentence.

(Citations omitted.) State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16

N.E.3d 659, ¶ 29-30.

                                             Legal Analysis

         {¶7} In this case, the judgment entry does not contain the findings required

by R.C. 2929.12(C)(4) to support the imposition of consecutive sentences.1 In

imposing consecutive sentences, the trial court stated the following:

         In the 2016 case, having found the defendant to have violated
         community control and based upon the factors I found, I’m going
         to sentence the defendant in that case to twelve months. It’s not
         mandatory. But the 2017 case will be consecutive to CR2016 0423.

         So, the aggregate is, taking the thirty-six months concurrent with
         six months, consecutive to twelve months, it’s forty-eight months,
         or four years. That means the defendant is eligible for community
         control—excuse me—judicial release. But, it’s an aggregate of
         forty-eight months.

Tr. 32. Thus, as the State of Ohio concedes, the trial court did not make a finding

“that 1) consecutive sentences were necessary for the statutory reasons or 2) that



1
  The trial court was required to make the findings listed in R.C. 2929.12(C)(4) in order to impose consecutive
sentences even though Ackles’s community control violation arose from a different case (2016-CR-0423)
from the two felonies in 2017-CR-0194. See State v. Duncan, 2016-Ohio-5559, 61 N.E.3d 61, ¶ 41 (12th
Dist.).

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Case No. 1-18-16


consecutive sentences were not disproportionate.” State v. Upkins, 3d Dist. Shelby

No. 17-12-13, 2012-Ohio-6114, ¶ 4. Since the trial court did not make the required

findings, “the imposition of consecutive sentences in this case is contrary to law.”

Bonnell, supra, at ¶ 37. The appellant’s sole assignment of error is sustained.

                                    Conclusion

       {¶8} Having found error prejudicial to the appellant in the particulars

assigned and argued, the judgment of the Allen County Court of Common Pleas is

reversed. This cause is remanded to the trial court for resentencing.

                                                               Judgment Reversed
                                                             And Cause Remanded

SHAW and PRESTON, J.J., concur.

/hls




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