[Cite as State v. Bonnell, 2019-Ohio-1207.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                  JUDGES:
                                                Hon. William B. Hoffman, P.J
         Plaintiff-Appellee                     Hon. John W. Wise, J.
                                                Hon. Craig R. Baldwin, J.
 -vs-
                                                Case No. 18 CAA 11 0087
 RANDALL BONNELL

        Defendant-Appellant                     O P I N IO N




 CHARACTER OF PROCEEDINGS:                      Appeal from the Delaware County Court
                                                of Common Pleas, Case No. 11-CR-I-10-
                                                0542



 JUDGMENT:                                      Vacated; Final Judgment Entered

 DATE OF JUDGMENT ENTRY:                        April 2, 2019


 APPEARANCES:


 For Plaintiff-Appellee                         For Defendant-Appellant

 HAWKEN FLANAGAN                                WILLIAM T. CRAMER
 Assistant Prosecuting Attorney                 470 Olde Worthington Road, Suite 200
 145 N. Union Street, 3rd Floor                 Westerville, Ohio 43082
 Delaware, Ohio 43015
Hoffman, P.J.
       {¶1}      Appellant Randall Bonnell appeals the judgment entered by the Delaware

County Common Pleas Court resentencing him to an aggregate term of 101 months

incarceration, with a mandatory term of three years post-release control. Appellee is the

state of Ohio.

                             STATEMENT OF THE FACTS AND CASE

       {¶2}      On August 26, 2010, Appellant and Raymond Bush attempted to break into

a vending machine at the Red Roof Inn in Grove City. In the process, they ruptured a

water line, causing a room to flood. They fled without stealing any money. On November

22, 2010, March 23, 2011, and October 3, 2011, they broke into vending machines at a

Best Western Hotel in Delaware County, stealing approximately $117 in change and

damaging machines owned by the Scioto Vending Company. Police arrested them as

they drove away from the hotel on October 3, 2011.

       {¶3}      A Delaware County grand jury indicted Appellant for engaging in a pattern

of corrupt activity, possessing criminal tools, obstructing official business, three counts of

burglary, and four counts each of theft and tampering with coin machines. Appellant

subsequently pled guilty to three third-degree-felony counts of burglary and one fifth-

degree-felony count of tampering with coin machines, and the remaining counts were

dismissed.

       {¶4}      At the sentencing hearing, the trial court heard arguments from the parties,

but no one addressed whether the sentences should be served concurrently or

consecutively.      The court then sentenced appellant to 30 months in prison for each

burglary and 11 months in prison for tampering with coin machines, imposing consecutive

sentences for an aggregate term of eight years and five months in prison.
       {¶5}   Appellant appealed to this Court, asserting the imposition of consecutive

sentences was contrary to law because the trial court failed to make the findings required

by R.C. 2929.14(C)(4). State v. Bonnell, 2012–Ohio–5150, 2012 WL 5398071, ¶ 5. We

determined the trial court's statements at the sentencing hearing “when coupled with the

trial court's acknowledgement that it has read and considered the PSI are sufficient to

satisfy the factual findings requirement under R.C. 2929.1[4](C)(4).” Id. at ¶ 11.

       {¶6}   The Ohio Supreme Court granted Appellant’s discretionary appeal. The

Supreme Court held in order to 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 to incorporate its findings into its sentencing entry, but the court is not

obligated to state reasons to support its findings. State v. Bonnell, 140 Ohio St.3d 209,

16 N.E.3d 659, 2014–Ohio–3177, syllabus. The Supreme Court concluded the trial court

failed to make the required finding consecutive sentences were not disproportionate to

the seriousness of the offender's conduct and to the danger the offender poses to the

public, and remanded the case to the trial court. Id. at ¶ 36.

       {¶7}   The trial court imposed the same sentence on remand. Appellant appealed

to this Court, arguing the trial court’s finding of proportionality was unsupported by the

record. We affirmed the sentence imposed by the trial court. State v. Bonnell, 5th Dist.

Delaware No. 14 CAA 10 0063, 2015-Ohio-2367.

       {¶8}   On August 27, 2018, Appellant filed a pro se motion for judicial release,

which the trial court denied on September 10, 2018. On October 5, 2018, the trial court

notified Appellant a hearing would be held on October 29, 2018, for the purpose of

correcting the advisement of post-release control contained in the September 9, 2014,
sentencing entry. After hearing, the trial court filed a nunc pro tunc entry imposing a

mandatory term of post-release control of three years.

      {¶9}   It is from the October 30, 2018 nunc pro tunc sentencing entry Appellant

prosecutes this appeal, assigning as error:



             I. THE TRIAL COURT ERRED BY RETROACTIVELY APPLYING

      AMENDMENTS TO R.C. 2967.28 ENACTED BY 2012 AM. SUB. S.B. 160.

             II. BY APPLYING THE 2013 AMENDMENT TO R.C. 2967.28

      RETROACTIVELY, THE TRIAL COURT VIOLATED ARTICLE II, SECTION

      28 OF THE OHIO CONSTITUTION, WHICH PROHIBITS THE GENERAL

      ASSEMBLY FROM ENACTING RETROACTIVE LAWS.

             III. BY APPLYING THE 2013 AMENDMENT TO R.C. 2967.28

      RETROACTIVELY, THE TRIAL COURT VIOLATED ARTICLE I, SECTION

      10 OF THE U.S. CONSTITUTION, WHICH PROHIBITS THE STATES

      FROM ENACTING EX POST FACTO LAWS.

             IV. THE TRIAL COURT VIOLATED APPELLANT’S STATE AND

      FEDERAL RIGHTS TO DUE PROCESS AND FUNDAMENTAL FAIRNESS

      BY AMENDING POST-RELEASE CONTROL TO MAKE IT MANDATORY.

             V. APPELLANT’S RIGHT TO EFFECTIVE ASSISTANCE OF

      COUNSEL UNDER THE STATE AND FEDERAL CONSTITUTIONS WAS

      VIOLATED       WHEN      COUNSEL        FAILED     TO   MAKE    SPECIFIC

      OBJECTIONS BASED ON RETROACTIVITY, EX POST FACTO LAWS,

      AND DUE PROCESS.
                                              I.-V.

      {¶10} Appellant’s five assignments of error all raise the same general issue:

whether the trial court erred in applying R.C. 2967.28 retroactively to impose a mandatory

term of three years post-release control on Appellant. He asks this Court to vacate the

nunc pro tunc entry and reinstate the sentencing entry of September 9, 2014, which

properly imposed a discretionary term of post-release control.

      {¶11} The state of Ohio has conceded the merits of Appellant’s argument in its

brief. Accordingly, the assignments of error are sustained.

      {¶12} The October 30, 2018 nunc pro tunc entry is vacated. Pursuant to App. R.

121(B), we hereby enter final judgment reinstating the sentencing entry filed September

9, 2014.



By: Hoffman, P.J.
Wise, John, J. and
Baldwin, J. concur
