         [Cite as State v. Ruff, 2017-Ohio-1430.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                      :   APPEAL NOS. C-160385
                                                                    C-160386
        Plaintiff-Appellee,                         :   TRIAL NOS. B-0907091
                                                                   B-1000868
  vs.                                               :

KENNETH RUFF,                                       :      O P I N I O N.

    Defendant-Appellant.                            :




Criminal Appeals From: Hamilton County Court of Common Pleas

Judgments Appealed From Are: Affirmed and Cause Remanded

Date of Judgment Entry on Appeal: April 19, 2017


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Michaela Stagnaro, for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS




D ETERS , Judge.

       {¶1}       Defendant-appellant Kenneth Ruff appeals the aggregate 40-year

prison sentence imposed by the trial court after this court had remanded his cases for

resentencing.   We affirm Ruff’s sentences, but we remand for the correction of a

clerical error in the judgment entries of conviction.

                             Ruff’s Convictions and Prior Appeals

       {¶2}       Ruff was indicted under two separate case numbers for the

commission of multiple offenses against five victims. The offenses were joined and

tried to a jury. The jury found Ruff guilty of the attempted rape of L.H., the sexual

battery of K.P., and the aggravated burglaries and rapes of P.F., K.B., and S.W. The

trial court sentenced Ruff to an aggregate sentence of 40 years in prison. See State v.

Ruff, 2013-Ohio-3234, 996 N.E.2d 513, ¶ 9 (1st Dist.).

       {¶3}       In his direct appeal, Ruff argued in his fifth assignment of error

that the trial court had erred in failing to find that his convictions for the aggravated

burglaries and rapes of P.F., K.B., and S.W. were allied offenses pursuant to R.C.

2941.25 and in imposing consecutive sentences without making the necessary

findings, and that the trial court had abused its discretion in imposing a 40-year

aggregate sentence. See id. at ¶ 28. This court sustained the part of Ruff’s fifth

assignment of error challenging the multiple sentences for the aggravated-burglary

and rape offenses. We held his remaining arguments challenging the trial court’s

imposition of consecutive sentences and the aggregate term of incarceration to be

moot. See id. at ¶ 37.

       {¶4}       The state appealed this court’s opinion to the Ohio Supreme Court.

The Supreme Court held that this court had misapplied R.C. 2941.25 and remanded



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the matter to this court to consider whether the aggravated-burglary and rape

offenses against each victim were of similar import. See State v. Ruff, 143 Ohio St.3d

114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 29.

       {¶5}       This court concluded that the offenses were of similar import. See

State v. Ruff, 1st Dist. Hamilton Nos. C-120533 and C-120534, 2015-Ohio-3367, ¶ 2

and 23. Consequently, we vacated the sentences for the aggravated-burglary and

rape counts relating to P.F., K.B., and S.W., and we remanded the matters to the trial

court so that the state could elect which allied offense it would pursue for purposes of

sentence and conviction as to each victim. We affirmed the trial court’s judgments in

all other respects. Id. at ¶ 23, citing State v. Whitfield, 124 Ohio St.3d 319, 2010-

Ohio-2, 922 N.E.2d 182, paragraphs one and two of the syllabus.

                    Ruff’s Resentencing Hearing Following Our Remand

       {¶6}       Following our remand, the trial court held a new sentencing

hearing at which the state elected to proceed to sentencing on the rape counts. In the

case numbered B-0907091, the trial court merged the aggravated-burglary counts

into the rape counts for P.F. and K.B. The trial court sentenced Ruff to ten years in

prison for the rape of P.F., ten years in prison for the rape of K.B., and 60 months in

prison for the sexual battery of K.P.          It ordered that the terms be served

consecutively, for a total of 25 years in prison. The trial court designated Ruff as a

Tier III sex offender.

       {¶7}       In the case numbered B-1000868, the trial court merged the

aggravated-burglary count into the rape count for S.W. It sentenced Ruff to ten

years in prison for the rape of S.W. and five years in prison for the attempted rape of

L.H.   It ordered that the terms be served consecutively, for a total of 15 years in

prison. The trial court ordered the 25-year prison sentence imposed in the case



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numbered C-0907091 to be served consecutively to the 15-year prison sentence

imposed in the case numbered B-1000868, for an aggregate sentence of 40 years in

prison.

                            Ruff’s Sentences are not Contrary to Law

          {¶8}      In his sole assignment of error, Ruff argues that his sentences are

contrary to law because the trial court failed to make the necessary findings for

consecutive sentences, fully consider the purposes and principles of sentencing in

R.C. 2929.11 and 2929.12, and notify him pursuant to R.C. 2929.19(B)(2)(f) that he

cannot ingest or be injected with a drug of abuse and that he must submit to random

drug testing in prison. He additionally maintains that the trial court’s judgment

entries contain clerical errors stating that he had been found guilty following a bench

trial, when he was, in fact, found guilty following a jury trial.

                       Scope of Resentencing Hearing for Allied Offenses

          {¶9}      The Ohio Supreme Court has held that when “a court of appeals

finds reversible error in the imposition of multiple punishments for allied offenses,

the court must reverse the judgment of conviction and remand for a new sentencing

hearing at which the state must elect which allied offense it will pursue against the

defendant.” See Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, at

paragraphs one and two of the syllabus and ¶ 25.

          {¶10}     In State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951

N.E.2d 381, ¶ 15, the Supreme Court stated that

          in a remand based only on an allied-offenses sentencing error, the

          guilty verdicts underlying a defendant’s sentences remain the law of

          the case and are not subject to review. Further, only the sentences for

          the offenses that were affected by the appealed error are reviewed de



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       novo; the sentences for any offenses that were not affected by the

       appealed error are not vacated and are not subject to review.

       {¶11}      The Supreme Court further stated that “a defendant is not barred

by res judicata from raising objections to issues that arise in a resentencing hearing,

even if similar issues arose and were not objected to at the original sentencing

hearing.” See Wilson at paragraph two of the syllabus.

       {¶12}      In Wilson, the state had argued that res judicata precluded the

defendant “from requesting the judge’s disqualification and from objecting to the

resulting sentence as disproportionate.” Id. at ¶ 7. The Supreme Court disagreed,

holding that the doctrine of res judicata does not bar a defendant from objecting to

issues that arise at the resentencing hearing or from the resulting sentence. Id. With

respect to the defendant’s proportionality argument, the Supreme Court stated that

because the scope of the defendant’s new sentencing hearing included the trial

court’s consideration of R.C. 2929.11 when fashioning the new sentence, the

defendant was not precluded from objecting to the sentence and claiming that it was

inconsistent with the sentences imposed on similarly-situated defendants. Id. at ¶

31.

       {¶13}      Further, the Supreme Court held that the doctrine of res judicata

did not preclude the defendant from raising the issue of judicial bias. The court held

that the fact that the defendant had a previous appearance before the judge did not

prohibit the defendant from making a claim of judicial bias during a subsequent

proceeding before that same judge. Id. at ¶ 32.

       {¶14}      The Supreme Court held that any issues not successfully challenged

in the defendant’s prior appeal would be outside the scope of his resentencing




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remand and would be precluded from further review under the principles of res

judicata. Id. at ¶ 33.

       {¶15}       In State v. Temaj-Felix, 1st Dist. Hamilton No. C-140052, 2015-

Ohio-3966, ¶ 8 and 13, this court, in reviewing the sentence imposed by the trial

court following a remand for resentencing on allied offenses, addressed the merits of

the defendant’s arguments relating to the trial court’s failure to make consecutive-

sentencing findings and its failure to inform him regarding earned days of credit. We

declined, however, to address whether all the counts should have merged into one

conviction pursuant to R.C. 2941.25, finding that this argument was barred by res

judicata. See id. at ¶ 15.

                 Ruff’s Arguments Are Not Barred by Res Judicata

       {¶16}       Here, contrary to the state’s assertions, Ruff’s arguments relating

to the trial court’s failure to make the findings for consecutive sentences, consider

the purposes and principles of sentencing in R.C. 2929.11 and 2929.12, and notify

him pursuant to R.C. 2929.19(B)(2)(f) that he cannot ingest or be injected with a

drug of abuse and that he is required to submit to random drug testing in prison,

arose out of his resentencing hearing and are not barred by res judicata.

       {¶17}       When reviewing felony sentences, this court applies the standard

articulated in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-

1002, 59 N.E.3d 1231, ¶ 1.       Under that section, we may only modify or vacate a

defendant’s sentence if we “clearly and convincingly find” that the record does not

support the mandatory sentencing findings or that the sentence is otherwise contrary

to law. State v. White, 2013-Ohio-4225, 997 N.E.2d 629, ¶ 11 (1st Dist.).




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                                     Consecutive Sentences

       {¶18}       Ruff first challenges the trial court’s imposition of consecutive

sentences. R.C. 2929.14(C)(4) requires the trial court to make certain findings before

imposing consecutive sentences.      First, the trial court must find that consecutive

sentences are necessary either to protect the public from future crime or to punish

the offender. The court must then find the imposition of consecutive sentences is not

disproportionate to the seriousness of the offender’s conduct and the danger he

poses to the public.

       {¶19}       Finally, the court must find that one of the conditions listed in R.C.

2929.14(C)(4)(a)-(c) applies

        (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.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶20}      In State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d

659, syllabus, the Ohio Supreme Court held that when a trial court imposes

consecutive sentences, it must not only announce the requisite consecutive-

sentencing findings at the sentencing hearing, but it must also incorporate those

findings into the sentencing entry. The trial court is not required to provide a “word-

for-word recitation of the language in the statute” or to provide reasons to support

the findings, 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. Id. at ¶ 29 and syllabus.

       {¶21}      The record reflects that the trial court complied with Bonnell. It

stated the required findings for consecutive sentences during the sentencing hearing

and it incorporated those consecutive-sentencing findings into the sentencing

entries.

       {¶22}      In the case numbered B-0907091, the trial court found that

consecutive sentences were necessary to protect the public and/or punish the

offender, and that they were not disproportionate to the seriousness of the offender's

conduct and the danger that Ruff posed to the public. In addition, the court found

that consecutive sentences were necessary because the harm caused by two or more

of the multiple offenses was so great or unusual that no single prison term for any

offense committed as part of the one or more courses of conduct adequately reflected

the seriousness of Ruff’s conduct.        The court further found that consecutive

sentences were necessary because Ruff’s criminal history showed a need to protect

the public.

       {¶23}      In the case numbered B-1000868, the trial court found consecutive

sentences were appropriate because



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                    OHIO FIRST DISTRICT COURT OF APPEALS



       It is necessary to protect the public and/or punish the offender and is

       not disproportionate to the seriousness of the offender’s conduct, nor

       the danger the offender poses to the public. In addition, it is necessary

       because the harm was so great or unusual that no single prison term

       for any offense committed as part of one or more courses of conduct

       would adequately reflect the seriousness of the offender’s conduct and

       the offender’s criminal history shows a need to protect the public.

       {¶24}     Contrary to Ruff’s assertions, the trial court was not required to

give any further reasoning to support its findings. See State v. McGee, 1st Dist.

Hamilton No. C-150496, 2016-Ohio-7510, ¶ 32, citing Bonnell at syllabus.           We,

therefore, find no merit in Ruff’s challenges to the court’s imposition of consecutive

sentences.

                              R.C. 2929.11 and 2929.12 Factors

       {¶25}     Ruff further asserts that the trial court failed to consider the

purposes and principles of sentencing as set forth in R.C. 2929.11 and 2929.12 when

imposing maximum sentences for the rape offenses. This court has repeatedly held

that R.C. 2929.11 and 2929.12 are not “fact finding” statutes, and that we may

presume a trial court considered these factors absent an affirmative demonstration

by a defendant to the contrary. See State v. Kennedy, 2013-Ohio-4221, 998 N.E.2d

1189, ¶ 118 (1st Dist.); State v. Finnell, 1st Dist. Hamilton Nos. C-140547 and C-

140548, 2015-Ohio-4842, ¶ 54; State v. Hendrix, 1st Dist. Hamilton Nos. C-150194

and C-150200, 2016-Ohio-2697, ¶ 51.           Ruff has made no such affirmative

demonstration.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



                      Drug Testing Notifications in R.C. 2929.19(B)(2)(f)

       {¶26}      Ruff next argues that the trial court failed to inform him of the

notifications set forth in R.C. 2929.19(B)(2)(f) that he not ingest illegal drugs or be

injected with a drug of abuse and that he must submit to random drug testing while

in prison. As he concedes in his appellate brief, this court has held that the trial

court’s failure to comply with R.C. 2929.12(B)(2)(f) does not prejudice a defendant

because this statutory subsection confers no substantive rights upon a defendant.

Thus, the trial court’s failure to provide these notifications to Ruff is harmless error.

See State v. Haywood, 1st Dist. Hamilton No. C-130525, 2014-Ohio-2801, ¶ 18; State

v. Jones, 1st Dist. Hamilton No. C-130625, 2014-Ohio-3345, ¶ 19; Finnell at ¶ 60.

                            Clerical Error in the Judgment Entries

       {¶27}      Finally, Ruff contends that his judgment entries of conviction

should be corrected to reflect that he was found guilty by a jury and not the trial

court. The state concedes the error. We agree that because the error is merely a

clerical one, it can be corrected with a nunc pro tunc entry. See Crim.R. 36; State v.

Sweeten, 1st Dist. Hamilton No. C-150583, 2016-Ohio-5828, ¶ 23 (remanding for

correction a similar error on a judgment entry).

       {¶28}      Because this court cannot clearly and convincingly find that Ruff’s

sentences are contrary to law, we overrule his sole assignment of error and affirm the

judgments of the trial court. We remand the cause to the trial court to enter nunc

pro tunc judgment entries reflecting that Ruff was convicted following a jury trial.

                                             Judgments affirmed and cause remanded.

ZAYAS, P.J., and MILLER, J., concur.


Please note:
       The court has recorded its own entry this date.


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