[Cite as State v. Williams, 2016-Ohio-6972.]


STATE OF OHIO                     )                    IN THE COURT OF APPEALS
                                  )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                          C.A. No.    15CA0062-M

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
CHARLES A. WILLIAMS                                    COURT OF COMMON PLEAS
                                                       COUNTY OF MEDINA, OHIO
        Appellant                                      CASE No.   10-CR-0125

                                 DECISION AND JOURNAL ENTRY

Dated: September 26, 2016



        HENSAL, Judge.

        {¶1}     Charles Williams appeals his sentence for illegal manufacture of drugs and

possession of drugs from the Medina County Court of Common Pleas. For the following

reasons, this Court affirms in part and reverses in part.

                                                  I.

        {¶2}     A jury found Mr. Williams guilty of illegal manufacture of drugs and possession

of drugs. One offense involved methamphetamine and the other involved oxycodone. The trial

court sentenced him to six years for the first offense and twelve months for the second. It

ordered him to serve the terms consecutive to each other and consecutive to the prison term he

was already serving for a different offense. On appeal, this Court reversed, concluding that the

trial court had failed to make the findings required to impose consecutive sentences at the

sentencing hearing. On remand, the trial court held a new sentencing hearing and imposed the
                                                 2


same sentence. Mr. Williams has appealed, assigning eight errors. We will address some of the

assignments of error together to facilitate our discussion.

                                                 II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT [ERRED] WHEN IT IMPOSED CONSECUTIVE
       SENTENCES ON THE TWO (2) COUNTS PENDING WITHOUT
       EXPRESSLY MAKING THE FINDINGS REQUIRED BY O.R.C. 2929.14
       DURING THE SENTENCING HEARING AND IN THE SENTENCING
       ENTRY.

                                  ASSIGNMENT OF ERROR II

       THE TRIAL COURT [ERRED] WHEN IT IMPOSED A SEVEN (7) YEAR
       PRISON SENTENCE ON MR. WILLIAMS TO BE SERVED CONSECUTIVE
       TO MR. WILLIAMS[’S] PRE-EXISTING TEN (10) YEAR PRISON
       SENTENCE WITHOUT EXPRESSLY MAKING THE FINDINGS REQUIRED
       BY O.R.C. 2929.14 DURING THE SENTENCING HEARING AND IN THE
       SENTENCING ENTRY.

       {¶3}    Mr. Williams argues that the trial court did not comply with Ohio Revised Code

Section 2929.14(C)(4) when it ordered him to serve his two sentences consecutive to each other

as well as consecutive to the prison term he was already serving.           Section 2929.14(C)(4)

provides:

       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
                                                  3


       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.

If a court does not make the factual findings required by Section 2929.14(C)(4), prison terms are

served concurrent to any others. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 23.

       {¶4}    Mr. Williams acknowledges that the trial court recited the necessary language at

his sentencing hearing and included it in its sentencing entry. He argues, however, that there is

nothing in the record that shows the court actually engaged in the analysis required by Section

2929.14(C)(4). He argues that the trial court failed to offer any explanation for its findings,

depriving him of notice of why it found consecutive sentences necessary. He asserts that a

sentencing court should be required to explain its findings, which would allow them to be

reviewed on appeal.

       {¶5}    In Bonnell, the Ohio Supreme Court held that, although 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, * * * it has no obligation to state reasons to support its

findings.” Id. at syllabus. It noted that, while other criminal statutes “require a trial court to give

reasons in support of its findings, * * * no statute directs a sentencing court to give or state

reasons supporting imposition of consecutive sentences.” Id. at ¶ 27.

       {¶6}    This Court has no authority to modify, much less overrule, any decision of the

Ohio Supreme Court. State v. Cutlip, 9th Dist. Lorain No. 08CA009353, 2008-Ohio-4999, ¶ 17.

We conclude that Mr. Williams has failed to establish that the trial court did not comply with

Section 2929.14(C)(4). His first and second assignments of error are overruled.
                                                 4


                                 ASSIGNMENT OF ERROR III

       THE TRIAL COURT [ERRED] WHEN IT ISSUED A NUNC PRO TUNC
       ENTRY ORDERING FOUR HUNDRED AND FIFTY-FIVE (455) DAYS OF
       CREDIT REPRESENTING DAYS OF CREDIT FROM THE ARRAIGNMENT
       THROUGH ORIGINAL SENTENCING DATE, FROM THE SENTENCING
       ENTRY THAT CREDITED ONE THOUSAND SIX HUNDRED AND
       NINETEEN (1,619) DAYS OF CREDIT FROM ARRAIGNMENT THROUGH
       RE-SENTENCING DATE.

       {¶7}     Mr. Williams next argues that the trial court miscalculated the amount of time-

served credit he should receive. According to Mr. Williams, he is entitled to credit for the time

he spent in custody between his arrest and when he posted bond, the time that he was

incarcerated before his case went to trial, and any time that he was incarcerated between his

original sentencing hearing and the resentencing hearing.

       {¶8}     Section 2929.19(B)(2)(g)(i) provides that, if the sentencing court determines that

a prison term is necessary or required, it must determine and include in the sentencing entry the

number of days “for which the * * * department of rehabilitation and correction must reduce the

stated prison term under section 2967.191 of the Revised Code.” Section 2967.191 provides that

a defendant’s prison term shall be reduced by “the total number of days that the prisoner was

confined for any reason arising out of the offense for which the prisoner was convicted and

sentenced[.]”

       {¶9}     In its original sentencing entry, the trial court wrote that Mr. Williams was

entitled to 455 days of credit, which he admits is the time he spent in custody before his initial

sentencing hearing. At the resentencing hearing, the parties did not discuss Mr. Williams’ time-

served credit, and the trial court merely told him that he was entitled to credit for time served. In

its resentencing entry, the trial court wrote that Mr. Williams was entitled to 1,619 days of credit.

According to Mr. Williams, that apparently included the original 455 days plus each day between
                                                5


the original sentencing hearing and the resentencing hearing. Nine days later, however, the trial

court issued a nunc pro tunc resentencing entry, which reduced Mr. Williams’ time-served credit

back to 455 days. See State v. Thomas, 9th Dist. Summit No. 21472, 2004-Ohio-964, ¶ 11-12

(explaining that a trial court may correct its time-served credit by a nunc pro tunc order). The

State argues that the reduction is because, even though Mr. Williams was incarcerated between

the original sentencing hearing and the resentencing hearing, it was not for the offenses involved

in this case.

        {¶10} In its original sentencing entry, the trial court ordered Mr. Williams to serve his

sentences in this case consecutive to his sentence for an offense he had committed in a different

county. The record indicates that Mr. Williams received a ten-year sentence for that offense in

2010.    Accordingly, the time he served between his original sentencing in 2012 and his

resentencing in 2015 was for the other offense. Because Mr. Williams was only entitled to time-

served credit for time he was “confined for any reason arising out of the[se] offense[s,]” we

conclude that the trial court correctly adjusted his time-served credit back to 455 days. R.C.

2967.191. Mr. Williams’ third assignment of error is overruled.

                                ASSIGNMENT OF ERROR IV

        THE TRIAL COURT [ERRED] WHEN IT IMPOSED A MANDATORY SIX
        (6) YEAR PRISON SENTENCE.

        {¶11} Mr. Williams next argues that the trial court should have only made mandatory

the first four years of his sentence for illegal manufacture of drugs. He notes that Section

2925.04(C)(3)(b) provides that, if the drug involved in that offense is methamphetamine and

certain other conditions apply, “the court shall impose as a mandatory prison term one of the

prison terms prescribed for a felony of the first degree that is not less than four years.”
                                                  6


According to Mr. Williams, under that language, only the first four years of the prison terms

should be mandatory.

       {¶12} In State v. Ware, 141 Ohio St.3d 160, 2014-Ohio-5201, the Ohio Supreme Court

considered similar language and concluded that “the punishment [is] clear[.]” Id. at ¶ 13. Under

such language, “prison was mandatory-and judicial release therefore impossible-for the length of

whichever [prison term] the trial court impose[d.]” Id. Accordingly, if a statute contains

language directing the trial court to “impose as a mandatory prison term” one of a list of prison

terms, no matter what term the court imposes, the “entire prison term [is] mandatory by

operation of law.” Id. at ¶ 13, 14. Mr. Williams’ fourth assignment of error is overruled.

                                  ASSIGNMENT OF ERROR V

       THE TRIAL COURT [ERRED] IN ORDERING A $20,000 FINE AND
       SUSPENDING SAME.

       {¶13} Mr. Williams next argues that the trial court erred when it wrote in its judgment

entry that his fine would be suspended. Mr. Williams notes that, at the sentencing hearing, the

court told him that it was going to waive the fine because of his indigence, not suspend it.

       {¶14} The State acknowledges that the trial court’s entry is inconsistent with what it told

Mr. Williams at his sentencing hearing. Upon review of the record, we agree with Mr. Williams

that there is a significant difference between whether his fine is waived or merely suspended.

See R.C. 2929.18(B)(1) (providing that the trial court shall impose a fine of at least half of the

maximum amount for an offense under Chapter 2925 unless the offender is indigent and unable

to pay the mandatory fine). Because it is not clear from the record whether the trial court made a

mistake at the sentencing hearing or in its sentencing entry, this case must be remanded so that

the trial court can resolve that issue. Mr. Williams’ fifth assignment of error is sustained.

                                 ASSIGNMENT OF ERROR VI
                                               7


       TRIAL COUNSEL WAS INEFFECTIVE IN NOT PURSUING A MOTION TO
       ENFORCE A SETTLEMENT AGREEMENT REACHED BETWEEN THE
       PARTIES.

       {¶15} Mr. Williams next argues that his trial counsel was ineffective for not asking the

trial court to enforce a plea agreement that he reached with the State of Ohio before trial. The

record indicates that, before trial, Mr. Williams and the State reached a plea agreement, which

included a recommendation about the sentence he should receive. The trial court, however,

refused to accept the agreement.      In his first appeal, Mr. Williams initially included an

assignment of error about the failed plea agreement. He later withdrew it. Nevertheless, he

argues that his counsel should have moved for enforcement of the plea agreement during the

resentencing hearing.

       {¶16} To prevail on a claim of ineffective assistance of counsel, Mr. Williams must

show (1) that counsel’s performance was deficient to the extent that “counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and (2) that but

for counsel’s deficient performance the result of the trial would have been different. Strickland

v. Washington, 466 U.S. 668, 687 (1984). A deficient performance is one that falls below an

objective standard of reasonable representation. State v. Bradley, 42 Ohio St.3d 136 (1989),

paragraph two of the syllabus. A court, however, “must indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the

defendant must overcome the presumption that, under the circumstances, the challenged action

‘might be considered sound trial strategy.’” Strickland at 689, quoting Michel v. Louisiana, 350

U.S. 91, 101 (1955). Further, to establish prejudice, Mr. Williams must show that there exists a

reasonable probability that, were it not for counsel’s errors, the result of the trial would have

been different. Id. at 694.
                                                8


       {¶17} Criminal Rule 11(C)(2) gives a trial court the option of refusing to accept a plea

of guilt. The trial court refused Mr. Williams’ plea, and he did not seek to have its decision

reversed on appeal. Accordingly, on remand, there was no plea agreement that Mr. Williams’

counsel could seek to enforce. His lawyer’s performance was not deficient for failing to seek

enforcement of a plea agreement that did not exist. Mr. Williams’ sixth assignment of error is

overruled.

                                ASSIGNMENT OF ERROR VII

       THE STATUTORY STRUCTURE AND FRAMEWORK TO IMPOSE
       CONSECUTIVE SENTENCES IS UNCONSTITUTIONAL.

       {¶18} Mr. Williams also argues that Section 2929.14(C)(4) violates his due process

rights because it allows a sentencing court to make the findings that are required for consecutive

sentences without explaining its reason for those findings. He argues that merely reciting the

statutory language does not provide him adequate notice of the reasons for consecutive

sentences.

       {¶19} The Ohio Supreme Court has recognized that “there is no constitutional

requirement that a judge make findings of fact before imposing consecutive sentences.” State v.

Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, ¶ 26, citing Oregon v. Ice, 555 U.S. 160, 169-170

(2009). Accordingly, we cannot conclude that Section 2929.14(C)(4) is unconstitutional because

it allows the trial court to make consecutive-sentence findings without giving reasons for its

findings. Mr. Williams’ seventh assignment of error is overruled.

                               ASSIGNMENT OF ERROR VIII

       THE TRIAL COURT [ERRED] IN FAILING TO ORDER A CONCURRENT
       SENTENCE AT THE RESENTENCING HEARING.
                                                9


       {¶20} In his last assignment of error, Mr. Williams argues that the trial court should only

have had one opportunity to make the findings required to impose consecutive sentences. He

argues that, because the default is concurrent sentences, if an appellate court determines that the

trial court failed to make the findings required to impose consecutive sentences, the trial court

should be required to impose concurrent sentences on remand.          It should not get multiple

attempts to make such findings.

       {¶21} In Mr. Williams’s previous appeal, this Court concluded that the trial court failed

to make the findings required to impose consecutive sentences and “remand[ed] the matter for

resentencing.” State v. Williams, 9th Dist. Medina No. 14CA0072-M, 2015-Ohio-2197, ¶ 9.

This Court did not place any limits on the scope of the remand, and Mr. Williams did not attempt

to appeal its scope to the Ohio Supreme Court. We, therefore, conclude that his argument is

barred by the doctrine of law of the case. Nolan v. Nolan, 11 Ohio St.3d 1, 3 (1984). We also

conclude that the resentencing did not violate Mr. Williams’s due process rights. Compare State

v. Jackson, 7th Dist. Mahoning No. 15 MA 93, 2016-Ohio-1063, ¶ 28-29 (requiring trial court to

impose concurrent sentences after it had failed to make consecutive sentence findings three

separate times). Mr. Williams’ eighth assignment of error is overruled.

                                               III.

       {¶22} Mr. Williams’ fifth assignment of error is sustained. His remaining assignments

of error are overruled. The judgment of the Medina County Court of Common Pleas is affirmed

in part and reversed in part, and this matter is remanded to the trial court to clarify whether Mr.

Williams’ fine is waived or suspended.

                                                                       Judgment affirmed in part,
                                                                                reversed in part,
                                                                            and cause remanded.
                                                10




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT



MOORE, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

MICHAEL J. CALLOW, Attorney at Law, for Appellant.

DEAN HOLMAN, Prosecuting Attorney, and MATTHEW A. KERN, Assistant Prosecuting
Attorney, for Appellee.
