[Cite as State v. Dean, 2019-Ohio-425.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                    Court of Appeals No. L-17-1274

        Appellee                                 Trial Court No. CR0201602018

v.

Michael C. Dean                                  DECISION AND JUDGMENT

        Appellant                                Decided: February 8, 2019

                                          *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.

        Brad F. Hubbell, for appellant.

                                          *****

        OSOWIK, J.

        {¶ 1} This is an appeal from a judgment of the Lucas County Court of Common

Pleas which sentenced appellant to consecutive sentences after the trial court accepted his

Alford pleas to felonious assault and to aggravated murder. For the reasons set forth
below, this court affirms the sentencing judgment of the trial court, but remands the

matter for the limited purpose of entering a nunc pro tunc entry on consecutive sentences.

       {¶ 2} Appellant set forth one assignment of error:

              1. The trial court’s imposition of consecutive sentences was not

       supported by the trial court’s findings and is therefore contrary to law.

                                      I. Background

       {¶ 3} The following facts are relevant to this appeal.

       {¶ 4} On June 1, 2016, a Lucas County Grand Jury indicted appellant Michael C.

Dean for four offenses: (1) felonious assault, a violation of R.C. 2903.11(A)(2) and (D),

a felony of the second degree, (2) attempt to commit murder, a violation of R.C. 2923.03,

a felony of the first degree, (3) aggravated burglary, a violation of R.C. 2911.11(A)(1), a

felony of the first degree, and (4) aggravated murder, a violation of R.C. 2903.01(A) and

(F), an unclassified felony.

       {¶ 5} The victims in this matter were the parents of the mother of appellant’s

young child. On May 14, 2016, appellant sought to see his child and went unannounced

to where the child’s mother lived with her parents in Toledo, Lucas County, Ohio.

Appellant walked over one mile on foot, and the child’s grandfather, Mr. Dixon, passed

appellant at a nearby intersection. Mr. Dixon pulled over and greeted appellant.

Appellant demanded to see his child and without warning slashed Mr. Dixon’s throat

with a box cutter after the grandfather told appellant he did not know where the child was

at that moment. Only Mrs. Dixon, the child’s grandmother, was home at that time.




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Appellant proceeded to the Dixon home and shattered a front window to enter the locked

house. Although bleeding, Mr. Dixon was able to drive to his house.

       {¶ 6} Upon arriving in the driveway, appellant turned his attention to Mr. Dixon

and punched out the driver’s side window to repeatedly use the box cutter to stab Mr.

Dixon both inside and outside the vehicle. Appellant left Mr. Dixon bleeding outside the

house and proceeded to enter the house through the broken window. Once inside

appellant took a knife from the kitchen and then stabbed Mrs. Dixon multiple times until

she was unconscious. Mrs. Dixon later died at the hospital. When the police arrived at

the house they found appellant on the front porch holding a large kitchen knife covered in

blood. Appellant told the police he told his “baby mama” there would be trouble if she

did not let him see his child. Mr. Dixon survived appellant’s attack but with substantial

injuries.

       {¶ 7} On January 23, 2017, appellant withdrew his earlier plea of not guilty by

reason of insanity and entered Alford pleas to felonious assault and aggravated murder.

At that time appellee dismissed the other charges. The trial court then found appellant

guilty of felonious assault, a violation of R.C. 2903.11(A)(2) and (D), a felony of the

second degree, and aggravated murder, a violation of R.C. 2903.01(A) and (F), an

unclassified felony.

       {¶ 8} Thereafter, and following a presentence investigation report and a

sentencing hearing on February 10, 2017, the trial court imposed on appellant a term of

seven years as to the felonious assault offense. The trial court also imposed on appellant




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a term of life with the possibility of parole after 30 years for the aggravated murder

offense “to be served consecutively for a total sentence of Life in prison.” The trial court

further stated at appellee’s request a nolle prosequi was entered as to the attempt to

commit murder and aggravated burglary offenses. Specifically, the trial court’s entry

stated court:

                The Court has considered the record, oral statements, any victim

       impact statement and presentence report prepared, as well as the principles

       and purposes of sentencing under R.C. 2929.11, and has balanced the

       seriousness, recidivism and other relevant factors under R.C. 2929.12.

                                II. Felony Sentence Review

       {¶ 9} In support of his assignment of error, appellant argued the trial court’s

felony sentences were contrary to R.C. 2929.14(C)(4) as stated in R.C. 2953.08(G)(2)(a).

Appellant argued the record did not support the trial court’s finding that consecutive

sentences are necessary to protect the public from future crime and to punish appellant.

Appellant further argued because he must serve a minimum of 30 years for aggravated

murder, “it is absurd to say that the public still needs an additional seven years” of

protection from him for felonious assault. Moreover, appellant argued, the additional

seven years of punishment was not distinguishable from the 30 years which he will have

already served.

       {¶ 10} In response, appellee argued the trial court did not err because it complied

with the mandates of R.C. 2929.14(C)(4). Appellee argued the trial court’s recitation at




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the sentencing hearing of the language of R.C. 2929.14(C)(4) was sufficient. Appellee

conceded the court’s findings articulated during the sentencing hearing were not

incorporated into its journalized sentencing entry, but argued the clerical mistake could

easily be corrected through a nunc pro tunc entry.

       {¶ 11} We review an R.C. 2929.14(C)(4) challenge to a trial court’s felony

sentencing determination for clear and convincing evidence in the record. R.C.

2953.08(G)(2)(a); State v. Waxler, 6th Dist. Lucas No. L-16-1269, 2017-Ohio-7536, ¶ 9.

If we find clear and convincing evidence the record does not support the sentence, we

may increase, reduce, modify or vacate and remand the felony sentence. R.C.

2953.08(G)(2). “Clear and convincing evidence is that measure or degree of proof which

will produce in the mind of the trier of facts a firm belief or conviction as to the

allegations sought to be established. * * * It does not mean clear and unequivocal.”

(Emphasis sic.) Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954).

                            III. Consecutive Sentence Review

       {¶ 12} We review a trial court’s decision to impose non-mandatory consecutive

sentences for convictions of multiple offenses for an abuse of discretion. State v.

Sergent, 148 Ohio St.3d 94, 2016-Ohio-2696, 69 N.E.3d 627, ¶ 16, citing R.C.

2929.41(A) and 2929.14(C)(4). Abuse of discretion “‘connotes more than an error of law

or judgment; it implies that the court’s attitude is unreasonable, arbitrary or

unconscionable.’” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983), quoting State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).




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       {¶ 13} To comply with R.C. 2929.14(C)(4), a trial court must make three findings:

(1) “the consecutive service is necessary to protect the public from future crime or to

punish the offender”; (2) “consecutive sentences are not disproportionate to the

seriousness of the offender’s conduct and to the danger the offender poses to the public”;

and (3) any of three factors enumerated under R.C. 2929.14(C)(4)(a), (b), or (c). Sergent

at ¶ 16, quoting R.C. 2929.14(C)(4). One of the factors for the third finding is “[a]t 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.”

R.C. 2929.14(C)(4)(b).

       {¶ 14} The foregoing three findings are mandatory, but a trial court has no

obligation to state the reasons to support its findings. State v. Braswell, 6th Dist. Lucas

No. L-16-1197, 2018-Ohio-3208, ¶ 40, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-

Ohio-3177, 16 N.E.3d 659, syllabus. The trial court must make the requisite findings

both at the sentencing hearing and incorporate them into the sentencing entry. Sergent at

¶ 17, citing Bonnell at ¶ 23. A trial court may comply with this mandate even with a

mere “regurgitation of the statute.” Braswell at ¶ 40, quoting State v. Ault, 6th Dist.

Ottawa No. OT-13-037, 2015-Ohio-556, ¶ 12. A trial court may also comply with this

mandate if it is clear in the record the court “engaged in the appropriate analysis.”




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Waxler, 6th Dist. Lucas No. L-16-1269, 2017-Ohio-7536, at ¶ 12, quoting State v.

Wright, 6th Dist. Lucas Nos. L-13-1056, L-13-1057, L-13-1058, 2013-Ohio-5903, ¶ 33.

                                       IV. Analysis

       {¶ 15} Appellant was sentenced on February 10, 2017, for the offense of

aggravated murder, a violation of R.C. 2903.01(A) (“No person shall purposely, and with

prior calculation and design, cause the death of another * * *.”). Aggravated murder is

an unclassified felony that shall be punished pursuant to R.C. 2929.02. R.C. 2903.01(F).

A violation of R.C. 2903.01(A) is punishable by death or life imprisonment as

determined pursuant to R.C. 2929.022, 2929.03 and 2929.04. R.C. 2929.02(A). In this

matter of aggravated murder, the trial court could impose a prison term within the range

from life imprisonment with parole eligibility after serving 20, 25, or 30 years of

imprisonment to life imprisonment without parole. R.C. 2929.03(A)(1).

       {¶ 16} In his sentencing memorandum filed in the record, appellant acknowledged

aggravated murder carried definite imprisonment between life with parole eligibility after

20 years and life without the possibility of parole. He requested the minimum sentence

because he argued he primarily needed mental health treatment. At the sentencing

hearing, appellant made the following statement:

              I am very remorseful for my actions, and I also wish I would have

       got help before walking down the street. I wish I would have went [sic] to

       Harbor Health and talked to him about my problems instead of taking it out




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       myself. Because not only did I takes [sic] the Dixon mother I feel like I

       took my own mother’s life that day, and I am very sorry.

       {¶ 17} The appellant then reiterated his request for the minimum sentence of life

with parole eligibility after 20 years for the aggravated murder offense because within

that time “he can prove, Your Honor, he can rejoin society and not be a threat or risk to

anyone’s safety or health.” At the sentencing hearing appellee deferred to the victim

impact statement of the youngest daughter of the deceased Mrs. Dixon, where she

requested the maximum sentence because “life without parole is the only way to keep my

family safe. If you look at them even now you can see the pain and fear they all carry

with them every day.”

       {¶ 18} Thereafter, the trial court acknowledged the “devastation for the victim’s

family is so impactful.” The trial court further stated in open court:

              But as you understand there are ramifications for your actions, and

       although there’s some explanations for how you ended up at this point in

       your life there is really only a very thin explanation for what happened to

       Mrs. Dixon and Mr. Dixon as well. And it is not justifiable, and that’s why

       * * * the Court has to deal with it and has to have a sentence for you. I

       have gone over the information in this case, your background, your history,

       all of the mental health reports that we’ve retrieved, and I keep coming

       back to the same sentencing conclusion. Now, it never will give any kind




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       of solace to Mrs. Dixon and her family, but at least the Court can give a

       sentence that will provide some sort of closure with reliability of that.

              ***

              It is hereby ordered as to Count 4 [aggravated murder], that the

       Defendant serve a term of life in prison with parole eligibility after 30

       years. The 30-year is selected by the Court looking at Mr. Dean’s age as it

       currently stands, his mental health history, as previously laid out, and all of

       the reports, and his record of, at this point, only five prior misdemeanors.

              Although factual circumstances could potentially support an

       articulation of life without parole, taking all the factors into consideration

       the Court does feel that parole eligibility after 30 years is an appropriate

       selection of the sentencing.

              To select one of the lower sentences the Court finds would be

       demeaning to the severity of the offenses here and the circumstances

       surrounding such.

       {¶ 19} The trial court’s sentence was within the statutory range and less than the

maximum. State v. Salman, 6th Dist. Lucas No. L-17-1223, 2018-Ohio-3516, ¶ 4. At the

sentencing hearing the trial court specifically stated it “considered the principles and

purposes of sentencing under [R.C.] 2929.11 and balanced the seriousness and recidivism

factors under [R.C.] 2929.12.” This was repeated in the trial court’s February 10, 2017

journalized entry. We will not disturb the trial court’s decision. Our review of the record




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finds clear and convincing evidence supporting appellant’s felony sentence of life with

parole eligibility after 30 years for the aggravated murder conviction.

       {¶ 20} Appellant was also sentenced on February 10, 2017, for the offense of

felonious assault, a violation of R.C. 2903.11(A)(2) (“No person shall knowingly * * *

cause or attempt to cause physical harm to another * * * by means of a deadly weapon

* * *.”). Felonious assault is a felony of the second degree. R.C. 2903.11(D)(1)(a). For

a felony of the second degree the trial court could impose a prison term within the range

from two to eight years. R.C. 2929.14(A)(2).

       {¶ 21} In his sentencing memorandum filed in the record, and as repeated at the

sentencing hearing, appellant acknowledged felonious assault carried definite

imprisonment between two and eight years and requested that sentence run concurrently

with the sentence for aggravated murder. At the sentencing hearing appellant

acknowledged that because Mr. Dixon and Mrs. Dixon were two separate victims with

two different injury outcomes, consecutive sentences under R.C. 2929.14(C) would not

“be hard for the Court to do.” Appellee did not file a sentencing memorandum in the

record and offered no commentary for the felonious assault offense at the sentencing

hearing. Thereafter, the trial court further stated in open court:

              As it relates to Count 1, the felonious assault, this is a separate

       charge for a separate victim, and the Court will order a sentence of seven

       years as to the felonious assault charge. The [injuries] caused to * * * Mr.

       Dixon were [sic] so severe that any other sentence, even though these are




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       the first felony convictions, would be an inappropriate sentence issued by

       the Court.

       {¶ 22} Once again, the trial court’s sentence was within the statutory range and

less than the maximum. We will not disturb the trial court’s decision. Our review of the

record finds clear and convincing evidence supporting appellant’s felony sentence of

seven years for the felonious assault conviction.

       {¶ 23} Thereafter, the trial court announced the felonious assault sentence would

run consecutively to the aggravated murder sentence. However, we find the record

shows the trial court’s February 10, 2017 sentencing entry did not reflect what the trial

court stated at the sentencing hearing held on February 8, 2017.

       {¶ 24} For the first finding under R.C. 2929.14(C)(4), that “the consecutive

service is necessary to protect the public from future crime or to punish the offender,” the

trial court stated in open court, “The Court does find the consecutive sentences are

necessary to protect the public from future crime and/or to punish the Defendant.”

       {¶ 25} For the second finding under R.C. 2929.14(C)(4), that “consecutive

sentences are not disproportionate to the seriousness of the offender’s conduct and to the

danger the offender poses to the public,” the trial court stated in open court,

“[C]onsecutive sentences * * * are certainly not disproportionate to the seriousness of the

conduct of the Defendant or the danger he poses to our community.”

       {¶ 26} For the third finding under R.C. 2929.14(C)(4)(b), the trial court stated in

open court, “[T]he harm caused was so great or unusual no single prison term for any of




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the offenses is [sic] committed as part of this course of conduct would adequately reflect

the seriousness of the offender’s conduct.”

        {¶ 27} Our review of the record finds evidence the trial court did not abuse its

discretion when it engaged in the correct analysis of making the necessary findings at the

sentencing hearing prior to imposing consecutive sentences on appellant for those

offenses. We find nothing in the record to indicate the trial court’s failure to include

those findings in the February 10, 2017 journalized entry was anything other than an

inadvertent mistake, which can be remedied by a nunc pro tunc entry.

        {¶ 28} “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.” Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at ¶ 30. We find

the proper remedy in this case is a nunc pro tunc entry to reflect what the trial court

actually decided at the February 8, 2017 sentencing hearing. State v. Beasley, 153 Ohio

St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 261. “A Crim.R. 32(C) error is a clerical

error that can be remedied by a nunc pro tunc entry, because the missing information can

be found elsewhere in the record. ” (Emphasis sic.) Id. “A trial court may use a nunc pro

tunc entry to correct mistakes in judgments, orders, and other parts of the record so the

record speaks the truth.” State v. Allen, 6th Dist. Lucas No. L-14-1078, 2016-Ohio-2742,

¶ 29.




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       {¶ 29} Appellant’s sole assignment of error is found not well-taken.

                                      V. Conclusion

       {¶ 30} We affirm the trial court’s judgments of felony sentencing for aggravated

murder and felonious assault, but we remand the matter solely for the limited purpose for

the trial court to issue a nunc pro tunc order correcting the omission of the consecutive

sentencing findings stated at the sentencing hearing from the journalized entry.

       {¶ 31} On consideration whereof, we find that substantial justice has been done in

this matter and the sentencing judgment of the trial court to be lawful. The judgment of

the Lucas County Court of Common Pleas is affirmed, but remanded for the limited

purpose for a nunc pro tunc order in accordance with this decision. Appellant is ordered

to pay costs of this appeal pursuant to App.R. 24.

                                                         Judgment affirmed and remanded.


       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.


Mark L. Pietrykowski, J.                        _______________________________
                                                            JUDGE
Arlene Singer, J.
                                                _______________________________
Thomas J. Osowik, J.                                        JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE

           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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