[Cite as State v. Oller, 2019-Ohio-1070.]

                               IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT


State of Ohio,                                     :

                 Plaintiff-Appellee,               :               No. 18AP-511
                                                                (C.P.C. No. 15CR-1953)
v.                                                 :
                                                              (REGULAR CALENDAR)
Timothy M. Oller,                                  :

                 Defendant-Appellant.              :



                                            D E C I S I O N

                                      Rendered on March 26, 2019


                 On brief: Ron O'Brien, Prosecuting Attorney, and Sheryl L.
                 Prichard, for appellee.

                 On brief: W. Joseph Edwards, for appellant.

                   APPEAL from the Franklin County Court of Common Pleas

LUPER SCHUSTER, J.
        {¶ 1} Defendant-appellant, Timothy M. Oller, appeals from an amended judgment
entry of the Franklin County Court of Common Pleas finding him guilty, pursuant to jury
verdict, of one count of involuntary manslaughter. For the following reasons, we affirm.
I. Facts and Procedural History
        {¶ 2} By indictment filed April 21, 2015, plaintiff-appellee, State of Ohio, charged
Oller with two counts of murder in violation of R.C. 2903.02, both unclassified felonies.
Both counts contained accompanying repeat violent offender ("RVO") specifications
pursuant to R.C. 2941.149(A). Following a trial, the jury found Oller not guilty of murder
but found him guilty of one count of the stipulated lesser-included offense of involuntary
manslaughter. The jury specifically found that Oller acted under the influence of sudden
passion or fit of rage brought on by serious provocation. Following a May 16, 2016
No. 18AP-511                                                                                2


sentencing hearing, the trial court sentenced Oller to 11 years on the involuntary
manslaughter conviction and an additional ten years on the RVO specification attached to
the conviction, ordering the sentences to run consecutive to one another for an aggregate
sentence of 21 years in prison.
       {¶ 3} Oller appealed his conviction and sentence to this court. State v. Oller, 10th
Dist. No. 16AP-429, 2017-Ohio-814 ("Oller I").         Though this court affirmed Oller's
conviction, we concluded the trial court erred on sentencing when it failed to accept the
jury's finding that Oller acted under the influence of sudden passion or a sudden fit of rage
and instead substituted its own view of the evidence when imposing the sentence. Thus,
we remanded the matter to the trial court for resentencing, instructing the trial court to
accept the finding of the jury related to the sudden passion or sudden fit of rage and, if the
trial court imposes additional prison time based on the RVO specification, to state the
findings required by R.C. 2929.14(B)(2)(e). Oller I at ¶ 69-70.
       {¶ 4} Subsequently, we granted the state's application for reconsideration on the
limited issue of clarifying the findings the trial court is required to make pursuant to R.C.
2929.14(B)(2)(e). State v. Oller, 10th Dist. No. 16AP-429, 2017-Ohio-7575 ("Oller II"). In
granting the state's motion for reconsideration, we modified our remand instruction to the
trial court to "state the findings of the trier of fact required by [R.C. 2929.14(B)(2)(e)],
relative to the imposition or modification of the sentence," but we clarified the trial court
"is not required to set forth those findings required by R.C. 2929.14(B)(2)(a)(iv) and (v)."
Oller II at ¶ 8, 10.
       {¶ 5} On remand, the trial court conducted a resentencing hearing on March 19,
2018. Following the resentencing hearing, the trial court again imposed the maximum
sentence of 11 years on the involuntary manslaughter conviction and an additional 10 years
for the RVO specification for an aggregate sentence of 21 years in prison. The trial court
journalized the conviction and sentence in a March 27, 2018 amended judgment entry.
Oller timely appeals.
II. Assignment of Error
       {¶ 6} Oller assigns the following error for our review:
               The trial court imposed a sentence contrary to law, and as such,
               violated defendant's due process rights when it again engaged
No. 18AP-511                                                                                3


               in judicial fact-finding contra the Ohio and Federal
               Constitutions as well as relevant Ohio statutes.

III. Analysis – Sentencing
       {¶ 7}   In his sole assignment of error, Oller argues the trial court erred in imposing
his sentence on remand. More specifically, Oller asserts the trial court failed to follow this
court's remand instructions from Oller I and Oller II and did not make the required findings
pursuant to R.C. 2929.14(B)(2)(e).
       {¶ 8} An appellate court will not reverse a trial court's sentencing decision unless
the evidence is clear and convincing that either the record does not support the sentence or
that the sentence is contrary to law. State v. Chandler, 10th Dist. No. 04AP-895, 2005-
Ohio-1961, ¶ 10, citing State v. Maxwell, 10th Dist. No. 02AP-1271, 2004-Ohio-5660, ¶ 27,
citing State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165, ¶ 10. See also State v. Marcum,
146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1 ("an appellate court may vacate or modify a felony
sentence on appeal 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"). "In determining whether a sentence is contrary to law, an
appellate court must review the record to determine whether the trial court considered the
appropriate statutory factors, made the required findings, gave the reasons for its findings,
and properly applied the statutory guidelines." Maxwell at ¶ 27, citing State v. Altalla, 10th
Dist. No. 03AP-1127, 2004-Ohio-4226, ¶ 7.
       {¶ 9} At resentencing, the trial court sentenced Oller to 11 years on the involuntary
manslaughter conviction and an additional 10 years on the RVO specification. Oller asserts
the trial court did not comply with the remand instruction when it imposed his sentence on
remand. Specifically, the remand instruction from Oller II instructed the trial court to state
the findings required by R.C. 2929.14(B)(2)(e) but noted it need not make findings
pursuant to R.C. 2929.14(B)(2)(a)(iv) and (v).
       {¶ 10} R.C. 2929.14(B)(2)(e) requires the trial court to "state its findings explaining
the imposed sentence" when it imposes a sentence pursuant to R.C. 2929.14(B)(2)(a) or
(b). R.C. 2929.14(B)(2)(a) deals with the discretionary imposition of an additional prison
term for an RVO specification, while R.C. 2929.14(B)(2)(b) deals with the mandatory
imposition of an additional prison term for an RVO specification. The parties agree here
No. 18AP-511                                                                         4


that the imposition of the additional prison term for the RVO specification was
discretionary. Pursuant to R.C. 2929.14(B)(2)(a):
               (a) If division (B)(2)(b) of this section does not apply, the court
               may impose on an offender, in addition to the longest prison
               term authorized or required for the offense, an additional
               definite prison term of one, two, three, four, five, six, seven,
               eight, nine, or ten years if all of the following criteria are met:

                      (i) The offender is convicted of or pleads guilty to a
                      specification of the type described in section 2941.149
                      of the Revised Code that the offender is a repeat violent
                      offender.

                      (ii) The offense of which the offender currently is
                      convicted or to which the offender currently pleads
                      guilty is aggravated murder and the court does not
                      impose a sentence of death or life imprisonment
                      without parole, murder, terrorism and the court does
                      not impose a sentence of life imprisonment without
                      parole, any felony of the first degree that is an offense
                      of violence and the court does not impose a sentence of
                      life imprisonment without parole, or any felony of the
                      second degree that is an offense of violence and the
                      trier of fact finds that the offense involved an attempt
                      to cause or a threat to cause serious physical harm to a
                      person or resulted in serious physical harm to a person.

                      (iii) The court imposes the longest prison term for the
                      offense that is not life imprisonment without parole.

                      (iv) The court finds that the prison terms imposed
                      pursuant to division (B)(2)(a)(iii) of this section and, if
                      applicable, division (B)(1) or (3) of this section are
                      inadequate to punish the offender and protect the
                      public from future crime, because the applicable
                      factors under section 2929.12 of the Revised
                      Code indicating a greater likelihood of recidivism
                      outweigh the applicable factors under that section
                      indicating a lesser likelihood of recidivism.

                      (v) The court finds that the prison terms imposed
                      pursuant to division (B)(2)(a)(iii) of this section and, if
                      applicable, division (B)(1) or (3) of this section are
                      demeaning to the seriousness of the offense, because
                      one or more of the factors under section 2929.12 of the
No. 18AP-511                                                                                 5


                      Revised Code indicating that the offender's conduct is
                      more serious than conduct normally constituting the
                      offense are present, and they outweigh the applicable
                      factors under that section indicating that the offender's
                      conduct is less serious than conduct normally
                      constituting the offense.

R.C. 2929.14(B)(2)(a)(i)-(v).
       {¶ 11} "Although imposition of the additional prison term is discretionary, if the
trial court chooses to impose the additional term under R.C. 2929.14(B)(2)(a), the
sentencing statute requires the additional term to be served 'consecutively to and prior to
the prison term imposed for the underlying offense.' " State v. Harris, 10th Dist. No. 15AP-
683, 2016-Ohio-3424, ¶ 46, quoting R.C. 2929.14(B)(2)(d). In Oller II, we clarified that on
remand that should the trial court impose additional prison time on the RVO specification,
it must make the findings under R.C. 2929.14(B)(2)(a) with the exception that it need not
state the findings under R.C. 2929.14(B)(2)(a)(iv) and (v). Thus, because the trial court did
impose additional prison time pursuant to the RVO specification, we review to see whether
the trial court stated its findings under R.C. 2929.14(B)(2)(a)(i), (ii), and (iii).
       {¶ 12} Pursuant to R.C. 2929.14(A)(1), the required definite prison term for a first
degree felony such as the involuntary manslaughter here is 3 to 11 years. See also State v.
Alexander, 10th Dist. No. 16AP-761, 2017-Ohio-4196, ¶ 11. The trial court sentenced Oller
to 11 years on the involuntary manslaughter charge, the maximum possible prison term.
The trial court then exercised its discretion in imposing an additional 10-year prison term
on the RVO specification. In doing so, the trial court noted Oller had been convicted of the
RVO specification, had been found guilty of a first-degree felony offense of involuntary
manslaughter, and had been sentenced to the maximum prison term on the involuntary
manslaughter offense. These statements by the trial court correlate to the findings listed in
R.C. 2929.14(B)(2)(a)(i), (ii), and (iii), respectively. The trial court additionally stated it
took the statutory factors into consideration when fashioning the sentence. See State v.
Watts, 8th Dist. No. 104269, 2017-Ohio-532, ¶ 11 (stating "[s]imilar to the conclusion that
'talismanic' words are not required when imposing consecutive sentences under R.C.
2929.14(C)(4), there are no magic words that must be recited by the trial court when
making the RVO findings under R.C. 2929.14(B)(2)(a)," and "[a]s long as the reviewing
No. 18AP-511                                                                              6


court can discern from the record that the trial court engaged in the correct analysis and
can determine that the record contains evidence to support the findings, the sentence on
the RVO specification should be upheld"), citing State v. Bonnell, 140 Ohio St.3d 209, 2014-
Ohio-3177, ¶ 29.
       {¶ 13} Additionally, the trial court stated in its amended judgment entry that it
"considered the purposes and principles of sentencing set forth in R.C. 2929.11 and the
factors set forth in R.C. 2929.12," and that it "weighed the factors as set forth in the
applicable provisions of R.C. 2929.13 and R.C. 2929.14." (Am. Jgmt. Entry at 1.) Such
language in a sentencing entry defeats a claim that the trial court failed to consider the
statutory guidelines. State v. Ibrahim, 10th Dist. No. 13AP-167, 2014-Ohio-666, ¶ 20, citing
State v. Peterson, 10th Dist. No. 12AP-646, 2013-Ohio-1807, ¶ 31.
       {¶ 14} Our review of the record indicates the trial court complied with the remand
instructions and with the statutory requirements for sentencing before imposing an
additional ten-year sentence on the RVO specification. To the extent Oller argues the trial
court erred by again engaging in judicial factfinding, the record does not support his
contention. The trial court addressed the remand order and offered an explanation for its
comments at the first sentencing hearing, then proceeded to resentence Oller. The trial
court did not indicate it was disregarding the jury's findings; instead, it sentenced Oller
pursuant to the findings returned by the jury.
       {¶ 15} Thus, because Oller's sentence is within the statutory range and is not
contrary to law, and because the trial court complied with this court's remand orders in
Oller I and Oller II, we overrule Oller's sole assignment of error.
IV. Disposition
       {¶ 16} Based on the foregoing reasons, the trial court did not err in resentencing
Oller on his conviction of involuntary manslaughter and the RVO specification. Having
overruled Oller's sole assignment of error, we affirm the judgment of the Franklin County
Court of Common Pleas.
                                                                       Judgment affirmed.

                           SADLER and DORRIAN, JJ., concur.
