[Cite as State v. Fridley, 2017-Ohio-4368.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                              CLERMONT COUNTY




STATE OF OHIO,                                       :

        Plaintiff-Appellee,                          :     CASE NO. CA2016-05-030

                                                     :          OPINION
    - vs -                                                       6/19/2017
                                                     :

BARRY A. FRIDLEY,                                    :

        Defendant-Appellant.                         :



    CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                          Case No. 2014CR0694



D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee

Kura, Wilford & Schredgardus Co., L.P.A., Sarah M. Schregardus, 492 City Park Avenue,
Columbus, Ohio 43215 and D. Timothy Huey, 1985 West Henderson Road, Suite 204, Upper
Arlington, Ohio 43220, for defendant-appellant



        RINGLAND, J.

        {¶ 1} Defendant-appellant, Barry Fridley, appeals his conviction and sentence in the

Clermont County Court of Common Pleas. For the reasons outlined below, we affirm in part,

reverse in part and remand this matter to the trial court for the limited purpose of issuing a

nunc pro tunc sentencing entry.

        {¶ 2} On November 19, 2014, appellant was driving northbound on State Route 132
                                                                    Clermont CA2016-05-030

when he failed to negotiate a curve and drove left-of-center, causing him to strike and kill the

oncoming driver. The passenger of that vehicle also sustained serious injuries.

       {¶ 3} Emergency medical personnel responded to the scene. Initially, appellant did

not appear to be breathing and was "unarousable" until emergency personnel applied a

sternal rub. While appellant was still at the scene of the collision, but while he was receiving

care in an ambulance, Trooper Disbennett made contact with appellant. Trooper Disbennett

noted a strong odor of an alcoholic beverage on appellant's person. When questioned about

whether he had consumed any alcohol that day, appellant replied "not enough."

       {¶ 4} Appellant was ultimately transported by helicopter to the University of Cincinnati

Hospital. At the hospital, Nurse Megan Heck drew appellant's blood at approximately 6:00

p.m., one hour after the wreck. Nurse Heck testified that she used the hospital's standard kit

to prepare the site and draw the blood. Nurse Heck further explained that she prepared the

blood samples in accordance with hospital policies and procedures and she testified about

those procedures. The results from the initial blood test revealed that appellant's blood

alcohol content was .239.

       {¶ 5} While the crash scene was still being processed and appellant was receiving

medical care, a search warrant was authorized for appellant's medical records and any blood

samples taken by the hospital. Additionally, the warrant included a request for a separate

blood draw to be done at the request of the Ohio State Highway Patrol.

       {¶ 6} The clinical nursing supervisor, Marlene Parker, accompanied three state

troopers to appellant's hospital room. Nurse Parker advised that appellant was lucid, but

may have a lacerated liver. No other injuries were specified to Trooper Disbennett. When

Trooper Disbennett entered appellant's hospital room, he asked appellant if he remembered

what had happened and if he had anything to drink that day. Appellant responded that he

had no memory of the crash and stated that he had consumed two beers. Later, appellant
                                              -2-
                                                                     Clermont CA2016-05-030

stated that he had consumed "two vodkas." Trooper Disbennett then read the search

warrant and Nurse Parker performed the blood draw. The blood draw, taken approximately

four hours after the collision, revealed that appellant's blood alcohol content was .139.

       {¶ 7} Following the blood draw, Trooper Disbennett proceeded to administer the

horizontal gaze nystagmus (HGN) test while appellant was seated and partially reclined in his

hospital bed. Trooper Disbennett testified that appellant displayed four of six clues of

intoxication.

       {¶ 8} Appellant was indicted for one count of aggravated vehicular manslaughter, one

count of aggravated vehicular assault, one count of vehicular assault, two counts of operating

a vehicle under the influence, and one count for failure to control. Appellant moved to

suppress evidence of the HGN test, evidence of the blood tests, and statements made to

police. Following a suppression hearing, the trial court granted portions of appellant's motion

to suppress, but denied the request relating to the errors addressed in this opinion.

       {¶ 9} On October 27, 2015, appellant pled no contest to aggravated vehicular

homicide in violation of R.C. 2903.06, a second-degree felony, and aggravated vehicular

assault in violation of R.C. 2903.08, a third-degree felony. The trial court imposed a five-year

prison term for aggravated vehicular homicide and a two-year prison term on the aggravated

vehicular assault to be served consecutively for an aggregate prison term of seven years.

Appellant now appeals the decision of the trial court, raising three assignments of error for

review.

       {¶ 10} Assignment of Error No. 1:

       {¶ 11} THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION TO

SUPPRESS (10/7/2015 DECISION/ENTRY).

       {¶ 12} In his first assignment of error, appellant argues the trial court erred by denying

his motion to suppress. Appellant separately challenges the admissibility of the HGN test,
                                              -3-
                                                                     Clermont CA2016-05-030

the blood tests, and certain statements made to Trooper Disbennett. We address each issue

in turn, but find his arguments lack merit.

       {¶ 13} Appellate review of a trial court's decision to grant or deny a motion to

suppress is a mixed question of law and fact. State v. Bell, 12th Dist. Clermont No. CA2008-

05-044, 2009-Ohio-2335, ¶ 8. Acting as the trier of fact, the trial court is in the best position

to resolve factual questions and evaluate witness credibility. State v. Harsh, 12th Dist.

Madison No. CA2013-07-025, 2014-Ohio-251, ¶ 9. Therefore, when reviewing the denial of a

motion to suppress, a reviewing court is bound to accept the trial court's findings of fact if

they are supported by competent, credible evidence. State v. Durham, 12th Dist. Warren No.

CA2013-03-023, 2013-Ohio-4764, ¶ 14.           "An appellate court, however, independently

reviews the trial court's legal conclusions based on those facts and determines, without

deference to the trial court's decision, whether as a matter of law, the facts satisfy the

appropriate legal standard." Id.

                                   Admissibility of HGN test

       {¶ 14} Appellant challenges the admissibility of the HGN test administered by Trooper

Disbennett. Specifically, appellant claims (1) Trooper Disbennett was trained on an earlier

NHTSA manual and not the manual in effect at the time of the HGN test, (2) it was improper

to conduct the HGN test while in a reclined hospital bed, (3) the HGN test was unreliable

because hospital personnel had treated him with narcotics, namely, fentanyl and dilaudid,

and (4) he was suffering from a head injury when the HGN test was administered.

       {¶ 15} In order for field sobriety testing evidence to be admissible, the state is not

required to show strict compliance with testing standards, but must instead demonstrate that

the officer substantially complied with NHTSA standards. R.C. 4511.19(D)(4)(b); State v.

Selvage, 12th Dist. Clermont No. CA2011-08-058, 2012-Ohio-2149, ¶ 12. "A determination

of whether the facts satisfy the substantial compliance standard is made on a case-by-case
                                               -4-
                                                                   Clermont CA2016-05-030

basis." State v. Fink, 12th Dist. Warren Nos. CA2008-10-118 and CA2008-10-119, 2009-

Ohio-3538, ¶ 26.

       {¶ 16} As stated by the Ohio Supreme Court, "HGN test results are admissible in

Ohio without expert testimony so long as the proper foundation has been shown both as to

the administering officer's training and ability to administer the test and as to the actual

technique used by the officer in administering the test." State v. Boczar, 113 Ohio St.3d 148,

2007-Ohio-1251, ¶ 28. In this case, Trooper Disbennett testified about his training and

experience in the administration of HGN testing and the technique used in the administration

of the test. Immediately following the blood draw, Trooper Disbennett spoke with appellant in

his hospital room. Trooper Disbennett explained that he asked appellant if he had suffered a

head injury during the accident and appellant denied that he had experienced any such

injury. Trooper Disbennet was aware that appellant possibly suffered a lacerated liver, and

therefore would need to remain in his hospital bed, but was otherwise unaware of any

symptoms of head trauma.        Because of appellant's possible lacerated liver, Trooper

Disbennett performed the HGN test while appellant was reclined in his hospital bed. Trooper

Disbennett concluded that appellant displayed four of six clues of intoxication: lack of smooth

pursuit and distinctive nystagmus at maximum deviation in both eyes.

       {¶ 17} As to appellant's first argument, it is irrelevant that Trooper Disbennett was

trained on an earlier manual, as the test is whether he substantially complied with NHTSA

standards.

       {¶ 18} As to appellant's second argument, the NHTSA standards do not prohibit the

administration of the HGN test while the subject is reclined, or even if the subject was lying

down. Accordingly, the fact that appellant was in a reclined position does not violate NHTSA

or otherwise indicate that the HGN test was not conducted in substantial compliance.

       {¶ 19} Appellant's next claim is in response to the medication that he was given prior
                                              -5-
                                                                   Clermont CA2016-05-030

to Trooper Disbennett's arrival, namely the drugs dilaudid and fentanyl. Appellant claims that

Trooper Disbennett incorrectly testified that those drugs have no effect on the results of an

HGN test. In support, appellant cites to secondary sources to support his claim that those

drugs affect horizontal nystagmus. However, contrary to appellant's claims, the NHTSA

manual states that narcotic analgesics, such as fentanyl and dilaudid, do not affect horizontal

nystagmus. Therefore, while appellant may argue otherwise, his claim must fail. Consistent

with NHSTA standards, the consumption of fentanyl and dilaudid did not affect the results of

the HGN test.

       {¶ 20} Finally, appellant argues that he was suffering from a serious head injury at the

time that Trooper Disbennett administered the HGN test and therefore the results were

unreliable. However, the record reflects that Trooper Disbennett testified that he observed

no injuries to appellant's head and was not informed of any evidence to the contrary.

Trooper Disbennett was informed that appellant may have suffered a lacerated liver, but was

not informed of head trauma. Furthermore, as provided in the NHTSA manual, Trooper

Disbennett asked appellant a number of preliminary questions, including whether appellant

had suffered any type of head injury, and appellant advised that he had not suffered any

such head injury. Trooper Disbennett testified that he did not notice any other symptoms of a

head injury while conducting the HGN test, such as the presence of incongruent pupil size.

Accordingly, there is no reason to suppress the HGN test based on appellant's assertion that

he suffered a head injury.

       {¶ 21} Based on our review, we find that Trooper Disbennett substantially complied

with NHTSA standards when he administered the HGN test. Trooper Disbennett testified

about his training and ability in the administration of the HGN test and the technique used in

administering the test. The results of the test showed that appellant exhibited four of six

clues of intoxication. As addressed above, the arguments raised by appellant on appeal are

                                              -6-
                                                                     Clermont CA2016-05-030

without merit. Therefore, we find the trial court did not error by admitting the results from the

HGN test.

                                       Initial Blood Test

       {¶ 22} Appellant next challenges the admissibility of the initial blood test on two

separate grounds. The initial blood draw was performed at the University of Cincinnati

Hospital approximately one hour after the collision. First, appellant claims that he was

deprived of his Sixth Amendment Confrontation rights. Second, appellant claims the test

should have been excluded based on the scientific unreliability of the testing procedure.

       {¶ 23} During the suppression hearing, the state presented the testimony of Nurse

Heck, who performed the blood draw, and Bernie Chaffin, a toxicology specialist with the

University of Cincinnati Laboratory. Though Chaffin was familiar with the policies and

procedures done to ensure accuracy of the testing equipment, he was not the technician that

conducted the actual blood testing. That individual was not called as a witness. Appellant

did not object to Chaffin's testimony or make any Confrontation Clause argument at the

suppression hearing.

       {¶ 24} Because appellant failed to object to the admission of the blood test on

Confrontation Clause grounds, he has waived the issue for appeal. State v. Brown, 2d Dist.

Montgomery No. 26826, 2016-Ohio-1258, ¶ 14. This court, however, retains discretion to

consider a waived constitutional argument under a plain error analysis. Id. An alleged error

constitutes plain error only if the error is obvious and but for the error, the outcome of the

proceeding clearly would have been different. State v. Morgan, 12th Dist. Butler Nos.

CA2013-08-146 and CA2013-08-147, 2014-Ohio-2472, ¶ 45.

       {¶ 25} "The right to confrontation, which includes the right to physically face and

cross-examine witnesses, is not a constitutionally compelled rule of pretrial proceedings."

State v. McKenzie, 10th Dist. Franklin No. 11AP-250, 2011-Ohio-5851, ¶ 8; State v.
                                               -7-
                                                                     Clermont CA2016-05-030

Saunders, 2d Dist. Montgomery No. 22621, 2009-Ohio-1273, ¶ 13. The cases cited by

appellant involve a defendant's right to confront witnesses at trial, not at the suppression

hearing. Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004); Melendez-Diaz v.

Massachusetts, 557 U.S. 305, 129 S.Ct. 2527 (2009); Bullcoming v. New Mexico, 564 U.S.

647, 131 S.Ct. 2705 (2011). Because the suppression hearing was a pretrial proceeding, the

state was not required to present the technician that placed the blood in the testing

equipment. Therefore, appellant was not deprived of his constitutional right to confront a

witness.

       {¶ 26} Appellant also argues that the evidence should have been suppressed based

on an alleged lack of scientific reliability. Based on a previous decision of this court, we find

the evidence was admissible. State v. Davenport, 12th Dist. No. CA2008-04-011, 2009-

Ohio-557. In Davenport, this court held that R.C. 4511.19 allows admission of blood tested

by hospitals, even if such a test does not comply with the Ohio Administrative Code, in

circumstances where a defendant was transported to the hospital after an accident and

underwent a non-forensic, medical blood test. Id. at ¶ 16; State v. Persinger, 3d Dist. Marion

No. 9-15-10, 2016-Ohio-858, ¶ 18 (agreeing with Davenport and holding that arguments

pursuant to R.C. 4511.19[D][1][b] are not applicable to prosecutions for certain offenses

where the results of alcohol blood tests are taken and analyzed by a health care provider).

The plain language of R.C. 4511.19(D)(1)(a) permits "any test of any blood" to be introduced

with expert testimony and considered with any relevant and competent evidence to determine

the guilt or innocence of offenses including aggravated vehicular homicide, so long as the

blood was withdrawn and analyzed at a "health care provider" as defined by R.C. 2317.12.

Id.; State v. Carr, 11th Dist. Lake No. 2012-L-001, 2013-Ohio-737, ¶ 65.

       {¶ 27} There is no dispute that appellant had his blood drawn at the University of

Cincinnati Hospital, a "health care provider" as defined by the Revised Code. The state
                                               -8-
                                                                    Clermont CA2016-05-030

called the nurse who withdrew the blood to testify about policies and procedures for drawing

blood. The state also introduced the testimony of the toxicology specialist at the University of

Cincinnati Laboratory who tested the blood. The toxicologist testified how all testing was

done pursuant to policies and procedures that were identified in the testimony.

       {¶ 28} We find the trial court did not err by admitting the evidence from the initial

blood draw. The blood draw was performed by a health care provider and was supported by

testimony that was competent evidence to determine appellant's guilt or innocence.

Appellant also cites Evid.R. 702 and alleges that there was no documentation provided as to

the accuracy of the testing method. However, the Supreme Court has previously reviewed

similar arguments and held that R.C. 4511.19 provides the appropriate standard for

admissibility and is not inconsistent with Evid.R. 702 or in contravention of Section 5, Article

IV of the Ohio Constitution. State v. Boczar, 113 Ohio St.3d 148, 2007-Ohio-1251, ¶ 16, 28;

State v. James, 5th Dist. Muskingum No. CT2015-0059, 2016-Ohio-7660, ¶ 33 ("the rules of

evidence do not strictly apply at suppression hearings"). In conclusion, the initial blood test

was not subject to suppression.

                                     Second Blood Test

       {¶ 29} Appellant also challenges the admissibility of the second blood draw

performed as a result of the search warrant. Because this sample was analyzed by a crime

lab, and not a healthcare provider, our analysis is different than above. As previously noted,

the results of the second blood test showed that appellant had a blood alcohol level of .139.

       {¶ 30} The Director of Health promulgated certain regulations in Ohio Adm.Code

3701-53-01 through 3701-53-10 for testing the concentration of alcohol or drugs of abuse

found in an individual's blood, breath, or urine. State v. Burnside, 100 Ohio St.3d 152, 2003-

Ohio-5372, ¶ 9-10. When a defendant challenges the validity of a blood test by way of a

pretrial motion to suppress, "the state has the burden to show that the test was administered
                                              -9-
                                                                                  Clermont CA2016-05-030

in substantial compliance with the regulations prescribed by the Director of Health" to trigger

the presumption of admissibility. Burnside at ¶ 24, 27. The substantial-compliance standard

excuses minor procedural deviations. State v. Schuster, 12th Dist. Butler No. CA2016-05-

097, 2017-Ohio-4115, ¶ 34. "Once the state has satisfied this burden and created a

presumption of admissibility, the burden then shifts to the defendant to rebut that

presumption by demonstrating that he was prejudiced by anything less than strict

compliance." Id.

        {¶ 31} We first address appellant's claim that the blood draw was taken outside the

permissible time frame set forth in R.C. 4511.19. The Ohio Supreme Court has previously

held that a blood sample taken outside of the three-hour time frame set out in R.C.

4511.19(D) may still be admissible to prove that the person was under the influence of

alcohol, provided the administrative requirements of R.C. 4511.19(D) are substantially

complied with. State v. Hassler, 115 Ohio St.3d 322, 2007-Ohio-4947, ¶ 2.

        {¶ 32} The state demonstrated substantial compliance with Ohio Adm.Code 3701-53-

01 through 3701-53-10 with the testimony of Nurse Parker, Trooper Disbennett, and Chaffin.

Nurse Parker testified that that she used a nonalcoholic Betadine or Iodine swab on

appellant's skin before a sterile, dry needle was used to withdraw blood into the tubes, which

contained a preservative. The tubes contained labels with the date and time of collection,

appellant's name, and Nurse Parker's signature who collected the blood and sealed the

containers. Thereafter, Trooper Disbennett took custody of the blood vials and returned to

the Batavia Patrol Post to package the evidence. Trooper Disbennett then testified that he

placed the evidence in transit in compliance with policy and procedures.1 Reports from the



1. Appellant separately argues that the blood specimens were not refrigerated in violation of Ohio Adm.Code
3701-53-05(F). However, the refrigeration requirement expressly states that it is inapplicable when the sample is
in transit or under examination. Here, the blood sample was not required to be refrigerated while in transit to the
crime lab.
                                                      - 10 -
                                                                   Clermont CA2016-05-030

crime lab indicate that the tests were confirmed by gas chromatography.

       {¶ 33} In conclusion, while the blood was taken approximately four hours after the

collision, the record nevertheless establishes substantial compliance with the Revised Code

and Administrative Code. Therefore, the second blood test done pursuant to the search

warrant was admissible and appellant's argument is without merit.

                                         Statements

       {¶ 34} Finally, appellant argues the trial court erred by denying his request to

suppress statements made to police officers while he was receiving care in the hospital.

Trooper Disbennett testified that he visited appellant in the hospital and executed the search

warrant for appellant's blood. While there, Trooper Disbennett again asked appellant if he

had been drinking and appellant stated that he had consumed two beers coming back from

his business trip. After several more questions, Trooper Disbennett again asked appellant if

he had been drinking and appellant stated that he had consumed two vodkas. Trooper

Disbennett testified that he did not read appellant his Miranda rights because he was not

under arrest.

       {¶ 35} "It is well-established that before law enforcement officials question a suspect

in custody, the suspect must be advised of his Miranda rights and make a knowing and

intelligent waiver of those rights before any statements obtained during the interrogation will

be admissible as evidence." State v. Hernandez-Martinez, 12th Dist. Butler No. CA2011-04-

068, 2012-Ohio-3754, ¶ 8. However, the duty to advise a suspect of constitutional rights

pursuant to Miranda is only required when the police subject a person to custodial

interrogation. State v. Byrne, 12th Dist. Butler Nos. CA2007-11-268 and CA2007-11-269,

2008-Ohio-4311, ¶ 10.

       {¶ 36} "Miranda defines custodial interrogation as any 'questioning initiated by law

enforcement officers after a person has been taken into custody or otherwise deprived of his
                                             - 11 -
                                                                      Clermont CA2016-05-030

freedom of action in any significant way.'" State v. Vansickle, 12th Dist. Fayette No. CA2013-

03-005, 2014-Ohio-1324, ¶ 54, quoting State v. Matthews, 12th Dist. Butler No. CA2012-09-

175, 2013-Ohio-3482, ¶ 10. In determining whether an individual was in custody during an

interrogation, the court must examine the totality of the circumstances surrounding the

interrogation. State v. Robinson, 12th Dist. Butler No. CA2015-01-013, 2015-Ohio-4533, ¶

12. A person is in custody if he is formally placed under arrest prior to a police interrogation,

or, if not formally arrested, when there is a significant restraint on his freedom of movement.

Id. This determination "depends on the objective circumstances of the interrogation, not on

the subjective views harbored by either the interrogating officers or the person being

questioned." State v. Henry, 12th Dist. Preble No. CA2008-04-006, 2009-Ohio-434, ¶ 13.

Therefore, "[i]n judging whether an individual has been placed into custody the test is

whether, under the totality of the circumstances, a 'reasonable person would have believed

that he was not free to leave.'" Robinson at ¶ 12, quoting State v. Gumm, 73 Ohio St.3d 413,

429 (1995).

       {¶ 37} Appellant argues that his statements to Trooper Disbennett should be

suppressed because "[c]learly under these circumstances, when an individual has just been

presented with a search warrant, forcibly had his blood drawn, physically cannot leave the

room and is surrounded by three police officers, a reasonable person would believe they

were under arrest." The trial court disagreed with appellant and found:

              Later, when the defendant was in the hospital room, Officer
              Disbennett again asked the defendant if he had been drinking.
              An analysis of whether an individual is in custody for purposes of
              Miranda focuses on whether a reasonable person under the
              circumstances would believe he was under arrest. Both the
              subjective intent of the [officer] as well as the subjective belief of
              the suspect are irrelevant in this analysis. Ohio courts have
              found police questioning of individuals in the hospital, at times, to
              be custodial in nature.

              In the present case, Defendant Fridley was hospitalized because
                                              - 12 -
                                                                     Clermont CA2016-05-030

              of injuries that he had incurred as a result of an automobile
              accident that he caused. His freedom of movement was
              restrained by his injury and an IV connection, not police conduct.
              Officer Disbennett had not placed the defendant under arrest
              and there was no officer posted at the defendant's door. Under
              these circumstances, Defendant Fridley was not in custody and,
              thus, the officer's questions did not occur during a custodial
              interrogation. Accordingly, Officer Disbennett did not have a duty
              to advise Defendant Fridley of his privilege against self-
              incrimination pursuant to Miranda v. Arizona. Thus, the
              statements made by the defendant to Officer Disbennett while
              the defendant was in his hospital room will not be suppressed.

(Citations omitted.)

Based on our review, we find the record contains competent, credible evidence in support of

the trial court's factual findings. Trooper Disbennett testified that appellant was not restrained

during the interview and was cooperative throughout the process. Appellant was not

restrained by handcuffs or any action by the state. Appellant was restrained only by an IV

connection placed into his arm by hospital staff for medical purposes. There is no evidence

that appellant was threatened in any way or coerced to make any statements to police. In

fact, following the blood draw Trooper Disbennett testified:

              Okay. So after we did the blood draw that's when I spoke to Mr.
              Fridley about the crash, what had happened. I then did HGN – I
              actually – he – he asked me a few times what had happened, I
              didn't tell him at first, because I didn't know if he was stable
              enough to hear the news, so I went out and spoke to his nurse,
              and she said if he wants to hear it you can tell him, and then
              that's when I advised Mr. Fridley what had occurred that night.

While there are some instances in which the questioning of a defendant at a hospital may

amount to a custodial interrogation, we simply find that the evidence presented here supports

the trial court's findings. State v. Smith, 2d Dist. Miami No. 95-CA-17, 1996 Ohio App. LEXIS

1851, *13 (May 10, 1996); State v. Feaster, 9th Dist. Summit No. 24367, 2009-Ohio-2558, ¶

20. Appellant's interview did not take place in a lockdown environment and the nursing staff

was still able to attend to appellant's medical needs during the interview. There was no


                                              - 13 -
                                                                      Clermont CA2016-05-030

indication that appellant was uncomfortable during the interview, or that his responses were a

function of any coercion that he felt as a result of police presence. The testimony by Trooper

Disbennett indicates that appellant voluntarily spoke with him and had genuine questions

about the incident. Accordingly, we find the trial court did not err by denying appellant's

motion to suppress statements made to Trooper Disbennett while in the hospital.

                                           Conclusion

       {¶ 38} Having reviewed all of appellant's arguments in support of his motion to

suppress, we find his arguments to be without merit.              Accordingly, appellant's first

assignment of error is without merit and hereby overruled.

       {¶ 39} Assignment of Error No. 2:

       {¶ 40} TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL

IN VIOLATION OF MR. FRIDLEY'S RIGHTS UNDER THE SIXTH, AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND SECTIONS 10 AND 16,

ARTICLE I OF THE OHIO CONSTITUTION.

       {¶ 41} In his second assignment of error, appellant argues that his trial counsel was

ineffective for failing to raise the issues detailed in his first assignment of error. We disagree.

       {¶ 42} To prevail on an ineffective assistance of counsel claim, an appellant must

establish (1) that his trial counsel's performance was deficient; and (2) that such deficiency

prejudiced the defense to the point of depriving the appellant of a fair trial. Strickland v.

Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052 (1984). Failure of one prong of the

Strickland test is fatal to any claim of ineffective assistance of counsel. State v. Clarke, 12th

Dist. Butler No. CA2015-11-189, 2016-Ohio-7187, ¶ 49. In the context of a plea, prejudice

will not be found unless a defendant demonstrates there is a reasonable probability that, if

not for counsel's errors, he would not have entered a plea. State v. Tribune, 12th Dist.

Warren No. CA2016-04-027, 2017-Ohio-1407, ¶ 7.
                                               - 14 -
                                                                   Clermont CA2016-05-030

       {¶ 43} As addressed in appellant's first assignment of error, the evidence that

appellant sought to suppress was admissible. Counsel cannot be ineffective for failing to

object to admissible evidence. State v. Spradlin, 12th Dist. Clermont No. CA2016-05-026,

2017-Ohio-630, ¶ 89.      Accordingly, we find that appellant did not receive ineffective

assistance of counsel. Appellant's second assignment of error is overruled.

       {¶ 44} Assignment of Error No. 3:

       {¶ 45} THE TRIAL COURT ERRED WHEN IT FAILED TO MAKE THE REQUISITE

FINDINGS TO IMPOSE CONSECUTIVE SENTENCES UNDER R.C. 2929.14(C)(4).

       {¶ 46} In his third assignment of error, appellant argues the trial court erred by

sentencing him to consecutive prison terms, alleging the record does not support the

imposition of consecutive sentences and his sentence is contrary to law. We disagree, but

nevertheless reverse in part and remand this matter to the trial court for the limited purpose

of issuing a nunc pro tunc sentencing entry.

       {¶ 47} Pursuant to R.C. 2929.14(C)(4), a trial court must engage in a three-step

analysis and make certain findings before imposing consecutive sentences. State v. Dillon,

12th Dist. Madison No. CA2012-06-012, 2013-Ohio-335, ¶ 9. First, the trial court must find

that the consecutive sentence is necessary to protect the public from future crime or to

punish the offender. R.C. 2929.14(C)(4). Second, the trial court must find that consecutive

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

danger the offender poses to the public. Id. Third, the trial court must find that one of the

following 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
                                            - 15 -
                                                                    Clermont CA2016-05-030

              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.

R.C. 2929.14(C)(4)(a)-(c).

       {¶ 48} "A trial court satisfies the statutory requirement of making the required findings

when the record reflects that the court engaged in the required analysis and selected the

appropriate statutory criteria." State v. Setty, 12th Dist. Clermont Nos. CA2013-06-049 and

CA2013-06-050, 2014-Ohio-2340, ¶ 113. In imposing consecutive sentences, the trial court

is not required to provide a word-for-word recitation of the language of the statute or

articulate reasons supporting its findings. Id. Nevertheless, the record must reflect that the

trial court engaged in the required sentencing analysis and made the requisite findings. Id.

The court's findings must thereafter be incorporated into its sentencing entry. State v. Ahlers,

12th Dist. Butler No. CA2015-06-100, 2016-Ohio-2890, ¶ 10.

       {¶ 49} Here, the record reflects that the trial court made the findings required by R.C.

2929.14(C)(4) when it ordered appellant's sentences be served consecutively. Specifically,

the trial court made extensive remarks concerning the case and then explicitly stated:

              The Court finds that consecutive service of sentence -- of a
              prison sentence in this case -- the prison sentences are
              necessary to protect the public from future crime or to punish the
              offender. The consecutive sentences are not disproportionate to
              the seriousness of his conduct and to the danger he poses to the
              public, and the Court finds that the harm caused by his acts were
              so great or unusual that no single prison term for any of the
              offenses committed as part of the course of conduct adequately
              reflects the seriousness of his conduct.

       {¶ 50} Though appellant suggests otherwise, it is clear that the trial court complied

with the dictates of R.C. 2929.14(C)(4). State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-
                                             - 16 -
                                                                     Clermont CA2016-05-030

317, ¶ 37; State v. Sess, 12th Dist. Butler No. CA2015-06-117, 2016-Ohio-5560, ¶ 35-38. It

is also clear that the record supports the trial court's findings that the harm caused by

appellant's offenses was so great or unusual that no single prison term adequately reflected

the seriousness of his conduct and that consecutive sentences were necessary to punish

appellant and protect the public.

       {¶ 51} Nevertheless, and as conceded by the state, the trial court erred by failing to

incorporate its statutory findings at the hearing into the judgment entry of conviction. State v.

Lung, 12th Dist. Clermont No. CA2014-12-081, 2015-Ohio-3833, ¶ 19-20 (remanding matter

to the trial court for the limited purpose of issuing a nunc pro tunc sentencing entry to reflect

the trial court's statutory findings under R.C. 2929.14[C][4]). However, as noted by the Ohio

Supreme Court, "[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." Bonnell at ¶ 30. Instead, "such a clerical mistake may

be corrected by the court through a nunc pro tunc entry to reflect what actually occurred in

open court." Id.

       {¶ 52} To that end, although we find no error in the trial court's decision to impose

consecutive sentences in this matter, we sustain appellant's third assignment of error as it

relates to the trial court's failure to incorporate the consecutive sentence findings it made at

the sentencing hearing into its sentencing entry. Therefore, we remand this matter to the trial

court for the limited purpose of issuing a nunc pro tunc sentencing entry to reflect the trial

court's statutory findings under R.C. 2929.14(C)(4). "Such an administrative correction does

not necessitate a new sentencing hearing." Lung at ¶ 20. The trial court's decision to

impose consecutive sentences in all other respects is affirmed.

       {¶ 53} Judgment affirmed in part, reversed in part and remanded to the trial court for



                                              - 17 -
                                                                   Clermont CA2016-05-030

the limited purpose of issuing a nunc pro tunc sentencing entry.


      HENDRICKSON, P.J., and M. POWELL, J., concur.




                                           - 18 -
