[Cite as State v. Smith, 2017-Ohio-463.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 104403




                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                THOMAS A. SMITH, JR.
                                                    DEFENDANT-APPELLANT




                                    JUDGMENT:
                              AFFIRMED AND REMANDED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-15-596819-A

        BEFORE: S. Gallagher, J., Kilbane, P.J., and Stewart, J.

        RELEASED AND JOURNALIZED: February 9, 2017
ATTORNEY FOR APPELLANT

Christina M. Joliat
P.O. Box 391531
Solon, Ohio 44139


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Brian D. Kraft
Assistant Prosecuting Attorney
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:

       {¶1}      Appellant, Thomas A. Smith, Jr., appeals his conviction and sentence.

Upon review, we affirm. However, we remand the matter for the trial court to issue nunc

pro tunc entries to accurately reflect the degree of the offense for Count 3 of the

indictment, to which appellant pled guilty and was sentenced.

       {¶2} Appellant was charged under a 17-count indictment. The charges stemmed

from an incident in which appellant was driving a stolen automobile with seven other

passengers. He did not have a driver’s license and was under the influence of alcohol.

He was racing another vehicle at speeds over 100 m.p.h. with the passengers screaming

that he slow down. He lost control of the vehicle and crashed. Three of the passengers

lost their lives, and four were severely injured, including appellant.1

       {¶3} Appellant entered a plea of guilty to three counts of aggravated vehicular

homicide, all felonies of the first degree, as charged in Counts 1, 2, and 3 of the

indictment; two counts of aggravated vehicular assault, as amended, both felonies of the

third degree; and one count of driving under the influence, a misdemeanor of the first

degree. The remaining counts were nolled. The trial court sentenced appellant to a total

prison term of 23 years, with individual terms run consecutively. The sentence was also

run consecutive to two other cases, CR-15-594035-A and CR-14-588693-A, for a total of

25 years.      The trial court also imposed five years of postrelease control, ordered

restitution, and suspended appellant’s driver’s license for life.


       1
           The only passenger wearing a seatbelt was not seriously harmed.
       {¶4} Appellant timely filed this appeal. He raises three assignments of error for

our review.

       {¶5} Under his first assignment of error, appellant claims his plea was taken in

violation of Crim.R. 11. Appellant asserts that the trial court failed to address the

penalties for Count 3, aggravated vehicular homicide, which he mistakenly states was a

felony of the second degree. However, each of the first three counts, for aggravated

vehicular homicide and to which appellant agreed to plead guilty, were felonies of the

first degree.

       {¶6} More specifically, Count 3 of the indictment charged appellant with

aggravated vehicular homicide, a felony of the first degree.       At the change-of-plea

hearing, the offense was stated correctly to be a felony of the first degree, and appellant

pled guilty to the offense as charged. The record reflects that the trial court properly

advised appellant of the nature of the charges and the potential penalties, including the

maximum penalty involved, for the first-degree offenses, as well as the other crimes to

which appellant entered a guilty plea. Further, at sentencing, the trial court sentenced

appellant to seven years on each of the three first-degree felony offenses, which was

within the applicable sentencing range.

       {¶7} We recognize that the trial court’s journal entries filed March 1, 2016, and

March 29, 2016, mistakenly reflect Count 3 as a second-degree felony. A nunc pro tunc

entry may be used to reflect what actually occurred as supported by the record. See State

ex rel. Womack v. Marsh, 128 Ohio St.3d 303, 2011-Ohio-229, 943 N.E.2d 1010, ¶ 13.
Accordingly, the case may be remanded to the trial court for the issuance of nunc pro tunc

entries that accurately reflect Count 3 as a felony of the first degree. See State v.

Berryman, 2d Dist. Montgomery No. 25081, 2012-Ohio-5208, ¶ 12.

       {¶8} We further find no merit to appellant’s contention that his plea was not

knowingly, intelligently, or voluntarily made. “When a defendant enters a plea in a

criminal case, the plea must be made knowingly, intelligently, and voluntarily.” State v.

Engle, 74 Ohio St.3d 525, 527, 1996-Ohio-179, 660 N.E.2d 450. At the plea hearing, the

state set forth the plea agreement on the record. The transcript reflects that the court

engaged in a thorough colloquy with appellant, that appellant understood the nature of the

charges against him and the possible penalties, that the trial court complied with Crim.R.

11, and that appellant’s guilty plea was knowingly, intelligently, and voluntarily entered.

       {¶9} Nonetheless, appellant references discussions had on the record after his plea

was entered. He claims that he communicated his mental instability in a letter to the trial

court and that he did not understand the criminal process. The record reflects that the

trial court discussed the letter appellant wrote, which indicated he was scared and more

unstable every day. Appellant also had been on suicide watch. Appellant indicated he

had seen a psychiatrist or psychologist, but it was not helpful. He expressed that he was

not having feelings of harming himself at the moment. Defense counsel indicated that

appellant had complained of going days without sleep.            The court engaged in a

discussion with appellant, indicated that it had given consideration to the letter, ordered a

presentence investigation report, and referred appellant to the court psychiatric clinic.
Appellant was represented by counsel, and at no time did appellant or his counsel indicate

that appellant’s plea was not knowingly, intelligently, or voluntarily made.

       {¶10} Appellant’s first assignment of error is overruled.

       {¶11} Under his second assignment of error, appellant claims that he was denied

effective assistance of counsel. In order to substantiate a claim of ineffective assistance

of counsel, the appellant must show “(1) deficient performance by counsel, i.e.,

performance falling below an objective standard of reasonable representation, and (2)

prejudice, i.e., a reasonable probability that but for counsel’s errors, the proceeding’s

result would have been different.” State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179,

920 N.E.2d 104, ¶ 200, citing Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373

(1989), paragraphs two and three of the syllabus. The defendant has the burden of

proving his counsel rendered ineffective assistance. Perez at ¶ 223.

       {¶12} Appellant asserts that his trial counsel’s failure to investigate his mental

health and failure to request a competency evaluation prejudiced him. There is nothing

in the record to show that this prejudiced appellant. The record shows that appellant

made a logical decision to accept the state’s plea offer and that he engaged in a clear and

articulate colloquy with the trial court. When discussing appellant’s mental stability,

defense counsel indicated that “[appellant’s] biggest complaint when I’ve seen him and

my social workers have seen him, he’s gone days without sleep. It’s part of losing his

friends and his involvement in this.” Appellant has not shown that his trial counsel was
ineffective for failing to request a competency evaluation, and there is nothing in the

record to indicate that the results would have been different had this been done.

Appellant’s second assignment of error is overruled.

       {¶13} Under his third assignment of error, appellant claims his sentence is contrary

to law. He claims that the statutorily prescribed factors and mitigating evidence were not

properly considered. He further argues that the trial court did not make any findings

regarding the minimum sentence, did not properly weigh the sentencing factors, and that

the aggregate term exceeds the maximum possible under any one offense.

       {¶14} In reviewing felony sentences, appellate courts must apply the plain

language of R.C. 2953.08(G)(2).            State v. Marcum, 146 Ohio St.3d 516,

2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1. Under R.C. 2953.08(G)(2), an appellate court

must review the record, including the findings underlying the sentence and may increase,

reduce, or otherwise modify a sentence or may vacate the sentence and remand for

resentencing, only if it clearly and convincingly finds either (1) that the record does not

support the trial court’s findings under relevant statutes, or (2) that the sentence imposed

is otherwise contrary to law.

       {¶15} In this matter, all sentences fell within the applicable statutory range. Trial

court’s have full discretion to impose a sentence within the statutory range. State v.

Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, paragraph three of the

syllabus. Moreover, the weight given to the sentencing factors is purely within the
discretion of the trial court.      State v. Jones, 8th Dist. Cuyahoga No. 104152,

2016-Ohio-8145, ¶ 14.

       {¶16} Although the trial court must consider the purposes of felony sentencing set

forth in R.C. 2929.11, as well as the sentencing factors set forth in R.C. 2929.12 when

sentencing a defendant on a felony, the trial court is not required to discuss the factors on

the record. State v. Wenmoth, 8th Dist. Cuyahoga No. 103520, 2016-Ohio-5135, ¶ 16;

see also State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31.

Consideration of the appropriate factors can be presumed unless affirmatively

demonstrated otherwise. Wenmoth at ¶ 17. Further, a trial court’s statement in its

sentencing journal entry that it considered the required statutory factors alone is enough to

satisfy its obligations under R.C. 2929.11 and 2929.12. Id. Here, the trial court stated

in the sentencing entry that it had “considered all required factors of the law” and found

that “prison is consistent with the purposes of R.C. 2929.11.”

       {¶17} Before a trial court may impose consecutive sentences, the court must first

make specific findings mandated by R.C. 2929.14(C)(4) and incorporate those findings in

the sentencing entry. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d

659, ¶ 37. Appellant concedes that the trial court made all the requisite findings for

imposing consecutive sentences. Those findings were made at the sentencing hearing

and incorporated into the sentencing entry.

       {¶18} The record also reflects that before imposing sentence, the court had

reviewed the presentence investigation report and mitigation of penalty report. The trial
court heard from the state, defense counsel, and family members of the victims. The

court was apprised of appellant’s criminal history, mitigating factors, and his expressed

remorse. Further, the court recognized the gravity of the senseless tragedy that killed

three persons and seriously injured several others.

       {¶19} Upon our review, we find that the trial court engaged in the correct analysis,

that it made the appropriate findings, that its findings were supported by the record, and

that the sentence was not clearly and convincingly contrary to law.

       {¶20} Finally, appellant argues that he was not notified of his right to appeal

during the sentencing hearing. We find that the failure to do so was harmless and that he

suffered no prejudice because his appeal was timely filed.

       {¶21} Appellant’s third assignment of error is overruled.

       {¶22} Judgment affirmed. Case is remanded to the trial court for the issuance of

nunc pro tunc entries for the journal entries filed March 1, 2016, and March 29, 2016, in

order to accurately reflect Count 3 as a felony of the first degree.

       It is ordered that appellee recover from appellant costs herein taxed. The court

finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for correction and execution of sentence.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



SEAN C. GALLAGHER, JUDGE

MARY EILEEN KILBANE, P.J., and
MELODY J. STEWART, J., CONCUR
