[Cite as State v. Shepherd, 2009-Ohio-3315.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               HARDIN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 6-08-16

        v.

TERRY DALE SHEPHERD,                                      OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Hardin County Common Pleas Court
                          Trial Court No. 20082218 CRI

                       Judgment Reversed and Cause Remanded

                               Date of Decision: July 6, 2009




APPEARANCES:

        Scott B. Johnson for Appellant

        Maria Santo for Appellee
Case No. 6-08-16


WILLAMOWSKI, J.

       {¶1} Defendant-appellant Terry D. Shepherd (“Shepherd”) brings this

appeal from the judgment of the Court of Common Pleas of Hardin County

sentencing him to two consecutive life sentences in prison without the possibility

of parole as well as to twenty-six years in prison for violation of parole. For the

reasons set forth below, the sentence is reversed.

       {¶2} On the night of October 12, 2008, Shepherd killed Judy Kearley and

Debra England. He took their bodies to an abandoned farm house where he placed

them. Shepherd then set fire to the home to destroy the bodies and fled the scene

in the victims’ truck. On October 13, 2008, the police located the truck parked

behind Shepherd’s brother’s home and observed blood in the truck bed, damage to

the body, and the shattered rear window. Shepherd was soon found hiding in the

basement of a nearby residence.        Shepherd admitted to the murders when

questioned by the police. At the time of the murders, Shepherd was on parole for

convictions of rape, aggravated robbery and theft in Hancock County.

       {¶3} On November 7, 2008, the Hardin County Grand Jury indicted

Shepherd for two counts of aggravated murder in violation of R.C. 2903.01(D).

Shepherd entered pleas of not guilty to the charges on November 14, 2008. On

December 12, 2008, Shepherd changed his plea to guilty of the charges in the

indictment. The trial court immediately proceeded to sentencing. The judgment



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Case No. 6-08-16


entry of conviction and sentence was filed on December 15, 2008. Shepherd

appeals from this entry and raises the following assignment of error concerning his

sentence.

          The trial court erred by sentencing [Shepherd] to maximum,
          consecutive sentences and imposing an additional 26 years for a
          parole violation.

This court notes that the conviction itself is not being appealed, only the sentence.

Thus, regardless of the outcome, the judgment of conviction will stand.

       {¶4} In the assignment of error, Shepherd argues that the trial court erred

by making findings of fact in its journal entry. In State v. Foster, 109 Ohio St.3d

1, 2006-Ohio-856, 845 N.E.2d 470, the Ohio Supreme Court found that the fact

finding     provisions   of   R.C.   2929.14,   including   section   (E)(4),   were

unconstitutional and severed them. Any judgment based upon an unconstitutional

statute is void and the defendant must be resentenced. Id. at ¶103. See also State

v. Baez, 6th Dist. No. L-06-1320, 2007-Ohio-3825 (holding that a sentence based

upon judicial fact finding is void). Statements made in support of a sentence

containing language from the severed sections also violate Foster. State v. Frost,

6th Dist. Nos. L-06-1142, L-06-1143, 2007-Ohio-3469, ¶67.

       {¶5} At the sentencing hearing, the trial court did not make any invalid

factual findings in support of the sentence. However, in its journal entry, the trial

court made the following statement.



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Case No. 6-08-16


          Pursuant to [R.C. 2929.14(E)] the Court FINDS for the reasons
          stated on the record that consecutive sentences are necessary to
          protect the public from future crime or to punish Defendant and
          not disproportionate to the seriousness of Defendant’s conduct
          and the danger Defendant poses to the public.

Dec. 15, 2008, Entry, 2-3. The State concedes that this is an error that must be

corrected. However, the State claims that since nothing concerning the findings

from the severed portions of the statute was mentioned at the hearing, it is merely

a clerical one which may be corrected via a nunc pro tunc order.

         {¶6} This court has previously held and continues to hold that the trial

court speaks through its journal entry. State v. Hankins (1993), 89 Ohio App.3d

567, 626 N.E.2d 965. “If the journal entry and the judge’s comments conflict, the

journal entry controls.” Id. at 569. The journal entry in this case clearly indicates

that the trial court considered the sentencing factors set forth in R.C. 2929.14(E)

concerning the imposition of consecutive sentences.                               Despite the State’s

argument, we cannot merely assume that this is an instance where a clerk

mistakenly typed the wrong number or a clerical mistake that may be corrected

via a nunc pro tunc order.1 The record is that the trial court made findings based

upon an unconstitutional statute. Thus, Shepherd must be resentenced.2



1
  We have nothing before us in the record indicating any attempt by or intent of the lower court to issue a
nunc pro tunc order. Thus, we must assume that the judgment entry of sentence accurately reflects the
intent of the lower court.
2
  In determining that resentencing is necessary, this court makes no determination as to the appropriateness
of the given sentence had the trial court not indicated that it had considered the sentencing factors set forth
in R.C. 2929.14(E).


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Case No. 6-08-16


       {¶7} This court shares the frustration of all involved that a new

sentencing must occur. However, the Ohio Supreme Court in Foster addressed

the issue of whether sentences based upon unconstitutional statutes must be

returned for new sentencing hearings and held that new sentencing hearings were

necessary to comply with the dictates of the United States Supreme Court and the

Sixth Amendment of the United States Constitution. Foster, supra at ¶104. This

court must follow the dictates of the Ohio Supreme Court. For the reasons

discussed above, the assignment of error is sustained.

       {¶8} The judgment of the Court of Common Pleas of Hardin County as

to the sentence is reversed and the matter is remanded for resentencing consistent

with this opinion.

                                                         Judgment Reversed and
                                                              Cause Remanded

PRESTON, P.J., concurs.

ROGERS, J., concurs in Judgment Only.

/jlr




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