[Cite as State v. Adams, 2012-Ohio-255.]


                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                      SCIOTO COUNTY

STATE OF OHIO,                        :    Case No. 10CA3391
                                      :
     Plaintiff-Appellee,              :
                                      :    DECISION AND
     v.                               :    JUDGMENT ENTRY
                                      :
JOHN ADAMS,                           :
                                      :    RELEASED 01/03/12
     Defendant-Appellant.             :
______________________________________________________________________
                            APPEARANCES:

James H. Banks, Dublin, Ohio, for appellant.

Mark E. Kuhn, Scioto County Prosecutor, Portsmouth, Ohio, for appellee.
______________________________________________________________________
Harsha, P.J.

        {¶1}    John Adams appeals the new sentence the trial court entered on remand

from this Court. Adams contends his sentence is clearly and convincingly contrary to

law and that the court abused its discretion in selecting it because the court again relied

on an unconstitutional statute and made an incorrect finding regarding his criminal past.

However, the portion of the original resentencing entry that Adams objects to did not

reflect the court’s actual findings at the resentencing hearing and was included in the

entry by mistake. Therefore, we issued a second remand directing the trial court to file

a nunc pro tunc entry. The trial court did so under Crim.R. 36 and eliminated the

language that had been included by a scrivener’s error. Because the nunc pro tunc

entry complied with our original remand and the law, we affirm Adams’ new sentence.

                                           I. Facts

        {¶2}    A jury convicted Adams of one count of murder, one count of aggravated
Scioto App. No. 10CA3391                                                                       2


burglary, and two counts of kidnapping, all with firearm specifications. We vacated

Adams’ original sentence because the trial court relied on R.C. 2929.14(B) and (E)(4)

when it imposed greater-than-minimum and consecutive prison terms, and the Supreme

Court of Ohio declared those statutory provisions unconstitutional in State v. Foster, 109

Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. State v. Adams, Scioto App. Nos.

04CA2959 & 05CA2986, 2009-Ohio-6491, at ¶11 (Adams I). After the court

resentenced Adams on remand, this appeal followed (Adams II).

                                  II. Assignment of Error

       {¶3}   Adams assigns one error for our review:

       THE TRIAL COURT ERRED IN SENTENCING THE DEFENDANT.
       [Transcript marked “July 19, 2004” at pp. 6-9; Judgment Entry filed
       7/28/04 at pp. 4-7; Transcript of July 7, 2010 hearing at p. 3; Judgment
       Entry filed 9/23/10]

                                   III. Sentencing

       {¶4}   In his sole assignment of error, Adams contends that the trial court erred

when it resentenced him. In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896

N.E.2d 124, the Supreme Court of Ohio announced the standard for appellate review of

felony sentences. We must employ a two-step analysis. First, we “must examine the

sentencing court’s compliance with all applicable rules and statutes in imposing the

sentence to determine whether the sentence is clearly and convincingly contrary to law.”

Kalish at ¶4. If the sentence is not clearly and convincingly contrary to law, we must

review the trial court’s decision for an abuse-of-discretion. Id.

       {¶5}   Adams argues that his new sentence is clearly and convincingly contrary

to law and that the trial court abused its discretion in imposing it because the trial court

“made the same findings on the record which this Court found to be contrary” to Foster
Scioto App. No. 10CA3391                                                                    3


and “stated those findings as the basis for its imposition of maximum and consecutive

sentences * * *.” (Appellant’s Br. 6, 8). Adams also complains that the court found

consecutive sentences necessary “based upon [his] history of criminal conduct;

however, it is undisputed that [he] has absolutely no history of criminal conduct.”

(Appellant’s Br. 6). Contrary to Adams’ contention, the original resentencing entry made

no findings related to the imposition of maximum sentences that are improper under

Foster. However, the entry did contain the following statements related to the

imposition of consecutive sentences:

              Pursuant to Revised Code section 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 and to punish the
       defendant and consecutive sentences are not disproportionate to the
       seriousness of the defendant’s conduct and to the danger the defendant
       poses to the public. The Court also finds that the defendant’s history of
       criminal conduct demonstrates that consecutive sentences are necessary.

       {¶6}   The language used in the original resentencing entry implicated R.C.

2929.14(E)(4). The State’s brief implicitly acknowledged that reliance on this code

section would violate Foster and that there was no factual basis for the trial court’s

statement that Adams had a history of criminal conduct. However, the State claimed

that it prepared the resentencing entry, the trial court did not make the findings quoted

above at the resentencing hearing, and that the State included this language in the

entry by mistake. The State suggested that we again remand this matter to the trial

court to issue corrected nunc pro tunc entry.

       {¶7}   Our review of the resentencing hearing revealed the trial court explicitly

acknowledged we had remanded this matter after finding the court violated Foster “in

giving reasons for the sentences imposed * * *.” Our review also revealed the court did
Scioto App. No. 10CA3391                                                                                  4

not make any findings that ran contrary to Foster: The court did not state that

consecutive sentences were necessary to protect the public from future crime and to

punish Adams or that consecutive sentences were not disproportionate to the

seriousness of Adams’ conduct and to the danger he posed to the public. Moreover,

the court did not find that Adams had a history of criminal conduct which demonstrated

that consecutive sentences were necessary. Adams’ attorney brought up the issue of

his criminal past, complaining that when the court originally sentenced Adams it

incorrectly stated that he had a history of criminal activity. The State did not contradict

this assertion, and the court appeared to accept that it had made a mistake at the

original sentencing hearing, stating, “Okay so I cited a past of prior convictions which

are not current.” And when the court orally announced Adams’ new sentence, the court

did not relate its decision to Adams’ criminal history or lack thereof.

        {¶8}    Given the court’s explicit acknowledgement of the reason for the remand,

and the absence of any findings on the record at the resentencing hearing that violate

Foster, we agreed with the State that the original resentencing entry did not accurately

reflect the trial court’s actual decision. So, we remanded the matter to the trial court

again for the limited purpose of issuing a corrected sentencing entry that reflected the

findings the court actually made at the resentencing hearing.1 See App.R. 9(E); Crim.R.

36; State ex rel. Womack v. Marsh, 128 Ohio St.3d 303, 2011-Ohio-229, 943 N.E.2d

1010, at ¶13 (per curiam) (“Although trial courts generally lack authority to reconsider

their own valid final judgments in criminal cases, they retain continuing jurisdiction to

correct clerical errors in judgments by nunc pro tunc entry to reflect what the court


1
 We also remanded with instructions for the court to address other clerical errors in the entry unrelated to
Adams’ complaints on appeal.
Scioto App. No. 10CA3391                                                                     5


actually decided.”). Subsequently, the trial court issued a nunc pro tunc sentencing

entry that omitted the language Adams finds objectionable in his assignment of error.

That nunc pro tunc resentencing entry forms the final appealable order in this appeal.

                                     IV. Conclusion

       {¶9}   Because the nunc pro tunc resentencing entry does not contain any

language that is contrary to Foster or any reference to Adams’ criminal history, the trial

court properly complied with our original remand in Adams I and the law on sentencing.

Accordingly, we overrule the sole assignment of error and affirm the trial court’s

judgment.

                                                                 JUDGMENT AFFIRMED.
Scioto App. No. 10CA3391                                                                      6


                                    JUDGMENT ENTRY

         It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.

         The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Scioto
County Court of Common Pleas to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.

Abele, J. & Kline, J.: Concur in Judgment and Opinion.


                                            For the Court



                                            BY: ________________________
                                                William H. Harsha
                                                Presiding Judge




                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
