[Cite as State v. Bennett, 2018-Ohio-3935.]


STATE OF OHIO                     )                 IN THE COURT OF APPEALS
                                  )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                       C.A. Nos.     28842
                                                                  28843
        Appellee

        v.
                                                    APPEAL FROM JUDGMENT
ERNEST BENNETT                                      ENTERED IN THE
                                                    COURT OF COMMON PLEAS
        Appellant                                   COUNTY OF SUMMIT, OHIO
                                                    CASE Nos. CR 2015-11-3672
                                                               CR-2017-02-0513

                                  DECISION AND JOURNAL ENTRY

Dated: September 28, 2018



        CARR, Judge.

        {¶1}     Defendant-Appellant Ernest Bennett appeals from the judgments of the Summit

County Court of Common Pleas. This Court affirms but remands for the issuance of a nunc pro

tunc entry in the 2015 case.

                                               I.

        {¶2}     In December 2015, an indictment was filed charging Bennett with possession of

heroin, a first degree felony, illegal use or possession of drug paraphernalia, a misdemeanor of

the fourth degree, trafficking in heroin, a first degree felony, and driving under suspension, a

misdemeanor of the first degree. A forfeiture specification accompanied the possession and

trafficking in heroin counts.

        {¶3}     While Bennett was out on bond in the above case, in February 2017, an

indictment was filed charging Bennett with trafficking in heroin, a second degree felony,
                                                2


possession of heroin, a second degree felony, trafficking in cocaine, a third degree felony,

possession of cocaine, a third degree felony, illegal use or possession of drug paraphernalia, a

misdemeanor of the fourth degree, two counts of having weapons while under disability, felonies

of the third degree, and receiving stolen property, a felony of the fourth degree. The first four

counts included an accompanying forfeiture specification.

       {¶4}    The matters proceeded to a combined plea hearing at which Bennett pleaded

guilty to trafficking in heroin with the accompanying forfeiture specification in the 2015 case.

With respect to the 2017 case, he pleaded guilty to possession of heroin, one count of having

weapons while under disability, and possession of cocaine with the accompanying forfeiture

specification. The remaining counts and specifications in both cases were dismissed.

       {¶5}    At the combined sentencing hearing on the 2015 and 2017 cases, the trial court

sentenced Bennett to an aggregate term of 16 years in prison; the trial court sentenced him to a

total of 9 years in the 2015 case and 7 years in the 2017 case and ordered the total sentences in

the two cases to run consecutively to each other. The trial court thereafter filed a nunc pro tunc

entry in the 2015 case, clarifying that the sentence for trafficking in heroin was a mandatory

sentence. Bennett then filed appeals in both cases, which were subsequently consolidated.

       {¶6}    Bennet has raised two assignments of error for our review.

                                               II.

                                ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. BENNETT BY
       IMPOSING ALMOST THE MAXIMUM SENTENCE [] AND IMPOSING
       CONSECUTIVE SENTENCES IN VIOLATION OF MR. BENNETT’S
       RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE
       UNITED STATES CONSTITUTION, AND ARTICLE I, SECTIONS 10 AND
       16 OF THE OHIO CONSTITUTION.
                                                  3


       {¶7}    Bennett argues in his first assignment of error that the trial court failed to comply

with R.C. 2929.14(C)(4) in imposing consecutive sentences in the two cases.

       {¶8}    “In reviewing a felony sentence, ‘[t]he appellate court’s standard for review is not

whether the sentencing court abused its discretion.’” State v. Tucker, 9th Dist. Lorain Nos.

16CA010963, 16CA010964, 2017-Ohio-4215, ¶ 8, quoting R.C. 2953.08(G)(2). “[A]n appellate

court may vacate or modify a felony sentence on appeal only if it determines by clear and

convincing evidence” that: (1) “the record does not support the trial court’s findings under

relevant statutes,” or (2) “the sentence is otherwise contrary to law.” State v. Marcum, 146 Ohio

St. 3d 516, 2016-Ohio-1002, ¶ 1. “Clear and convincing evidence is that ‘which will produce in

the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.’”

Tucker at ¶ 8, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the

syllabus.

       {¶9}    R.C. 2929.14(C)(4) provides that:

       If multiple prison terms are imposed on an offender for convictions of multiple
       offenses, the court may require the offender to serve the prison terms
       consecutively if the court finds that the consecutive service is necessary to protect
       the public from future crime or to punish the offender and that consecutive
       sentences are not disproportionate to the seriousness of the offender’s conduct and
       to the danger the offender poses to the public, and if the court also finds any of the
       following:

       (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 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.
                                                 4


       {¶10} “If a court does not make the factual findings required by Section 2929.14(C)(4),

prison terms are served concurrent to any others.” State v. Suggs, 9th Dist. Summit Nos. 27812,

27865, 27866, 2016-Ohio-5692, ¶ 20, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-

3177, ¶ 23. “When imposing consecutive sentences, a trial court must state the required findings

as part of the sentencing hearing[; h]owever, a word-for-word recitation of the language of the

statute is not required[.] [A]s long as the reviewing court can discern that the trial court engaged

in the correct analysis and can determine that the record contains evidence to support the

findings, consecutive sentences should be upheld.” (Internal quotations and citations omitted.)

State v. Blackert, 9th Dist. Summit Nos. 27314, 27315, 2015-Ohio-2248, ¶ 10.

       {¶11} “[T]he court should also incorporate its statutory findings into the sentencing

entry. 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; rather, such a clerical mistake may be corrected by the court through a nunc pro

tunc entry to reflect what actually occurred in open court.” (Internal citation and quotations

omitted.) State v. Kilmire, 9th Dist. Summit Nos. 27319, 27320, 2015-Ohio-665, ¶ 16, quoting

Bonnell at ¶ 29-30. Moreover, “although a trial court ‘is required to make the findings mandated

by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing

entry, * * * it has no obligation to state reasons to support its findings.’” State v. Williams, 9th

Dist. Medina No. 15CA0062-M, 2016-Ohio-6972, ¶ 5, quoting Bonnell at syllabus.

       {¶12} At the combined sentencing hearing on these two cases, the trial court found that

“consecutive sentences are necessary in this case to protect the public from future crime or to

punish the defendant, and that consecutive sentences are not disproportionate to the seriousness

of the crimes and the danger that the defendant poses to the public.” See R.C. 2929.14(C)(4). In
                                                 5


addition, the trial court found that, in light of “the Defendant’s history of criminal conduct, that

consecutive sentences are necessary to protect the public form future crimes by the defendant.”

R.C. 2929.14(C)(4)(c).     Accordingly, the trial court made the findings required by R.C.

2929.14(C)(4).

       {¶13} Additionally, with respect to the 2017 case, in the judgment entry, the trial court

ordered that “the sentences imposed in this case be served concurrently with each other but

consecutively to the sentence imposed in [the 2015 case]” and also incorporated the R.C.

2929.14(C)(4) findings into the entry. (Emphasis omitted.) However, with respect to the 2015

case, in the judgment entry, the trial court ordered that “the sentence imposed in this case be

served consecutively to the sentence imposed in [the 2017 case,]” but did not include the R.C.

2929.14(C)(4) findings it made at the sentencing hearing in the entry. (Emphasis omitted.)

       {¶14} In the past, in a similar case also involving two cases with a combined sentencing

hearing, this Court has concluded that, while the failure to include the findings in one of the

entries does not render the sentence contrary to law, it does require that the trial court issue a

nunc pro tunc entry in the case with the entry that does not contain the findings so that the trial

court can incorporate the findings into that entry. See Kilmire at ¶ 3, 18-19.

       {¶15} Bennett’s first assignment of error is overruled but the matter is remanded for the

trial court to issue a nunc pro tunc entry in the 2015 case to include the required findings in the

judgment entry. See Kilmire at ¶ 19, 21.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT’S IMPOSITION OF A 16-YEAR SENTENCE WAS
       DISPROPORTIONATE AND UNREASONABLE IN VIOLATION OF R.C.
       2929.11(B), EQUAL PROTECTION AND 8TH AMENDMENT TO THE
       UNITED STATES CONSTITUTION.
                                                6


       {¶16} Bennett argues in his second assignment of error that his aggregate 16 year prison

sentence was disproportionate and inconsistent with sentences imposed for similar crimes.

Bennett has not argued that his sentences were outside the permissible range or otherwise

challenged their validity.

       {¶17} In the instant matter, the trial court ordered a presentence investigation report,

which was frequently referenced during the sentencing hearing. Bennett requested that the

record be supplemented with a copy of the presentence investigation report, and this Court

granted the motion. In the order granting the motion, this Court informed Bennett that he could

“supplement the record by instructing the Probation Department to transmit the report to the

appellate clerk’s office under seal.” State v. Bennett, 9th Dist. Summit Nos. 28842, 28843

(February 28, 2018). It appears that Bennett failed to take the steps necessary to ensure the

presentence investigation report became part of the record, as the docket does not reflect that the

report was filed in these appeals. Thus, the presentence investigation report has not been made a

part of the record on appeal.

       {¶18} It is Bennett’s burden to ensure the record contains all matters necessary for the

Court to review the issues on appeal. State v. Yuschak, 9th Dist. Medina No. 15CA0055-M,

2016-Ohio-8507, ¶ 64. “This Court has consistently held that, where the appellant has failed to

provide a complete record to facilitate appellate review, this Court is compelled to presume

regularity in the proceedings below and affirm the trial court’s judgment.” (Internal quotations

and citation omitted.) Id. “In cases such as this where the [presentence investigation report] is

necessary to enable an appropriate review of the propriety of the sentence, [Bennett’s] failure to

ensure that the record includes the [report] requires a presumption of regularity in the sentencing
                                                 7


proceedings.” (Internal quotations and citation omitted.) Id. Bennett’s argument is overruled on

that basis.

        {¶19} Bennett’s second assignment of error is overruled.

                                                III.

        {¶20} Bennett’s assignments of error are overruled, but the matter is remanded for the

trial court to issue a nunc pro tunc entry in the 2015 case to incorporate the R.C. 2929.14(C)(4)

findings the trial court made at the sentencing hearing.

                                                                              Judgment affirmed,
                                                                             and cause remanded.




        There were reasonable grounds for this appeal.

        We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

        Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

        Costs taxed to Appellant.




                                                       DONNA J. CARR
                                                       FOR THE COURT
                                         8




SCHAFER, P. J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

DAVID G. LOMBARDI, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellee.
