[Cite as State v. Smith, 2018-Ohio-3875.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                     :

                 Plaintiff-Appellee,               :               No. 17AP-573
                                                                (C.P.C. No. 16CR-3767)
v.                                                 :
                                                              (REGULAR CALENDAR)
Deion M. Smith,                                    :

                 Defendant-Appellant.              :



                                            D E C I S I O N

                                   Rendered on September 25, 2018


                 On brief: Ron O'Brien, Prosecuting Attorney, and Michael P.
                 Walton, for appellee.

                 On brief: Timothy Young, Ohio Public Defender, and
                 Timothy B. Hackett, for appellant.

                  APPEAL from the Franklin County Court of Common Pleas

LUPER SCHUSTER, J.
        {¶ 1} Defendant-appellant, Deion M. Smith, appeals from a judgment of the
Franklin County Court of Common Pleas convicting him of having a weapon while under
disability and improper handling of a firearm in a motor vehicle. For the following reasons,
we affirm in part and reverse in part.
I. Facts and Procedural History
        {¶ 2} In February 2016, a complaint was filed in the Franklin County Court of
Common Pleas, Division of Domestic Relations, Juvenile Branch, alleging that Smith, then
17 years old, was a delinquent child for having a weapon while under disability, a violation
of R.C. 2923.13(A)(2), improper handling of a firearm in a motor vehicle, a violation of R.C.
2923.16(B), and receiving stolen property, a violation of R.C. 2913.51(A). On July 6, 2016,
No. 17AP-573                                                                                              2


and based on the stipulation that Smith was not amenable to the juvenile justice system,
jurisdiction of the matter was transferred to the Franklin County Court of Common Pleas,
General Division. Twelve days later, an indictment was filed charging Smith with having a
weapon while under disability, a violation of R.C. 2923.13 (Count 1), and improperly
handling of a firearm in a motor vehicle, a violation of R.C. 2923.16 (Count 2). In March
2017, Smith pleaded guilty to Counts 1 and 2 of the indictment.
          {¶ 3} At the May 2, 2017 sentencing hearing, the court indicated it was going to
impose a "ship and shock" sentence, and stated that if Smith has no problems in prison, he
would be transferred to the Franklin County Community Based Correctional Facility
("CBCF"). The trial court then indicated it was sentencing Smith to two years in prison as
to Count 1 and six months in prison as to Count 2. The court further stated it was imposing
those sentences consecutive to each other and consecutive to the two-year prison sentence
it was imposing in another case. However, the trial court's judgment entry imposes
sentences of three years in prison as to Count 1 and six months in prison as to Count 2, to
be served consecutively to each other. The entry makes no reference to shock incarceration,
the CBCF, or Smith's other criminal case.1 The trial court certified 209 days of jail-time
credit.
          {¶ 4} With leave of this court, Smith has filed a delayed appeal from the trial court's
judgment in case No. 16CR-3767.
II. Assignments of Error
          {¶ 5} Smith assigns the following errors for our review:
                 [1.] The Franklin County Court of Common Pleas erred when it
                 issued a journal entry that failed to accurately reflect the
                 sentence imposed at Deion Smith's sentencing hearing, in
                 violation of the Fifth and Fourteenth Amendments to the U.S.
                 Constitution; and, Article I, Section 16 of the Ohio Constitution.

                 [2.] The trial court erred when it granted Deion only 209 days
                 of jail-time credit, in violation of his right to equal protection as
                 guaranteed by the Fifth and Fourteenth Amendments to the
                 U.S. Constitution; and, Article I, Section 16 of the Ohio
                 Constitution.

1In Franklin C.P. No. 16CR-6373, which is not on appeal, the trial court's sentencing entry states the two-
year prison sentence in that case is to be served consecutive to the sentence imposed in case No. 16CR-3767.
No. 17AP-573                                                                                 3


               [3.] The trial court erred when it convicted Deion of having a
               weapon while under disability, where the disability was
               predicated only on a prior juvenile adjudication, in violation of
               State v. Hand, 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d
               448; State v. Bode, 144 Ohio St.3d 155, 2015-Ohio-1519, 41
               N.E.3d 1156; Fourteenth Amendment to the U.S. Constitution;
               and, Article I, Section 16 of the Ohio Constitution.

               [4.] Deion Smith was denied the effective assistance of counsel,
               in violation of the Sixth and Fourteenth Amendments to the
               U.S. Constitution; and, Article I, Section 10 of the Ohio
               Constitution.

III. Discussion
       {¶ 6} In his first assignment of error, Smith asserts the trial court erred in issuing
a journal entry that did not accurately reflect the sentence imposed at his sentencing
hearing. The state concedes the error.
       {¶ 7} It is axiomatic that a court speaks through its journal entries. State v. Miller,
127 Ohio St.3d 407, 2010-Ohio-5705, ¶ 12; see Scheidler v. Ohio Bur. of Workers' Comp.,
10th Dist. No. 04AP-584, 2005-Ohio-105, ¶ 12, citing Schenley v. Kauth, 160 Ohio St. 109
(1953) ("It is a basic tenet that a court speaks only through its journal entry and not by oral
pronouncement or mere written minute or memorandum."). Further, Crim.R. 43(A)
provides that "the defendant must be physically present at every stage of the criminal
proceeding and trial, including * * * the imposition of sentence."           Consequently, a
substantive discrepancy between the sentence imposed at a sentencing hearing and the
sentence reflected in a sentencing entry requires a new sentencing hearing. State v. Small,
10th Dist. No. 14AP-659, 2015-Ohio-3640, ¶ 44; see State v. Jordan, 10th Dist. No. 05AP-
1330, 2006-Ohio-5208, ¶ 47-49 ("[A] trial court errs when it issues a judgment entry that
imposes a sentence that differs from the sentence the trial court announced at a sentencing
hearing in the defendant's presence. * * * Such error requires a remand for resentencing.").
       {¶ 8} Here, the trial court, at the sentencing hearing, indicated it was imposing an
aggregate prison term of two years and six months for Smith's two convictions. However,
the trial court's judgment entry imposed an aggregate prison term of three years and six
No. 17AP-573                                                                                                   4


months for those convictions. In view of this variance, this matter must be remanded for
resentencing.2
        {¶ 9} Accordingly, we sustain Smith's first assignment of error.
        {¶ 10} Smith's second assignment of error alleges the trial court did not certify the
correct number of days of jail-time credit. He argues the trial court erroneously failed to
award him credit for the time he spent at a juvenile detention facility in connection with the
charges in this matter. Thus, he asserts he is entitled to jail-time credit for the time he spent
at the juvenile detention facility, in addition to his time confined at the county jail. The
state concedes the error, and the record supports Smith's position on this issue.
        {¶ 11} Therefore, we sustain Smith's second assignment of error.
        {¶ 12} In his third assignment of error, Smith asserts the trial court erred in
convicting him of having a weapon while under disability. Smith argues this conviction
violated his constitutional due process rights because it was improperly based on a prior
juvenile adjudication.
        {¶ 13} Smith was convicted of violating R.C. 2923.13(A)(2), which provides, in
relevant part, that "[u]nless relieved from disability under operation of law or legal process,
no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance,
if * * * [t]he person is under indictment for or has been convicted of any felony offense of
violence or has been adjudicated a delinquent child for the commission of an offense that,
if committed by an adult, would have been a felony offense of violence." By its plain terms,
this statute requires either a prior juvenile adjudication of delinquency or a prior
conviction. Smith's weapon under disability conviction was based on his prior juvenile
adjudication of delinquency for his commission of a robbery. According to Smith, this was
unlawful. But the Supreme Court of Ohio recently addressed the issue presented by Smith's
argument. In State v. Carnes, __ Ohio St.3d __, 2018-Ohio-3256, ¶ 1, the court held that
due process is not violated when a prior juvenile adjudication of delinquency is an element


2 We note that Smith also asserts the sentencing entry improperly omits any reference to his possible early
release from prison, even though the trial court, at the sentencing hearing, indicated he would be considered
for release after a short period of "ship and shock" incarceration. Although unclear, the "ship and shock"
reference appears to have been a reference to the trial court's intention to grant judicial release in the future
pursuant to R.C. 2929.20(B). However, this reference was not part of Smith's actual sentence, and thus its
omission from the sentencing entry does not reflect an inconsistent sentence.
No. 17AP-573                                                                                5


of the offense of having a weapon while under disability as set forth in R.C. 2923.13(A)(2).
Id. at ¶ 1, 21. In view of the holding in Carnes, we find Smith's argument that his weapon
under disability conviction was unlawful because it was based on his juvenile adjudication
has no merit.
       {¶ 14} Accordingly, Smith's third assignment of error is overruled.
       {¶ 15} Smith's fourth assignment of error alleges he was denied effective assistance
of trial counsel. In order to prevail on a claim of ineffective assistance of counsel, Smith
must satisfy a two-prong test. First, he must demonstrate that his counsel's performance
was deficient. Strickland v. Washington, 466 U.S. 668, 687 (1984). This first prong
requires Smith to show that his counsel committed errors which were "so serious that
counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment." Id. If Smith can so demonstrate, he must then establish that he was
prejudiced by the deficient performance. Id. To show prejudice, Smith must establish there
is a reasonable probability that, but for his counsel's errors, the result of the trial would
have been different. A "reasonable probability" is one sufficient to undermine confidence
in the outcome of the trial. Id. at 694. In considering claims of ineffective assistance of
counsel, courts indulge in a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance. State v. Conway, 109 Ohio St.3d 412, 2006-
Ohio-2815, ¶ 101.
       {¶ 16} Here, Smith asserts his counsel was ineffective for failing to object to his
sentence because the aggregate sentence imposed in the judgment entry was greater than
that indicated during the sentencing hearing, for not objecting to the trial court's jail-time
credit calculation, and for not challenging his weapon under disability conviction on the
basis that his prior juvenile adjudication of delinquency was an element of the offense.
Regarding the jail-time credit issue and the variance between the aggregate sentence
imposed in the sentencing entry and the aggregate sentence pronounced at the sentencing
hearing, those issues are moot based on our disposition of Smith's first and second
assignments of error. Additionally, we reject Smith's ineffective assistance argument
premised on his counsel's decision not to challenge his weapon under disability conviction.
Considering the Supreme Court's decision in Carnes and our resolution of Smith's third
No. 17AP-573                                                                              6


assignment of error, any challenge to his conviction on this basis would have been
unavailing. Thus, Smith's trial counsel was not ineffective for not raising the issue.
       {¶ 17} For these reasons, Smith's fourth assignment of error is overruled in part and
rendered moot in part.
IV. Disposition
       {¶ 18} Based on the foregoing, Smith's first and second assignments of error are
sustained, his third assignment of error is overruled, and his fourth assignment of error is
overruled in part and rendered moot in part. The judgment of the Franklin County Court
of Common Pleas is affirmed in part and reversed in part, and this matter is remanded to
that court for further proceedings consistent with law and this decision.
                                          Judgment affirmed in part and reversed in part;
                                                                        cause remanded.

                               DORRIAN, J., concurs.
                          HORTON, J., concurs in judgment only.
