[Cite as State v. Rammel, 2013-Ohio-3045.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                 MONTGOMERY COUNTY

 STATE OF OHIO                                   :
                                                 :     Appellate Case Nos. 24871
          Plaintiff-Appellee                     :     Appellate Case Nos. 24872
                                                 :
 v.                                              :     Trial Court Nos. 11-CR-435
                                                 :     Trial Court Nos. 10-CR-3732
 MATTHEW RAMMEL                                  :
                                                 :     (Criminal Appeal from
          Defendant-Appellant                    :     (Common Pleas Court)
                                                 :
                                             ...........
                                             OPINION
                               Rendered on the 12th day of July, 2013.
                                             ...........

MATHIAS H. HECK, JR., by KIRSTEN A. BRANDT, Atty. Reg. #0070162, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box
972, 301 West Third Street, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

E. KELLY MIHOCIK, Atty. Reg. #0077745, Office of the Ohio Public Defender, 250 East Broad
Street, Suite 1400, Columbus, Ohio 43215
        Attorney for Defendant-Appellant

                                             .............

FAIN, P.J.

        {¶ 1}    Defendant-appellant Matthew Rammel appeals from his conviction and sentence

for Burglary, Receiving Stolen Property, and Breaking and Entering. Rammel contends that his
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sentence is contrary to law and void, because the trial court failed to sentence him pursuant to the

reduced penalties and required findings for consecutive sentences in 2011 Am.Sub.H.B. No. 86

(H.B. 86). Rammel further contends that he received ineffective assistance of trial counsel when

his counsel failed to ask the trial court to sentence Rammel pursuant to H.B. 86.

       {¶ 2}    We conclude that the trial court’s failure to apply H.B. 86 to Rammel resulted in

a sentence that is contrary to law and void. Accordingly, the sentencing portion of the judgment

of the trial court is Vacated, and the cause is Remanded for re-sentencing. The trial court’s

judgment of conviction is Affirmed.



                          I. Rammel Commits a Series of Burglaries

       {¶ 3}    In September and October 2010, Matthew Rammel burglarized two homes on

Croftshire Drive in Kettering. In early November, he burglarized two more Kettering homes on

Harwich Court. Later that month, Rammel burglarized one of the Croftshire Drive homes a

second time.

       {¶ 4}    The police recovered property that had been taken during the burglaries when

they executed search warrants at both Rammel’s home and the home of his girlfriend. After the

search of Rammel’s apartment, Kettering Police Detective Walker informed Rammel that he was

under arrest for Burglary and Receiving Stolen Property.

       {¶ 5}    Detective Walker later interviewed Rammel.             Detective Walker advised

Rammel of his Miranda rights, which Rammel waived. During the ensuing interview, Rammel

made several admissions to Detective Walker. After twenty or thirty minutes of questioning,

Rammel stated, “I don’t want to incriminate myself any more. I just want to remain silent.” The
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interview ended at that point.



                                 II. Course of the Proceedings

       {¶ 6}    In December 2010, Rammel was indicted on one count each of Burglary and

Receiving Stolen Property, under Montgomery County Case Number 10-CR-3732. In February

2011, Rammel was indicted under Montgomery County Case Number 11-CR-435 on ten counts

of Receiving Stolen Property and three counts of Burglary. Later that month, Rammel filed a

motion to suppress, which the trial court overruled following a hearing.

       {¶ 7}    In June 2011, Rammel filed a motion to sever the Burglary charges from the

Receiving Stolen Property charges. The State opposed Rammel’s motion and requested that all

of the counts under both case numbers be tried together. The trial court overruled Rammel’s

motion to sever and granted the State’s motion for joinder of the indictments.

       {¶ 8}    In August 2011, Rammel was charged under a “B” indictment in Case Number

11-CR-435 with an additional count of Burglary. Pursuant to a negotiated plea agreement,

Rammel pled no contest to all sixteen of the pending charges in both case numbers.            In

exchange, the State agreed to a sentence within the range of five to eight years. On the day of

sentencing, Rammel also pled no contest to a charge of Breaking and Entering, presented by way

of bill of information, with the understanding that his sentence would remain in the

five-to-eight-year range. The trial court sentenced Rammel to an aggregate term of eight years in

prison, which included five-year sentences on the Burglary counts and eighteen-month sentences

on the Receiving Stolen Property counts. The trial court ran the five-year Burglary sentences

concurrent with each other, but consecutive to the two eighteen-month Receiving Stolen Property
                                                                                                       4


sentences, which the trial court also ordered to be served consecutively to one another, resulting

in a total prison term of eight years.

        {¶ 9}    Rammel appealed, raising four assignments of error, challenging the trial court’s

decision to join, not sever, the offenses, the trial court’s denial of the motion to suppress, the trial

court’s imposition of consecutive sentences, and the trial court’s failure to consider the principles

of sentencing and recidivism. On August 17, 2012, we overruled all four assignments of error

and affirmed the judgment of the trial court. State v. Rammel, 2d Dist. Montgomery Nos. 24871,

24872, 2012-Ohio-3724.

        {¶ 10} Rammel filed an App.R. 26(B) application to re-open his direct appeal on a claim

of ineffective assistance of appellate counsel, contending that because the trial court did not apply

H.B. 86 when sentencing him, his sentence was not authorized by law. In particular, Rammel

challenged the maximum term that could be imposed for his third-degree felony Burglary

convictions and the trial court’s imposition of consecutive sentences without making the new

statutorily-required findings. We found that Rammel had demonstrated a genuine issue as to

whether he has a colorable claim of ineffective assistance of counsel on appeal. Consequently,

we granted Rammel’s application to re-open his direct appeal and confined the re-opened appeal

to the issue of the validity of Rammel’s sentence.



           III. The Sentences Imposed on Rammel Are Contrary to Law and Void

        {¶ 11} Rammel’s Second Assignment of Error states:

                THE TRIAL COURT’S FAILURE TO APPLY H.B. 86 TO MR.

        RAMMEL RESULTED IN SENTENCES THAT ARE CONTRARY TO LAW
                                                                                                    5


       AND ARE VOID.

                                 A. H.B. 86 Applies to Rammel

       {¶ 12} The General Assembly expressly provided in Section 4 of H.B. 86 that the

amendments to R.C. 2929.14(A) “apply to a person who commits an offense specified or

penalized under those sections on or after the effective date of this section and to a person to

whom division (B) of section 1.58 of the Revised Code makes the amendments applicable.”

R.C. 1.58(B) states that “[i]f the penalty, forfeiture, or punishment for any offense is reduced by a

reenactment or amendment of a statute, the penalty, forfeiture, or punishment, if not already

imposed, shall be imposed according to the statute as amended.”

       {¶ 13} Rammel committed his offenses prior to September 30, 2011, the effective date

of H.B. 86. Furthermore, Rammel’s sentencing hearing took place on September 29, 2011, prior

to the effective date of H.B. 86. However, the trial court did not journalize Rammel’s sentence

until October 17, 2011, after the effective date of H.B. 86. Consequently, the issue before us is

whether the date of the sentencing hearing or the date a sentence is journalized controls for the

purposes of determining whether H.B. 86 applies to a defendant.

       {¶ 14} The First District Court of Appeals recently addressed this identical issue in State

v. Jones, 1st Dist. Hamilton No. C-110603, 2012-Ohio-2075. The First District wrote, at ¶ 11:

               The record reflects that while the trial court held [defendant’s] sentencing

       hearing on September 22, 2011, it did not journalize its judgment entry until

       October 7, 2011. Although raised by neither [defendant’s] counsel nor the state,

       we note that Am.Sub.H.B. No. 86 was enacted on June 29, 2011, and became

       effective September 30, 2011. Because a trial court speaks only through its
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       docket and journal entries, [defendant] was not sentenced until the trial court’s

       sentencing entry had been journalized. See, e.g., State v. Miller, 127 Ohio St.407,

       2010-Ohio-5705, 940 N.E.2d 924, ¶ 12. Consequently, Am.Sub.H.B. No. 86 was

       in effect at the time [defendant] was sentenced.

       {¶ 15} We agree with the reasoning of the First District in Jones. A trial court speaks

only through its docket and journal entries, which in this case means a defendant’s punishment is

imposed on the date a sentencing court journalizes its sentencing entry, not the date on which the

sentencing court conducts a sentencing hearing and orally pronounces sentence. Consequently,

Rammel fits within the R.C. 1.58(B) exception provided in Section 4 of H.B. 86. While

Rammel committed the Burglary offense prior to the effective date of H.B. 86, he was not

sentenced until October 17, 2011, when the trial court journalized his sentence. Therefore, the

trial court should have sentenced Rammel pursuant to H.B. 86.



           B. Rammel’s Sentence Is Contrary to H.B. 86 and Is Therefore Void

       {¶ 16} H.B. 86, among other things, amended R.C. 2929.14(A) to reduce the maximum

prison sentence for certain third-degree felony offenses from five years to three years and

amended R.C. 2929.14(C) to require trial courts to make findings before imposing consecutive

sentences. Specifically, R.C. 2929.14(A)(3)(b) decreases the range of penalties for most felonies

of the third degree, including Burglary, to 9, 12, 18, 24, 30, or 36 months.                 R.C.

2929.14(A)(3)(a) maintains the maximum 60-month penalty for the following offenses:

aggravated vehicular homicide, aggravated vehicular assault, vehicular assault, sexual battery, or

unlawful sexual conduct with a minor, or robbery or burglary if the offender previously has been
                                                                                                7


convicted of or pleaded guilty in two or more separate proceedings to two or more

aggravated-robbery, robbery, aggravated-burglary, or burglary offenses.

       {¶ 17} Furthermore, after September 30, 2011, R.C. 2929.14(C)(4) provides:

              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.
                                                                                                 8


         {¶ 18} The parties agree that the trial court did not apply H.B. 86 to Rammel. We have

reviewed the sentencing transcript and sentencing entry and agree that the trial court applied the

pre-H.B. 86 penalties to Rammel. As a result of the trial court’s failure to apply H.B. 86,

Rammel was sentenced to five years in prison on his Burglary counts, despite the fact that the

maximum allowed under H.B. 86 is only three years, unless the trial court found that Rammel

previously has been convicted of or pleaded guilty in two or more separate proceedings to two or

more aggravated-robbery, robbery, aggravated-burglary, or burglary offenses.                 R.C.

2929.14(A)(3)(a). The court did not make that finding. Furthermore, the trial court failed to

make the required findings set forth in R.C. 2929.14(C)(4) before ordering Rammel to serve his

prison terms consecutively.

         {¶ 19} By not applying H.B. 86 to Rammel, the trial court imposed sentences on

Rammel that are contrary to law. Based on Ohio Supreme Court precedent, these unlawful

sentences are not merely voidable, but void.          State v. Billiter, 134 Ohio St.3d 103,

2012-Ohio-5144, 980 N.E.2d 960, ¶ 10, citing State v. Bezak, 114 Ohio St.3d 94,

2007-Ohio-3250, 868 N.E.2d 961, ¶ 12, and State v. Fischer, 128 Ohio St.3d 92,

2010-Ohio-6238, 942 N.E.2d 332, paragraph two of the syllabus. Therefore, Rammel is entitled

to a new sentencing hearing.          State v. Taylor, 2d Dist. Greene No. 2011-CA-67,

2013-Ohio-1074, ¶ 25, citing State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470,

¶ 105.

         {¶ 20} Rammel’s Second Assignment of Error is sustained.



                IV. Rammel’s First Assignment of Error Is Overruled as Moot
                                                                                          9


       {¶ 21} Rammel’s First Assignment of Error states:

       MR. RAMMEL’S ATTORNEY WAS INEFFECTIVE BECAUSE HE DID NOT

REQUEST THAT MR. RAMMEL BE SENTENCED UNDER H.B. 86.

       {¶ 22} Given our disposition of Rammel’s Second Assignment of Error, this assignment

of error is moot.    App.R. 12(A)(1)(c).   Therefore, Rammel’s First Assignment of Error is

overruled as moot.



                                        V. Conclusion

       {¶ 23} Rammel’s Second Assignment of Error having been sustained, that part of the

trial court’s judgment imposing sentence is Reversed; the judgment is Affirmed in all other

respects; and this cause is Remanded for a new sentencing hearing.

                                        .............

DONOVAN and HALL, JJ., concur.



Copies mailed to:

Mathias H. Heck
Kirsten A. Brandt
E. Kelly Mihocik
Hon. Mary L. Wiseman
