[Cite as State v. Jones, 2019-Ohio-1126.]


                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                    :

                 Plaintiff-Appellee,              :
                                                             No. 107277
                 v.                               :

MICHAEL D. JONES,                                 :

                 Defendant-Appellant.             :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED AND REMANDED
                 RELEASED AND JOURNALIZED: March 28, 2019


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-15-598760-A


                                            Appearances:

                 Thomas A. Rein, for appellant.

                 Michael C. O’Malley, Prosecuting Attorney, and Mary M.
                 Frey, Assistant Prosecuting Attorney, for appellee.



MARY J. BOYLE, J.:

                   Defendant-appellant, Michael Jones, appeals his sentence. He raises

one assignment of error for our review:
      The trial court erred by ordering appellant to serve a consecutive
      sentence without making the appropriate findings required by
      R.C. 2929.14 and HB 86.

                 We find that Jones’s assignment of error is moot to the extent that it

challenges the consecutive nature of his sentence because he has already served his

sentence. We remand, however, for the limited purposes of correcting the trial

court’s sentencing journal entry to incorporate the consecutive-sentence findings

that it made at the sentencing hearing as well as the trial court’s May 25, 2017 and

May 15, 2018 judgment entries to reflect that Jones’s burglary conviction is a third-

degree felony under R.C. 2911.12(A)(3), not a second-degree felony under R.C.

2911.12(A)(2).

I. Procedural History and Factual Background

                 On September 2, 2015, the Cuyahoga County Grand Jury indicted

Jones for one count of burglary in violation of R.C. 2911.12(A)(2) with a notice of

prior conviction and a repeat violent offender specification and one count of grand

theft in violation of R.C. 2913.02(A)(1). Jones pleaded not guilty, and the case

proceeded to a bench trial in March 2016.

                 The court found Jones guilty of all counts and included specifications.

The trial court found that Jones’s convictions merged and the state elected to

proceed on the burglary conviction. The trial court sentenced Jones to seven years

and ordered that the sentence run consecutively to Jones’s 18-month sentence in

Cuyahoga C.P. No. CR-15-592895, giving Jones an aggregate prison term of eight

years and six months.
                Jones appealed his convictions and sentence in State v. Jones, 8th

Dist. Cuyahoga No. 104233, 2017-Ohio-288.               We found the state presented

sufficient evidence to convict Jones of a lesser included offense of burglary under

R.C. 2911.12(A)(3), but not (A)(2). Id. at ¶ 25-26. We also found that his convictions

were not against the manifest weight of the evidence. Id. at ¶ 33. Additionally, we

found the trial court properly imposed consecutive sentences. Id. at ¶ 40. As a

result, we remanded the case “with instructions for the trial court to modify the

judgment of conviction to find Jones guilty of burglary under R.C. 2911.12(A)(3) and

to resentence him accordingly,” after it changed Jones’s conviction to a felony of the

third degree.1 Id. at ¶ 36.

                On remand, the trial court again found that Jones’s convictions

merged, but imposed a 36-month prison sentence for Jones’s conviction for grand

theft instead of his burglary conviction, even though the state elected to proceed to

sentencing on his burglary conviction. The trial court ordered that Jones’s 36-

month term run consecutive to his sentence in Case No. CR-15-592895, giving him

an aggregate 48-month prison term.




       1 At oral argument, the state and Jones agreed that the trial court’s judgment entries
failed to list Jones’s burglary conviction as a felony of the third degree under R.C.
2911.12(A)(3) as we instructed on remand. The trial court’s May 25, 2017 and May 15, 2018
judgment entries still list Jones’s burglary conviction under Count 1 as a felony of the
second degree under R.C. 2911.12(A)(2), which is incorrect. Both parties agree that this
clerical error should be corrected via a nunc pro tunc entry.
               Jones again appealed his sentence. That appeal was voluntarily

dismissed by both parties in November 2017. According to the entry, the parties

agreed that the “trial court imposed the incorrect sentence in CR 15-598760” and

“that the trial court must resentence [Jones] on the correct counts.”

               Upon return to the trial court, the trial court found Jones’s

convictions merged, and the state elected to proceed on his burglary conviction. The

trial court imposed a 36-month prison term, which was to run consecutive to Jones’s

12-month sentence in CR-15-592895, giving Jones an aggregate prison term of 48

months. The trial court also advised Jones that he was subject to a mandatory three-

year period of postrelease control. At the hearing, the trial court stated,

      The Court finds that pursuant to Ohio Revised Code section
      2929.14(C)(4) that the defendant is required to serve these prison
      terms consecutively because the consecutive service is necessary to
      protect the public from future crime 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. Furthermore, this
      sentence is necessary because the offenses in case number 598760
      were committed while the defendant was on probation to this Court
      in case number 592895.

In its journal entry, the trial court did not include the above findings regarding

consecutive sentences.

               It is from this judgment that Jones now appeals.

II. Law and Analysis

               In his sole assignment of error, Jones argues that the trial court failed

to make the proper findings before imposing consecutive sentences as is required

under R.C. 2929.14 and H.B. 86. Specifically, Jones argues that while “the trial court
made findings at the sentencing hearings[,]” it “did not incorporate those [findings]

in the sentencing journal entry.” He also argues that his sentences should be served

concurrently.

                In response, the state “concedes that the trial court did not

incorporate * * * [its consecutive-sentence] findings[,]” but argues that we should

affirm the trial court’s imposition of consecutive sentences and remand this case “to

the trial court for a nunc pro tunc entry that would memorialize the requisite

findings made during the re-sentencing hearing[.]”

                Foremost, a review of the record shows that Jones completed the

sentence underlying his appeal. The trial court granted Jones’s motion for 90 days

of jail-time credit on January 2, 2019, and Jones was released on February 4, 2019.

                “‘If an individual has already served his sentence, there is no collateral

disability of loss of civil rights that can be remedied by a modification of the length

of that sentence in the absence of a reversal of the underlying conviction.’” State v.

Paige, 8th Dist. Cuyahoga No. 88885, 2007-Ohio-3925, ¶ 6, quoting State v.

Beamon, 11th Dist. Lake No. 2000-L-160, 2001 Ohio App. LEXIS 5655 (Dec. 14,

2001). However, “[a]n appeal challenging a felony conviction is not moot even if the

entire sentence has been served before the appeal is heard, because ‘a person

convicted of a felony has a substantial stake in the judgment of conviction which

survives the satisfaction of the judgment imposed upon him or her.’” State v.

Gruttadauria, 8th Dist. Cuyahoga No. 90384, 2008-Ohio-3152, ¶ 6, quoting State

v. Golston, 71 Ohio St.3d 224, 643 N.E.2d 109 (1994).
                Therefore, Jones’s argument that his sentences should be concurrent

instead of consecutive is moot.

                Nevertheless, we can still address his assignment of error to the extent

that it challenges the trial court’s failure to incorporate its findings supporting

consecutive sentences under R.C. 2929.14(C)(4) in its judgment entry.

                A trial court is required to make the statutory findings required for

consecutive sentences at the sentencing hearing and also incorporate its findings

into its sentencing entry. Bonnell at syllabus. The Ohio Supreme Court has stated,

however, that

       [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.

Id. at ¶ 30.

                We note that the trial court inadvertently erred by failing to

incorporate its findings under R.C. 2929.14(C)(4). We also note that the trial court’s

May 25, 2017 and May 15, 2018 judgment entries are incorrect because they reflect

that Jones’s burglary conviction is a second-degree felony under R.C. 2911.12(A)(2),

instead of a third-degree felony under R.C. 2911.12(A)(3).

                Based on the above, we find that the trial court’s inadvertent failure

to include the statutory findings it made during the resentencing hearing does not

render Jones’s sentence contrary to law. Therefore, we remand the matter to the
trial court for the limited purpose of issuing a nunc pro tunc sentencing entry

incorporating the court’s R.C. 2929.14(C)(4) findings as well as correcting the trial

court’s May 25, 2017 and May 15, 2018 judgment entries to reflect that Jones’s

burglary conviction is a third-degree felony under R.C. 2911.12(A)(3), not a second-

degree felony under R.C. 2911.12(A)(2).

              Judgment affirmed and remanded to the lower court for further

proceedings consistent with this opinion.

      It is ordered that appellee recover from appellant the costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.



MARY J. BOYLE, JUDGE

MARY EILEEN KILBANE, A.J., and
LARRY A. JONES, SR., J., CONCUR
