[Cite as State v. Montgomery, 2015-Ohio-3255.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


State of Ohio,                                   :

                 Plaintiff-Appellee,             :                No. 14AP-1057
                                                              (C.P.C. No. 12CR-6125)
v.                                               :
                                                            (REGULAR CALENDAR)
Albert L. Montgomery,                            :

                 Defendant-Appellant.            :



                                          D E C I S I O N

                                    Rendered on August 13, 2015


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

                 Yeura R. Venters, Public Defender, and Timothy E. Pierce,
                 for appellant.

                  APPEAL from the Franklin County Court of Common Pleas

LUPER SCHUSTER, J.
        {¶ 1} Defendant-appellant, Albert L. Montgomery, appeals from a judgment of
the Franklin County Court of Common Pleas sentencing him to an aggregate prison term
of 16 years for his convictions for trafficking in cocaine and illegal manufacture of drugs.
For the following reasons, we affirm and remand with instructions.
I. Facts and Procedural History
        {¶ 2} In December 2012, Montgomery was indicted on three counts of trafficking
in cocaine, in violation of R.C. 2925.03 (Counts 1, 3, and 4), and one count of illegal
manufacture of drugs, in violation of R.C. 2925.04 (Count 2). Counts 2 and 4 of the
indictment each contained a school enhancement specification, namely that Montgomery
committed the offense in the vicinity of a school, as defined under R.C. 2925.01.
No. 14AP-1057                                                                             2


Montgomery waived his right to a jury trial, and the case was tried to the court in April
2013. Following the presentation of evidence, the trial court found Montgomery guilty on
all four counts. On May 24, 2013, the trial court held a sentencing hearing. At the May
2013 sentencing hearing, the trial court indicated it was merging Counts 3 and 4 for the
purpose of sentencing, and the plaintiff-appellee, State of Ohio, indicated its election to
have Montgomery sentenced on Count 4. By entry filed May 28, 2013, the trial court
imposed a sentence of 8 years incarceration each on Counts 1, 2, and 4, with Counts 1 and
2 to be served concurrent to each other, and consecutive to Count 4.
       {¶ 3} Montgomery appealed, challenging his convictions and sentences on
various grounds. On September 30, 2014, this court issued a decision, affirming in part,
and reversing in part, the judgment of the trial court. See State v. Montgomery, 10th
Dist. No. 13AP-512, 2014-Ohio-4354. This court overruled Montgomery's assignments of
error challenging his convictions, but sustained in part his assignment of error
challenging his sentences. Id. at ¶ 68. This court found the trial court failed to make the
requisite findings under R.C. 2929.14(C)(4) prior to imposing consecutive sentences. Id.
at ¶ 65-67. Consequently, this court remanded the matter for resentencing. Id. at ¶ 67.
       {¶ 4} On November 21, 2014, the trial court held a resentencing hearing. By
judgment entry filed November 24, 2014, the trial court again imposed the following
sentences: 8 years incarceration each on Counts 1, 2, and 4, with Counts 1 and 2 to be
served concurrent to each other, and consecutive to Count 4.
       {¶ 5} Montgomery timely appeals.
II. Assignments of Error
       {¶ 6} Montgomery assigns the following errors for our review:
              [1.] The trial court's failure to order the State to designate at
              the November 21, 2014 hearing which of the two merged
              offenses it wished Appellant to be punished while indicating
              otherwise in its Judgment Entry constituted plain error and
              violated Crim. R. 43 and Appellant's right to due process of
              law memorialized in the Fifth and Fourteenth Amendments of
              the United States Constitution and Article I, Sections 1 and 16
              of the Ohio Constitution.

              [2.] Because the record does not support the lower court's
              consecutive sentence findings under R.C. 2929.14(C)(4) its
No. 14AP-1057                                                                            3


             imposition of consecutive punishment was contrary to law.
             These actions violated R.C. 2953.08(G)(2) and the due
             process clauses of the Fifth and Fourteenth Amendments of
             the United States Constitution and Article I, Sections 1 and 16
             of the Ohio Constitution.

             [3.] The Appellant's sentence is contrary to law because the
             trial court improperly employed the "sentencing package
             doctrine" in violation of the Fifth and Fourteenth
             Amendments of the United States Constitution and Article I,
             Sections 1 and 16 of the Ohio Constitution and R.C.
             2953.08(A)(4).

III. Discussion
      A. First Assignment of Error – State's Sentencing Election Regarding
         Merged Offenses (Counts 3 and 4)

      {¶ 7} Montgomery's first assignment of error alleges the trial court erred in
sentencing him on Count 4 without receiving direction from the state at the November
2014 resentencing hearing as to whether the state elected the court to impose a sentence
on Count 3 or 4. Montgomery further asserts the November 24, 2014 judgment entry
incorrectly indicates the state had elected sentencing on Count 4.             According to
Montgomery, the trial court's notation on the November 24, 2014 judgment entry that the
state elected sentencing on Count 4 is different from what occurred at the sentencing
hearing.
      {¶ 8} Montgomery argues his counsel preserved this issue by objecting at the
sentencing hearing. At the sentencing hearing, Montgomery's counsel objected to the
sentences on the basis that the record does not support the length of the sentences or the
imposition of consecutive sentences. But Montgomery's counsel did not object to the trial
court sentencing Montgomery on Count 4 on the basis that the court did not obtain
direction from the state regarding the merged offenses.         Thus, Montgomery must
demonstrate the trial court's imposition of a sentence as to Count 4 constituted plain
error. See State v. Darazim, 10th Dist. No. 14AP-203, 2014-Ohio-5304, ¶ 33, citing State
v. Scott, 10th Dist. No. 05AP-1144, 2006-Ohio-4981, ¶ 19, 21.
      {¶ 9} An appellate court recognizes plain error with the utmost caution, under
exceptional circumstances, and only to prevent a miscarriage of justice. State v. Pilgrim,
No. 14AP-1057                                                                             4


184 Ohio App.3d 675, 2009-Ohio-5357, ¶ 58 (10th Dist.), citing State v. Diar, 120 Ohio
St.3d 460, 2008-Ohio-6266, ¶ 139. For an error to be a "plain error" under Crim.R.
52(B), it must satisfy three prongs: (1) there must be an error, meaning a deviation from a
legal rule, (2) the error must be "plain," meaning an "obvious" defect in the trial
proceedings, and (3) the error must have affected "substantial rights," meaning the error
must have affected the outcome of the trial. State v. Barnes, 94 Ohio St.3d 21, 27 (2002).
       {¶ 10} Montgomery cannot demonstrate the trial court erred in sentencing him on
Count 4. A defendant may be indicted and tried for allied offenses of similar import, but
may be sentenced on only one of the allied offenses. State v. Whitfield, 124 Ohio St.3d
319, 2010-Ohio-2, ¶ 17. The state chooses which of the allied offenses to pursue at
sentencing. Id. This election may be made prior to trial, after a verdict of guilty, or on a
remand to the trial court after an appeal. See id. at ¶ 21.
       {¶ 11} As set forth above, Montgomery was first sentenced in May 2013. At the
May 2013 sentencing hearing, the state indicated its understanding that Counts 3 and 4
should merge for the purpose of sentencing. The trial court agreed and let the state select
which of the two counts a sentence would be imposed upon, stating, "I believe the
prosecution gets to pick which count he would be sentenced on."            (May 24, 2013
Sentencing Proceedings, 3.) The state expressly elected to have Montgomery sentenced
on Count 4. Based on that election, the trial court imposed sentences on Counts 1, 2, and
4. Montgomery appealed the matter, arguing, inter alia, the sentences imposed were
contrary to law. See generally Montgomery. Because the trial court did not make the
requisite findings under R.C. 2929.14(C)(4) prior to imposing consecutive sentences, this
court reversed the trial court's judgment in part and remanded the matter for
resentencing. Id. at ¶ 68.
       {¶ 12} To begin the November 2014 resentencing hearing, the trial court provided
a brief procedural background to the matter and asked the state whether anything needed
to be corrected or added. The state replied, "Nothing from the original sentencing,
Judge." (Nov. 21, 2014 Sentencing Proceedings, 3.) Later during the hearing, regarding
the issue of the merger of offenses and which of the merged offenses would receive a
sentence, the trial court simply stated: "Counts Three and Four merge for purposes of
No. 14AP-1057                                                                                  5


sentencing. The Defendant will be sentenced on Count Four." (Nov. 21, 2014 Sentencing
Proceedings, 13.)
       {¶ 13} The trial court's November 24, 2014 judgment entry correctly indicates the
state made the election that Montgomery be sentenced on Count 4. Montgomery's first
assignment of error is based on the unsupported assumption that the state's election to
have him sentenced on Count 4 was no longer operative after this court remanded the
matter for resentencing. At the November 2014 resentencing hearing, the state did not
expressly state its election that Montgomery be sentenced on Count 4. However, the
state's continued election that Montgomery be sentenced on Count 4 was implicit based
on the statements made at the hearing. By indicating to the court that, from the state's
perspective, nothing from the original sentencing needed modified, the state did not alter
its earlier election that Montgomery be sentenced on Count 4. Considering the matter
was remanded for resentencing on the same offenses, and at the resentencing hearing the
state implicitly indicated that its earlier election remained in effect, it was unnecessary for
the state to expressly indicate its election again. Thus, the November 24, 2014 judgment
entry's notation that the state "elects sentencing on Count Four" was correct because the
state had already made the election before the original appeal, and on remand that
election was implicitly confirmed.
       {¶ 14} Accordingly, Montgomery's first assignment of error is overruled.
       B. Second Assignment of Error – Imposition of Consecutive Sentences
       {¶ 15} Montgomery's second assignment of error alleges the trial court erred in
imposing consecutive sentences because the record does not support the trial court's
findings under R.C. 2929.14(C)(4).         In support of his second assignment of error,
Montgomery      also   argues     the   trial   court   erred   because   its   findings   under
R.C. 2929.14(C)(4) are absent from the judgment entry and because those findings are not
connected to specific offenses.
       {¶ 16} Before imposing consecutive sentences, a court must make certain findings.
R.C. 2929.14(C) provides as follows:
              (4) 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
No. 14AP-1057                                                                              6


              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.

       {¶ 17} Thus, pursuant to R.C. 2929.14(C)(4), in order to impose consecutive terms
of imprisonment, a trial court is required to make at least three distinct findings: (1) that
consecutive sentences are necessary to protect the public from future crime or to punish
the offender, (2) 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 (3) that one
of the subsections (a), (b), or (c) applies. State v. Price, 10th Dist. No. 13AP-1088, 2014-
Ohio-4696, ¶ 31, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177.
       {¶ 18} A trial court seeking to impose consecutive sentences must make the
findings required by R.C. 2929.14(C)(4) at the sentencing hearing and also incorporate
such findings into its sentencing entry. Bonnell at ¶ 37. But the trial court need not state
reasons to support its findings, nor is the court "required to give a talismanic incantation
of the words of the statute, provided that the necessary findings can be found in the
record and are incorporated into the sentencing entry." Id. "[A] word-for-word recitation
of the language of the statute is not required," but where "the reviewing court can discern
that the trial court engaged in the correct analysis and can determine that the record
No. 14AP-1057                                                                             7


contains evidence to support the findings, consecutive sentences should be upheld." Id. at
¶ 29.
        {¶ 19} At the November 2014 resentencing hearing, the trial court reviewed and
discussed Montgomery's extensive criminal history, as reflected in the presentence
investigation report. Montgomery's criminal history includes convictions for assault,
attempted robbery, resisting arrest, receiving stolen property, possession of cocaine,
attempted burglary, and domestic violence. The trial court then made the following
statement:
              The findings concerning the consecutive sentence are as
              follows based upon everything that I have said earlier. The
              consecutive service is necessary to protect the public from
              future crime and to punish the offender. The consecutive
              sentences are not disproportionate to the seriousness of the
              offender's conduct and the danger that the offender poses to
              the public, and I specifically find subsection C, the offender's
              history of criminal conduct demonstrates that consecutive
              sentences are necessary to protect the public from future
              crime by the offender.

(Nov. 21, 2014 Sentencing Proceedings, 14-15.)
        {¶ 20} In this appeal, Montgomery does not allege the trial court did not make the
findings required by R.C. 2929.14(C)(4) at the sentencing hearing. Instead, Montgomery
alleges the record does not support the trial court's findings and the trial court failed to
incorporate those findings into the sentencing entry. According to Montgomery, the trial
court's failure to include in the judgment entry its findings under R.C. 2929.14(C)(4)
requires a remand of this matter for another resentencing.
        {¶ 21} Montgomery argues his acceptance of responsibility and expressions of
remorse at the resentencing hearing weigh against the trial court's imposition of
consecutive sentences and, thus, render the sentences not supported by the record and
contrary to law. At the resentencing hearing Montgomery stated, "I just want to apologize
for my actions." (Nov. 21, 2014 Sentencing Proceedings, 6.) Although Montgomery's
apparent acceptance of responsibility and remorse were pertinent to the trial court's
consideration of the appropriate sentences for the offenses, other factors supported the
trial court's finding that the consecutive sentences were necessary and appropriate. See
No. 14AP-1057                                                                               8


R.C. 2929.12(D)(5). Despite Montgomery's stated remorse, his extensive criminal history
is a factor that indicates he is likely to commit future crimes. See R.C. 2929.12(D)(2) (a
history of criminal convictions is a factor indicating the offender is likely to commit future
crimes). Furthermore, Montgomery committed two of the offenses in this matter in the
vicinity of a school, indicating the seriousness of his conduct and the harm he poses to the
public. Thus, the record supports the trial court's findings under R.C. 2929.14(C)(4).
       {¶ 22} As to the trial court making the necessary notations in its judgment entry,
the state concedes the trial court did not include its findings under R.C. 2929.14(C)(4) in
the judgment entry as required under Bonnell. But the state challenges Montgomery's
contention that the omission requires another resentencing.           The state argues the
omission only requires a limited remand for the trial court to correct the clerical mistake.
We agree with the state. Not journalizing the required R.C. 2929.14(C)(4) findings in the
judgment entry does not render consecutive sentences contrary to law when the trial court
makes those findings during the sentencing hearing. See Bonnell at ¶ 30 ("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."). However, because the trial court did not journalize its findings in its
judgment entry, this matter must be remanded. See id at ¶ 30. On remand, the trial court
must journalize its findings under R.C. 2929.14(C)(4) in a nunc pro tunc judgment entry
correcting the clerical error of omission. Id.; State v. Rivera, 10th Dist. No. 14AP-460,
2015-Ohio-1731, ¶ 6; and State v. Hillman, 10th Dist. No. 14AP-252, 2014-Ohio-5760,
¶ 71. Such an administrative correction does not necessitate a new sentencing hearing.
See Rivera at ¶ 6 (the journalization of a nunc pro tunc entry to reflect the
R.C. 2929.14(C)(4) findings that were previously made "does not require a new
sentencing hearing to be conducted.").
       {¶ 23} Lastly, Montgomery argues the trial court "failed to specify the offenses
worthy of consecutive punishment." (Montgomery Brief, 16.) According to Montgomery,
the trial court did not "link" its R.C. 2929.14(C)(4) findings to Count 4. (Montgomery
Brief, 17.) Montgomery does not develop or cite any authority for this argument and the
argument is unpersuasive. The imposition of consecutive sentences necessarily involves
more than one offense. Here, the trial court sentenced Montgomery on Counts 1, 2, and 4,
No. 14AP-1057                                                                              9


with Counts 1 and 2 to run concurrent to each other and consecutive to Count 4. As
discussed above, the trial court made the required findings at the resentencing hearing in
order to impose consecutive sentences. And there is no uncertainty that the trial court's
findings necessary to impose consecutive sentences were related to the offenses on which
it imposed consecutive sentences. Moreover, to the extent Montgomery argues the trial
court should have provided additional reasoning, we note that while R.C. 2929.14(C)(4)
requires a court to make certain findings before imposing consecutive sentences, it does
not require a court to provide reasons for imposing consecutive sentences. State v.
Vargas, 10th Dist. No. 14AP-515, 2014-Ohio-5250, ¶ 12. Thus, Montgomery's argument
that the trial court did not properly link the findings to the offenses is unpersuasive.
       {¶ 24} For these reasons, Montgomery's second assignment of error is overruled.
This matter must be remanded, however, for the trial court to file a nunc pro tunc entry to
correct the clerical mistake relating to its R.C. 2929.14(C)(4) findings.
       C. Third Assignment of Error – Sentencing Package Doctrine
       {¶ 25} Montgomery's third assignment of error alleges the trial court improperly
applied the "sentencing package doctrine."         Montgomery argues the trial court, at
resentencing, improperly structured a 16-year sentencing package to match the previously
imposed 16-year aggregate sentence. We disagree.
       {¶ 26} The "sentencing package doctrine" is a federal doctrine that requires a
sentencing court to consider the sanctions imposed on multiple offenses as the
components of a single, comprehensive sentencing plan. State v. Saxon, 109 Ohio St.3d
176, 2006-Ohio-1245, ¶ 5. Pursuant to this doctrine, an error within the sentencing
package as a whole, even if only on one of multiple offenses, may require modification or
vacation of the entire sentencing package due to the interdependency of the sentences for
each offense. Id. at ¶ 6, citing United States v. Clements, 86 F.3d 599, 600-01 (6th
Cir.1996). But this doctrine does not apply in Ohio courts. In Saxon, the Supreme Court
of Ohio expressly rejected application of the sentencing package doctrine to Ohio's
sentencing laws. See id. at paragraph two of the syllabus ("The sentencing-package
doctrine has no applicability to Ohio sentencing laws: the sentencing court may not
employ the doctrine when sentencing a defendant and appellate courts may not utilize the
doctrine when reviewing a sentence or sentences."). Thus, under Ohio law, a sentencing
No. 14AP-1057                                                                            10


court "lacks the authority to consider the offenses as a group and to impose only an
omnibus sentence for the group of offenses." Id. at ¶ 9.
       {¶ 27} Here, Montgomery contends the trial court formulated a comprehensive
sentencing plan and imposed the sentences on remand in conformity with that plan. In
support, Montgomery cites the following statement of the trial court at resentencing: "So
I felt that the sentence I imposed when you were here the last time was appropriate.
I still believe it to be appropriate." (Nov. 21, 2014 Sentencing Proceedings, 13.) According
to Montgomery, this statement reflected the trial court's "predisposition" to impose an
aggregate 16-year sentence. Contrary to Montgomery's contention, the trial court did not
apply the sentencing package doctrine. In the previous appeal, this court reversed and
remanded because the trial court did not make the necessary findings to support the
imposition of consecutive sentences. Montgomery at ¶ 67. This court did not, however,
alter the number or severity of offenses requiring sanctions on remand. On remand, the
trial court noted its view that the appropriate sentences, for the same offenses, had not
changed. The trial court's expression of that view did not demonstrate the application of
the sentencing package doctrine. Montgomery received the same sentences for the same
offenses. Therefore, the trial court did not improperly impose one or more sentences
pursuant to the sentencing package doctrine.
       {¶ 28} Accordingly, Montgomery's third assignment of error is overruled.
IV. Conclusion
       {¶ 29} Based on the foregoing, Montgomery's first, second, and third assignments
of error are overruled. However, this matter must be remanded for the trial court to
correct the clerical error regarding its R.C. 2929.14(C)(4) findings. Accordingly, the
judgment of the Franklin County Court of Common Pleas is affirmed, and this matter is
remanded to that court for the limited purpose of entering a nunc pro tunc entry
reflecting the R.C. 2929.14(C)(4) findings the court made during the resentencing
hearing.
                                                                       Judgment affirmed;
                                                           cause remanded with instructions.

                         BROWN, P.J., and HORTON, J., concur.
