[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
