State v. Williams

[Cite as State v. Williams, 

.]




                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                               ADAMS COUNTY

STATE OF OHIO,                 :
                               :
     Plaintiff-Appellee,       : Case No. 19CA1090
                               :
     vs.                       :
                               :
JESSE LEE WILLIAMS             : DECISION AND JUDGMENT
                               : ENTRY
    Defendant-Appellant.       :
_____________________________________________________________
                         APPEARANCES:

Brian T. Goldberg. Cincinnati, Ohio, for Appellant.

David Kelley, Adams County Prosecutor, and Kris D. Blanton, Assistant
Adams County Prosecutor, West Union, Ohio, for Appellee.
_____________________________________________________________

Smith, P.J.

        {¶1} Pursuant to a voluntary plea of guilty, Jesse Lee Williams was

convicted of involuntary manslaughter with a specification and tampering

with evidence. Williams now appeals the judgment entry of sentence of the

Court of Common Pleas, Adams County, dated February 22, 2019.

On appeal, Williams asserts that the trial court erred with regard to

imposition of a maximum consecutive prison sentence of seventeen years.

Upon review, we find no merit to Williams’ arguments. Accordingly, we

overrule the assignments of error and affirm the judgment of the trial court.
Adams App. No. 19CA1090                                                         2


                     FACTS AND PROCEDURAL HISTORY

      {¶2} Jesse Lee Williams, “Appellant,” pled guilty to one count of

involuntary manslaughter with specification, a violation of R.C. 2901.04(A)

and R.C. 2941.145, a felony of the first degree. The specification was for

his use of a firearm while committing the offense of involuntary

manslaughter. He also entered a guilty plea to one count of tampering with

evidence, a violation of R.C. 2921.12(A)(1), a felony of the third degree. On

February 22, 2019, he was sentenced to a maximum consecutive prison

sentence of seventeen years.

      {¶3} Appellant’s indictment and convictions stemmed from tragic

events which occurred in May 2018 at Appellant’s grandmother’s garage in

Peebles, Ohio. The underlying facts are limited and, as the trial court later

commented, a mystery. Appellant, age 20 at the time, killed his seventeen-

year-old friend, Bladyn Skaggs, by shooting him at close range with a Smith

& Wesson .38 special.

      {¶4} During the trial court proceedings, Appellant maintained that the

two were close friends who often discussed their emotional issues with each

other. Appellant explained to investigating officers that on the incident date,

Bladyn Skaggs came over to “hang out” after Skaggs got off work.

Appellant initially told responding officers that the two had been talking and
Adams App. No. 19CA1090                                                       3


“horseplaying.” Inexplicably, the victim committed suicide when Appellant

walked out of the garage to use the bathroom. Then, Appellant later

informed that the victim charged him with pruning shears and Appellant

accidentally shot him. The most Appellant would explain about the young

men’s discussion with each other that evening was that “I got involved in

somebody else’s relationship and it was taken the wrong way. He came to

confront me about that.”

      {¶5} The record indicates that much of the physical evidence at the

scene did not match Appellant’s version of the events. For example, the

victim’s car’s motor was running the entire time the young men were

together, a matter of possibly 2-6 hours. Skaggs’ car was pulled up in the

front yard in a peculiar manner, with the passenger door open, windshield

wipers and headlights running. The pruning shears Appellant claimed the

victim charged toward him with were found lying on a shelf with unbroken

cobwebs on the handles. In addition to the blood found on and around

Skaggs’ body, multiple abrasions were discovered on his forehead above

both eyes.

      {¶6} At sentencing, the trial court asked Appellant if he wanted to

“clear up exactly what happened” and Appellant declined. When he spoke

on his own behalf, Appellant stated: “The only thing I would like to say is
Adams App. No. 19CA1090                                                       4


that Bladyn was my best friend and I loved him like a brother. … I wish

none of it would ever have occurred. … I never purposely did this.” After

the trial court imposed sentence, Appellant timely appealed.

                           ASSIGNMENTS OF ERROR

      “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF
      APPELLANT BY IMPROPERLY SENTENCING HIM TO
      CONSECUTIVE PRISON TERMS.”

      “II. THE TRIAL COURT ERRED BY IMPOSING A
      MAXIMUM CONSECUTIVE PRISON SENTENCE THAT
      WAS NOT SUPPORTED BY THE RECORD.”

      “III. THE TRIAL COURT ERRED BY INCLUDING IN THE
      SENTENCING ENTRY THAT MR. WILLIAMS SHALL BE
      RESERVED FOR DENIAL FOR TRANSITIONAL
      CONTROL AND IPP.”

                           A. STANDARD OF REVIEW

      {¶7} R.C. 2953.08(G)(2) defines appellate review of felony sentences

and provides, in relevant part, as follows:

      The court hearing an appeal under division (A), (B), or (C) of

      this section shall review the record, including the findings

      underlying the sentence or modification given by the sentencing

      court.

      The appellate court may increase, reduce, or otherwise modify a

      sentence that is appealed under this section or may vacate the

      sentence and remand the matter to the sentencing court for
Adams App. No. 19CA1090                                                           5


       resentencing. The appellate court's standard for review is not

       whether the sentencing court abused its discretion. The

       appellate court may take any action authorized by this division

       if it clearly and convincingly finds either of the following:

          (a) That the record does not support the sentencing court's

              findings under division (B) or (D) of section 2929.13,

              division (B)(2)(e) or (C)(4) of section 2929.14, or

              division (I) of section 2929.20 of the Revised Code,

              whichever, if any, is relevant;

          (b) That the sentence is otherwise contrary to law.

State v. Pierce, 4th Dist. Pickaway No. 18CA4, 

.

       {¶8} “[A]n appellate court may vacate or modify a felony sentence on

appeal only if it determines by clear and convincing evidence that the record

does not support the trial court's findings under relevant statutes or that the

sentence is otherwise contrary to law.” 

, quoting, State

v. Marcum, 

, 2016–Ohio–1002, 

, 1. This

is a deferential standard. Id. at 23. Furthermore, “appellate courts may not

apply the abuse-of-discretion standard in sentencing-term challenges.” Id. at

10. Additionally, although R.C. 2953.08(G) does not mention R.C. 2929.11
Adams App. No. 19CA1090                                                         6


or 2929.12, the Supreme Court of Ohio has determined that the same

standard of review applies to findings made under those statutes. Id. at 23

(stating that “it is fully consistent for appellate courts to review those

sentences that are imposed solely after consideration of the factors in R.C.

2929.11 and 2929.12 under a standard that is equally deferential to the

sentencing court,” meaning that “an appellate court may vacate or modify

any sentence that is not clearly and convincingly contrary to law only if the

appellate court finds by clear and convincing evidence that the record does

not support the sentence”). “Clear and convincing evidence is that measure

or degree of proof which is more than a mere ‘preponderance of the

evidence,’ but not to the extent of such certainty as is required ‘beyond a

reasonable doubt’ in criminal cases, and which will produce in the mind of

the trier of facts a firm belief or conviction as to the facts sought to be

established.” Cross v. Ledford, 

, 

 (1954),

paragraph three of the syllabus; Id. at 22.

      {¶9} Further, as noted by the Eighth District Court of Appeals:

      It is important to understand that the “clear and convincing”

      standard applied in R.C. 2953.08(G)(2) is not discretionary.
Adams App. No. 19CA1090                                                  7


      In fact, R.C. 2953.08(G)(2) makes it clear that “[t]he appellate

      court's standard for review is not whether the sentencing court

      abused its discretion.” As a practical consideration, this

      means that appellate courts are prohibited from substituting

      their judgment for that of the trial judge.

      It is also important to understand that the clear and convincing

      standard used by R.C. 2953.08(G)(2) is written in the negative.

      It does not say that the trial judge must have clear and

      convincing evidence to support its findings. Instead, it

      is the court of appeals that must clearly and convincingly

      find that the record does not support the court's findings.

      In other words, the restriction is on the appellate court,

      not the trial judge. This is an extremely deferential standard

      of review.

, quoting State v. Venes, 8th Dist. Cuyahoga No.

98682, 2013–Ohio–1891, 

, 20-21.

                       B. LEGAL ANALYSIS

      1. Consecutive Sentence

      {¶10} Appellant argues that the trial court could not impose
Adams App. No. 19CA1090                                                        8


consecutive sentences in this matter because the court did not make

the appropriate findings in the sentencing entries as required.

Appellant acknowledges that the trial court did make the consecutive

sentence findings in open court and on the record. However, because

the sentencing entry is deficient, Appellant concludes the court should

order that his involuntary manslaughter sentence be served concurrent

to his tampering with evidence sentence or, in the alternative, the

matter should be remanded to the trial court for a new sentencing

hearing. Appellee concedes that the trial court made the findings on

the record but did not set forth the findings in the judgment entry of

sentence, but asserts that this court should direct the trial court to issue

a nunc pro tunc entry to adequately resolve the deficiency.

      {¶11} Under R.C. 2929.14(C)(4), a trial court must engage

in a three-step analysis and make certain findings before it may impose

consecutive sentences. State v. Robinson, 4th Dist. Meigs No. 18CA10 &

18CA11, 

, at ¶ 33; State v. Blanton, 4th Dist. Adams No.

16CA1031, 

, at ¶ 96; State v. Bever, 4th Dist. Washington

No. 13CA21, 

; State v. Clay, 4th Dist. Lawrence No.

11CA23, 

. In particular, a trial court must find that

(1) consecutive sentences are necessary to protect the public from future
Adams App. No. 19CA1090                                                        9


crime or to punish the offender; (2) the 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) the harm caused by two or

more multiple offenses is so great or unusual that no single prison term for

any of the offenses committed adequately reflects the seriousness of the

offender's conduct. R.C. 2929.14(C)(4). A trial court is required to make the

findings mandated by R.C. 2929.14(C)(4), but is not required to recite “a

word-for-word recitation of the language of the statute ….” State v.

Bonnell, 

, 

, 

, syllabus. Id.

at ¶ 29. “[A]s long as the reviewing court can discern that the trial court

engaged in the correct analysis and can determine that the record contains

evidence to support the findings, consecutive sentences should be upheld.”

Id. A failure to make the R.C. 2929.14(C)(4) findings renders a consecutive

sentence contrary to law. Id. at ¶ 37; Blanton at ¶ 96; Bever at ¶ 17. Also,

the findings must be separate and distinct, in addition to any findings that

relate to the purposes and goals of criminal sentencing. Blanton, supra;

.

      {¶12} Because a court speaks through its journal, State v. Brooks, 

, 

, 

, at ¶ 47, the court

should also incorporate its statutory findings in the sentencing entry. State v.
Adams App. No. 19CA1090                                                       10

, 

; State v Hart, 4th

Dist. Athens No. 13CA8, 

. The findings required

by the statute must be separate and distinct findings; in addition to any

findings relating to the purposes and goals of criminal sentencing. 

; State v. Nia, 8th Dist. Cuyahoga No. 99387, 

.

       {¶13} In this case, the trial court not only made the required findings,

but also fully explained the reasons in open court as it imposed the

consecutive sentence. These specific findings will be more fully discussed

below. However, given that the trial court made all of the necessary findings

on the record before imposing consecutive sentences, we view the failure to

incorporate the statutory findings into the sentencing entry as a simple

clerical mistake. In State v Moore, 4th Dist. Adams No. 18CA1070, 2019-

Ohio-1467, we observed at ¶ 20, “[S]uch a clerical mistake may be corrected

by the court through a nunc pro tunc entry to reflect what actually occurred

in open court.” 

, 

.

       {¶14} Based on the foregoing, it appears that we need not vacate nor

remand the trial court’s judgment. We hereby overrule Appellant’s first

assignment of error, and the judgment of the trial court is affirmed.

However, pursuant to App.R. 9(E), we instruct the trial court to issue a nunc
Adams App. No. 19CA1090                                                      11


pro tunc sentencing entry that includes the required findings so as to

accurately reflect the sentence imposed on the record during the sentencing

hearing. State v. Scoggins, 4th Dist. Scioto No. 16CA3767, 2018-Ohio-

8989, at ¶ 109.

      2. Maximum Sentence

      {¶15} Appellant was sentenced to eleven years, the maximum

allowable sentence for involuntary manslaughter, and a stated prison term of

three years on the specification for using a firearm to commit the offense of

involuntary manslaughter. He was also sentenced to a prison term of three

years for the tampering with evidence conviction. A sentencing court must

consider the purposes and principles of sentencing in accordance with R.C.

2929.11; the seriousness and recidivism factors set forth in R.C. 2929.12;

and the appropriate consecutive sentence requirements enumerated in R.C.

2929.14(C)(4). State v. Morgan, 4th Dist. Meigs No. 18CA13, 2019-Ohio-

2385, at ¶ 34. Appellant acknowledges that the sentences he received are

within the statutory ranges for each offense.

      {¶16} As set forth above, appellate courts review felony sentences

under the standard set forth in R.C. 2953.08(G)(2). State v. Shankland, 4th

Dist. Washington No. 

, at ¶ 18; State v. Marcum, 

, 

, 

, ¶ 1. Although R.C.
Adams App. No. 19CA1090                                                          12


2953.08(G)(2)(a) does not mention R.C. 2929.11 and 2929.12, the Supreme

Court of Ohio has determined that the same standard of review applies to

those statutes. Morgan, supra, at ¶ 35; State v. Yost, 4th Dist. Meigs No.

17CA10, 

, at ¶ 11; Marcum at ¶ 23 (although “some

sentences do not require the findings that R.C. 2953.08(G)[2][a] specifically

addresses[,] … it is fully consistent for appellate courts to review those

sentences that are imposed solely after consideration of the factors in R.C.

2929.11 and 2929.12 under a standard that is equally deferential to the

sentencing court”); State v. Butcher, 4th Dist. Athens No. 15CA33, 2017-

Ohio-1544, at ¶ 84.

      {¶17} R.C. 2929.11 provides:

      (A) A court that sentences an offender for a felony shall

           be guided by the overriding purposes of felony sentencing.

           The overriding purposes of felony sentencing are to

           protect the public from future crime by the offender

           and others, to punish the offender, and to promote the

           effective rehabilitation of the offender using the minimum

           sanctions that the court determines accomplish those

           purposes without imposing an unnecessary burden on

           state or local government resources. To achieve those
Adams App. No. 19CA1090                                                       13


          purposes, the sentencing court shall consider the need for

          incapacitating the offender, deterring the offender and

          others from future crime, rehabilitating the offender,

          and making restitution to the victim of the offense,

          the public, or both.

      (B) A sentence imposed for a felony shall be reasonably

          calculated to achieve the three overriding purposes

          of felony sentencing set forth in division (A) of this

          section, commensurate with and not demeaning to the

          seriousness of the offender's conduct and its impact

          upon the victim, and consistent with sentences imposed

          for similar crimes committed by similar offenders.

      (C) A court that imposes a sentence upon an offender

          for a felony shall not base the sentence upon the race,

          ethnic background, gender, or religion of the offender.

Morgan, supra, at ¶ 36.

      {¶18} R.C. 2929.12 sets forth factors to consider in determining the

appropriate sentence. The statute contains a nonexclusive list of factors that

render an offender's conduct more serious than conduct normally

constituting the offense and factors that render an offender's conduct less
Adams App. No. 19CA1090                                                          14


serious than conduct normally constituting the offense. R.C. 2929.12(B)(C).

Likewise, the statute sets forth a nonexclusive list of factors indicating the

offender is more likely to commit future crimes and factors indicating

recidivism is less likely. R.C. 2929.12(D)(E). Morgan, supra, at ¶ 37.

“Once the trial court considers R.C. 2929.11 and 2929.12, the burden is on

the defendant to demonstrate by clear and convincing evidence that the

record does not support his sentence.” Morgan, supra, at ¶ 38, quoting,

Yost, supra, at ¶ 12, quoting, State v. Akins-Daniels, 8th Dist. Cuyahoga No.

103817, 

; State v. O'Neill, 3d Dist. Allen No. 1-09-

27, 

.

      {¶19} In this case, both the sentencing transcript and sentencing entry

reflect that the trial court considered the record; the oral statements of

counsel and Appellant; the oral statements of the victim’s mother,

grandmother, and older sister; a letter from the victim’s eight-year old sister

read into the record; twenty-five letters written on behalf of Appellant; and

the presentence investigation report. The trial court commented that the

presentence investigation report was the “ largest, most voluminous

presentence investigation report the Court has considered. And I think, for

the right reasons. Thoroughness of the preparation of it by the probation

department.” The record reflects the trial court also considered the
Adams App. No. 19CA1090                                                       15


overriding purposes of felony sentencing pursuant to R.C. 2929.11, and

considered all relevant seriousness and recidivism factors of R.C. 2929.12.

While Appellant's eleven-year term for involuntary manslaughter, three-year

term for the specification, and three-year term for tampering with evidence

do constitute maximum sentences for those counts, the sentences are within

the statutory range for each offense. Therefore, we initially conclude that

Appellant's overall maximum sentence is not contrary to law.

           {¶20} Appellant’s chief argument, however, is that his sentence

is not clearly and convincingly supported by the record. Appellant asserts

that the trial court did not adequately consider the statutory sentencing

factors. Appellant points to his very limited criminal record; his limited

education; and his lack of history for alcohol or drug abuse.1 Because of

these facts, Appellant concludes that the seventeen-year maximum sentence

is excessive and not supported by the record. For the reasons which follow,

we disagree.

            {¶21} We have reviewed the entire record, including the presentence

investigation report. The trial court read from it at length during sentencing.

Then, the trial court spoke of balancing the recidivism factors and stated that

he could not find genuine remorse. While the trial court acknowledged the


1
    Appellant had only two minor traffic infractions on his record.
Adams App. No. 19CA1090                                                      16


letters written on behalf of Appellant also emphasizing the practically

nonexistent criminal record, his good grades in school, lack of substance

abuse history, and characterizing his personality as gentle and respectful, the

trial court stated:

       Mr. Williams, where I take exception to the remorse is those

       of us that toil in this room, we seek only the truth. And you

       have refused to give the truth. … There’s not a person

       that could figure out what happened because you refuse to

       tell us. What we know didn’t happen is that Mr. Bladyn

       Skaggs did not have a weapon. … The physical evidence

       defies your words. And so we will always be left to wonder.

       And I think it’s so unfair to Ms. Parker, to the sisters, to the

       father, to your own mother that you would leave them with

       such uncertainty. But what we know didn’t happen is what

       you say happened. You talk about he approaches you and

       perceive that he had a knife and so you shield your face

       with a gun, you reach for a gun and shield your face and he

       gets shot in the side of the head in the left ear. It defies all

       logic.
Adams App. No. 19CA1090                                                     17


      {¶22} This is the point at which the trial court asked if Appellant

would like the opportunity to clearly explain the underlying facts of the

incident, ostensibly meaning: “What were you talking about? Why did you

shoot him?” As indicated, Appellant declined. The trial court then

commented that it did not appear that Appellant was a bad man and pointed

out he was the exception of most defendants he saw in the courtroom. As

the trial court imposed the consecutive portion of Appellant’s sentence, the

court commented:

      The Court in its determination finds that two of the multiple

      offenses were committed as part of one or more courses of

      conduct. The senseless murder and then the senseless blame

      of suicide and then the senseless tampering with the evidence

      and the multiple lies about the same.

      {¶23} The court further found:

      And the harm caused by two or more of these multiple offenses

      is so great and so unusual that no single prison term for any

      of the offenses committed as part of this course of conduct

      on this evening would adequately reflect the seriousness of

      the offender’s conduct. Again, it would be disingenuous

      to ever suggest that any of us would be able to understand
Adams App. No. 19CA1090                                                         18


      the pain of the Skaggs’ family, having not been through that.

      But the profound impact that you have had on the mother,

      the sister, the grandmother, the little sister is so great and

      so unusual that the sentences will be consecutive.

      {¶24} We are required to afford deference to the trial court's broad

discretion in making sentencing decisions; trial courts have great latitude

and discretion in formulating the appropriate sentence. State v. Rahab, 

, 

, 

. Precedent refutes

any contention that each statutory or other relevant factor is entitled to equal

or a certain weight in the balancing process. Yost, supra, at ¶ 19; See State

v. Graham, 4th Dist. Adams No. 17CA1046, 

, at ¶ 25,

rejecting the argument that because each of the statutory sentencing factors

are mandatory, each is entitled to equal weight on balance, citing State v.

Bailey, 4th Dist. Highland No. 11CA7, 

, quoting

State v. Arnett, 

, 

 (2000) (“in

considering the factors set forth in R.C. 2929.12, the trial court has ‘the

discretion to determine the weight to assign a particular statutory factor’ ”).

Furthermore, “ ‘Simply because the court did not balance the factors in the

manner appellant desires does not mean that the court failed to consider

them, or that clear and convincing evidence shows that the court's findings
Adams App. No. 19CA1090                                                         19


are not supported by the record.’ ” Yost, supra, at ¶ 20, quoting, State v.

Graham, 4th Dist. Meigs No. 17CA10, 

, at ¶ 26, quoting

State v. Butcher, 4th Dist. Athens No. 15CA33, 

, at ¶ 87.

      {¶25} Here, we decline to second-guess the trial court's sentencing

decision. The trial court was faced with a factual scenario in which one

promising young life has been lost, another young life will be spent behind

prison bars, and two families’ lives have been forever altered. Given the

facts herein and the standard of review, we cannot conclude that Appellant's

sentence is clearly and convincingly unsupported by the record. Therefore,

we also find no merit to Appellant's second assignment of error. As such, it

is hereby overruled.

      3. Prison programming.

      {¶26} The language of the trial court’s order states the trial

court has “reserved for denial” his participation in transitional control and

IPP (“Intensive Program Prison”). Appellant asserts this “automatic” denial

is improper. Appellant directs our attention to the Fifth Appellant District’s

decision in State v. Spears, 5th Dist. Licking No. 10CA-95, 

,

which held that it is error for the trial court to deny placement into prison

programming at the time of sentencing. Appellant concludes that the matter

should be remanded to the trial court for a new sentencing hearing. In
Adams App. No. 19CA1090                                                       20


response, Appellee points out that any error in the language of the court’s

order is harmless error at best because Appellant is not qualified for such

programs.

      {¶27} We begin with the trial court’s order as to IPP. IPP

“ ‘ refers to several ninety-day programs, for which certain inmates are

eligible, that are characterized by concentrated and rigorous specialized

treatment services. An inmate who successfully completes an IPP will have

his/her sentence reduced to the amount of time already served and will be

released on post-release supervision for an appropriate time period.’ ’’ State

v. Turner, 8th Dist. Cuyahoga Nos. 103610, 1103611, 

, quoting, State v. Peltier, 2d Dist. Champaign No. 2018-CA-21, 2019-

Ohio-569, at ¶ 20, quoting, State v. Howard, 

, 2010-

Ohio-5283, 

 (2d Dist.), quoting the Ohio

Department of Correction and Rehabilitation website. IPPs focus on

“ ‘educational achievement, vocational training, alcohol and other drug

abuse treatment, community service and conservation work, and other

intensive regimens or combinations of intensive regimens.’ ’’ 

, quoting R.C. 5120.032. Trial courts have discretion to

recommend placement of an offender into an IPP pursuant to R.C. 5120.032.
Adams App. No. 19CA1090                                                         21


      {¶28} However, in this case, Appellant’s argument is moot. R.C.

5120.032(B)(2)(a) provides that a prisoner who is serving a prison term for a

felony of the first degree is not eligible to participate in an intensive program

prison. State v. Jones, 2d Dist. Montgomery No. 24075, 

. Appellant was convicted and sentenced for involuntary manslaughter,

a felony of the first degree. R.C. 5120.032(B)(2)(a) specifically excludes

individuals, serving prison terms for first and second-degree felonies from

participating in an IPP. Hence, Appellant is not eligible for IPP.

      {¶29} The trial court also “reserved for denial,” Appellant’s ability to

participate in the transitional control program. R.C. 2967.26 allows for the

creation of a transitional control program for those nearing the end of their

prison sentence. The statute reads, in pertinent part:

       “(2) … the adult parole authority shall give notice of the

      pendency of the transfer to transitional control to the court of

      common pleas of the county in which the indictment against the

      prisoner was found and of the fact that the court may

      disapprove the transfer of the prisoner to transitional control

      and shall include a report prepared by the head of the state

      correctional institution in which the prisoner is confined. …

      If the court disapproves of the transfer of the prisoner to
Adams App. No. 19CA1090                                                    22


      transitional control, the court shall notify the authority of the

      disapproval within thirty days after receipt of the notice. If the

      court timely disapproves the transfer of the prisoner to

      transitional control, the authority shall not proceed with the

      transfer. If the court does not timely disapprove the transfer of

      the prisoner to transitional control, the authority may transfer

      the prisoner to transitional control.”

See also, State v. Toennissen, 12th Dist. Butler Nos. CA-2010-11-307,

CA2010-11-308, and CA-2010-11-309, 

, at ¶ 29.

      {¶30} As explained above, once the trial court is notified of the

pendency to transitional control, the court still retains discretion to

deny the transfer. When the legislature has meant for the judiciary to

have the discretion to deny eligibility for prison programs, it has made

its intent clear. State v. Livingston, 

, 

,

(1st Dist.), at ¶ 8. Furthermore, the trial court’s language does not

“automatically” deny participation. See Toennissen, supra, (Trial

court retained the power to reconsider and, if prudent, overturn its

initial objection to transitional control.) Given the language of the

prison programming statute, the trial court’s language is unnecessary
Adams App. No. 19CA1090                                                       23


and may hint that he disfavors Appellant’s entry into IPP, but it did

not automatically deny IPP at the time of sentencing.

      {¶31} For the foregoing reasons, we find no merit to Appellant’s third

assignment of error. Accordingly, it is hereby overruled.

      {¶32} Having overruled all assignments of error, we affirm the

judgment of the trial court. However, in our analysis of the first assignment

of error, we have found a clerical mistake. Therefore, pursuant to App.R.

9(E), we instruct the trial court to issue a nunc pro tunc sentencing entry that

includes the required findings so as to accurately reflect the sentence

imposed on the record during the sentencing hearing.

                                            JUDGMENT AFFIRMED
                                            WITH INSTRUCTIONS
Adams App. No. 19CA1090                                                        24


                           JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE AFFIRMED WITH
INSTRUCTIONS and costs be assessed to Appellant.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Adams County Common Pleas Court to carry this judgment into
execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

      Abele, J. & McFarland, J.: Concur in Judgment and Opinion.

                              For the Court,
                          BY: __________________________________
                              Jason P. Smith, Presiding Judge

                          NOTICE TO COUNSEL

      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.