[Cite as State v. Scott,
2022-Ohio-3549.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111212
v. :
CLYDE SCOTT, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED AND REMANDED
RELEASED AND JOURNALIZED: October 6, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-11-557947-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Frank Romeo Zeleznikar, Assistant
Prosecuting Attorney, for appellee.
John F. Corrigan, for appellant.
MARY J. BOYLE, J.:
Defendant-appellant, Clyde Scott (“Scott”), is before this court for the
third time challenging his sentence. In this appeal, Scott argues the trial court erred
in not imposing a lesser aggregate sentence of 18 years at his second resentencing.
Scott also challenges the trial court’s imposition of consecutive sentences,
contending that the court’s incantation was insufficient and the court failed to
incorporate its findings into the sentencing entry. For the reasons set forth below,
we affirm Scott’s sentence and remand the matter to the trial court to issue a nunc
pro tunc judgment entry incorporating the actual findings made at the sentencing
hearing.
I. Facts and Procedural History
The facts and procedural history of this case were previously set forth
by this court in State v. Scott, 8th Dist. Cuyahoga No. 100085, 2021-Ohio-1823
(“Scott II”):
In January 2012, the grand jury indicted Scott on 12 counts for offenses
against two separate victims that occurred on or about December 26,
2011. For the alleged acts against victim Marion Polk (“Polk”), the
grand jury indicted Scott with kidnapping, two counts of felonious
assault, two counts of aggravated robbery, and one count of theft. For
the alleged acts against victim Carlos Williams (“Williams”), the grand
jury indicted Scott with one count of kidnapping, one count of felonious
assault, one count of aggravated robbery, and one count of theft. The
grand jury also indicted Scott with two counts of having weapons while
under disability. In addition, the kidnapping, aggravated robbery, and
felonious assault charges carried one- and three-year firearm
specifications.
At his arraignment, Scott pled not guilty to the charges. The matter
proceeded to trial, and the jury found Scott guilty on all counts, except
felonious assault as to the victim, Williams. In July 2012, the court
sentenced Scott on all counts to an aggregate sentence of 24 years in
prison. Scott timely appealed his convictions.
In State v. Scott, 8th Dist. Cuyahoga No. 98809, 2013-Ohio-1559
[(“Scott I”)], we affirmed Scott’s conviction for the offenses of
kidna[p]ing, felonious assault, aggravated robbery, theft, and having
weapons while under disability. We vacated Scott’s sentence and
remanded the matter for a new sentencing hearing because the trial
court failed to merge allied offenses of similar import. Scott did not
timely appeal this decision to the Ohio Supreme Court.
In June 2013, pursuant to our remand order, the trial court
resentenced Scott and merged Counts 1, 3, 4, and 5 (kidnapping,
aggravated robbery, and theft with respect to the victim Polk), Counts
2 and 3 (felonious assault also with respect to the victim Polk), and
Counts 7, 8, and 10 (kidnapping, aggravated robbery, and theft with
respect to the victim Williams). The state elected to proceed to
sentence on Count 2 (felonious assault), Count 4 (aggravated robbery),
and Count 8 (aggravated robbery). Count 11 (having weapons while
under disability with respect to the victim Polk) was not subject to
merger. The trial court merged all firearm specifications pertaining to
each victim. The trial court then sentenced Scott to 8 years on Count
2, to run concurrent to 9 years on Count 4, which was to run
consecutive to the 3-year firearm specification, for a total of 12 years on
those counts. The trial court sentenced Scott to 9 years on Count 8,
consecutive to the 3-year firearm specification, for a total of 12 years.
The trial court ordered Scott to serve the 12-year sentences
consecutively and imposed a concurrent sentence of 3 years for Count
11 (having weapons while under disability).
Because the concurrent and consecutive nature of the counts remained
the same as previously imposed, the aggregate prison sentence
remained 24 years. However, the sentence the trial court imposed on
Count 2 was increased from six to eight years. We note, although the
sentencing entry reflects that Counts 2 and 3 had been merged, it
incorrectly states that “all six counts merge” and does not reflect the
state’s election or the eight-year concurrent sentence that the trial court
imposed on Count 2. The state concedes this error can be corrected
upon remand.
In July 2013, Scott, pro se, filed a notice of appeal with this court. Scott
moved for the appointment of appellate counsel, but the trial court
denied his motion. In August 2013, we, sua sponte, dismissed Scott’s
appeal because he failed to file the record. Scott did not file a timely
appeal to the Ohio Supreme Court.
In October 2013, Scott, pro se, filed a notice of appeal and motion for
leave to file a delayed appeal with this court. In his motion for leave,
Scott argued that his appeal from the resentencing judgment was
untimely because neither the court nor his attorney had advised him of
his right to appeal or the 30-day time frame for filing an appeal. Scott
also moved for appointment of counsel in the trial court, but his motion
was denied. In November 2013, we denied Scott’s motion for leave to
file a delayed appeal and dismissed his case. Scott did not file a timely
appeal to the Ohio Supreme Court.
In December 2013, Scott filed three, pro se motions in the trial court.
(1) “Motion for a Final Approachable [sic] Order,” arguing that his
sentence was void because he had not been advised of his appellate
rights by the court, (2) “Motion to Revise and Correct the Sentencing
Entry,” and (3) “Motion for Leave Order to Motion for New Trial
Order.” The trial court denied all three motions. Scott did not appeal
any of these rulings.
In that same month, pursuant to App.R. 26(B), Scott, pro se, filed an
application for reopening his initial direct appeal. In the application
for reopening, Scott argued that his appellate counsel was ineffective
for failing to raise claims of ineffective assistance of trial counsel and
that the verdict was against the manifest weight of the evidence. In
February 2014, this court denied Scott’s application for reopening as
untimely and found that he had not demonstrated good cause for his
untimely application. State v. Scott, 8th Dist. Cuyahoga No. 98809,
2014-Ohio-379. Scott did not appeal to the Ohio Supreme Court.
In June 2014, Scott, pro se, filed a petition for a writ of habeas corpus
in federal court wherein he argued that the common pleas court
possessed no jurisdiction to bring him to trial, thus making the
judgment of conviction void. Additionally, Scott argued he was denied
the right to appeal, right to appellate counsel, and records at state’s
expense. Further, Scott claimed that the trial court did not advise him
of his fundamental right to appeal ultimately denying him his rights to
liberty, procedural, and substantive due process of law, and equal
protection under the laws. The writ of habeas corpus was dismissed in
part and denied in part.1
In September 2014, Scott, pro se, filed a notice of appeal, and a motion
for delayed appeal in the Ohio Supreme Court, attempting to appeal
our affirmance of his original conviction and judgment dismissing his
appeal of his resentencing. As cause for filing his delayed appeal, Scott
stated that he was illiterate; ignorant of the law; relied on the assistance
of others; was not advised of his rights to appeal or his right to appellate
counsel, his right to a free transcript, and that he was innocent. In
1 The ground in the petition that fails on the merits results in a denial, and
the ground that is procedurally defaulted results in a dismissal. Scott did
not demonstrate by clear and convincing evidence that the state court’s
findings were incorrect. Accordingly, the state court’s findings are
presumed correct. See 28 U.S.C. 2254(e)(1); see also Railey [v. Webb,
540
F.3d 393, 397 (6th Cir.2008)].
December 2014, the Ohio Supreme Court denied Scott’s motion for a
delayed appeal and dismissed his case.
In February 2020, after Scott objected to the dismissal in part, and
denial in part, of the writ of habeas corpus relief, the U.S. District Court
granted the writ on the condition that the state court allow Scott to
pursue a direct appeal of his resentencing with appointed counsel.
Scott v. Sloane, 6th Cir. No. 19-3095, 2020 U.S. App. LEXIS 6414 (Feb.
28, 2020). Thereafter, the trial court appointed appellate counsel, and
we reopened Scott’s previously dismissed appeal to allow him to appeal
his resentencing.
Id. at ¶ 2-13.
In Scott II, Scott argued that the trial court failed to make the requisite
findings to impose consecutive sentences and the trial court’s reimposition of the
same aggregate 24-year prison sentence was vindictive because the trial court
increased, by over two years, the individual sentence imposed in Count 2. Id. at ¶ 15
and 21. We agreed and found that the trial court failed to specifically find that the
consecutive sentences are not disproportionate to the seriousness of the offender’s
conduct and to the danger the offender poses to the public. Id. at ¶ 18. With regard
to the vindictiveness in the sentencing of Count 2, we noted that on remand, “the
trial court reimposed the same sentences on Counts 4, 8, and 11, but increased the
sentence on Count 2, from six to eight years.” Id. at ¶ 23. We further noted that
because “no objective, nonvindictive reasons for a harsher sentence on Count 2,
appear on the record, … there is a presumption of vindictiveness” and “[i]n order
to assure the absence of such a motivation, whenever a judge imposes a more severe
sentence upon a defendant after a new trial, the reasons for them doing so must
affirmatively appear.” Id., citing State v. Thomas, 8th Dist. Cuyahoga No. 105613,
2017-Ohio-9274, ¶ 13, citing State v. Bradley, 2d Dist. Champaign No. 06CA31,
2008-Ohio-720, ¶ 7, citing North Carolina v. Pearce,
395 U.S. 711, 726,
89 S.Ct.
2072,
23 L.Ed.2d 656 (1969). As a result, we vacated Scott’s sentence and remanded
the matter for the limited purpose of determining whether consecutive sentences
should be imposed and, if so, making the required findings, and we vacated the
sentence the trial court imposed in Count 2 and remanded for resentencing on that
count.
Id. at ¶ 20 and 26.
Following our remand in Scott II, the trial court held a resentencing
hearing on August 27, 2021, with Scott present at the hearing. The trial court
resentenced Scott on Count 2 to six years in prison. On Counts 4 and 8, Scott was
sentence to three years on each of the firearm specification to run prior to and
consecutive with the base counts, and prior to and consecutive with each other. The
trial court sentenced Scott on Count 4 to six years in prison and nine years in prison
on Count 8. On Count 11, the trial court sentenced Scott to three years. The trial
court ordered that Counts 4 and 8 were to be served consecutively and the remaining
counts to be served concurrently. The court also detailed its findings for the
imposition of consecutive sentences. However, during the trial court’s discussion of
consecutive sentences on Counts 4 and 8, the trial court initially stated that Scott
was sentenced 18 years total, but later stated that the total sentence is 21 years. The
court stated:
Mr. Scott, on felonious assault, I will change my sentence to six years
on Count 2.
On Count 4 and 8 you will serve three years each on the firearm
specifications to run prior to and consecutive with the base counts and
prior to and consecutive with each other by operation of law.
You will have to serve six years on the firearm specifications. That is
three, plus three on Counts 4 and 8.
On Count 4, on the base count, I will sentence you to six years at Lorain
Correctional [Institution], but on the base count, on Count 8, I will
sentence you to nine years at the Lorain Correctional [Institution].
On Count 11, having weapon while under disability, I will sentence you
to three years, Lorain Correctional [Institution].
…
Count 4, your total sentence is nine years, with the firearm specification
on Count 8. Your total sentence is 12 years.
Run consecutive, you will serve 18 years.
Now, I do find, again, that consecutive sentences are necessary to
protect the public and to punish the offender, and that the total
sentence here of 18 years is not disproportionate to the type of crime
and harm committed here.
…
Additionally, the firearm specifications are mandatory. It’s mandatory
six years.
The base counts run consecutive, a total of 15 years added together.
The 15-year sentence is not, again, disproportionate for two aggravated
robberies, with a history of aggravated robberies and other felonies.
Your total sentence, therefore, will be three years, plus six years [on
Count 4], plus three years, plus nine years [on Count 8] for a total
sentence of 21 years, less credit for time served.
Again, Count 2, felonious assault, six years, and Count 11, having
weapons under disability, three years, will run concurrent with each
other.
(Aug. 27, 2021 Hearing, tr. 13-15.)
The court then memorialized its sentence in a journal entry and later
corrected the entry, nunc pro tunc, to include jail-time credit. In the sentencing
entry, the court stated:
The court considered all required factors of the law.
The court finds that prison is consistent with the purpose of R.C.
2929.11.
The court imposes a prison sentence at the Lorain Correctional
Institution of 21 year(s).
Count(s) 2, 3 merge for purposes of sentencing. The state elects to
sentence on Count 2[:] F2, 6 year(s); 3 years mandatory post release
control.
Count(s) 1, 3, 5 merge into Count 4. State elects to proceed as to Count
4, F1: 3 year(s) on the [firearm] specification(s) to be served prior to
and consecutive with 6 year(s) on the base charge[.] 5 years mandatory
post release control.
Count(s) 7, 10 merge into Count 8. State elects to proceed as to Count
8, F1: 3 year(s) on the [firearm]specification(s) to be served prior to
and consecutive with 9 year(s) on the base charge[.] 5 years mandatory
post release control.
Count 11: F3, 3 year(s); up to 3 years discretionary post release control.
The firearm spec on Count 8 will be served consecutively by operation
of law to the firearm spec on Count 4. Counts 2 and 11 will run
concurrently with each other and with Count[s] 4 and 8. Counts 4 and
8 will run consecutively with each other. The defendant will serve a
total sentence of 21 years with credit for time served.
(Oct. 12, 2021, Sentencing Journal Entry.)
It is from this order that Scott now appeals, raising the following three
assignments of error for review:
Assignment of Error I: The trial court erred in not imposing an
aggregate sentence of eighteen (18) years.
Assignment of Error II: The trial court’s talismanic incantation was
insufficient to impose consecutive sentencing.
Assignment of Error III: The trial court erred in failing to
incorporate its consecutive findings into the sentencing journal entry.
II. Law and Analysis
A. Standard of Review
An appellate court reviews felony sentences under R.C.
2953.08(G)(2). State v. Jones, 163 Ohio St.3d 242,
2020-Ohio-6729,
169 N.E.3d
649, ¶ 27, citing State v. Marcum,
146 Ohio St.3d 516,
2016-Ohio-1002,
59 N.E.3d
1231. Under R.C. 2953.08(G)(2)(a) and (b), an appellate court “may increase,
reduce, or otherwise modify a sentence … or may vacate the sentence and remand
the matter … for resentencing” if it “clearly and convincingly” finds “[t]hat the
record does not support the sentencing court’s findings under … division (B)(2)(e)
or (C)(4) of section 2929.14” or “[t]hat the sentence is otherwise contrary to law.”
“A sentence is contrary to law if it falls outside the statutory range for
the offense or if the sentencing court fails to consider the purposes and principles of
sentencing set forth in R.C. 2929.11 and the sentencing factors in R.C. 2929.12.”
State v. Angel, 8th Dist. Cuyahoga No. 110456, 2022-Ohio-72, ¶ 8, citing State v.
Pawlak, 8th Dist. Cuyahoga No. 103444,
2016-Ohio-5926.
B. 21-Year v. 18-Year Sentence
In the first assignment of error, Scott argues that based on the trial
court’s statements at the sentencing hearing, the court intended to sentence him to
an “aggregate of 18 years in prison,” rather than 21 years in prison.
A review of the record in the instant case reveals that while the trial
court initially stated at the hearing that Scott’s aggregate sentence would be 18 years
in prison, the court later clarified at the hearing and in its accompanying sentencing
entry that Scott’s sentence is 21 years in prison. The court stated:
Count 4, your total sentence is nine years, with the firearm specification
on Count 8. Your total sentence is 12 years.
Run consecutive, you will serve 18 years.
Now, I do find, again, that consecutive sentences are necessary to
protect the public and to punish the offender, and that the total
sentence here of 18 years is not disproportionate to the type of crime
and harm committed here.
…
Additionally, the firearm specifications are mandatory. It’s mandatory
six years.
The base counts run consecutive, a total of 15 years added together.
The 15-year sentence is not, again, disproportionate for two aggravated
robberies, with a history of aggravated robberies and other felonies.
Your total sentence, therefore, will be three years, plus six years [on
Count 4], plus three years, plus nine years [on Count 8] for a total
sentence of 21 years, less credit for time served.
Again, Count 2, felonious assault, six years, and Count 11, having
weapons under disability, three years, will run concurrent with each
other.
(Aug. 27, 2021 Hearing, tr. 14-15.) In its corresponding sentencing entry, the court
stated that it “imposes a prison sentence at the Lorain Correctional Institution of 21
year(s)” and that “[t]he defendant will serve a total sentence of 21 years with credit
for time served.” (Oct. 12, 2021, Sentencing Journal Entry.)
Based on the foregoing, we find that while the trial court initially
miscalculated the aggregate sentence, the court clarified and articulated that Scott’s
sentence amounted to an aggregate sentence of 21 years in prison. The trial court’s
comments on the record and in the sentencing entry confirm this.
Therefore the first assignment of error is overruled.
We note the state argued at the sentencing hearing that the trial court
was without authority to change the length of the sentences on Counts 4 and 8
because our remand in Scott II was limited to resentencing on Count 2 and a
consecutive-sentence determination on Counts 4 and 8. (Aug. 27, 2021 Hearing, tr.
15-16.) The state contended that Counts 4 and 8 were never vacated so the court
could not resentence Scott. (Aug. 27, 2021 Hearing, tr. 16.) The court replied that
it was going to use its discretion and “change the sentence on Count 4 to six years,
given [Scott’s] polite behavior and moving words” at the hearing. (Aug. 27, 2021
Hearing, tr. 17.) On appeal, the state notes in passing that the trial court “acted
outside this Court’s mandate when [it] resentenced [Scott] on the base charge on
Count 4, reducing his sentence on that count[, which] resulted in a reduction of his
overall aggregate sentence by three years, for a total aggregate sentence of 21 years
in prison.” We disagree. Although this court limited the remand, we also vacated
Scott’s entire sentence, and thus, he was entitled to a new hearing and sentence.
In Scott II, this court addressed Scott’s consecutive sentence on
Counts 4 and 8, and sustained Scott’s first assignment of error, vacated Scott’s
sentence, and remanded the matter “for the limited purpose of determining whether
consecutive sentences should be imposed and, if so, making the required findings.”
Scott II, 8th Dist. Cuyahoga No. 100085, 2021-Ohio-1823 at ¶ 20. We also stated
that “we reverse and remand for another sentencing hearing.” Id. at ¶ 1. And we
reversed the judgment and remanded the matter “to the trial court for the limited
purpose of determining whether consecutive sentences should be imposed and, if
so, making the required findings.” Id. at ¶ 27. While we stated that the remand was
limited to the purpose of determining whether consecutive sentences should be
imposed and, if so, making the required findings, we also vacated Scott’s sentence.
The Ohio Supreme Court has held that while “[a] remand for a new
sentencing hearing generally anticipates a de novo sentencing hearing[,] … only
the sentences for the offenses that were affected by the appealed error are reviewed
de novo; the sentences for any offenses that were not affected by the appealed error
are not vacated and are not subject to review.” State v. Wilson, 129 Ohio St.3d 214,
2011-Ohio-2669,
951 N.E.2d 381, ¶ 15. Furthermore, this court has found that
“‘resentencing is a critical stage of criminal proceedings that triggers a defendant’s
right to be present under … Crim.R. 43’” State v. Jarmon, 8th Dist. Cuyahoga No.
108248,
2020-Ohio-101, ¶ 9, quoting State v. Mason, 8th Dist. Cuyahoga No.
107447,
2019-Ohio-1773, ¶ 18.
In the instant case, we vacated the entire sentence in Scott II and
remanded the matter to the trial court for resentencing. As a result, Scott was
entitled to be present at a de novo resentencing hearing. The record reveals that the
court complied with Crim.R. 43 by ordering Scott to be transported from the
correctional institution so that he could be present at the resentencing hearing, and
by this court’s vacation of Scott’s entire sentence in Scott II, the trial court followed
our instructions when it resentenced Scott on all counts. Accordingly, we do not find
that the trial court was acting outside of our mandate in Scott II.
C. Consecutive Sentence
1. Necessary Findings
In the second assignment of error, Scott argues the trial court failed
to make the three, necessary findings in order to impose a consecutive sentence.
Trial courts must engage in the three-step analysis of R.C.
2929.14(C)(4) before imposing consecutive sentences. State v. Stoker, 8th Dist.
Cuyahoga No. 110029, 2021-Ohio-1887, ¶ 22, citing State v. Gohagan, 8th Dist.
Cuyahoga No. 107948,
2019-Ohio-4070. First, the trial court must find that
“consecutive service is necessary to protect the public from future crime or to punish
the offender.” Second, the trial court must find that “consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to the danger the
offender poses to the public.” Third, the trial court must find that at least one of the
following applies:
(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.
R.C. 2929.14(C)(4).
The failure to make the above findings renders the imposition of
consecutive sentences contrary to law. Gohagan at ¶ 29. R.C. 2929.14(C)(4) directs
that for each step of this analysis, the trial court must “find” the relevant sentencing
factors before imposing consecutive sentences. R.C. 2929.14(C)(4). Trial courts,
however, do not need to recite the statutory language word for word, nor are they
required to “give a talismanic incantation of the words of the statute[.]” State v.
Bonnell, 140 Ohio St.3d 209,
2014-Ohio-3177,
16 N.E.3d 659, ¶ 29, 37. “[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. at ¶ 29.
In this case, the trial court ordered that Counts 4 and 8 were to be
served consecutively. The trial court made the following findings at Scott’s
sentencing hearing:
The Court is considered the seriousness and recidivism factors and the
purposes and principles of our sentencing statutes.
The Court does note that Mr. Scott does have an extensive prior
criminal history of crimes of felonious significance, including a prior
aggravated robbery.
This case dealt with two victims, one of whom was shot while fleeing
the attempted robbery.
The Court still is of the opinion that consecutive sentences are needed
to protect the public from future crime and to punish the offender for
this conduct.
Shooting an individual in the back and fleeing a robbery, an aggravated
robbery is a — it’s something that we could have been here on a life-tail
murder case.
…
Now, I do find, again, that consecutive sentences are necessary to
protect the public and to punish the offender, and that the total
sentence here of 18 years is not disproportionate to the type of crime
and harm committed here.
Additionally, I see your past criminal history shows that consecutive
terms are needed to protect the public. You have a prior aggravated
robbery. You served five years for it.
You have gone out, and you committed two more aggravated robberies.
So past history is an excellent predictor of future behavior, and it’s
generally all we have to go on.
(Aug. 27, 2021 Hearing, tr. 12-14.)
The foregoing record supports the trial court’s imposition of
consecutive sentences. The court specifically noted that consecutive sentences were
necessary to protect the public and punish the offender. With regard to the second
step, the trial court found that consecutive sentences are not disproportionate to the
seriousness of Scott’s conduct and to the danger the offender poses to the public.
Scott contends that the trial court failed to specifically make the disproportionality
finding with respect to the danger he poses to the public. We disagree.
In State v. Hollis, 8th Dist. Cuyahoga No. 109092, 2020-Ohio-5258,
this court addressed a similar situation, where the trial court failed to explicitly make
a finding that consecutive sentences were not disproportionate to the danger an
appellant poses to the public. We upheld the imposition of consecutive sentences,
despite the explicit finding, noting that “the trial court’s statements during the
sentencing hearing, when viewed in their entirety, clearly indicate that the trial court
considered proportionality with respect to both the seriousness of the appellant’s
conduct and the danger appellant posed to the public.” Id. at ¶ 23, citing State v.
Hicks, 8th Dist. Cuyahoga No. 107055,
2019-Ohio-870, ¶ 14-16, citing State v.
Gonzalez, 8th Dist. Cuyahoga No. 105952,
2018-Ohio-1302, ¶ 11-13; State v.
McGowan, 8th Dist. Cuyahoga No. 105806,
2018-Ohio-2930, ¶ 19-25; State v.
Morris,
2016-Ohio-7614,
73 N.E.3d 1010, ¶ 27-34 (8th Dist.).
Here, the trial court noted Scott’s prior criminal history and the fact
that he served time for a prior offense of violence. The court further indicated that
“past history is an excellent predictor of future behavior[.]” (Aug. 27, 2021 Hearing,
tr. 12-14.) Therefore, the trial court found that Scott’s prior criminal history was
indicative of the danger he posed to the public. With regard to the third step, the
court found that Scott’s lengthy criminal history demonstrates that consecutive
sentences are necessary to protect the public.
Based upon our review of the record, we find that the trial court
engaged in the three-step analysis of R.C. 2929.14(C)(4), and we cannot “clearly and
convincingly” conclude that the record does not support the trial court’s
consecutive-sentence findings. Therefore, the second assignment of error is
overruled.
2. Findings Incorporated into the Sentencing Entry
In his third assignment of error, Scott argues that the trial court erred
by failing to journalize its consecutive-sentence findings in its sentencing entry. The
state concedes this error. Both Scott and the state agree that the remedy is a remand
to the trial court for the limited purpose of incorporating its consecutive-sentence
findings into a nunc pro tunc sentencing entry.
We agree that the trial court failed to include its consecutive-sentence
findings in the sentencing entry as required by Bonnell, 140 Ohio St.3d 209, 2014-
Ohio-3177,
16 N.E.3d 659, at ¶ 37. Such an error is a clerical mistake that the trial
court may correct through a nunc pro tunc entry “to reflect what actually occurred
in open court.” Id. at ¶ 30, citing State v. Qualls,
131 Ohio St.3d 499, 2012-Ohio-
1111,
967 N.E.2d 718. As a result, the matter is remanded to the trial court for the
limited purpose to correct the clerical mistake and include, through a nunc pro tunc
entry, its consecutive-sentence findings from the August 27, 2021 hearing as
required by R.C. 2929.14(C)(4).
Therefore, the third assignment of error is sustained.
III. Conclusion
Scott’s 21-year sentence is affirmed. The trial court complied with the
requirements of R.C. 2929.14(C)(4), and we cannot conclude that the record “clearly
and convincingly” does not support the findings. The court, however, did not
include those findings in its accompanying sentencing entry. Therefore, the matter
is remanded to the trial court for the limited purpose to correct the sentencing entry,
nunc pro tunc, and include its consecutive-sentence findings from the August 27,
2021 hearing as required by R.C. 2929.14(C)(4).
Accordingly, judgment is affirmed and the matter is remanded.
It is ordered that appellee recover from appellant 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
EILEEN A. GALLAGHER, P.J., and
EILEEN T. GALLAGHER, J., CONCUR
