State v. Clyde
2017 Ohio 8205
| Ohio Ct. App. | 2017Background
- Jeffrey Clyde was convicted after a 2013 bench trial of multiple felonies arising from sexual offenses against his daughter and related offenses; original aggregate term was 20 years.
- On prior appeal this court vacated convictions on three counts (one count of compelling prostitution and two counts of attempted pandering) and held the trial court failed to make required consecutive-sentence findings under R.C. 2929.14(C)(4), remanding for resentencing.
- At the July 7, 2016 resentencing the court imposed consecutive terms: four years on each of four sexual-battery counts and two years on one compelling-prostitution count, with other shorter terms concurrent, for a total of 18 years (with credit for time served).
- Clyde filed a timely appeal from the resentencing, asserting (1) the trial court failed to comply with Crim.R. 32(B) when advising him of appeal rights, and (2) the sentence is excessive/unreasonable and the court failed to consider his military service under R.C. 2929.12(F).
- The Sixth District affirmed the resentencing, finding any Crim.R. 32(B) omission harmless because Clyde timely filed a notice of appeal, and that the record supports the court’s consecutive-sentence findings and shows proper consideration of sentencing statutes (with presumption of consideration where the record does not affirmatively show otherwise).
- The court sua sponte remanded for entry of a nunc pro tunc judgment removing references to the convictions previously vacated on appeal (counts 14, 16, 17).
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Clyde) | Held |
|---|---|---|---|
| Whether failure to fully advise appellant of appellate rights under Crim.R. 32(B) requires vacatur | Trial court compliance unnecessary to reverse where defendant was told he had 30 days to appeal and actually filed timely notice | Trial court failed to give all required Crim.R. 32(B)(3) advisements; sentence should be vacated and resentenced | Harmless error: court told Clyde he had right to appeal and he timely filed notice; no vacatur required |
| Whether sentence is excessive/contrary to law and whether court failed to consider military service under R.C. 2929.12(F) | Sentence is lawful, within statutory range, and court considered R.C. 2929.11/2929.12 factors; prior remand complied with R.C. 2929.14(C)(4) | Sentence is excessive/unreasonable; court did not specifically consider R.C. 2929.12(F) (military service) and Clyde maintains innocence | Sentence affirmed: record supports consecutive-sentence findings; presumption court considered R.C. 2929.11/2929.12 (military service in PSI and original hearing noted); not clearly and convincingly contrary to law |
Key Cases Cited
- State v. Kalish, 896 N.E.2d 124 (Ohio 2008) (explains appellate review framework for felony sentences and presumption that trial court considered R.C. 2929.11 and 2929.12 when record does not show otherwise)