2018 Ohio 4646
Ohio Ct. App.2018Background
- Defendant Michael W. Cole, Jr. pleaded guilty to two counts (Count I: domestic violence; Count IV: harassment with a bodily substance) as part of a plea agreement; four other counts were dismissed.
- Offenses arose from a December 5, 2017 incident in which Cole assaulted his girlfriend and her son and resisted arrest.
- At sentencing the trial court imposed consecutive terms: 15 months (Count I) + 9 months (Count IV) = 24 months total.
- Cole appealed, arguing the record did not support imposition of consecutive sentences under R.C. 2929.14(C).
- At the sentencing hearing the court made the statutory consecutive-sentence findings on the record, citing necessity to protect the public/punish and the defendant’s criminal history; the written judgment entry omitted one of those (C)(4)(c) findings.
- Appellate court affirmed the sentence on the merits (finding (C)(4)(c) supported by the record) but remanded to allow the trial court to correct its written entry nunc pro tunc to include the omitted finding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether consecutive sentences were supported by the record under R.C. 2929.14(C) | State: Trial court’s on-the-record findings satisfied R.C. 2929.14(C) and one of the (a)-(c) alternatives was supported | Cole: Record (rehab efforts, mental-health treatment, remorse, family reintegration) did not support consecutive sentences | Affirmed: Consecutive sentences upheld because (C)(4)(c) — defendant’s criminal history — was supported by the record |
| Whether trial court’s written judgment must mirror oral findings | State: Oral findings control; clerical omission can be corrected | Cole: Written entry lacked the (C)(4)(c) finding, so sentence entry was deficient | Remanded: Court may (and should) issue a nunc pro tunc entry to incorporate the omitted (C)(4)(c) finding |
Key Cases Cited
- Marcum v. State, 146 Ohio St.3d 516 (Ohio 2016) (standard for appellate review of felony sentences and clear-and-convincing-evidence test)
- Bonnell v. Ohio Dept. of Rehabilitation & Correction, 140 Ohio St.3d 209 (Ohio 2014) (trial court must make required consecutive-sentence findings on the record; clerical omissions in the entry may be corrected nunc pro tunc)
- Cross v. Ledford, 161 Ohio St. 469 (Ohio 1954) (definition of clear and convincing evidence)