2023 Ohio 412
Ohio Ct. App.2023Background:
- Indicted on robbery (2nd-degree) and three counts of drug possession (three 5th-degree felonies) arising from an assault and theft; police found Elliott with the victim’s phone and two narcotic bindles.
- Jury acquitted Elliott of robbery and convicted him of possession of cocaine, heroin, and a fentanyl-related compound; the State merged the fentanyl count and elected to proceed on the heroin count.
- At sentencing the court relied on Elliott’s extensive criminal history, stating consecutive one-year prison terms were necessary to punish and to protect the public; total sentence = two years (two consecutive one-year terms).
- The sentencing entry recited the first two statutory consecutive-sentence findings (necessity and non-disproportionality) but only noted that Elliott had “prior prison sentences” without explicitly incorporating the R.C. 2929.14(C)(4)(c) finding linking criminal history to the need to protect the public.
- Elliott appealed arguing the court failed to make the required R.C. 2929.14(C)(4) findings; the appellate court found the required findings were made at the hearing but not fully incorporated into the entry and therefore affirmed the sentence and remanded for a nunc pro tunc entry to incorporate the omitted finding.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by imposing consecutive sentences without making and incorporating the R.C. 2929.14(C)(4) findings | State: Court made the required findings at the sentencing hearing; the omission in the entry is clerical and remediable by nunc pro tunc entry | Elliott: Entry failed to include the (a)-(c) statutory finding (specifically linking criminal history to protection of the public), so consecutive sentence is contrary to law and should be vacated/remanded for resentencing | Court: Findings were made at the hearing (including (C)(4)(c) via criminal-history discussion) but not fully reflected in the entry; affirmed sentence and remanded for the trial court to issue a nunc pro tunc entry incorporating the omitted finding |
Key Cases Cited
- State v. Beasley, 108 N.E.3d 1028 (Ohio 2018) (describes the three R.C. 2929.14(C)(4) findings required for consecutive terms)
- State v. Bonnell, 16 N.E.3d 659 (Ohio 2014) (court must make required findings at sentencing and incorporate them in the entry; word-for-word statutory language is not required)
- State v. Cozzone, 114 N.E.3d 601 (Ohio 2018) (trial court need not recite statutory language verbatim; omission from the entry after making findings at the hearing can be corrected by nunc pro tunc)