State v. Merer, 2021 Ohio 1553

Randy Merer recorded sexual encounters with a 17‑year‑old on his cellphones; indicted on seven counts of pandering sexually‑oriented matter involving a minor (second‑degree felonies) and one count of possessing criminal tools (fifth‑degree).
Plea agreement: Merer pleaded guilty to seven counts of attempted pandering (third‑degree felonies) and the possessing criminal tools count (fifth‑degree); trial court accepted pleas.
At sentencing the court imposed 36 months on each attempted‑pandering count (concurrent) and 12 months on the criminal‑tools count to run consecutively, for a 48‑month aggregate term.
The written judgment entry incorrectly stated that “pursuant to R.C. 2929.13(B) it is presumed that a prison term is necessary,” although neither offense carried a statutory presumption of imprisonment.
Merer appealed, arguing (1) the court erred by imposing incarceration instead of community control and (2) consecutive sentences were unsupported; the majority vacated the sentence and remanded for resentencing because the judgment entry’s presumption of prison rendered the sentence contrary to law.
Judge Zmuda concurred in the reversal but would have reached reversal on the lack of evidentiary support for consecutive sentences and discussed the proper scope of resentencing (favoring de novo resentencing of all affected terms).

Issue	Merer’s Argument	State/Trial Court’s Position	Held
Whether the trial court impermissibly presumed a prison term was required	Merer: judgment entry improperly asserts a presumption of prison under R.C. 2929.13(B); neither third‑ nor fifth‑degree convictions carry such a presumption, so sentence is contrary to law	Trial court: sentencing transcript shows consideration of R.C. 2929.11/2929.12; the entry’s citation was a mistake and not dispositive	Majority: Vacated sentence and remanded for resentencing because the judgment entry’s presumption rendered the sentence contrary to law (not a clerical error); concurrence disagreed that record clearly shows the presumption but nonetheless concurred in reversal on other grounds
Whether consecutive sentences were supported by R.C. 2929.14(C)(4) (great or unusual harm)	Merer: record lacks evidence of harm beyond the victim’s age; no victim impact statement or other proof of great/unusual harm, so consecutive terms unsupported	Trial court: found consecutive sentences necessary, not disproportionate, and that offenses were part of a course of conduct causing great or unusual harm	Majority: Moot after vacating sentence; Concurrence: Agreed consecutive findings unsupported (no evidence of great/unusual harm) and would remand for de novo resentencing

State v. Miller, 940 N.E.2d 924 (Ohio 2010) (nunc pro tunc entries may correct clerical errors but cannot change what the court actually decided)
State v. Beasley, 108 N.E.3d 1028 (Ohio 2018) (vacating and remanding for resentencing where required consecutive‑sentence findings were absent)
State v. Bonnell, 16 N.E.3d 659 (Ohio 2014) (trial court must make statutory findings for consecutive sentences at the hearing and in the entry; reasons not required but record must support findings)
State v. Wilson, 951 N.E.2d 381 (Ohio 2011) (remand for resentencing generally contemplates de novo resentencing)
State v. Marcum, 59 N.E.3d 1231 (Ohio 2016) (R.C. 2953.08(G)(2) sets the standard and options for appellate review of felony sentences)
Cross v. Ledford, 120 N.E.2d 118 (Ohio 1954) (definition and standard for clear and convincing evidence)