STATE OF OHIO, Plaintiff-Appellee, v. JOHN ADAMS, Defendant-Appellant.
Case No. 10CA3391
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
RELEASED 01/03/12
[Cite as State v. Adams, 2012-Ohio-255.]
James H. Banks, Dublin, Ohio, for appellant.
Mark E. Kuhn, Scioto County Prosecutor, Portsmouth, Ohio, for appellee.
Harsha, P.J.
{¶1} John Adams appeals the new sentence the trial court entered on remand from this Court. Adams contends his sentence is clearly and convincingly contrary to law and that the court abused its discretion in selecting it because the court again relied on an unconstitutional statute and made an incorrect finding regarding his criminal past. However, the portion of the original resentencing entry that Adams objects to did not reflect the court‘s actual findings at the resentencing hearing and was included in the entry by mistake. Therefore, we issued a second remand directing the trial court to file a nunc pro tunc entry. The trial court did so under
I. Facts
{¶2} A jury convicted Adams of one count of murder, one count of aggravated
II. Assignment of Error
{¶3} Adams assigns one error for our review:
THE TRIAL COURT ERRED IN SENTENCING THE DEFENDANT. [Transcript marked “July 19, 2004” at pp. 6-9; Judgment Entry filed 7/28/04 at pp. 4-7; Transcript of July 7, 2010 hearing at p. 3; Judgment Entry filed 9/23/10]
III. Sentencing
{¶4} In his sole assignment of error, Adams contends that the trial court erred when it resentenced him. In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, the Supreme Court of Ohio announced the standard for appellate review of felony sentences. We must employ a two-step analysis. First, we “must examine the sentencing court‘s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law.” Kalish at ¶4. If the sentence is not clearly and convincingly contrary to law, we must review the trial court‘s decision for an abuse-of-discretion. Id.
{¶5} Adams argues that his new sentence is clearly and convincingly contrary to law and that the trial court abused its discretion in imposing it because the trial court “made the same findings on the record which this Court found to be contrary” to Foster
Pursuant to Revised Code section 2929.14(E), the Court finds for the reasons stated on the record that consecutive sentences are necessary to protect the public from future crime and to punish the defendant and consecutive sentences are not disproportionate to the seriousness of the defendant‘s conduct and to the danger the defendant poses to the public. The Court also finds that the defendant‘s history of criminal conduct demonstrates that consecutive sentences are necessary.
{¶6} The language used in the original resentencing entry implicated
{¶7} Our review of the resentencing hearing revealed the trial court explicitly acknowledged we had remanded this matter after finding the court violated Foster “in giving reasons for the sentences imposed * * *.” Our review also revealed the court did
{¶8} Given the court‘s explicit acknowledgement of the reason for the remand, and the absence of any findings on the record at the resentencing hearing that violate Foster, we agreed with the State that the original resentencing entry did not accurately reflect the trial court‘s actual decision. So, we remanded the matter to the trial court again for the limited purpose of issuing a corrected sentencing entry that reflected the findings the court actually made at the resentencing hearing.1 See
IV. Conclusion
{¶9} Because the nunc pro tunc resentencing entry does not contain any language that is contrary to Foster or any reference to Adams’ criminal history, the trial court properly complied with our original remand in Adams I and the law on sentencing. Accordingly, we overrule the sole assignment of error and affirm the trial court‘s judgment.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Abele, J. & Kline, J.: Concur in Judgment and Opinion.
For the Court
BY:
William H. Harsha
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.