State v. BanvilleState v. Banville
JUDGMENT: AFFIRMED AND REMANDED
RELEASED AND JOURNALIZED: March 14, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-22-677123-A
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Gregory M. Paul, Assistant Prosecuting Attorney, for appellee.
Wegman Hessler Valore and Dean M. Valore, for appellant.
SEAN C. GALLAGHER, J.:
{¶ 1} Appellant Kenneth Banville appeals the sentence imposed in Cuyahoga C.P. No. CR-22-677123-A. Upon review, we affirm the judgment of the
{¶ 2} Appellant entered guilty pleas to 15 counts in this case, which included charges of involuntary manslaughter, gross abuse of a corpse, tampering with evidence, having weapons while under disability, corrupting another with drugs, and other drug-related charges. The trial court held a joint-sentencing hearing on June 28, 2023, at which appellant was sentenced in this case, as well as in three other cases. The trial court imposed an aggregate sentence in this case of 14 years to 19.5 years. The sentence was ordered to run concurrent with the 9-year aggregate sentence imposed in Cuyahoga C.P. No. CR-22-672644, but consecutive with the 9-year aggregate sentence imposed in each Cuyahoga C.P. Nos. CR-19-636305-A and CR-21-665107-A, which were run consecutive to each other. Appellant timely appealed his sentence in this case.1
{¶ 3} Under his first assignment of error, appellant raises constitutional challenges to the Reagan Tokes Law and the trial court‘s imposition of an indefinite sentence. We summarily overrule this assignment of error on the authority of State v. Hacker, Slip Opinion No. 2023-Ohio-2535.
{¶ 4} Under his second assignment of error, appellant challenges the trial court‘s imposition of consecutive sentences. Appellant argues that the trial court
{¶ 5} Pursuant to
{¶ 6} A review of the transcript reflects that the trial court made each of the required statutory findings at the sentencing hearing. The trial court found as follows:
I do find that consecutive sentences are necessary to protect the public from future crimes and to punish the offender, and that consecutive sentences are not disproportionate to the seriousness of your conduct and truly to the danger that you pose to the public.
Again, you committed these multiple offenses while you were awaiting sentencing. And as has been previously discussed, you have a criminal history which demonstrates that consecutive sentences are necessary to protect the public from future crimes. At least one or more of these courses of conduct and harm caused by these multiple offenses committed are so great or unusual that any single prison term for any of these offenses committed as part of a course of conduct would adequately reflect the seriousness of your conduct.
(Tr. 110-111.)
{¶ 8} Nonetheless, as this court has previously recognized, ”
{¶ 9} The record reflects that before imposing sentence, the trial court considered the presentence-investigation report and the state‘s sentencing memorandum, which provided an overview of the facts underlying the charges in each case. The trial court heard from the assistant prosecutor and from defense counsel, who informed the court of mitigating factors. The trial court also heard from the victim‘s mother, the victim‘s best friend, and the lead detective in the case, as well as from appellant and appellant‘s sister. The trial court was aware that appellant had a history of drug-related convictions dating back to 2009. The record shows that appellant was being sentenced on four cases before the court, and he committed the crimes in this case while he was awaiting sentencing in another case. In this case, appellant supplied the victim with fentanyl and caused her death. The victim‘s body sustained postmortem injuries. As the assistant prosecutor remarked, the victim “was a person loved by many and discarded by [appellant] as little more than a piece of trash.” (Tr. 76.) The state believed appellant dragged her corpse, possibly with the assistance of another, from an apartment downtown to a drug house in Slavic Village. A litany of letters and emails were sent to the court by those affected by appellant‘s criminal acts. After thoroughly reviewing the record before
{¶ 10} Finally, as argued by appellant and conceded by the state, the trial court failed to include any of the consecutive-sentence findings in the sentencing entry. However, this does not warrant a reversal as requested by appellant. “A trial court‘s inadvertent failure to incorporate the statutory findings in the sentencing entry after properly making those findings at the sentencing hearing does not render the sentence contrary to law; rather, such a clerical mistake may be corrected by the court through a nunc pro tunc entry to reflect what actually occurred in open court.” Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at ¶ 30, citing State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 15.
{¶ 11} For these reasons, the second assignment of error is overruled.
{¶ 12} In accordance with Bonnell, we remand this matter to the trial court solely to issue a nunc pro tunc sentencing entry that incorporates its consecutive-sentence findings.3
{¶ 13} Judgment affirmed; case remanded for the trial court to issue a nunc pro tunc entry to bring the sentencing entry into compliance with the requirements of Bonnell at ¶ 29-30.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, A.J., and EILEEN T. GALLAGHER, J., CONCUR