State of Ohio v. Jimmy Clark
Case No. 24CA2
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY
RELEASED 12/04/2024
2024-Ohio-5717
Hess, J.
DECISION AND JUDGMENT ENTRY
L. Scott Petroff, Athens, Ohio, for appellant.
Jeffrey C. Marks, Ross County Prosecuting Attorney, and Pamela C. Wells, Ross County Assistant Prosecuting Attorney, Chillicothe, Ohio, for appellee.
Hess, J.
{1} Jimmy Clark appeals from a judgment entry of sentence of the Ross County Court of Common Pleas convicting him, following guilty pleas, of ten drug-related offenses. In his sole assignment of error, Clark contends his sentence was contrary to law because the trial court failed to make the proper findings at the sentencing hearing and did not include any consecutive sentence findings in the sentencing entry. For the reasons which follow, we overrule the sole assignment of error and affirm the trial court‘s judgment. However, we remand for the trial court to issue a nunc pro tunc judgment entry of sentence incorporating all consecutive sentence findings announced at the sentencing
I. FACTS AND PROCEDURAL HISTORY
{2} In June 2023, Clark was indicted on ten counts: (1) Count One, aggravated possession of drugs, a second-degree felony; (2) Count Two, aggravated possession of drugs, a second-degree felony; (3) Count Three, possession of a fentanyl-related compound, a second-degree felony; (4) Count Four, possession of cocaine, a fifth-degree felony; (5) Count Five, aggravated possession of drugs, a fifth-degree felony; (6) Count Six, possession of cocaine, a fifth-degree felony; (7) Count Seven, aggravated possession of drugs, a third-degree felony; (8) Count Eight, possession of a fentanyl-related compound, a fourth-degree felony; (9) Count Nine, possession of cocaine, a fifth-degree felony; and (10) Count Ten, aggravated possession of drugs, a fifth-degree felony. Clark initially pleaded not guilty but later pleaded guilty to all counts. The parties agreed to jointly recommend a six to nine year aggregate prison sentence, contingent on Clark‘s good behavior pending disposition, him getting no new charges, and his appearance at disposition. The court accepted the guilty pleas and found Clark guilty.
{3} The court scheduled the sentencing hearing for January 5, 2024, but moved the hearing up after receiving reports about Clark testing positive for drugs. At the sentencing hearing, the State noted the agreement was to recommend an aggregate sentence of six to nine years, and defense counsel asked the court to impose that sentence. Clark spoke and suggested he could pass a drug test. Clark was tested and failed.
{5} At the sentencing hearing, the trial court stated: “The court finds that in this case that the um, consecutive sentence is necessary to protect the public and punish the offender. They are not disproportionate and I find that the offender‘s criminal history shows the consecutive terms are needed to protect the public.” In its judgment entry of sentence, the trial court did not make any consecutive sentence findings and indicated the sentence it imposed was a “negotiated sentence.”
II. ASSIGNMENT OF ERROR
{6} Clark presents one assignment of error: “The sentence was contrary to law because the trial court failed to make the proper findings at the sentencing hearing and did not include any consecutive sentence findings in the sentencing entry.”
III. LAW AND ANALYSIS
{7} In the sole assignment of error, Clark contends his sentence was contrary to law because the trial court failed to make the proper consecutive sentence findings at the sentencing hearing and did not include any consecutive sentence findings in the sentencing entry. Clark claims the trial court “glossed over” the proportionality finding
{8} The State contends that according to the judgment entry of sentence, Clark received a “negotiated sentence,” so he cannot appeal his sentence pursuant to
{9}
{10}
The court hearing an appeal under [
R.C. 2953.08(A) ,(B) , or(C) ] shall review the record, including the findings underlying the sentence or modification given by the sentencing court.The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court‘s standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court‘s findings under division (B) or (D) of
section 2929.13 , division (B)(2)(e) or (C)(4) ofsection 2929.14 , or division (I) ofsection 2929.20 of the Revised Code , whichever, if any, is relevant;(b) That the sentence is otherwise contrary to law.
”
{12} Clark did not object to the imposition of consecutive sentences at the sentencing hearing and has therefore forfeited all but plain-error review. State v. Raines, 2024-Ohio-3236, ¶ 55 (4th Dist.), citing State v. Whitaker, 2022-Ohio-2840, ¶ 166, 171. “A party asserting plain error must demonstrate that an obvious error occurred and that there is a reasonable probability it resulted in prejudice, meaning it affected the outcome of the proceeding.” Id., citing State v. Knuff, 2024-Ohio-902, ¶ 117. “‘It is well settled that a sentence that is contrary to law is plain error and an appellate court may review it for plain error.‘” State v. Price, 2024-Ohio-1641, ¶ 7 (4th Dist.), quoting State v. Burrell, 2024-Ohio-638, ¶ 14 (11th Dist.).
{13}
If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness
of the offender‘s conduct and to the danger the offender poses to the public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to
section 2929.16 ,2929.17 , or2929.18 of the Revised Code , or was under post-release control for a prior offense.(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct.
(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{14} “Though ‘a trial court is required to make the findings mandated by
{16} Here, as in Plymale, the trial court specifically identified all three of the factors listed in
JUDGMENT AFFIRMED AND CAUSE REMANDED FOR NUNC PRO TUNC ENTRY.
It is ordered that the JUDGMENT IS AFFIRMED AND CAUSE REMANDED FOR NUNC PRO TUNC ENTRY 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 ROSS 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 60 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 60-day period, or the failure of the appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-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 60 days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Abele, J. & Wilkin, J.: Concur in Judgment and Opinion.
For the Court
BY: _________________________
Michael D. Hess, 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.