State v. DowningState v. Downing
Repper-Pagan Law, Ltd., and Christopher J. Pagan, for appellant.
O P I N I O N
HENDRICKSON, P.J.
{¶ 1} Appellant, Justin Downing, appeals from the sentence he received in the Butler County Court of Common Pleas following his guilty plea to two counts of sexual battery. For the reasons discussed below, we affirm in part, reverse in part and remand this matter to the trial court for the limited purpose of issuing a nunc pro tunc sentencing entry.
{¶ 3} A superseding indictment was filed on July 6, 2022, setting forth three additional charges for offenses that occurred in Hamilton, Butler County, Ohio. In counts three and four, appellant was charged with sexual battery in violation of
{¶ 4} Appellant initially pled not guilty to the charged offenses. However, on February 23, 2023, following plea negotiations, appellant entered a guilty plea to third-degree sexual battery as set forth in count one and to an amended count five, sexual battery in violation of
{¶ 5} At the sentencing hearing, the court indicated it had reviewed the PSI, a sentencing memorandum filed by the state, letters submitted in support of appellant, and victim impact statements it received, including a statement from Jane‘s therapist. The court then heard from defense counsel, appellant, Jane, and Jane‘s mother. Defense counsel noted that appellant had no prior criminal record, had family and friends that supported him, had not had any issues while on pretrial services for 11 months, took responsibility for his actions by entering a guilty plea, and had served in the Army for six years. Appellant apologized to Jane, Jane‘s Mother, his son, and “all the families.” He noted he had no excuse for what he pled guilty to and stated that “with my time in, I‘m hoping to get the help I need, and continue to hopefully be a functioning member of society.”
{¶ 6} Jane and Jane‘s Mother both spoke of the trauma and significant impact the sexual offenses had on Jane. Jane noted that appellant used threats and bribery to force her to have sex with him. He would take away her phone or refuse to allow her to have friends over unless she would have sex with him. He threatened to harm her family if she told anyone about the sexual abuse. Jane stated that appellant‘s actions have left her feeling “mad at the world.” She indicated she is angry all the time, trusts no one, feels resentful and powerless, finds it hard to focus at school, and struggles every day. Jane‘s mother testified that the abuse has caused Jane trauma that will last the rest of Jane‘s life and it has caused Jane to lose confidence, feel self-hatred, be desperate for acceptance, and lack trust in others.
{¶ 7} After hearing from those present in the courtroom, the trial court considered the principles and purposes of felony sentencing under
{¶ 8} Appellant appealed his sentence, raising four assignments of error for review.
{¶ 9} Assignment of Error No. 1:
{¶ 10} THE IMPOSITION OF CONSECUTIVE SENTENCES WAS UNLAWFUL.
{¶ 11} In his first assignment of error, appellant contends the trial court erred in imposing consecutive sentences without making all of the required findings at the sentencing hearing. Specifically, he contends the trial court failed to find that he acted “under a course of conduct” or that the unusual harm experienced by Jane arose from that course of conduct, as required by
{¶ 12} A felony sentence is reviewed under the standard set forth in
{¶ 13} When imposing consecutive sentences, a sentencing court is required “to make the findings mandated by
(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 must make the required findings at the sentencing hearing, “a word-for-word recitation of the language of the statute is not required.” Bonnell at ¶ 29. “[A]s long as the reviewing court can discern that the trial court engaged in the correct analysis and can determine that the record contains evidence to support the findings, consecutive sentences should be upheld.” Id.
{¶ 15} In the present case, the trial court stated the following in imposing consecutive sentences:
I am, however, going to run those sentences consecutive to each other, and will make the following findings. I do make the findings that consecutive sentences are necessary to protect the public from future crime, or more appropriate in this case, to punish the offender.
I‘m going to find that it is not disproportionate to the seriousness of the offender‘s conduct and the danger the
offender poses to the public. And finally, I‘m going to find that the harm was so great or unusual – again, based on the factors that I have put on the record and the nature of the offenses themselves, the harm is so great or unusual that a single term does not adequately reflect its seriousness or the Defendant‘s conduct. So those are going to be consecutive for a total of 12 years.
{¶ 16} Appellant contends that the foregoing was insufficient to satisfy
{¶ 17} Although we find no error in the trial court‘s imposition of consecutive sentences at the sentencing hearing, we find that the trial court erred by failing to incorporate its consecutive sentencing findings into appellant‘s sentencing entry. See Bonnell at ¶ 37 (“to impose consecutive terms of imprisonment, a trial court is required to make the findings mandated by
{¶ 18} Assignment of Error No. 2:
{¶ 19} THE TRIAL COURT FAILED TO CONSIDER REQUIRED SENTENCING FACTORS.
{¶ 20} In his second assignment of error, appellant argues that the trial court erred
{¶ 21} In sentencing a criminal defendant, a trial court is guided by two statutes:
{¶ 22} Pursuant to
{¶ 23}
{¶ 24} Appellant contends the sentences imposed on the sexual battery offenses are contrary to law because the court “ignored” a factor it was mandated by
{¶ 25} Contrary to appellant‘s assertions, the record reflects that the trial court considered appellant‘s military history and his PTSD diagnosis when imposing a sentence. Defense counsel spoke at sentencing about the six years appellant spent in the army. The PSI report also laid out appellant‘s military service and his PTSD diagnosis. At the sentencing hearing, the trial court specifically stated that “the PSI indicates the Defendant is in fact a veteran with the armed services. Statutorily, I do have to take that into consideration.” The court further indicated in its sentencing entry that in imposing appellant‘s sentence it considered the principles and purposes of felony sentencing as well as the various factors set forth in
{¶ 26} Appellant also argues his sentence is contrary to law as the trial court did not properly consider his remorse under
{¶ 27} In considering the offender‘s likelihood to commit future crimes,
{¶ 28} The record demonstrates that the trial court considered appellant‘s remorse before imposing a sentence for the two sexual battery convictions. The court heard appellant state during allocution that he had “no excuse for what I have pled guilty to” and it listened to appellant apologize to the victim, the victim‘s mother, and his own family. The court stated, “I do take into consideration the fact that he did take responsibility, and the fact that he entered a plea, avoiding the victim having to testify in a trial setting.” The court also took into consideration information set forth in the PSI, stating the following:
And finally, I‘m also taking into consideration a comment that was made by our PSI writer that even though [appellant] did in fact take responsibility by entering a guilty plea, my understanding from the PSI writer is that [appellant] continued to maintain that he did not perform these acts. And it was categorized in the PSI as [appellant] showing no remorse whatsoever, which, again, is one of the aggravating factors, statutorily speaking.3
{¶ 29} Appellant argues that the above statement indicates that the trial court “delegated the consideration of remorse to the PSI writer—thereby conferring the judicial power to a nonjudge.” Appellant contends such delegation resulted in reversible error and, in support of this argument, cites State v. Fair, 2d Dist. Montgomery No. 8081, 1983 Ohio App. LEXIS 13314 (Oct. 14, 1983). In Fair, a defendant entered into a plea agreement after the state agreed to reduce a drug offense to allow an 18-month sentence. Id. at *3. The agreement further provided that if the defendant cooperated with a particular police detective to bring about a drug bust, the defendant‘s sentence could be further
{¶ 30} The circumstances in Fair are wholly distinguishable from those before us. Here, the trial court did not delegate its sentencing discretion to the PSI writer. Rather, the court asked the PSI writer to prepare a report. Pursuant to
{¶ 31} Accordingly, as the trial court properly considered appellant‘s remorse, his military service, and the resulting PTSD diagnosis, we find no merit to appellant‘s contentions that the trial court failed to consider required sentencing factors under
{¶ 32} Assignment of Error No. 3:
{¶ 33} [APPELLANT‘S] INCULPATORY STATEMENT TO THE PSI WRITER WAS INVALID AND UNCONSTITUTIONAL.
{¶ 34} In his third assignment of error, appellant argues that his constitutional right to counsel and right against self-incrimination were violated when the PSI writer, a probation officer, interviewed him about the circumstances of the offense. Appellant maintains that his “uncounseled, and unwarned statements about his reasons for entering a plea, which the PSI writer characterized as showing no remorse, could not be used against him.”
{¶ 35} As an initial matter, we note that appellant never objected to the accuracy of the contents of the PSI, although permitted to do so under
{¶ 36} “As a general rule an appellate court will not consider an alleged error that the complaining party did not bring to the trial court‘s attention at the time the alleged error is said to have occurred.” State v. Slagle, 65 Ohio St.3d 597, 604 (1992). The purpose behind this rule is to prevent the tactic of remaining silent on a fatal error during trial court proceedings with the expectation of demanding a reversal on appeal. Id. However, ”
Right to Counsel
{¶ 37} Appellant argues that his Sixth Amendment right to counsel extended to the PSI interview as it was a “critical stage” of the proceedings against him. He further argues that his right to counsel at a PSI interview is protected by Section 10, Article I of the Ohio
{¶ 38} The Sixth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, provides that “[i]n all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defense.” Section 10, Article I of the Ohio Constitution provides that “[i]n any trial, in any court, the party accused shall be allowed to appear and defend in person and with counsel.” Finally, Ohio
(A) Counsel in serious offenses. Where a defendant charged with a serious offense is unable to obtain counsel, counsel shall be assigned to represent the defendant at every stage of the proceedings from their initial appearance before a court through appeal as of right, unless the defendant, after being fully advised of their right to assigned counsel, knowingly, intelligently, and voluntarily waives their right to counsel.
* * *
(C) Waiver of counsel. Waiver of counsel shall be in open court and the advice and waiver shall be recorded as provided in Rule 22. In addition, in serious offense cases the waiver shall be in writing.
{¶ 39} “The Sixth Amendment right to counsel applies to critical stages of criminal proceedings.” State v. Schleiger, 141 Ohio St.3d 67, 2014-Ohio-3970, ¶ 13, citing United States v. Wade, 388 U.S. 218, 224, 87 S.Ct. 1926 (1967) and Iowa v. Tovar, 541 U.S. 77, 80, 124 S.Ct. 1379 (2004). “[S]entencing is a critical stage of the proceedings and * * *
{¶ 40} In the present appeal, we are asked to determine whether a presentence interview by a probation officer is a critical stage of a criminal proceeding following a defendant‘s guilty plea. This issue appears to be a matter of first impression in this state. However, several federal circuit courts have considered the issue and found that in non-capital cases, a presentence interview with a federal probation officer is not a critical stage of the proceedings to which the right to counsel attached. See United States v. Tisdale, 952 F.2d 934, 939-940 (6th Cir.1992); United States v. Wood, 907 F.2d 1540, 1543 (5th Cir.1990), cert. denied, 498 U.S. 1070, 111 S.Ct. 792 (1991); United States v. Jackson, 886 F.2d 838, 844-845 (7th Cir.1989). See also United States v. Johnson, 935 F.2d 47, 50 (4th Cir.1991) (holding that case law finding that a defendant‘s right to counsel does not attach to presentence interviews was “persuasive” and the same rationale applied to defeat a defendant‘s claim of right to counsel during an ex parte presentence conference). These courts determined that a presentence interview is not a critical stage because a probation officer does not have an adversarial role during a presentence interview with the defendant. That is to say that the probation officer does not act on behalf of the prosecution. Tisdale at 939; Jackson at 844. Rather, the probation officer is “an agent of the court and assists the court in arriving at a just sentence.” Johnson at 50. “In interviewing a defendant as a part of the presentence investigation, the probation officer serves as a neutral information gatherer for the sentencing judge.” Jackson at 844.
{¶ 41} We are persuaded by the reasoning of the Fourth, Fifth, Sixth, and Seventh Circuit Courts. We therefore hold that within the context of a guilty plea, a presentence interview with a probation officer is not a “critical stage” in which a defendant‘s right to counsel attaches under the Sixth Amendment to the United States Constitution or under Section 10, Article I of the Ohio Constitution because the probation officer does not act in an adversarial role or on behalf of the prosecution. We further find that nothing in
Right to Remain Silent
{¶ 42} Appellant argues that his constitutional right to remain silent under the Fifth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution was violated when the trial court, at the conclusion of the plea proceedings, “ordered [appellant] to speak with the PSI writer, advising [appellant] he would be arrested if he failed to attend the interview.” Appellant implies that the PSI interview was a custodial interrogation which entitled him to receive Miranda warnings, and without such warnings being provided, his statements to the probation officer had to be suppressed and could not be considered by the court in imposing a sentence.
{¶ 43} “The Fifth Amendment to the United States Constitution provides persons with a privilege against self-incrimination, which is applicable against the states through the Due Process Clause of the Fourteenth Amendment.” State v. Johnson, 163 Ohio App.3d 132, 2005-Ohio-4243, ¶ 44 (10th Dist.), citing Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489 (1964). The privilege against self-incrimination is also guaranteed by Section 10, Article I, of the Ohio Constitution, which provides, in pertinent part, that “[n]o person shall be compelled, in any criminal case, to be a witness against himself.” “A defendant‘s right to remain silent extends past trial and through sentencing * * * because liability for the crime with which the defendant is charged continues until the sentence has been imposed.” Brunson, 2022-Ohio-4299 at ¶ 75, citing Mitchell v. United States, 526 U.S. 314, 328-330, 119 S.Ct. 1307 (1999).
{¶ 44} “Because a witness may voluntarily testify to matters which may be incriminating, the privilege against self-incrimination is not self-executing. The witness seeking the privilege must ‘claim it.‘” State v. Gideon, 165 Ohio St.3d 156, 2020-Ohio-6961, ¶ 9, quoting United States v. Monia, 317 U.S. 424, 427, 63 S.Ct. 409 (1943). “If the witness answers a question, the answer will be considered voluntary.” Id., citing Minnesota v. Murphy, 465 U.S. 420, 427, 104 S.Ct. 1136 (1984).
{¶ 45} A defendant‘s general obligation to appear before a probation officer and answer questions truthfully does not in itself convert a defendant‘s otherwise voluntary statements into compelled ones. Murphy at 427. “‘[T]he [F]ifth [A]mendment privilege against self-incrimination is not self-executing in the context of a meeting with a probation officer.‘” State v. Ward, 2d Dist. Montgomery No. 2017-CA-81, 2018-Ohio-2572, quoting United States v. Miller, 910 F.2d 1321, 1326 (6th Cir.1990).
{¶ 46} Nonetheless, at times, “when it is necessary to ‘safeguard the core constitutional right protected by the Self-incrimination Clause,’ an assertion of privilege
{¶ 47} As for custodial interrogations, Miranda requires “the exclusion of incriminating statements obtained during custodial interrogation unless the suspect fails to claim the Fifth Amendment privilege after being suitably warned of his right to remain silent and the consequences of his failure to assert it.” Id. at 430, citing Miranda at 467-469 and 475-477. However, “this extraordinary safeguard ‘does not apply outside the context of the inherently coercive custodial interrogations for which it was designed.‘” Id., quoting Roberts v. United States, 445 U.S. 552, 560, 100 S.Ct. 1358 (1980). Miranda defined a custodial interrogation as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda at 444. “[T]he ultimate inquiry is simply whether there [was] a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517 (1983), quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711 (1977).
{¶ 48} Appellant suggests he was compelled by the trial court‘s threat of arrest to
THE COURT: I will note the State has an objection to me continuing the bond, but based on the pre-trial performance, I will continue the bond pending sentencing, which means, when you leave here today, go to pre-trial. If you don‘t, a capias will issue. And also, they will help you get the PSI set up.
The trial court‘s reference to an arrest was in connection with the extension of appellant‘s bond and his need to report to pretrial services to continue that bond. Though the trial court instructed appellant to schedule a PSI interview, it never threatened to have him arrested if he chose not to speak during the interview. The issue of a capias was not premised on whether appellant elected to speak with or respond to the probation officer during the PSI interview process. Additionally, neither
{¶ 49} Furthermore, contrary to appellant‘s arguments, he was not subject to a custodial interrogation during the PSI interview. Appellant was not under formal arrest or otherwise deprived of his freedom of action in any significant way when meeting with the probation officer. Rather, appellant had been released on bond and was permitted to schedule a convenient time to meet with the probation officer in order to complete the presentence interview. Miranda does not apply “‘to routine presentence interviews
{¶ 50} As appellant was not subject to a custodial interrogation and was not compelled by the threat of arrest or some other penalty that foreclosed his right to remain silent, we find that appellant was required to “claim” or invoke his right against self-incrimination if he wished to remain silent when asked by the probation officer about the circumstances of the sexual battery offenses during the presentence interview. There is nothing in the record indicating that appellant invoked his constitutional right against self-incrimination during the PSI interview process. As a result, appellant relinquished the protections afforded by the Fifth Amendment to the United States Constitution and Section 10, Article I, of the Ohio Constitution by voluntarily answering the probation officer‘s questions regarding the circumstances of the sexual battery offenses. Accord Ward at ¶ 14-17 (finding no Fifth Amendment violation where a defendant voluntarily answered a probation officer‘s questions regarding his drug use and possession during a presentence interview). Appellant‘s statements to the probation officer were properly considered by the trial court when imposing appellant‘s sentence.
{¶ 51} Accordingly, for the reasons discussed above, we find that appellant‘s arguments that his constitutional right to counsel and his right against self-incrimination were violated by questioning during the presentence investigation are without merit. The trial court did not err in considering the statements appellant made to the probation officer regarding the circumstances of the sexual battery offenses. Appellant‘s third assignment of error is overruled.
{¶ 52} Assignment of Error No. 4:
{¶ 53} TRIAL COUNSEL WAS INEFFECTIVE IN THE SENTENCING PROCEEDINGS.
{¶ 55} “In order to prevail on an ineffective-assistance-of-counsel claim, a defendant must prove that counsel‘s performance was deficient and that the defendant was prejudiced by counsel‘s deficient performance.” State v. Davis, 159 Ohio St.3d 31, 2020-Ohio-309, ¶ 10, citing State v. Bradley, 42 Ohio St.3d 136, 141-142 (1989) and Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984). “Thus, the defendant must demonstrate that counsel‘s performance fell below an objective standard of reasonableness and that there exists a reasonable probability that, but for counsel‘s error, the result of the proceeding would have been different.” Id., citing Bradley at paragraphs two and three of the syllabus. “‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.‘” Bradley at 142, quoting Strickland at 694. The failure to satisfy either the deficiency prong or the prejudice prong of the test is fatal to a claim of ineffective assistance of counsel. State v. Madrigal, 87 Ohio St.3d 378, 389 (2000).
{¶ 56} Appellant‘s claims of ineffective assistance of counsel fail as appellant cannot demonstrate that trial counsel‘s representation was deficient or that he was prejudiced by the alleged deficiencies. As discussed in our resolution of the third assignment of error, within the context of a guilty plea, a presentence interview with a probation officer is not a “critical stage” in which a defendant‘s right to counsel attaches. Counsel was not required to attend the presentence interview and her decision not to
{¶ 57} As for appellant‘s claim that counsel “failed to instruct him to assert the right to silence when the PSI writer asked about the offense facts,” we note that the record does not disclose what advice, if any, counsel gave appellant prior to his presentence interview with the probation officer. “This court cannot speculate on trial counsel‘s knowledge, conversations with appellant, or * * * advice to appellant.” State v. Leonicio, 12th Dist. Butler No. CA2022-08-077, 2023-Ohio-2433, ¶ 27. Our review is limited to the information contained in the record before us.
{¶ 58} However, even if we assume defense counsel did not advise appellant to remain silent when he was questioned about his version of the sexual battery offenses during the PSI interview, we find that appellant cannot demonstrate he was prejudiced by the alleged deficiency. In imposing appellant‘s sentence, the trial court did not rely solely on the probation officer‘s characterization of appellant‘s statements as showing no remorse for the offenses. Rather, the trial court made its own finding on appellant‘s remorse after considering the PSI in conjunction with appellant‘s actions in pleading guilty, his apology to the victim, and his statement in allocution.
{¶ 59} Furthermore, appellant‘s remorse was only one of many factors the trial court considered under
{¶ 60} Judgment affirmed in part, reversed in part and remanded to the trial court for the limited purpose of issuing a nunc pro tunc sentencing entry to reflect the trial court‘s statutory findings under
BYRNE, J., concurs.
PIPER, J., concurs in part and dissents in part.
BYRNE, J., concurring separately.
{¶ 61} I concur with and fully join the court‘s opinion. As mentioned by the court in footnote 4, Downing asserts—but does not quite argue—that the language concerning the right to counsel in Article I, Section 10 of the Ohio Constitution is “broader” than the right to counsel recognized by the Sixth Amendment to the United States Constitution. I agree with the court‘s determination that because Downing did not develop or explain his assertion, we should not develop an argument for him.
{¶ 62} However, I write separately to emphasize—as I have before—that Ohio courts should be open to arguments that, in some instances (whether in the criminal context or otherwise), the Ohio Constitution may recognize rights beyond those recognized by the United States Constitution. State v. Walton, 12th Dist. Butler No. CA2020-12-124, 2021-Ohio-3958, ¶ 38 (Byrne, J., concurring).
{¶ 63} The need to conduct an independent analysis of the language of the Ohio
{¶ 64} Here, the federal and state constitutional provisions that Downing references use different language to describe the right to counsel. Specifically, the Sixth Amendment discusses the right to counsel as applying in the context of “all criminal prosecutions,” while Article I, Section 10 of the Ohio Constitution refers to the right to counsel as applying “[i]n any trial.” On first blush the Ohio Constitution‘s language appears narrower in scope than the Sixth Amendment‘s language. See State v. Morris, 1st Dist. Hamilton No. C-230108, 2023-Ohio-4105, ¶ 69 (Winkler, J., dissenting) (observing that the reference to “[i]n any trial, in any court” in Article I, Section 10 of the Ohio Constitution appears narrower in scope than the reference to “[i]n all criminal prosecutions” in the Sixth Amendment). However, to conduct this analysis, we would need to review the text in more detail, and specifically we would need to examine the original public meanings of the phrases “[i]n any trial” and “[i]n all criminal prosecutions” at the time those phrases were adopted as part of their respective constitutions. But see
{¶ 65} Downing has not offered any such argument upon which we could base our analysis. In fact, Downing has not even stated which words in the relevant right-to-counsel provisions are relevant to his argument, or if he even bases his argument on the text of those provisions. Perhaps Downing has some other basis for his assertion that the right to counsel in Article I, Section 10 is “broader” than the right to counsel in the Sixth Amendment. We do not know because Downing has not elaborated on this assertion. We cannot conduct a text-based analysis in these circumstances, or even any analysis at all. See App.R. 16(A)(7); Miller, 2017-Ohio-2801 at ¶ 22; Searight, 2023-Ohio-3584 at ¶ 12.
PIPER, J., concurring in part and dissenting in part.
{¶ 66} I concur with my colleagues in overruling Downing‘s assignments of error. However, I would decline to remand for a nunc pro tunc entry. Returning this matter to the trial court so that verbiage of what was said at sentencing is unnecessary. Downing left the sentencing hearing with a complete understanding of what the trial court considered when it imposed consecutive sentences.
{¶ 67} Downing received notice as to why the trial court gave consecutive sentences. Downing did not object to the findings at sentencing and Downing has no claim of prejudice. As we decided in our lead opinion, Downing was aware of what findings the trial court considered, thus no harm, no foul. Amending the entry serves no
{¶ 68} My previous dissents more fully expressed the reasons I object to the needless redundancies being imposed upon trial courts. State v. Halbert, 12th Dist. Warren No. CA2023-03-027, 2023-Ohio-4471; (Piper, P.J., concurring in part and dissenting in part); State v. Gable, 12th Dist. Clermont Nos. CA2023-07-049 and CA2023-07-050, 2024-Ohio-293 (Piper, J., dissenting). It is a waste of judicial resources to generate an amended entry of no consequence. See State v. Smith, 80 Ohio St.3d 89, 104 (1997). Thus, although I completely concur in the substance of our resolution for each assignment of error I dissent as to the disposition of remanding for a nunc pro tunc entry.
Notes
When asked about his version of the Instant Offense, the offender reported that: “I pled guilty to 2 counts of sexual battery where I had sexual interactions with my stepdaughter when she was 12.” During the interview with the offender he showed no remorse, he was adamant that none of the allegations are true, and that he took a plea deal to avoid life sentences.