State v. HunterState v. Hunter
Michele Temmel, for appellant.
BYRNE, J.
{1} Troy Dean Hunter appeals from the sentence imposed by the Butler County Court of Common Pleas. For the reasons described below, we affirm the trial court‘s decision to impose consecutive sentences, but reverse and remand for the trial court to enter a nunc pro tunc sentencing entry.
I. Facts and Procedural Background
{2} In April 2022, in case number CR2022-03-0410 (“Case 410“), a Butler County
{3} On May 19, 2022, Hunter, Hunter‘s attorney, and the prosecutor appeared before the trial court to enter into a plea agreement. Hunter agreed to plead guilty to the sole count in Case 410 and to count one in Case 421. In return, the state agreed to seek dismissal of the rеmaining counts in Case 421.
{4} At the plea hearing, the court engaged Hunter in a
{5} The court reviewed with Hunter the maximum prison term he was facing and further informed Hunter that the court could impose consecutive sentences. Hunter acknowledged his understanding of the maximum prison term and the court‘s ability to impose сonsecutive sentences. Hunter specifically acknowledged that he could be sent to prison for 36 months if the court imposed the maximum sentences and ran them consecutively.
{7} At Hunter‘s request, the matter proceeded immediately to sentencing. Hunter waived a pre-sentence investigation. Hunter‘s attorney noted that—against his advice—Hunter wished to waive any right to be placed on community control and wished to be sentenced to prison. Hunter agreed that this was his choice.
{8} Defense counsel argued on Hunter‘s behalf in mitigation. He explained that his client was 25 years old and had a six-year-old son. Hunter grew up poor and was only educated through the seventh grade. He had a drug issue, which he knew he needed to address.
{9} The victim in Case 410 then spoke about the impact of Hunter‘s theft of the victim‘s vehicle. The victim stated that he was inconveniencеd by Hunter‘s actions but asked the court to “take it easy” on Hunter and relayed that he had also had a “drug situation” when he was younger.
{10} The victim in Case 421 spoke next. The victim stated that Hunter stole his vehicle from Planet Fitness, took his debit card, swiped it at Speedway, and then tried to cash the victim‘s payroll check. Hunter also tried to charge $750 on Amazon. The victim stated that Hunter had done “a lot of damage to my life” and that he now has “severe anxiety.” The victim stated he had installed a security system at his house and that he had to sign up for “Lifelock.” The victim stated he had found “blow stains” (presumably a reference to illegal drugs) and a needle in his vehicle. Finally, the victim stated that he had been to several court hearings on Hunter‘s сase and that his boss was getting frustrated with him and there was the potential he could lose his job.
{11} After listening to the victims’ statements, the court indicated that it had
{12} The court sentenced Hunter to 12 months in prison for the grand theft of a motor vehicle offense in Case 410 and to 18 months in prison for the grand theft of a motor vehicle offense in Case 421. The court then stated it would ordеr the sentences to be served consecutively. In explaining its decision to order consecutive sentences, the court noted that the presumption of concurrent sentences had been rebutted based upon the circumstances and the severity of Hunter‘s conduct. The court found that consecutive sentences were necessary to аdequately protect the public from future crime and to appropriately punish Hunter. The court found that consecutive sentences were not disproportionate to the seriousness of Hunter‘s conduct and the danger that Hunter posed to the public. The court further found that at least two of the multiple offenses were committed as part of one or more courses of conduct, and that the harm caused by two or more of the multiple offenses was so great or unusual that no single prison term for any of the offenses committed as part of the courses of conduct adequately reflected the seriousness of Hunter‘s conduct. Finally, the court noted that Hunter had a history of criminal conduсt that demonstrated that consecutive sentences were necessary to protect the public from future crimes. Hunter appealed and assigned one error for our review.
II. Law and Analysis
{13} Hunter‘s sole assignment of error states:
{14} THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. HUNTER WHEN IT SENTENCED HIM TO CONSECUTIVE SENTENCES IN THE OHIO DEPARTMENT OF
{15} Hunter argues that the record fails to support two of the trial court‘s consecutive sentence findings.
A. Applicable Law
1. Required Findings for Consecutive Sentences
{16} When imposing consecutive sentences, a sentencing court is rеquired “to make the findings mandated by
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 thе 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 publiс from future crime by the offender.
{17} Stated more simply, to impose consecutive sentences, a sentencing court
{18} “When imposing consecutive sentences, a trial court must state the required findings as part of the sentencing hearing, and by doing so it affords notice to the offender and to defense counsel.” Bonnell at ¶ 29, citing
2. Standard of Review
{19}
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) of section2929.14 , or division (I) of section2929.20 of the Revised Code, whichever, if any, is relevant;(b) That the sentence is otherwise contrary to law.
(Emphasis added.)
{20} “The consecutive sentence statute,
{21} In this appeаl, Hunter does not dispute that the trial court made the consecutive sentence findings required by
{22} Instead, Hunter argues—pursuant to
{23} However, we are constrained “to considering only those consecutive sentence findings that the trial court actually made.” Richey at ¶ 14, citing Gwynne at ¶ 21. “Therefore, upon a de novo review of the record, this court may reverse or modify consecutive sentences—including the number of consecutive sentences imposed by the trial сourt[,]” but only if we clearly and convincingly find “that the record does not support
B. Analysis
{24} Hunter does not challenge the trial court‘s finding under
{25} Instead, Huntеr challenges the trial court‘s findings under
{26} Second, Hunter challenges the trial court‘s finding, nearly quoting
{28} Upon our de novo review of the record, we disagree with Hunter‘s argument regarding the trial court‘s finding under
{29} We also disagree with Hunter‘s argument that the offenses in Cases 410 and
{30} For these reasons, we do not find that the record clearly and convincingly does not support the trial court‘s consecutive sentence finding under
{31} Because a trial court, in order to impose consecutive sentences, must make the two findings in the first paragraph of
{32} However, although not presented as assigned error by Hunter or raised by the state, a review of the record does reveal a sentencing error. Our review of the judgment entry of conviction revealed that the trial court erred by failing to incorporate all
{33} The Ohio Supreme Court has held, “[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 ***.” Bonnell, 2014-Ohio-3177 at ¶ 30. Instead, “such a сlerical mistake may be corrected by the court through a nunc pro tunc entry to reflect what actually occurred in open court.” Id.
{34} To that end, although we find no error in the trial court‘s decision to impose consecutive sentences in this matter, we sustain Hunter‘s assignment of error as it relates to the trial court‘s failure to incorporate the consecutive sentence findings it made at the sentencing hearing into its sentencing entry. Therefore, we remand this matter 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
III. Conclusion
{35} Upon our de novo review of the record, we do not find that the record clearly and convincingly does not support the trial court‘s consecutive sentence findings under
S. POWELL, P.J., and HENDRICKSON, J., concur.