State v. LiddyState v. Liddy
Colleen M. O‘Toole, Ashtabula County Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).
Rachel A. Kopec, 50 Public Square, Suite 1900, Cleveland, OH 44113 (For Defendant-Appellant).
MARY JANE TRAPP, J.
{1} Appellant, Richard James Liddy (“Mr. Liddy“), appeals the judgment of the Ashtabula County Court of Common Pleas sentencing him to 18 months in prison to be served consecutively to a prison term imposed in a separate case.
{2} Mr. Liddy asserts two assignments of error, contending that the trial court erred (1) by ordering him to serve his prison sentence consecutively without making the necessary findings pursuant to
{3} Appellee, the state of Ohio (“the state“), counters that the trial court was not required to make the statutory findings because a consecutive sentence was mandatory as a result of Mr. Liddy‘s
{4} After a careful review of the record and pertinent law, we find as follows:
{5} (1) The trial court‘s imposition of a purported “mandatory” consecutive sentence is clearly and convincingly contrary to law. Based on the plain language of the applicable statutes, a consecutive prison term was not mandatory for Mr. Liddy‘s conviction for attempted failure to comply.
{6} (2) The trial court erred by issuing a sentencing entry containing a substantive difference regarding jail-time credit from that pronounced in Mr. Liddy‘s presence.
{7} Thus, we reverse the judgment of the Ashtabula County Court of Common Pleas and remand for resentencing with respect to consecutive sentences and jail-time credit.
Substantive and Procedural History
{8} In March 2021, the Ashtabula County Grand Jury indicted Mr. Liddy for failure to comply with an order or signal of a police officer, a third-degree felony, in violation of
{9} Mr. Liddy initially pleaded not guilty. He subsequently withdrew his not guilty plea and entered written and oral pleas of guilty to attempted failure to comply, a fourth-degree felony, in violation of
{10} The trial court held a change of plea hearing where it engaged in a colloquy with Mr. Liddy pursuant to Crim.R. 11, accepted his guilty plea, and found him guilty. The trial court ordered a pre-sentence investigation and deferred sentencing until the resolution of a separate case pending before a different judge (case no. 2018 CR 00443).
{11} On April 25, 2022, Mr. Liddy was sentenced in the separate case to a prison term of five years. Later that day, the trial court held a sentencing hearing in the underlying matter. After reviewing the aggravating and mitigating factors, the trial court imposed an 18-month prison sentence to be served consecutively to the prison term in the separate case.
{12} The trial court inquired of the state whether the offense of attempted failure to comply was subject to the revised code‘s mandatory consecutive sentencing provisions. The court then commented, “Not that it‘s gonna make a difference in my decision, because the facts of this case are so egregious that he‘s going to get an eighteen month sentence regardless. But had it been a straight failure to comply, that is a mandatory consecutive sentence that must be imposed.” The state informed the trial court that a consecutive sentence was mandatory.
{13} The trial court reiterated Mr. Liddy‘s consecutive 18-month prison term, imposed a three-year license suspension based on “the unique circumstances of this
{14} “Mr. Liddy, you‘ve done nothing in your life thus far to give anyone an indication you intend to turn things around. You‘re going to be confined for an extended time period. There are some programs and some educational opportunities for you available in the state prison sentence [sic]. If you don‘t turn your life around, sir, then you‘re just gonna continue coming back to court and going back to prison. You‘re reaching the point where the only safe thing that can be done with you to protect the public and to punish you for your conduct is to warehouse you in the state prison as long as we can possibly do it, until you demonstrate something to the contrary.”
{15} The trial court subsequently filed a judgment entry memorializing Mr. Liddy‘s sentence. The entry does not contain any consecutive sentence findings pursuant to
{16} Mr. Liddy appealed and asserts the following two assignments of error:
{17} “[1.] The Trial Court erred in Sentencing Appellant to a Consecutive Sentence.
{18} “[2.] The record does not support the Journal Entry.”
Standard of Review
{19} The standard of review for an appeal of a felony sentence is governed by
{20} “The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court.
{21} “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 of 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:
{22} “(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 section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
{23} “(b) That the sentence is otherwise contrary to law.”
{24} “Clear and convincing evidence is that measure or degree of proof which is more than a mere “preponderance of the evidence,” but not to the extent of such certainty as is required “beyond a reasonable doubt” in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.” Marcum at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
Consecutive Sentences
{25} In his first assignment of error, Mr. Liddy contends that the trial court erred by ordering him to serve his prison sentence consecutively without making the necessary findings pursuant to
{26}
{27} Under
{28} The Supreme Court of Ohio has held that “a trial court is required to make the findings mandated by
{29} Here, the trial court did not explicitly reference
{30} The foregoing analysis does not end our inquiry. The state contends that the trial court was not required to make the statutory findings because a consecutive sentence was mandatory as a result of Mr. Liddy‘s guilty plea to attempted failure to comply.
Failure To Comply
{31} Failure to comply is governed by
{32} “Except as provided in divisions (C)(4) and (5) of this section, a violation of division (B) of this section is a misdemeanor of the first degree.”
{33} “If a police officer pursues an offender who is violating division (B) of this section and division (C)(5)(a) applies, the sentencing court, in determining the seriousness of an offender‘s conduct for purposes of sentencing the offender for a violation of division (B) of this section, shall consider, along with the factors set forth in sections 2929.12 and 2929.13 of the Revised Code that are required to be considered,” all of the factors set forth in (i) through (ix).
{34} Most relevant here,
{35} This court has consistently held that “[w]hen
{36} If Mr. Liddy had been convicted of failure to comply in violation of
Attempted Failure To Comply
{37} Attempt is governed by
{38} The Eighth District Court of Appeals addressed this issue in State v. Garner, 8th Dist. Cuyahoga Nos. 97948 and 97949, 2012-Ohio-3262, and held that a consecutive prison term is not mandatory following a conviction for
{39} On appeal, the defendant contended that the trial court erred in concluding that consecutive sentences were required. Id. at ¶ 7-8. He argued that because he was convicted of attempted felony failure to comply, the general sentencing statute, i.e.,
{40} In considering the defendant‘s argument, the Eighth District discussed the Supreme Court of Ohio‘s decision in State v. Taylor, 113 Ohio St.3d 297, 2007-Ohio-1950, 865 N.E.2d 37. In Taylor, the defendant pleaded guilty to, among other offenses, attempted possession of crack cocaine in an amount greater than 25 grams but less than 100 grams, a second-degree felony. Id. at ¶ 2. The trial court sentenced the defendant to prison. Id. On appeal, the defendant argued that his guilty plea was not voluntarily and knowingly made because the trial court informed him that he would be eligible for judicial release when in actuality he was subject to a mandatory prison term. Id. at ¶ 3. According to the defendant, an attempted drug offense is charged and sentenced under
{41} The state argued that the defendant was properly convicted and sentenced under
{42} The Supreme Court agreed with the defendant‘s position, holding that “an attempted possession of illegal drugs is a drug-abuse offense, and an individual convicted of an attempted drug-abuse offense is subject to the mandatory sentencing provisions of
{43} “It is a well settled rule of statutory construction that where a statute couched in general terms conflicts with a specific statute on the same subject, the latter must control. Humphrys v. Winous Co. (1956), 165 Ohio St. 45, 48, 59 O.O. 65, 133 N.E.2d 780; see also Bellian v. Bicron Corp. (1994), 69 Ohio St.3d 517, 519, 634 N.E.2d 608.
{44} ”
{46} The Supreme Court further explained that “an attempted possession of drugs is not a separate and distinct crime from possession of drugs, but rather is incorporated into the possession offense.” Id. at ¶ 16.
{47} The Eighth District determined that Taylor was distinguishable. Garner at ¶ 17. The court explained that ”
{48} The court also explained that pursuant to
{49} Finally, the court cited the Legislative Service Commission comments to
{50} The Eighth District held that the trial court erred in determining it was mandated to impose a consecutive prison term pursuant to
{51} The Sixth District adopted Garner‘s analysis in the context of a purported “mandatory” driver‘s license suspension. See State v. Heidelberg, 2019-Ohio-2257, 138 N.E.3d 537 (6th Dist.). In that case, the defendant pleaded guilty to attempted failure to comply in violation of
{52} On appeal, the defendant argued that he should not have been sentenced under
{53} Applying Garner, the Sixth District determined that “the legislature did not incorporate attempted failure to comply *** into
Analysis
{54} Based on our review of the relevant authority, we conclude that a consecutive prison term was not mandatory for Mr. Liddy‘s conviction for attempted failure to comply in violation of
{55} “In construing a statute, a court‘s paramount concern is the legislative intent in enacting the statute.” Morgan v. Ohio Adult Parole Auth., 68 Ohio St.3d 344, 346, 626 N.E.2d 939 (1994). “In determining legislative intent, the court first looks to the language in the statute and the legislature‘s purpose.” Id. “Words used in a statute must be taken in their usual, normal or customary meaning.” Id. “An unambiguous statute must be applied in a manner consistent with the plain meaning of the statutory language, and a court cannot simply ignore or add words.” Portage Cty. Bd. of Commrs. v. Akron, 109 Ohio St.3d 106, 2006-Ohio-954, 846 N.E.2d 478, ¶ 52.
{56} Failure to comply under
{57} Attempt constitutes “an offense of the next lesser degree than the offense attempted.”
{58} The trial court sentenced Mr. Liddy to an 18-month prison term for his attempt offense.
{59} Mr. Liddy‘s first assignment of error has merit and is sustained.
Jail-Time Credit
{60} In his second assignment of error, Mr. Liddy contends that the trial court erred by failing to state in the sentencing entry that it granted him 425 days of jail-time credit. He requests a remand for the issuance of a nunc pro tunc entry. The state concedes error.
{61} We agree that the record reflects a discrepancy regarding the amount of jail-time credit to which Mr. Liddy was entitled. However, we disagree that it may be remedied via a nunc pro tunc entry.
{62}
{63} “[I]f the sentencing court determines at the sentencing hearing that a prison term is necessary or required, the court shall do all of the following: *** Determine, notify the offender of, and include in the sentencing entry the total number of days, including the sentencing date but excluding conveyance time, that the offender has been confined for any reason arising out of the offense for which the offender is being sentenced and by which the department of rehabilitation and correction must reduce the definite prison term imposed on the offender as the offender‘s stated prison term *** under [
{64} It is axiomatic that a court speaks through its journal entries. State v. Miller, 127 Ohio St.3d 407, 2010-Ohio-5705, 940 N.E.2d 924, ¶ 12; see Schenley v. Kauth, 160 Ohio St. 109, 111, 113 N.E.2d 625 (1953) (“The rule is well established in this state that a court of record speaks only through its journal and not by oral pronouncement or a mere minute or memorandum“). Further, Crim.R. 43(A) provides that “the defendant must be physically present at every stage of the criminal proceeding and trial, including *** the imposition of sentence ***”
{65} “[W]here a clerical or mathematical error exists in a sentencing entry, a nunc pro tunc entry may be properly used to correct the sentencing entry to reflect the sentence the trial court actually imposed upon the defendant at the sentencing hearing.” State v. Thompson, 8th Dist. Cuyahoga No. 102326, 2015-Ohio-3882, ¶ 16; see Crim.R. 36 (“Clerical mistakes in judgments, orders, or other parts of the record, and errors in the record arising from oversight or omission, may be corrected by the court at any time“). However, a substantive discrepancy between the sentence imposed at the hearing and the sentence reflected in the entry constitutes reversible error that requires a new sentencing hearing. See, e.g., State v. Kovach, 7th Dist. Mahoning No. 08-MA-125, 2009-Ohio-2892, ¶ 28; State v. Patrick, 4th Dist. Lawrence No. 12CA16, 2013-Ohio-3821, ¶ 10; State v. Smith, 10th Dist. Franklin No. 17AP-573, 2018-Ohio-3875, ¶ 7; State v. McCoy, 12th Dist. Butler No. CA2020-12-127, 2022-Ohio-995, ¶ 11.
{67} Mr. Liddy‘s second assignment of error has merit and is sustained.
{68} For the foregoing reasons, the judgment of the Ashtabula County Court of Common Pleas is reversed, and this matter is remanded for resentencing with respect to consecutive sentences and jail-time credit.
MATT LYNCH, J.,
JOHN J. EKLUND, J.,
concur.