State v. MererState v. Merer
{¶ 1} Appellant, Randy Merer, appeals the January 29, 2020 judgment of the Wood County Court of Common Pleas sentencing him to an aggregate prison term of 48 months following his convictions for attempted pandering of sexually-oriented matter involving a minor and possessing criminal tools. For the following reasons, we reverse.
{¶ 2} On June 9, 2019, Merer was indicted on seven counts of pandering sexually-oriented matter involving a minor in violation of
{¶ 3} Merer and the state reached a plea agreement that allowed him to plead guilty to seven counts of attempted pandering sexually-oriented matter involving a minor, all third-degree felonies, and the indicted charge of possessing criminal tools. The trial court accepted Merer‘s pleas and found him guilty on all counts.
{¶ 4} On January 24, 2020, the trial court held Merer‘s sentencing hearing. When Merer‘s attorney addressed the court, she asked the court to impose community control and said that “[t]hese are felonies of the third degree with no presumption of prison, no presumption of probation.” She argued that the sentencing factors under
{¶ 5} Before imposing sentence, the court reviewed the circumstances of the underlying offenses and some of Merer‘s other, unindicted conduct and the factors in
{¶ 6} The trial court filed its sentencing entry on January 29, 2020. The judgment entry reflects the 36-month sentences for each of the attempted pandering charges and the 12-month sentence for the criminal tools charge. It also orders that the attempted pandering sentences are to be served concurrently to one another and that the criminal tools sentence is to be served consecutively to the attempted pandering sentences. Additionally, the judgment entry states that “pursuant to
{¶ 7} Merer now appeal, raising two assignments of errors:
ASSIGNMENT OF ERROR I: THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO A TERM OF INCARCERATION.
ASSIGNMENT OF ERROR II: THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO SERVE CONSECUTIVE SENTENCES.
II. Law and Analysis
A. The trial court‘s judgment entry incorrectly presumed that Merer‘s convictions required the imposition of prison time.
{¶ 9} We review a challenge to a felony sentence under
(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.
{¶ 10} Merer argues that his prison sentence is contrary to law because the trial court stated in its judgment entry that “pursuant to
{¶ 11} Under the applicable provisions of the sentencing statute, neither third-degree attempted pandering sexually-oriented matter involving a minor nor fifth-degree possessing criminal tools carries a presumption that a prison term is necessary to comply with the purposes and principles of sentencing in
{¶ 12} Despite the contrary requirements of
{¶ 13} In some cases, the appellate court can determine from the record that an apparent error in the sentencing entry is nothing more than a clerical error that the trial court can correct with a nunc pro tunc entry. This is not such a case.
{¶ 14} A “clerical error” is “a mistake or omission, mechanical in nature and apparent on the record, which does not involve a legal decision or judgment.” (Internal quotations omitted.) State v. Love, 6th Dist. Lucas No. L-05-1087, 2006-Ohio-2925, ¶ 27. The trial court can correct a clerical error at any time.
{¶ 15} For example, in Love, the trial court cited inapplicable statutes—which required a mandatory three-year term of incarceration—in its judgment entry imposing a three-year prison term for appellant‘s first-degree felonious assault conviction. Love at ¶ 22. Under the correct statute, appellant‘s conviction for first-degree felonious assault was punishable by a non-mandatory term of three to ten years of incarceration. Id. at ¶ 23. However, the trial court‘s “comments at the sentencing hearing reflect[ed] its intention * * *” to sentence appellant to a non-mandatory term. Id. at ¶ 24. While the appeal was pending, the trial court entered a nunc pro tunc order correcting the error pursuant to
{¶ 16} In contrast, in Merer‘s case, there is nothing in the transcript of the sentencing hearing making it “apparent on the record” that the reference to a “presumed” prison term in the judgment entry was merely “mechanical in nature.” Id. Although Merer‘s attorney mentioned at the beginning of the hearing that “[t]hese are felonies of the third degree with no presumption of prison, no presumption of probation[,]” the trial court never stated whether or not a prison term was presumed for Merer‘s offenses. And,
{¶ 17} Moreover, the trial court‘s consideration of
{¶ 18} Finally, the determination of whether or not a prison term is presumed for an offense involves a legal judgment. Wheeler, 6th Dist. Wood No. WD-20-053, 2021-Ohio-1074, at ¶ 12. This takes such a determination outside of the scope of a clerical
{¶ 19} In short, there is nothing in the record to clearly demonstrate that the trial court‘s unambiguous statement in its judgment entry that “it is presumed that a prison term is necessary * * *” was anything other than a substantive sentencing error. For that reason, we find that Merer‘s sentence must be vacated, and the matter must be remanded for a new sentencing hearing. Compare State v. Showalter, 7th Dist. Belmont No. 16 BE 0027, 2018-Ohio-5411, ¶ 36 (trial court‘s incorrect citation to a presumption of a prison term under
B. Merer‘s second assignment of error is moot.
{¶ 20} In his second assignment of error, Merer argues that the trial court erred in sentencing him to consecutive sentences because the record does not support the court‘s finding that Merer‘s conduct caused great or unusual harm. Because we are vacating Merer‘s sentence, Merer‘s arguments regarding consecutive sentences are moot, and his second assignment of error is not well-taken.
III. Conclusion
{¶ 21} The January 29, 2020 judgment of the Wood County Court of Common Pleas is reversed. Merer‘s sentence is vacated, and this matter is remanded for
Judgement reversed.
A certified copy of this entry shall constitute the mandate pursuant to
Thomas J. Osowik, J.
JUDGE
Christine E. Mayle, J.
CONCUR. _______________________________
JUDGE
Gene A. Zmuda, P.J.
CONCURS AND WRITES JUDGE
SEPARATELY.
ZMUDA, P.J.
{¶ 22} On January 29, 2020, the Wood County Court of Common Pleas ordered appellant to serve an aggregate 48-month prison term following his convictions for attempted pandering of sexually-oriented matter involving a minor and possession of criminal tools. The majority concludes that the trial court erred in imposing the prison term because the judgment entry references a presumed a prison for appellant‘s third and fifth-degree felony convictions when no presumption is applicable. I agree that a trial court‘s incorrect presumption that a prison term is necessary renders the imposition of a
I. Appellant failed to identify clear and convincing evidence that the trial court‘s judgment was contrary to law.
{¶ 23} Appellant was convicted of six counts of attempted pandering of sexually oriented matter, each a third-degree felony, and one count of possession of criminal tools, a fifth-degree felony. His convictions arose from his use of a cell phone to record sexual encounters with the victim, A.B., who was 17 at the time. None of appellant‘s convictions carried a statutory presumption that a prison sentence was necessary to comply with the purposes of felony sentencing.
{¶ 24} At his sentencing hearing, the trial court imposed a 48-month aggregate prison term without reference to a presumption that a prison term was necessary. The trial court‘s judgment entry recounts its consideration of the applicable sentencing factors stating:
The Court considered the record, oral statements, any victim impacts statement, the presentence report, the purposes and principles of sentencing
under R.C. 2929.11 , the seriousness and recidivism factors relevant to the offense and the offender pursuant to2929.12 , and the need for deterrence, incapacitation, rehabilitation and restitution. In determining a sentence the Court was guided by the overriding purposes of felony sentencing, including protection of the public from future crime by the offender and punishment of the offender, using the minimum sanctions that the Court determined accomplish those purposes without imposing an unnecessary burden on state of local government resources.
The judgment entry then identifies the specific seriousness and recidivism factors it considered in determining appellant‘s sentence, ultimately concluding that “a prison term is consistent with the purposes and principles of sentencing set forth in
{¶ 25} An appellate court‘s review of felony sentences is governed by
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) 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.
The “clear and convincing evidence” standard is defined as “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.” State v. Mitten, 6th Dist. Sandusky No. S-19-056, 2021-Ohio-89, ¶ 4, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. The burden is on the appellant to identify clear and convincing evidence in the record that their sentence was erroneously imposed. State v. Torres, 6th Dist. Ottawa No. OT-18-008, 2019-Ohio-434, ¶ 6.
{¶ 26} The majority determined that the trial court‘s statement in its judgment entry that it presumed a prison term was necessary to satisfy the purposes of felony sentencing as described in
{¶ 27} At appellant‘s sentencing hearing, the trial court made no reference to a presumptive prison term when determining appellant‘s sentence. To the contrary, appellant‘s counsel explicitly stated, without objection from the state or comment from the trial court, that there was no presumption that a prison term was necessary. The trial court made no reference to the presumption of a prison term when it actually imposed appellant‘s sentence. Nothing about the trial court‘s statements at the sentencing hearing establishes a firm belief that the trial court improperly presumed a prison term was necessary. Notably, appellant‘s argument makes no reference to an alleged error at the sentencing hearing.
{¶ 28} The trial court‘s judgment entry likewise does not provide clear and convincing evidence that appellant‘s sentence was imposed contrary to law. The judgment entry properly recounts the trial court‘s imposition of sentence at the hearing including the factors it considered in determining whether a prison term was appropriate. The judgment entry then reflects the trial court‘s finding that a prison term rather than a community control sanction was consistent with the purposes of felony sentencing under
{¶ 29} Only after identifying the proper bases on which it imposed appellant‘s sentence does the trial court‘s judgment entry state “[t]he Court finds that pursuant to
{¶ 30} The majority concludes that there is “nothing in the record” to clearly demonstrate that the trial court‘s statement in the judgment entry was “anything other than a substantive sentencing error.” Essentially, the majority found that appellant successfully proved a negative—that the trial court‘s failure to explicitly state it did not presume a prison term was necessary at the sentencing hearing constitutes a complete lack of evidence that it began from a position of neutrality. I disagree. There is no requirement that a trial court affirmatively state that it does not presume a prison term is necessary when there is no applicable presumption. I would find the trial court‘s silence
{¶ 31} So, what do we make of the clearly erroneous inclusion of the presumption language in the judgment entry? I conclude in this case that the offending language does not constitute reversible error under the applicable standard of review because the language does not clearly and convincingly result in a sentence that was contrary to law.
{¶ 32} For these reasons, I would find that the judgment entry‘s reference to a presumption that a prison term was necessary does not constitute clear and convincing evidence that appellant‘s sentence was imposed contrary to law. As a result, I disagree with the majority‘s conclusion and would not reverse the trial court‘s judgment on these grounds. Because I would not have found the first assignment of error reversible, I believe we must, necessarily, address appellant‘s second assignment of error.
II. The trial court erred in imposing consecutive sentences.
{¶ 33} While I disagree with the majority‘s analysis, I nevertheless concur in the majority‘s judgment that the trial court erred and this matter should be remanded for resentencing because I find merit in appellant‘s second assignment of error.
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.
This statute requires the trial court to make three statutory findings before imposing consecutive sentences. State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 252; State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 26. It must find (1) that consecutive sentences are necessary to protect the public or to punish the offender; (2) that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger that the offender poses to the public; and (3) that
{¶ 35} At appellant‘s sentencing hearing, the trial court stated:
The Court believes that multiple terms are necessary in this case to protect the public from future crime and to punish the offender. They are not disproportionate to the seriousness of the offender‘s conduct and the
danger he poses to the public. I would say that they were committed as a course of conduct. And the harm caused by the offenses so — are so great and unusual that a single prison term for any of the offenses committed as part of the course of conduct would not be enough. The Court has considered all of the circumstance under 2929.14(C) in imposing consecutive sentences in this particular case and believes they are necessary.
Appellant argues that the trial court erred because its findings were not supported by the record as there was no evidence that appellant‘s conducts resulted in great or unusual harm. I agree.
{¶ 36} At his change of plea hearing, the state identified the facts it would have established had the case gone to trial. In its recitation, the state made no reference to the harm the victim suffered. Similarly, at sentencing, the state did not reference any harm suffered by the victim. Appellant did not stipulate that the victim suffered any harm during any proceedings. Also, while not necessary for a finding of great or unusual harm, it is also relevant that the victim did not provide a victim impact statement. See State v. Eager, 3d Dist. Henry No. 7-15-02, 2015-Ohio-3525, ¶ 16-19. The sole reference to the harm the victim suffered was made by the trial court when it found that any harm suffered was exacerbated by the victim‘s age.
{¶ 37} An offender‘s conduct results in “great or unusual harm” when there is “something about the commission of [the] particular offenses that causes greater harm, or
{¶ 38} Both appellant and the state identified appellant‘s sexual relationship with the victim as consensual. Notably, appellant was not charged with a crime related to the sexual relationship as, despite the significant age difference between appellant and the victim, that relationship was not illegal. Instead, appellant‘s conduct was illegal because he recorded his sexual interactions with the victim, a minor, in violation of
{¶ 39} Appellant‘s crime—attempted pandering of sexually-oriented matter involving a minor—was predicated on the victim‘s age as defined by the statute. When age is an element of the offense, a trial court‘s reference to harm suffered by the victim as a result of their age, without more, is not sufficient to support a finding of great or unusual harm. See State v. Johnson, 8th Dist. Cuyahoga No. 102449, 2016-Ohio-1536, ¶ 21. Therefore, we review the record to determine if there is evidence of great or unusual harm beyond concern over the victim‘s age at the time of the offense. This court recently affirmed consecutive sentences involving a conviction for pandering sexually oriented matter involving a minor, among other charges, in State v. Smith, 6th Dist. Wood No. WD-19-082, 2021-Ohio-150. In Smith, the minor victim‘s mother provided a victim impact statement in which she stated the defendant injected her daughter with heroin over the course of six days which resulted in her daughter becoming infected with hepatitis C. This diagnosis “altered [the victim‘s] life forever” due to ongoing medical and hygienic concerns related to the disease. Further, the victim‘s mother stated that her daughter was fearful of others even in her own home and suffered from anxiety, depression, and low self-esteem. These conditions were exacerbated by the defendant‘s posting of the sexually oriented material of the minor victim online. We found that this evidence of harm was sufficient to show the victim suffered great or unusual harm and affirmed the imposition of consecutive sentences. Id. at ¶ 14.
{¶ 40} I do not reference our holding in Smith here as a standard for the amount of evidence or the severity of harm that a minor victim must suffer to be considered great or unusual under
{¶ 41} In sum, the trial court‘s reference to the victim‘s age here does not support its finding of great or unusual harm. Since the state failed to identify any harm arising from appellant‘s conduct, and appellant did not stipulate that any harm occurred, the record is simply devoid of any evidence which would support a finding of great or unusual harm under
III. Scope of resentencing on remand.
{¶ 42} While I concur with the majority‘s judgment that the trial court erred, my analysis is not concluded. Rather, I must now analyze the appropriate scope of remand. In doing so, a review of the applicable case law, both within this district and state-wide, reveals both internal and external conflicts on what is the appropriate scope of resentencing when a trial court‘s order to serve prison terms consecutively is not supported by the record.
{¶ 43} The Ohio Supreme Court has not directly addressed the scope of resentencing following a trial court‘s error in imposing consecutive sentences. It has,
{¶ 44} In addition to this court‘s internal conflict, our decision in Ter Doest is in conflict with the Eighth District Court of Appeals’ resolution of this identical issue in State v. Nia, 8th Dist. Cuyahoga No. 99387, 2014-Ohio-2527. There, the Eighth District
{¶ 45} In order to determine the appropriate scope of the resentencing on remand, and thereby resolve this conflict, it is necessary to determine what remedy the Ohio General Assembly authorized this court to order upon finding an error in a felony sentence.
{¶ 46} The primary concern when construing statutes is legislative intent. State ex rel. Savarese v. Buckeye Local School Dist. Bd. Of Edn., 74 Ohio St.3d 543, 545, 660 N.E.2d 463. To determine that intent, courts first look to the plain language of the statute. Summerville v. Forest Park, 128 Ohio St.3d 221, 2010-Ohio-6280, 943 N.E.2d 522. The plain language of
{¶ 47}
{¶ 48} The Ohio Supreme Court, while not ruling directly on the scope of resentencing, has remanded for de novo resentencing when faced with the same issue we address here. In State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, the defendant was convicted of aggravated murder of three individuals. As to a fourth individual, he was charged with attempted murder and several other felonies including aggravated robbery, kidnapping, and possession of a firearm while under a disability. He was sentenced to death on the three murders. He was sentenced to individual prison terms on each of the other felonies with all sentences ordered to be served consecutively, resulting in a 36-year aggregate sentence.
{¶ 49} The Ohio Supreme Court affirmed Beasley‘s murder convictions and the death penalty sentences. However, it found the consecutive sentence findings were not made and reversed that aspect of the judgment. Rather than remand for the limited purpose of determining whether consecutive sentences were appropriate, appellant‘s “sentence for his noncapital convictions” was vacated. The court stated “[w]e remand the case for the limited purpose of resentencing Beasley on the noncapital convictions.” Id. at ¶ 262. In the disposition of the case, the court stated “[w]e vacate his sentence for his noncapital convictions and remand the cause to the trial court for a new sentencing hearing consistent with this decision.” Id. at ¶ 267.
{¶ 50} Beasley suggests that the correct scope of resentencing when a consecutive sentence order made in error is de novo. For the foregoing reasons, I agree and would order appellant‘s entire sentence to be vacated and remand this matter for a de novo resentencing on his second assignment of error only.
IV. Conclusion
{¶ 51} My resolution of this court‘s internal conflict in favor of vacating appellant‘s entire sentence and ordering a de novo resentencing brings my judgment in conformity with that of the majority in this case, albeit for different reasons. As a result, I concur in the majority‘s judgment only.