STATE OF OHIO, Plaintiff-Appellee, vs. KENNETH RUFF, Defendant-Appellant.
APPEAL NOS. C-160385 C-160386
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
April 19, 2017
[Cite as State v. Ruff, 2017-Ohio-1430.]
DETERS, Judge.
Criminal Appeals From: Hamilton County Court of Common Pleas; TRIAL NOS. B-0907091 B-1000868; Judgments Appealed From Are: Affirmed and Cause Remanded
Michaela Stagnaro, for Defendant-Appellant.
O P I N I O N.
{¶1} Defendant-appellant Kenneth Ruff appeals the aggregate 40-year prison sentence imposed by the trial court after this court had remanded his cases for resentencing. We affirm Ruff‘s sentences, but we remand for the correction of a clerical error in the judgment entries of conviction.
Ruff‘s Convictions and Prior Appeals
{¶2} Ruff was indicted under two separate case numbers for the commission of multiple offenses against five victims. The offenses were joined and tried to a jury. The jury found Ruff guilty of the attempted rape of L.H., the sexual battery of K.P., and the aggravated burglaries and rapes of P.F., K.B., and S.W. The trial court sentenced Ruff to an aggregate sentence of 40 years in prison. See State v. Ruff, 2013-Ohio-3234, 996 N.E.2d 513, ¶ 9 (1st Dist.).
{¶3} In his direct appeal, Ruff argued in his fifth assignment of error that the trial court had erred in failing to find that his convictions for the aggravated burglaries and rapes of P.F., K.B., and S.W. were allied offenses pursuant to
{¶4} The state appealed this court‘s opinion to the Ohio Supreme Court. The Supreme Court held that this court had misapplied
{¶5} This court concluded that the offenses were of similar import. See State v. Ruff, 1st Dist. Hamilton Nos. C-120533 and C-120534, 2015-Ohio-3367, ¶ 2 and 23. Consequently, we vacated the sentences for the aggravated-burglary and rape counts relating to P.F., K.B., and S.W., and we remanded the matters to the trial court so that the state could elect which allied offense it would pursue for purposes of sentence and conviction as to each victim. We affirmed the trial court‘s judgments in all other respects. Id. at ¶ 23, citing State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, paragraphs one and two of the syllabus.
Ruff‘s Resentencing Hearing Following Our Remand
{¶6} Following our remand, the trial court held a new sentencing hearing at which the state elected to proceed to sentencing on the rape counts. In the case numbered B-0907091, the trial court merged the aggravated-burglary counts into the rape counts for P.F. and K.B. The trial court sentenced Ruff to ten years in prison for the rape of P.F., ten years in prison for the rape of K.B., and 60 months in prison for the sexual battery of K.P. It ordered that the terms be served consecutively, for a total of 25 years in prison. The trial court designated Ruff as a Tier III sex offender.
{¶7} In the case numbered B-1000868, the trial court merged the aggravated-burglary count into the rape count for S.W. It sentenced Ruff to ten years in prison for the rape of S.W. and five years in prison for the attempted rape of L.H. It ordered that the terms be served consecutively, for a total of 15 years in prison. The trial court ordered the 25-year prison sentence imposed in the case
Ruff‘s Sentences are not Contrary to Law
{¶8} In his sole assignment of error, Ruff argues that his sentences are contrary to law because the trial court failed to make the necessary findings for consecutive sentences, fully consider the purposes and principles of sentencing in
Scope of Resentencing Hearing for Allied Offenses
{¶9} The Ohio Supreme Court has held that when “a court of appeals finds reversible error in the imposition of multiple punishments for allied offenses, the court must reverse the judgment of conviction and remand for a new sentencing hearing at which the state must elect which allied offense it would pursue against the defendant.” See Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, at paragraphs one and two of the syllabus and ¶ 25.
{¶10} In State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 15, the Supreme Court stated that
in a remand based only on an allied-offenses sentencing error, the guilty verdicts underlying a defendant‘s sentences remain the law of the case and are not subject to review. Further, only the sentences for the offenses that were affected by the appealed error are reviewed de
novo; the sentences for any offenses that were not affected by the appealed error are not vacated and are not subject to review.
{¶11} The Supreme Court further stated that “a defendant is not barred by res judicata from raising objections to issues that arise in a resentencing hearing, even if similar issues arose and were not objected to at the original sentencing hearing.” See Wilson at paragraph two of the syllabus.
{¶12} In Wilson, the state had argued that res judicata precluded the defendant “from requesting the judge‘s disqualification and from objecting to the resulting sentence as disproportionate.” Id. at ¶ 7. The Supreme Court disagreed, holding that the doctrine of res judicata does not bar a defendant from objecting to issues that arise at the resentencing hearing or from the resulting sentence. Id. With respect to the defendant‘s proportionality argument, the Supreme Court stated that because the scope of the defendant‘s new sentencing hearing included the trial court‘s consideration of
{¶13} Further, the Supreme Court held that the doctrine of res judicata did not preclude the defendant from raising the issue of judicial bias. The court held that the fact that the defendant had a previous appearance before the judge did not prohibit the defendant from making a claim of judicial bias during a subsequent proceeding before that same judge. Id. at ¶ 32.
{¶14} The Supreme Court held that any issues not successfully challenged in the defendant‘s prior appeal would be outside the scope of his resentencing
{¶15} In State v. Temaj-Felix, 1st Dist. Hamilton No. C-140052, 2015-Ohio-3966, ¶ 8 and 13, this court, in reviewing the sentence imposed by the trial court following a remand for resentencing on allied offenses, addressed the merits of the defendant‘s arguments relating to the trial court‘s failure to make consecutive-sentencing findings and its failure to inform him regarding earned days of credit. We declined, however, to address whether all the counts should have merged into one conviction pursuant to
Ruff‘s Arguments Are Not Barred by Res Judicata
{¶16} Here, contrary to the state‘s assertions, Ruff‘s arguments relating to the trial court‘s failure to make the findings for consecutive sentences, consider the purposes and principles of sentencing in
{¶17} When reviewing felony sentences, this court applies the standard articulated in
{¶18} Ruff first challenges the trial court‘s imposition of consecutive sentences.
{¶19} Finally, the court must find that one of the conditions listed in
- 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. - 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.
- The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶21} The record reflects that the trial court complied with Bonnell. It stated the required findings for consecutive sentences during the sentencing hearing and it incorporated those consecutive-sentencing findings into the sentencing entries.
{¶22} In the case numbered B-0907091, the trial court found that consecutive sentences were necessary to protect the public and/or punish the offender, and that they were not disproportionate to the seriousness of the offender‘s conduct and the danger that Ruff posed to the public. In addition, the court found that consecutive sentences were necessary because the harm caused by two or more of the multiple offenses was so great or unusual that no single prison term for any offense committed as part of the one or more courses of conduct adequately reflected the seriousness of Ruff‘s conduct. The court further found that consecutive sentences were necessary because Ruff‘s criminal history showed a need to protect the public.
{¶23} In the case numbered B-1000868, the trial court found consecutive sentences were appropriate because
{¶24} Contrary to Ruff‘s assertions, the trial court was not required to give any further reasoning to support its findings. See State v. McGee, 1st Dist. Hamilton No. C-150496, 2016-Ohio-7510, ¶ 32, citing Bonnell at syllabus. We, therefore, find no merit in Ruff‘s challenges to the court‘s imposition of consecutive sentences.
R.C. 2929.11 and 2929.12 Factors
{¶25} Ruff further asserts that the trial court failed to consider the purposes and principles of sentencing as set forth in
{¶26} Ruff next argues that the trial court failed to inform him of the notifications set forth in
Clerical Error in the Judgment Entries
{¶27} Finally, Ruff contends that his judgment entries of conviction should be corrected to reflect that he was found guilty by a jury and not the trial court. The state concedes the error. We agree that because the error is merely a clerical one, it can be corrected with a nunc pro tunc entry. See
{¶28} Because this court cannot clearly and convincingly find that Ruff‘s sentences are contrary to law, we overrule his sole assignment of error and affirm the judgments of the trial court. We remand the cause to the trial court to enter nunc pro tunc judgment entries reflecting that Ruff was convicted following a jury trial.
Judgments affirmed and cause remanded.
ZAYAS, P.J., and MILLER, J., concur.
Please note:
The court has recorded its own entry this date.