STATE OF OHIO v. JAMES H. SPENCE, JR.
No. 101154
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
October 23, 2014
[Cite as State v. Spence, 2014-Ohio-4691.]
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-13-574274-A
BEFORE: Rocco, J., Celebrezze, P.J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: October 23, 2014
Russell S. Bensing
1350 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: John D. Kirkland
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} In this appeal assigned to the accelerated calendar pursuant to
{¶2} Spence presents one assignment of error, arguing that the trial court failed to make the necessary findings before imposing consecutive prison terms for his convictions. The record does not support his argument. However, the journal entry of sentence is inadequate to comply with the Ohio Supreme Court‘s directive in State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, and also contains a clerical error. Consequently, while Spence‘s assignment of error is overruled and his sentence is affirmed, this case is remanded with instructions to the trial court to correct the journal entry of sentence nunc pro tunc to incorporate the consecutive sentences findings made at the sentencing hearing and to reflect that Spence was sentenced on “Count 3” rather than on “Count 2.”
{¶3} Spence was indicted in this case on five counts. He was charged with attempted murder, two counts of felonious assault, one count of improper discharge of a firearm into a habitation, and one count of improper discharge of a firearm on or near prohibited premises. All of the counts carried one-year and three-year firearm specifications.
{¶5} After accepting Spence‘s guilty pleas, the trial court called the case for sentencing, and imposed a prison term on Count 3 of one year for the firearm specification, to be served prior to and consecutive with four years, and a consecutive term of four years on Count 4. The journal entry of sentence, however, states that Spence received a total of five years on “Count 2.”
{¶6} Spence filed a timely appeal and challenges only the sentence imposed. He argues in his sole assignment of error that the trial court failed to comply with
{¶7} Appellate courts review consecutive sentences using the standard set forth in
{¶8}
{¶9} The trial court‘s comments in this case were adequate to comply with
* * * [Y]ou chose to use violence to protect your family and, in particular, your niece * * * .
Your choice was inappropriate. And the choice which you chose to execute was probably one of the most dangerous things you could have done short of killing the victim in this case.
* * *
* * * [Y]ou chose to execute a crime in one of the most dangerous fashions possible, which makes you incredibly dangerous to the community. [Finding: necessary to protect the public.]
* * *
I don‘t find that concurrent sentences are going to be appropriate in this matter. There were two separate victims, two separate, completely separate situations. The harm to [one victim] was so great, it‘s clear to the Court he almost died as a result of these injuries.
The photographs depict a surgical incision that basically leads from his Adam‘s apple, all the way down to his navel and maybe even further than that. It‘s clear to the Court that those injuries were so severe that a concurrent sentence is not warranted. [Finding: not disproportionate to the seriousness of the offender‘s conduct.]
* * * The harm was so great * * * that I am going to impose a consecutive sentence in this case. [Finding:
R.C. 2929.14(C)(4)(c) .]
{¶10} The foregoing comments were sufficient to meet the statutory requirements. State v. Evans, 8th Dist. Cuyahoga No. 100151, 2014-Ohio-3584, ¶ 29.2 Therefore, Spence‘s assignment of error is overruled.
{¶11} However, the Ohio Supreme Court decision in State v. Bonnell, Slip Opinion No. 2014-Ohio-3177, requires that the trial court not only make the statutory findings to impose consecutive sentences, but that the court also incorporate those findings into its sentencing entry. Id. at syllabus.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. Case remanded to the trial court for further proceedings.
A certified copy of this entry shall constitute the mandate pursuant to
KENNETH A. ROCCO, JUDGE
EILEEN T. GALLAGHER, J., and
FRANK D. CELEBREZZE, JR., P.J., CONCUR