State v. Liddy , 2022 Ohio 4282 ( 2022 )

[Cite as State v. Liddy, 2022-Ohio-4282.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY
STATE OF OHIO, CASE NO. 2022-A-0041
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
RICHARD JAMES LIDDY,
Trial Court No. 2021 CR 00111
Defendant-Appellant.
OPINION
Decided: November 30, 2022
Judgment: Reversed and remanded
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 R.C. 2929.14(C)(4) and (2) by failing to state in the
sentencing entry that it granted him 425 days of jail-time credit.
{¶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 guilty plea to attempted failure to comply. It concedes error with
respect to jail-time credit and requests remand for the issuance of a nunc pro tunc entry.
{¶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 R.C. 2921.331(B), 2921.331(C)(5)(a)(ii), and 2921.331(E). The state alleged
that Mr. Liddy “operate[d] a motor vehicle so as willfully to elude or flee a police officer
after receiving a visible or audible signal from a police officer to bring his motor vehicle to
a stop.” It further alleged that Mr. Liddy’s “operation of the motor vehicle * * * caused a
substantial risk of serious physical harm to persons or property,” which elevated the
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charged offense from a first-degree misdemeanor, and that he was previously convicted
of or pleaded guilty to a third-degree felony violation of R.C. 2921.331(B) in Lake County,
which would mandate the imposition of a class-one driver’s license suspension.
{¶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 R.C. 2921.331(B), 2921.331(C)(5)(a)(ii), 2921.331(E),
and 2923.02(A).
{¶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.
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{¶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
case,” and granted him 425 days of jail-time credit. Prior to adjourning, the trial court
remarked as follows:
{¶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
R.C. 2929.14(C)(4). In addition, the entry states that Mr. Liddy is not entitled to jail-time
credit for his pre-sentence incarceration because he received credit in the separate case
“for the entire time he was incarcerated.”
{¶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.”
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Standard of Review
{¶19} The standard of review for an appeal of a felony sentence is governed by
R.C. 2953.08(G)(2). See State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59
N.E.3d 1231, ¶ 21. That provision states:
{¶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.” R.C. 2953.08(G)(2)(a)-
(b).
{¶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.
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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 R.C. 2929.14(C)(4).
Statutory Findings
{¶26} R.C. 2929.41 creates a statutory presumption in favor of concurrent
sentences. State v. Fowler, 11th Dist. Portage No. 2017-P-0046, 2018-Ohio-3110, ¶ 9.
R.C. 2929.41(A) provides, in pertinent part, that “[e]xcept as provided in * * * division (C)
of section 2929.14, * * * a prison term * * * or sentence of imprisonment shall be served
concurrently with any other prison term * * * or sentence of imprisonment imposed by a
court of this state * * *.” (Emphasis added.)
{¶27} Under R.C. 2929.14(C)(4), a sentencing court is required to make three
distinct findings in order to require an offender to serve consecutive prison terms: (1)
“that consecutive service is necessary to protect the public from future crime or to punish
the offender”; (2) “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 (3) that
one of the circumstances described in subdivision (a) to (c) is present. The latter
circumstances are: “(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, or 2929.18 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
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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”; or “(c) The offender’s history of
criminal conduct demonstrates that consecutive sentences are necessary to protect the
public from future crime by the offender.” R.C. 2929.14(C)(4)(a)-(c).
{¶28} The Supreme Court of Ohio has held that “a trial court is required to make
the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate
its findings into its sentencing entry * * *.” State v. Bonnell, 140 Ohio St.3d 209, 2014-
Ohio-3177, 16 N.E.3d 659, ¶ 37. The trial court is not required “to give a talismanic
incantation of the words of the statute, provided that the necessary findings can be found
in the record and are incorporated into the sentencing entry.” Id. Otherwise, “the
imposition of consecutive sentences * * * is contrary to law.” Id.{¶29} Here, the trial court did not explicitly reference R.C. 2929.14(C)(4) during
the sentencing hearing. In its closing remarks, the trial court addressed Mr. Liddy’s
extensive criminal history and the need to protect the public, which implicates the first and
third statutory findings. However, the trial court did not address the second statutory
finding, i.e., proportionality, nor did the trial court incorporate any consecutive sentence
findings into the sentencing entry. Thus, the trial court did not comply with R.C.
2929.14(C)(4).
{¶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.
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Failure To Comply
{¶31} Failure to comply is governed by R.C. 2921.331. R.C. 2921.331(B)
provides that “[n]o person shall operate a motor vehicle so as willfully to elude or flee a
police officer after receiving a visible or audible signal from a police officer to bring the
person’s motor vehicle to a stop.” “Whoever violates this section is guilty of failure to
comply with an order or signal of a police officer.” R.C. 2921.331(C)(1).
{¶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.” R.C. 2921.331(C)(3).
“A violation of division (B) of this section is a felony of the third degree if the jury or judge
as trier of fact finds any of the following by proof beyond a reasonable doubt: * * * The
operation of the motor vehicle by the offender caused a substantial risk of serious physical
harm to persons or property.” R.C. 2921.331(C)(5)(a)(ii).
{¶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). R.C. 2921.331(C)(5)(b).
{¶34} Most relevant here, R.C. 2921.331(D) provides that “[i]f an offender is
sentenced pursuant to division (C)(4) or (5) of this section for a violation of division (B) of
this section, and if the offender is sentenced to a prison term for that violation, the offender
shall serve the prison term consecutively to any other prison term or mandatory prison
term imposed upon the offender.” (Emphasis added.) This requirement is reiterated in
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R.C. 2929.14(C)(3), which provides, “If a prison term is imposed for * * * a felony violation
of division (B) of section 2921.331 of the Revised Code, the offender shall serve that
prison term consecutively to any other prison term or mandatory prison term previously
or subsequently imposed upon the offender.” (Emphasis added.)
{¶35} This court has consistently held that “[w]hen R.C. 2921.331(D) is applicable
in a given case, the trial court is not obligated to make factual findings under R.C.
2929.14(C)(4) prior to imposing consecutive prison terms” because the imposition of a
consecutive prison term is mandatory. State v. Lough, 11th Dist. Trumbull No. 2015-T-
0093, 2016-Ohio-3513, ¶ 24; accord State v. Feathers, 11th Dist. Portage Nos. 2020-P-
0070 et seq., 2021-Ohio-2881, ¶ 18; see also State v. Wright, 11th Dist. Lake No. 2006-
L-017, 2006-Ohio-3435, ¶ 20, fn. 2.
{¶36} If Mr. Liddy had been convicted of failure to comply in violation of R.C.
2921.331(B) and 2921.331(C)(5)(a)(ii), the trial court would have been required to impose
a consecutive prison term. However, Mr. Liddy was convicted of attempted failure to
comply in violation of R.C. 2921.331(B), 2921.331(C)(5)(a)(ii), and R.C. 2923.02(A).
Attempted Failure To Comply
{¶37} Attempt is governed by R.C. 2923.02. R.C. 2923.02(A) provides that “[n]o
person, purposely or knowingly, and when purpose or knowledge is sufficient culpability
for the commission of an offense, shall engage in conduct that, if successful, would
constitute or result in the offense.” “Whoever violates this section is guilty of an attempt
to commit an offense.” R.C. 2923.02(E)(1). Thus, the dispositive issue is whether a
consecutive prison term was mandatory for Mr. Liddy’s conviction for attempted failure to
comply.
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{¶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 attempted felony failure to comply.
See id. at ¶ 18. In that case, the defendant was indicted for failure to comply, a third-
degree felony, in violation of R.C. 2921.331(B) and 2921.331(C)(5)(a)(ii). Id. at ¶ 2. He
subsequently pleaded guilty to attempted failure to comply, a fourth-degree felony, in
violation of R.C. 2923.02, 2921.331(B), and 2921.331(C)(5)(a)(ii). Id. After violating his
community-control sanctions, the trial court sentenced the defendant to six months in
prison, which it ran consecutively to a sentence imposed in another case. Id. at ¶ 6. The
trial court determined that R.C. 2921.331 mandated consecutive sentences. See id. at ¶
1, ¶ 7-8.
{¶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., R.C.
2929.14(A)(4), controlled the trial court’s sentencing options rather than R.C.
2921.331(D). Id. at ¶ 8.
{¶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
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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
R.C. 2925.11, a drug-offense statute. Id. at ¶ 4. R.C. 2925.01(G)(4) defines a “drug-
abuse offense” as including “[a] conspiracy to commit, attempt to commit, or complicity in
committing or attempting to commit any offense under division (G)(1), (2), or (3) of this
section.” Taylor at ¶ 11. Among those offenses are attempts to violate R.C. 2925.11. Id.
Because an attempted drug offense is included in the definition of drug offenses, the
sentencing determination should be based on the drug offenses portion of the criminal
code rather than the attempt portion of the criminal code. Id. R.C. 2925.11(C)(4)(d)
required a “mandatory prison term,” which would exclude him from judicial release. Id.
{¶41} The state argued that the defendant was properly convicted and sentenced
under R.C. 2923.02, the attempt statute, and that the trial court properly accepted his plea
without informing him of the mandatory sentencing requirements applicable only to drug
offenses. Id. at ¶ 4.
{¶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
R.C. 2925.11.” Id. at ¶ 17. The court reasoned as follows:
{¶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.
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{¶44} “R.C. 2923.02, the attempt statute, is the general statute. It describes the
elements of an attempt to commit a crime—any crime—and generally describes how an
attempt is to be punished in comparison to a completed crime of the same import.
{¶45} “R.C. 2925.11 is a specific drug-offense statute. It describes the elements
of a drug-possession offense and, unlike most statutes in the criminal code, prescribes
specific punishments, including mandatory sentences, for subcategories of crimes
depending on the type and amount of illegal substance upon which a criminal charge
could be made. Thus, R.C. 2925.11 is a specific statute that controls over the general
statute, and [the defendant] was subject to the more specific mandatory-sentencing
requirements of R.C. 2925.11.” Id. at ¶ 12-14.
{¶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 “R.C. 2921.331 delineates the felony level and, in some
instances, additional penalties for defendants who violate R.C. 2921.331(C)(4) or (5).
However, unlike the statute governing ‘drug abuse offenses,’ the crime of ‘attempted
failure to comply’ is not one of the crimes delineated in R.C 2921.331. In fact, unlike the
crime of ‘attempted drug possession,’ * * * R.C. 2921.331 does not include the word
‘attempt’ in any of its provisions or definitions.” Id. Thus, the Eighth District found “no
basis to conclude that the legislature intended ‘attempted failure to comply’ to be a crime
incorporated in R.C. 2921.331.” Id.; see also State v. Wilson, 1st Dist. Hamilton No. C-
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090436, 2010-Ohio-2767, ¶ 7 (finding no basis to conclude the legislature intended
“attempted failure to register” to be a crime incorporated in R.C. 2950.99).
{¶48} The court also explained that pursuant to R.C. 2901.04(A), “any ambiguities
in R.C. 2921.331 and 2923.02 must be interpreted in appellant’s favor.” Garner at ¶ 18.
R.C. 2901.04(A) provides, in relevant part, that “sections of the Revised Code defining
offenses or penalties shall be strictly construed against the state, and liberally construed
in favor of the accused.”
{¶49} Finally, the court cited the Legislative Service Commission comments to
R.C. 2923.02, which state, “This section is a general attempt statute which consolidates
several specific attempt provisions in former law, and, with three exceptions, establishes
an attempt to commit any offense as an offense in itself. The exceptions are an attempt
to commit conspiracy, an attempt to commit a minor misdemeanor, and an attempt to
commit any offense which in itself is defined as an attempt—in these cases, attempt is
not an offense.” (Emphasis added.) 1973 Comments to R.C. 2923.02; see Garner at ¶
18, fn. 1.
{¶50} The Eighth District held that the trial court erred in determining it was
mandated to impose a consecutive prison term pursuant to R.C. 2921.331(D). Garner at
¶ 18. Because the trial court should have applied the revised code’s general sentencing
provisions, it held that the appellant’s sentence was contrary to law. Id. at ¶ 19. The
Eighth District subsequently reaffirmed this holding in State v. Houston, 8th Dist.
Cuyahoga Nos. 106470 and 106055, 2018-Ohio-3043, ¶ 37-39.
{¶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
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N.E.3d 537 (6th Dist.). In that case, the defendant pleaded guilty to attempted failure to
comply in violation of R.C. 2921.331(C)(4) and 2923.02(A). Id. at ¶ 3. The trial court
sentenced the defendant under R.C. 2921.331(E), which required the imposition of a
class-two driver’s license suspension. Id. at ¶ 6. A class-two driver’s license suspension
is a suspension for a definite period of three years to life. See R.C. 4510.02(A)(2).
{¶52} On appeal, the defendant argued that he should not have been sentenced
under R.C. 2921.331(E); rather, he should have been sentenced under the general
sentencing statute—R.C. 2929.14—which does not provide for a driver’s license
suspension. Heidelberg at ¶ 6.
{¶53} Applying Garner, the Sixth District determined that “the legislature did not
incorporate attempted failure to comply * * * into R.C. 2921.331.” Id. at ¶ 21. Rather,
“[a]ttempted failure to comply * * * is * * * a separate offense that is subject to the general
sentencing provisions set forth in R.C. 2929.14,” which does “not authorize a driver’s
license suspension.” (Emphasis sic.) Id. Thus, the Sixth District concluded that the
driver’s license suspension was contrary to law. Id.
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 R.C. 2921.331(B), 2921.331(C)(5)(a)(ii), and 2923.02(A).
{¶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
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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 R.C. 2921.331(B) occurs when one “operate[s] a
motor vehicle so as willfully to elude or flee a police officer after receiving a visible or
audible signal from a police officer to bring the person’s motor vehicle to a stop.” There
is no language in R.C. 2921.331 indicating that an attempt to commit failure to comply
constitutes an offense. Therefore, Mr. Liddy’s attempt offense constituted a separate
offense. See R.C. 2923.02(E)(1).
{¶57} Attempt constitutes “an offense of the next lesser degree than the offense
attempted.” R.C. 2923.02(E)(1). In other words, “for punishment purposes, the degree
of the attempt depends upon the degree of the principal offense.” (Emphasis added.)
Katz, Martin & Macke, Baldwin’s Ohio Practice, Criminal Law, Section 93:1 (3d
Ed.Oct.2021). Failure to comply under R.C. 2921.331(B) is a third-degree felony if either
circumstance in R.C. 2921.331(C)(5)(a)(i) or (ii) applies. In entering his guilty plea, Mr.
Liddy agreed that the circumstances in R.C. 2921.331(C)(5)(a)(ii) applied. Therefore, Mr.
Liddy’s attempt offense constituted a fourth-degree felony.
{¶58} The trial court sentenced Mr. Liddy to an 18-month prison term for his
attempt offense. R.C. 2921.331(D) requires a prison term to be served consecutively “[i]f
an offender is sentenced pursuant to [R.C. 2921.331(C)(4) or (5)] for a violation of [R.C.
2921.331(B)] * * *.” (Emphasis added.) Similarly, R.C. 2929.14(C)(3) requires a prison
term to be served consecutively “[i]f a prison term is imposed for * * * a felony violation of
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[R.C. 2921.331(B)] * * *.” (Emphasis added.). Here, Mr. Liddy’s 18-month prison term
was imposed for an attempted felony violation of R.C. 2921.331(B). Pursuant to the plain
meaning of the statutory language, R.C. 2921.331(D) and 2929.14(C)(3) were not
applicable. Thus, a consecutive prison term was not mandatory. Since the trial court did
not make statutory findings pursuant to R.C. 2929.14(C)(4), the trial court’s imposition of
a consecutive sentence is clearly and convincingly contrary to law.
{¶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} R.C. 2929.19 specifies the duties that a trial court must perform when
sentencing a defendant for a felony, including the calculation of jail-time credit. State v.
Myers, 11th Dist. Trumbull No. 2020-T-0006, 2021-Ohio-475, ¶ 48. R.C.
2929.19(B)(2)(g)(i) provides, in pertinent part:
{¶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
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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 [R.C. 2967.191].”
(Emphasis added.)
{¶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.
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Case No. 2022-A-0041
{¶66} At the sentencing hearing, the trial court stated that Mr. Liddy was entitled
to 425 days of jail-time credit. However, the trial court’s sentencing entry states that Mr.
Liddy is not entitled to jail-time credit for his pre-sentence incarceration because “he
received credit in Case No. 2018 CR 443 for the entire time he was incarcerated.” This
discrepancy reflects a substantive change rather than a clerical mistake. As such, a new
sentencing hearing is required.
{¶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.
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Case No. 2022-A-0041