State v. Thomas , 2014 Ohio 3833 ( 2014 )

[Cite as State v. Thomas, 2014-Ohio-3833.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-140070
TRIAL NO. B-1106802 B
Plaintiff-Appellee, :
O P I N I O N.
vs. :
ANDRE THOMAS, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed and Cause Remanded
Date of Judgment Entry on Appeal: September 5, 2014
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Roger W. Kirk, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
D E W INE , Judge.
{¶1} This is an appeal from a criminal sentence imposed during a
resentencing hearing. The trial court ordered that the defendant’s sentences run
consecutively. The court made the required findings prior to imposing consecutive
sentences, and we conclude that those findings are supported by the record. The court
did not, however, incorporate its findings into the sentencing entry, as required under
the Ohio Supreme Court’s recent decision in State v. Bonnell, Slip Opinion No. 2014-
Ohio-3177. Thus, in accordance with Bonnell, we must remand the case for the trial
court to correct this deficiency through a nunc pro tunc entry.
{¶2} Andre Thomas was convicted of murder with a firearm specification,
having a weapon while under a disability, and improperly discharging a firearm. The
convictions stemmed from a series of events in which Mr. Thomas hired a hit man to kill
his brother, Jermaine, and another man, Anthony Wells. The hit man intentionally
botched the attempt on Jermaine, but successfully carried out the hit on Mr. Wells,
shooting and killing him. The trial court ordered Mr. Thomas to serve his sentences
consecutively, imposing an aggregate prison term of 32 years.
{¶3} We previously affirmed Mr. Thomas’s convictions, but remanded the
case because the trial court failed to make the findings required by R.C. 2929.14(C)(4)
prior to imposing consecutive sentences. See State v. Thomas, 1st Dist. Hamilton No. C-
120561, 2013-Ohio-5386. On remand, the trial court imposed the same 32-year term
after making findings on the record at the sentencing hearing and completing a separate
sentencing-findings worksheet. The worksheet was filed on January 24, 2014, the date
of the resentencing hearing, and the sentencing entry was journalized on February 4.
Mr. Thomas now appeals the trial court’s imposition of consecutive sentences, arguing
that the sentences were excessive because Mr. Thomas was not the actual shooter.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} Our review of felony sentences is governed by R.C. 2953.08(G)(2). State
v. White, 2013-Ohio-4225, 997 N.E.2d 629 (1st Dist.). Under that section, we may vacate
Mr. Thomas’s sentences only if we “clearly and convincingly” find that the record does
not support the trial court’s findings or that the sentences are otherwise contrary to law.
{¶5} R.C. 2929.14(C)(4) provides that the trial court must make certain
findings before imposing consecutive sentences. First, the trial court must find that the
sentences are necessary either to protect the public from future crime or to punish the
offender. Here, the trial court determined that both circumstances applied. Next, the
trial court made the requisite finding that the imposition of consecutive sentences was
not disproportionate to the seriousness of Mr. Thomas’s conduct and the danger he
posed to the public. Finally, the court must find one of three conditions listed in R.C.
2929.14(C)(4)(a)-(c). In this case, the trial court found that the harm caused by the
offenses was “so great or unusual that no single prison term * * * adequately reflects the
seriousness of [Mr. Thomas’s] conduct,” thereby satisfying the condition in R.C.
2929.14(C)(4)(b).
{¶6} We conclude that the trial court’s findings are supported by the record.
Mr. Thomas commissioned attacks on two people, provided the hit man with a weapon
to carry out those attacks, and directed when and how the crimes were to be conducted.
We, therefore, overrule Mr. Thomas’s sole assignment of error and affirm the trial
court’s imposition of consecutive sentences.
{¶7} But our inquiry does not end there. We must consider the Ohio
Supreme Court’s recent decision in State v. Bonnell, Slip Opinion No. 2014-Ohio-3177.
In Bonnell, the court 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, but it has no obligation to state reasons to support its findings.”
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OHIO FIRST DISTRICT COURT OF APPEALS
Bonnell at syllabus; see State v. Simmons, 1st Dist. Hamilton No. C-130126, 2014-
Ohio-3695, ¶ 117. In this case, the trial court made the statutory findings at the
sentencing hearing, but did not include those findings in the sentencing entry.
{¶8} Although no statute specifies where in the record the consecutive-
sentence findings must be demonstrated, the Bonnell court concluded that “because a
court speaks through its journal,” the trial court should “incorporate its statutory
findings into the sentencing entry.” Bonnell at ¶ 29. Here, the trial court did, in fact,
journalize its findings through the use of a sentencing-findings worksheet. Bonnell,
however, plainly requires that the findings be incorporated into the sentencing entry
itself.
{¶9} The Bonnell court further explained that “[a] trial court’s inadvertent
failure to incorporate the statutory findings in the sentencing entry after properly
making those findings at the sentencing hearing does not render the sentence contrary
to law[.]” Id. at ¶ 30. Instead, “such a clerical mistake may be corrected by the court
through a nunc pro tunc entry to reflect what actually occurred in open court.” Id. We,
therefore, affirm the judgment of the trial court, but remand the cause for a nunc pro
tunc order correcting the omission of the consecutive-sentence findings from the
sentencing entry. See Crim.R. 36. To satisfy the mandate in Bonnell, the trial court may
either (1) list its findings in the sentencing entry, (2) attach and make the sentencing-
findings worksheet part of the sentencing entry, or, at the very least, (3) incorporate its
findings by specific reference in the sentencing entry to the previously-docketed
findings.
Judgment accordingly.
D INKELACKER , P.J., and F ISCHER , J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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