[Cite as State v. Daniel,

.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. Sheila G. Farmer, P.J. Plaintiff-Appellee Hon. W. Scott Gwin, J. Hon. William B. Hoffman, J. -vs- Case No. CT2015-0036 TIMOTHY DANIEL

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2013-0251

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: August 17, 2016

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

D. MICHAEL HADDOX ERIC J. ALLEN Prosecuting Attorney The Law Office of Eric J. Allen, Ltd. Muskingum County, Ohio 713 S. Front St. Columbus, Ohio 43206 By: GERALD V. ANDERSON II Assistant Prosecuting Attorney Muskingum County, Ohio 27 North Fifth St., P.O. Box 189 Zanesville, Ohio 43702-0189 Muskingum County, Case No. CT2015-0036 2

Hoffman, J.

{¶1} Defendant-appellant Timothy Daniel appeals his sentence entered by the

Muskingum County Court of Common Pleas via Judgment Entry of May 22, 2015, and

nunc pro tunc Judgment Entry of June 8, 2015. Plaintiff-appellee is the state of Ohio.

STATEMENT OF THE CASE1

{¶2} On January 14, 2014, Appellant was found guilty by a jury of one count of

aggravated murder, one count of having weapons under disability, one count of felonious

assault, one count of carrying a concealed weapon, and one count of improper handling

of a firearm. On February 3, 2014, the trial court imposed sentence. Appellant filed a

direct appeal to this Court in State v. Daniel, Muskingum App. No. CT 2014-0018, 2014-

Ohio-4274.

{¶3} Via Opinion and Judgment Entry of September 25, 2014, this Court

reversed Appellant's conviction for aggravated murder, rendered judgment of conviction

as to murder, in violation of R.C. 2903.02(A), and remanded the matter to the trial court

for resentencing.

{¶4} The trial court conducted a resentencing hearing on May 13, 2015, and

entered a Judgment Entry of sentence on May 22, 2015. The trial court entered a nunc

pro tunc entry on June 8, 2015.2

1A rendition of the underlying facts is unnecessary for resolution of this appeal. 2 At the May 13, 2015 hearing, the trial court stated, “That is the only change that is being made [aggravated murder to murder]. Everything else will remain the same. The gun specs, the consecutive sentences, which the Court of Appeals said they are not allied offenses or similar and, therefore, the consecutive was appropriate.” Tr. at 6. Muskingum County, Case No. CT2015-0036 3

{¶5} The trial court sentenced Appellant to a stated prison term of fifteen years

to life on Count One, Murder, with a firearm specification, including a mandatory term of

three years in prison, which by law must be served consecutively;

{¶6} On Count Two, Having a Weapon While Under Disability, the trial court

imposed a stated prison term of three years;

{¶7} On Count Three, Felonious Assault, the trial court imposed a stated term of

eight years in prison, with a firearm specification, including a three year mandatory term

of incarceration, which by law must be served consecutively;

{¶8} On Count Four, Carrying a Concealed Weapon, the trial court imposed a

stated prison term of eighteen months;

{¶9} On Count Five, Improper Handling of a Firearm, the trial court imposed a

stated prison term of eighteen months.

{¶10} The trial court's May 22, 2015 Re-Sentencing Entry states,

The Court has considered the record, the presentence investigation,

and any victim impact statement, as well as, the principles and purposes of

sentencing under Ohio Revised Code 2929.11 and its balance of

seriousness and recidivism factors under Ohio Revised Code 2929.12***

The Court had previously made judicial finding [sic] that Defendant

has a significant criminal history; had tried to employ witnesses to give

perjured testimony; has shown no remorse for his actions; and that it is

necessary to protect the public.

*** Muskingum County, Case No. CT2015-0036 4

The periods of incarceration imposed for Counts Two, Four and Five

shall be served concurrently; Count Three shall be served consecutively,

along with the mandatory terms for the Firearm Specifications, for an

aggregate prison sentence of twenty-nine (29) years to life in prison.

Defendant is granted credit for time served; he shall pay the costs of this

prosecution. [Underlining omitted.]

{¶11} Appellant appeals, assigning as error,

{¶12} “I. THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO

CONSECUTIVE SENTENCES AS THE COURT FAILED TO ENGAGE IN THE

REQUISITE THREE PART ANALYSIS REQUIRED TO SENTENCE A DEFENDANT TO

CONSECUTIVE SENTENCES BY FAILING TO FIND THAT ANY OF THE THREE

FACTORS LISTED IN 2929.14(C)(4)(a)-(c) APPLIED.”

{¶13} R.C. 2929.14(C)(4)(a)-(c) reads, in pertinent part:

(4) 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 Muskingum County, Case No. CT2015-0036 5

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 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.

{¶14} In State v. Bonnell,

,

, 2014–Ohio–3177,

syllabus, the Supreme Court of Ohio held in order to impose consecutive sentences, 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. A failure to make the findings required

by R.C. 2929.14(C)(4) renders a consecutive sentence contrary to law. Bonnell, ¶ 34.

Although the findings are to be made at the sentencing hearing and incorporated into the

sentencing entry, 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; rather, such a clerical mistake may be corrected

by the court through a nunc pro tunc entry to reflect what actually occurred in open court.

Bonnell, ¶ 30. Muskingum County, Case No. CT2015-0036 6

{¶15} At the sentencing hearing on May 13, 2015, the trial court stated on the

record,

The Court, also, would tell you, you're a very lucky person. You beat

a murder trial in Franklin County which you shouldn't have, according to that

judge and his opinion sentencing you. You now have a life without parole

reduced to 15 to life, but you still have a very substantial sentence. You’re

a danger to society. That's why you gave -- were given consecutive

sentences to begin with.

{¶16} Tr. at 6.

{¶17} Here, Appellant concedes in his argument “the first two steps, finding

consecutive sentences are necessary to protect the public from future crime or to punish

the offender, as well as, finding that consecutive sentences are not disproportionate to

the seriousness of the conduct and the danger posed to the public [R.C. 2929.14(C)(4)],

are evidence [sic] in the sentencing colloquy by the trial court in this case.” However,

Appellant argues the trial court failed to complete the third step required by the statute to

justify consecutive sentences in finding one of the three factors set forth in R.C.

2929.14(C)(4)(a)-(c).

{¶18} The statute requires the trial court find one of the following: (a) Appellant

committed one or more of the offenses while awaiting trial, sentencing, under a sanction

or 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 offenses was so great or unusual that no single prison term for any of the

offenses adequately reflects the serious of Appellant's conduct; (c), or Appellant's criminal Muskingum County, Case No. CT2015-0036 7

conduct history demonstrates consecutive sentences are necessary to protect the public

from future crime.

{¶19} At the May 13, 2015 sentencing hearing, the trial court referenced

Appellant’s prior history of criminal conduct, including a trial in Franklin County for which

Appellant was acquitted of the charge of murder. The Franklin County trial is referenced

in the presentence investigation prepared for the trial court, and the presentence

investigation includes the language of the Franklin County trial court referenced by the

trial court herein at sentencing.

{¶20} Upon this Court’s review of the PSI, we note Appellant has a lengthy history

of criminal conduct including convictions for burglary, corruption of a minor, possession

of marijuana and aggravated assault. The trial court’s statement to Appellant prior to

imposing sentence references the statements made by the Franklin County trial court

during Appellant’s sentencing on other criminal charges.

{¶21} Appellant disputes the trial court’s mention of Appellant’s Franklin County

case. However, we find Appellant’s criminal history, which criminal history was

specifically referenced by the trial court, supports the trial court’s finding Appellant posed

a danger to society due to his past criminal history. The trial court adequately finds

Appellant’s criminal conduct history demonstrates consecutive sentences are necessary

to protect the public from future crime as required by R.C. 2929.14(C)(4)(c).

{¶22} The trial court’s sentencing entry states the court considered the record and

the presentence investigation finding Appellant had a significant criminal history, showing

no remorse for his actions, and consecutive sentencing is necessary to protect the public. Muskingum County, Case No. CT2015-0036 8

{¶23} Appellant's sole assignment of error is overruled, and Appellant’s sentence

in the Muskingum County Court of Common Pleas is affirmed.

By: Hoffman, J.

Farmer, P.J. and

Gwin, J. concur