[Cite as State v. Merer,

.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY

State of Ohio Court of Appeals No. WD-20-015

Appellee Trial Court No. 2019CR0257

v.

Randy Merer DECISION AND JUDGMENT

Appellant Decided: April 30, 2021

*****

Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee.

Catherine Meehan, for appellant.

*****

MAYLE, J.

{¶ 1} Appellant, Randy Merer, appeals the January 29, 2020 judgment of the

Wood County Court of Common Pleas sentencing him to an aggregate prison term of 48

months following his convictions for attempted pandering of sexually-oriented matter

involving a minor and possessing criminal tools. For the following reasons, we reverse. I. Background and Facts

{¶ 2} On June 9, 2019, Merer was indicted on seven counts of pandering sexually-

oriented matter involving a minor in violation of R.C. 2907.322(A)(1), all second-degree

felonies, and one count of possessing criminal tools in violation of R.C. 2923.24(A), a

fifth-degree felony, which included a forfeiture specification under R.C. 2941.1417(A).

The charges arose from Merer’s use of cellphones to record his sexual encounters with

the victim, who was 17 years old at the time that Merer recorded the videos.

{¶ 3} Merer and the state reached a plea agreement that allowed him to plead

guilty to seven counts of attempted pandering sexually-oriented matter involving a minor,

all third-degree felonies, and the indicted charge of possessing criminal tools. The trial

court accepted Merer’s pleas and found him guilty on all counts.

{¶ 4} On January 24, 2020, the trial court held Merer’s sentencing hearing. When

Merer’s attorney addressed the court, she asked the court to impose community control

and said that “[t]hese are felonies of the third degree with no presumption of prison, no

presumption of probation.” She argued that the sentencing factors under R.C. 2929.12

favored a term of community control. The state disagreed and asked the court to impose

prison terms. The trial court also heard statements from Merer and his father.

{¶ 5} Before imposing sentence, the court reviewed the circumstances of the

underlying offenses and some of Merer’s other, unindicted conduct and the factors in

R.C. 2929.11 and 2929.12. It then sentenced Merer to a prison term of 36 months on

each attempted pandering charge and a prison term of 12 months on the criminal tools

2. charge. The court ordered the seven attempted pandering charges to be served

concurrently to one another and ordered the criminal tools charge to be served

consecutively to the attempted pandering charges, for an aggregate prison term of 48

months.

{¶ 6} The trial court filed its sentencing entry on January 29, 2020. The judgment

entry reflects the 36-month sentences for each of the attempted pandering charges and the

12-month sentence for the criminal tools charge. It also orders that the attempted

pandering sentences are to be served concurrently to one another and that the criminal

tools sentence is to be served consecutively to the attempted pandering sentences.

Additionally, the judgment entry states that “pursuant to R.C. 2929.13(B) it is presumed

that a prison term is necessary in order to comply with the purposes and principles of

sentencing under R.C. 2929.11.”

{¶ 7} Merer now appeal, raising two assignments of errors:

ASSIGNMENT OF ERROR I: THE TRIAL COURT ERRED IN

SENTENCING APPELLANT TO A TERM OF INCARCERATION.

ASSIGNMENT OF ERROR II: THE TRIAL COURT ERRED IN

SENTENCING APPELLANT TO SERVE CONSECUTIVE

SENTENCES.

II. Law and Analysis

A. The trial court’s judgment entry incorrectly presumed that Merer’s convictions required the imposition of prison time.

3. {¶ 8} In his first assignment of error, Merer argues that the trial court erred by

sentencing him to a term of incarceration rather than community control for three

reasons: (1) the record does not support the imposition of a prison term under R.C.

2929.11 and 2929.12, (2) the trial court improperly presumed that a prison term was

required for his third-degree felony convictions, and (3) the trial court improperly

considered uncharged conduct when weighing the seriousness and recidivism factors in

R.C. 2929.12. Because the second argument is dispositive, we will consider it first.

{¶ 9} We review a challenge to a felony sentence under R.C. 2953.08(G)(2). The

statute provides that an appellate court may increase, reduce, or otherwise modify a

sentence or may vacate the sentence and remand the matter to the sentencing court for

resentencing if it clearly and convincingly finds either of the following:

(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;

(b) That the sentence is otherwise contrary to law.

R.C. 2953.08(G)(2).

{¶ 10} Merer argues that his prison sentence is contrary to law because the trial

court stated in its judgment entry that “pursuant to R.C. 2929.13(B) it is presumed that a

prison term is necessary in order to comply with the purposes and principles of

sentencing under R.C. 2929.11[,]” despite his third- and fifth-degree felony convictions

4. not carrying presumptions that prison time is necessary to comply with the purposes and

principles of sentencing in R.C. 2929.11. We agree.

{¶ 11} Under the applicable provisions of the sentencing statute, neither third-

degree attempted pandering sexually-oriented matter involving a minor nor fifth-degree

possessing criminal tools carries a presumption that a prison term is necessary to comply

with the purposes and principles of sentencing in R.C. 2929.11. Third-degree felony

sentences are controlled by R.C. 2929.13(C), which states that “in determining whether to

impose a prison term as a sanction for a felony of the third degree * * *, the sentencing

court shall comply with the purposes and principles of sentencing under section 2929.11

of the Revised Code and with section 2929.12 of the Revised Code.” Fifth-degree felony

sentences are controlled by R.C. 2929.13(B), which mandates community control

sanctions in certain circumstances, makes prison discretionary in certain circumstances,

and, if neither of those options applies, requires the court to “comply with the purposes

and principles of sentencing under section 2929.11 of the Revised Code and with section

2929.12 of the Revised Code” in determining whether to impose a prison term.

{¶ 12} Despite the contrary requirements of R.C. 2929.13, the trial court stated in

its sentencing entry that it found “pursuant to R.C. 2929.13(B) it is presumed that a

prison term is necessary in order to comply with the purposes and principles of

sentencing under R.C. 2929.11.”1 At the sentencing hearing, the trial court did not say—

1 Notably, R.C. 2929.13(B) does not presume a prison term for any offenses to which it applies.

5. one way or the other—whether it presumed that a prison term was necessary for any of

Merer’s offenses. However, it is axiomatic that “a trial court speaks through its judgment

entries,” State v. Payne, 6th Dist. Lucas Nos. L-13-1024 and L-13-1025, 2014-Ohio-

1147, ¶ 14, and what the trial court’s entry in this case tells us is that the court “presumed

that a prison term is necessary * * *” to protect the public, punish Merer, and rehabilitate

Merer using minimal government resources. R.C. 2929.11(A). So, instead of starting

from a place of neutrality, as required by R.C. 2929.13(C), the judgment entry clearly

states that the trial court started its sentencing analysis under the impression that Merer

had to go to prison. Even if the trial court did everything else right in fashioning Merer’s

sentence, when the court starts its consideration of a defendant’s punishment from the

wrong place, the resulting sentence cannot stand. See State v. Wheeler, 6th Dist. Wood

No. WD-20-053,

; State v. Robinson, 7th Dist. Mahoning No. 07

MA 224,

.

{¶ 13} In some cases, the appellate court can determine from the record that an

apparent error in the sentencing entry is nothing more than a clerical error that the trial

court can correct with a nunc pro tunc entry. This is not such a case.

{¶ 14} A “clerical error” is “a mistake or omission, mechanical in nature and

apparent on the record, which does not involve a legal decision or judgment.” (Internal

quotations omitted.) State v. Love, 6th Dist. Lucas No. L-05-1087,

. The trial court can correct a clerical error at any time. Crim.R. 36. But, although a

court possesses inherent authority to correct a clerical error in its judgment entry so that

6. “the record speaks the truth, nunc pro tunc entries are limited in proper use to reflecting

what the court actually decided, not what the court might or should have decided.”

(Internal quotations omitted.) State v. Miller,

,

,

.

{¶ 15} For example, in Love, the trial court cited inapplicable statutes—which

required a mandatory three-year term of incarceration—in its judgment entry imposing a

three-year prison term for appellant’s first-degree felonious assault conviction. Love at ¶

22. Under the correct statute, appellant’s conviction for first-degree felonious assault was

punishable by a non-mandatory term of three to ten years of incarceration. Id. at ¶ 23.

However, the trial court’s “comments at the sentencing hearing reflect[ed] its intention *

* *” to sentence appellant to a non-mandatory term. Id. at ¶ 24. While the appeal was

pending, the trial court entered a nunc pro tunc order correcting the error pursuant to

Crim.R. 36. Id. at ¶ 23. We found that the trial court’s action was proper because “the

sentencing hearing transcript and the judgment entry” reflected that the error was

“mechanical in nature and apparent on the record.” (Emphasis added.) Id. at ¶ 27.

{¶ 16} In contrast, in Merer’s case, there is nothing in the transcript of the

sentencing hearing making it “apparent on the record” that the reference to a “presumed”

prison term in the judgment entry was merely “mechanical in nature.” Id. Although

Merer’s attorney mentioned at the beginning of the hearing that “[t]hese are felonies of

the third degree with no presumption of prison, no presumption of probation[,]” the trial

court never stated whether or not a prison term was presumed for Merer’s offenses. And,

7. although the trial court cited an inapplicable statute in its judgment entry—i.e., R.C.

2929.13(B), which does not impose a presumption of prison under any circumstance—it

is possible that the trial court mistakenly cited R.C. 2929.13(B) as supporting its

erroneous belief that a prison term was presumed in this case. Either way, it is not

“apparent from the record” that either of these mistakes was “mechanical in nature.”

{¶ 17} Moreover, the trial court’s consideration of R.C. 2929.11 and 2929.12 on

the record is not conclusive proof that it did not presume a prison term because R.C.

2929.11(A) requires a sentencing court to consider the purposes and principles of

sentencing in every case—including cases in which a prison term is presumed.

Additionally, under R.C. 2929.13(B)(2), Merer’s fifth-degree felony conviction required

the court to consider the seriousness and recidivism factors in R.C. 2929.12(B) through

(F) in exercising its “discretion to determine the most effective way to comply with the

purposes and principles of sentencing set forth in [R.C. 2929.11].” R.C. 2929.12(A). So,

given that the trial court was required to make the findings it made on the record—

whether or not there was a presumption of prison for Merer’s third-degree felony

convictions—the fact that the court made these findings does not show that the court

made a clerical error in its sentencing entry.

{¶ 18} Finally, the determination of whether or not a prison term is presumed for

an offense involves a legal judgment. Wheeler, 6th Dist. Wood No. WD-20-053, 2021-

Ohio-1074, at ¶ 12. This takes such a determination outside of the scope of a clerical

8. error that can properly be corrected with a nunc pro tunc entry. Crim.R. 36; Miller,

,

,

.

{¶ 19} In short, there is nothing in the record to clearly demonstrate that the trial

court’s unambiguous statement in its judgment entry that “it is presumed that a prison

term is necessary * * *” was anything other than a substantive sentencing error. For that

reason, we find that Merer’s sentence must be vacated, and the matter must be remanded

for a new sentencing hearing. Compare State v. Showalter, 7th Dist. Belmont No. 16 BE

0027,

, ¶ 36 (trial court’s incorrect citation to a presumption of a prison

term under R.C. 2929.13(F) could be corrected by a nunc pro tunc entry because the

record demonstrated that the trial court “clearly considered the correct law but cited to the

wrong revised code section in its sentencing entry * * *”). Accordingly, Merer’s first

assignment of error is well-taken.

B. Merer’s second assignment of error is moot.

{¶ 20} In his second assignment of error, Merer argues that the trial court erred in

sentencing him to consecutive sentences because the record does not support the court’s

finding that Merer’s conduct caused great or unusual harm. Because we are vacating

Merer’s sentence, Merer’s arguments regarding consecutive sentences are moot, and his

second assignment of error is not well-taken.

III. Conclusion

{¶ 21} The January 29, 2020 judgment of the Wood County Court of Common

Pleas is reversed. Merer’s sentence is vacated, and this matter is remanded for

9. resentencing consistent with this decision. The state is ordered to pay the costs of this

appeal pursuant to App.R. 24.

Judgement reversed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, J. _______________________________ JUDGE Christine E. Mayle, J. CONCUR. _______________________________ JUDGE

Gene A. Zmuda, P.J. _______________________________ CONCURS AND WRITES JUDGE SEPARATELY.

ZMUDA, P.J.

{¶ 22} On January 29, 2020, the Wood County Court of Common Pleas ordered

appellant to serve an aggregate 48-month prison term following his convictions for

attempted pandering of sexually-oriented matter involving a minor and possession of

criminal tools. The majority concludes that the trial court erred in imposing the prison

term because the judgment entry references a presumed a prison for appellant’s third and

fifth-degree felony convictions when no presumption is applicable. I agree that a trial

court’s incorrect presumption that a prison term is necessary renders the imposition of a

10. prison term contrary to law. See State v. Robinson, 7th Dist. Mahoning No. 07 MA 224,

; State v. DiMichele, 7th Dist. Jefferson No. 09-JE-31, 2010-Ohio-

3169, ¶ 25. However, because I do not find clear and convincing evidence in the record

that the trial court presumed a prison term was necessary, I would not find appellant’s

sentence was imposed contrary to law. That notwithstanding, I would find that the trial

court erred in ordering appellant to serve his prison terms consecutively and would

remand this matter for resentencing. For that reason, I concur with the majority in

reversing the trial court’s judgment but would reach that conclusion for different reasons.

I. Appellant failed to identify clear and convincing evidence that the trial court’s judgment was contrary to law.

{¶ 23} Appellant was convicted of six counts of attempted pandering of sexually

oriented matter, each a third-degree felony, and one count of possession of criminal tools,

a fifth-degree felony. His convictions arose from his use of a cell phone to record sexual

encounters with the victim, A.B., who was 17 at the time. None of appellant’s

convictions carried a statutory presumption that a prison sentence was necessary to

comply with the purposes of felony sentencing.

{¶ 24} At his sentencing hearing, the trial court imposed a 48-month aggregate

prison term without reference to a presumption that a prison term was necessary. The

trial court’s judgment entry recounts its consideration of the applicable sentencing factors

stating:

The Court considered the record, oral statements, any victim impacts

statement, the presentence report, the purposes and principles of sentencing

11. under R.C. 2929.11, the seriousness and recidivism factors relevant to the

offense and the offender pursuant to 2929.12, and the need for deterrence,

incapacitation, rehabilitation and restitution. In determining a sentence the

Court was guided by the overriding purposes of felony sentencing,

including protection of the public from future crime by the offender and

punishment of the offender, using the minimum sanctions that the Court

determined accomplish those purposes without imposing an unnecessary

burden on state of local government resources.

The judgment entry then identifies the specific seriousness and recidivism factors it

considered in determining appellant’s sentence, ultimately concluding that “a prison term

is consistent with the purposes and principles of sentencing set forth in R.C. 2929.11 and

the Defendant is not amenable to an available community control sanction.” (Emphasis

sic.). It is only after this analysis that the judgment entry, through reference to an

inapplicable statute, finds that “pursuant to R.C. 2929.13(B) it is presumed that a prison

term is necessary to comply with the purposes and principles of sentencing under R.C.

2929.11.” Appellant argues, and the majority agrees, that the reference to a presumed

prison term in the judgment entry only renders his sentence contrary to law.

{¶ 25} An appellate court’s review of felony sentences is governed by R.C.

2953.08(G)(2) which states:

The appellate court may increase, reduce, or otherwise modify a

sentence that is appealed under this section or may vacate the sentence and

12. remand the matter to the sentencing court for resentencing. The appellate

court's standard for 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:

(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;

(b) That the sentence is otherwise contrary to law.

The “clear and convincing evidence” standard is defined as “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.” State v. Mitten, 6th Dist. Sandusky No. S-19-056, 2021-Ohio-

89, ¶ 4, quoting Cross v. Ledford,

,

(1954), paragraph

three of the syllabus. The burden is on the appellant to identify clear and convincing

evidence in the record that their sentence was erroneously imposed. State v. Torres, 6th

Dist. Ottawa No. OT-18-008,

, ¶ 6.

{¶ 26} The majority determined that the trial court’s statement in its judgment

entry that it presumed a prison term was necessary to satisfy the purposes of felony

sentencing as described in R.C. 2929.11, when no such presumption applied to

13. appellant’s third and fifth-degree felony convictions, constituted reversible error.

Following review of the record, I disagree.

{¶ 27} At appellant’s sentencing hearing, the trial court made no reference to a

presumptive prison term when determining appellant’s sentence. To the contrary,

appellant’s counsel explicitly stated, without objection from the state or comment from

the trial court, that there was no presumption that a prison term was necessary. The trial

court made no reference to the presumption of a prison term when it actually imposed

appellant’s sentence. Nothing about the trial court’s statements at the sentencing hearing

establishes a firm belief that the trial court improperly presumed a prison term was

necessary. Notably, appellant’s argument makes no reference to an alleged error at the

sentencing hearing.

{¶ 28} The trial court’s judgment entry likewise does not provide clear and

convincing evidence that appellant’s sentence was imposed contrary to law. The

judgment entry properly recounts the trial court’s imposition of sentence at the hearing

including the factors it considered in determining whether a prison term was appropriate.

The judgment entry then reflects the trial court’s finding that a prison term rather than a

community control sanction was consistent with the purposes of felony sentencing under

R.C. 2929.11.

{¶ 29} Only after identifying the proper bases on which it imposed appellant’s

sentence does the trial court’s judgment entry state “[t]he Court finds that pursuant to

R.C. 2929.13(B) it is presumed that a prison term is necessary in order to comply with

14. the purposes and principles of sentencing under R.C. 2929.11.” In the context of the

judgment entry, the reference to R.C. 2929.13(B) has no reasonable connection to the

trial court’s otherwise proper imposition of a prison term. If the trial court had presumed

a prison term was necessary, it is only logical it would state that presumption before or, at

least, in conjunction with its analysis under R.C. 2929.11 and 2929.12. As it stands, the

reference to R.C. 2929.13(B) after already describing the proper analysis, including the

consideration of community control sanctions, appears to be nothing more than an error

in the preparation of the judgment entry rather than evidence that the trial court did not

began its sentencing analysis from a neutral position. I would, therefore, find that the

judgment entry’s reference to a presumptive prison term—particularly in light of the trial

court’s extensive recounting of its consideration of the appropriate sentencing statutes at

the sentencing hearing and in its judgment entry—does not show that the trial court

committed reversible error.

{¶ 30} The majority concludes that there is “nothing in the record” to clearly

demonstrate that the trial court’s statement in the judgment entry was “anything other

than a substantive sentencing error.” Essentially, the majority found that appellant

successfully proved a negative—that the trial court’s failure to explicitly state it did not

presume a prison term was necessary at the sentencing hearing constitutes a complete

lack of evidence that it began from a position of neutrality. I disagree. There is no

requirement that a trial court affirmatively state that it does not presume a prison term is

necessary when there is no applicable presumption. I would find the trial court’s silence

15. on that issue at sentencing, in light of appellant’s counsel’s unchallenged argument that

no presumption applied, is evidence from the record that demonstrates the trial court did

not presume a prison term was necessary.

{¶ 31} So, what do we make of the clearly erroneous inclusion of the presumption

language in the judgment entry? I conclude in this case that the offending language does

not constitute reversible error under the applicable standard of review because the

language does not clearly and convincingly result in a sentence that was contrary to law.

R.C. 2953.08(G)(2)(b). Simply stated, absent the errant reference in the judgment entry,

there is nothing in the record supporting the proposition that the trial court’s action in

imposing a prison sentence was based on the incorrect presumption for prison.

{¶ 32} For these reasons, I would find that the judgment entry’s reference to a

presumption that a prison term was necessary does not constitute clear and convincing

evidence that appellant’s sentence was imposed contrary to law. As a result, I disagree

with the majority’s conclusion and would not reverse the trial court’s judgment on these

grounds. Because I would not have found the first assignment of error reversible, I

believe we must, necessarily, address appellant’s second assignment of error.

II. The trial court erred in imposing consecutive sentences.

{¶ 33} While I disagree with the majority’s analysis, I nevertheless concur in the

majority’s judgment that the trial court erred and this matter should be remanded for

resentencing because I find merit in appellant’s second assignment of error.

16. {¶ 34} In his second assignment of error, appellant argues that trial court’s

findings under R.C. 2929.14(C) are not supported by the record. R.C. 2929.14(C)(4)

provides as follows:

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

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.

17. (c) The offender’s history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime

by the offender.

This statute requires the trial court to make three statutory findings before imposing

consecutive sentences. State v. Beasley,

,

,

; State v. Bonnell,

,

,

.

It must find (1) that consecutive sentences are necessary to protect the public or to punish

the offender; (2) that consecutive sentences are not disproportionate to the seriousness of

the offender’s conduct and to the danger that the offender poses to the public; and (3) that

R.C. 2929.14(C)(4)(a), (b), or (c) is applicable.

. “[T]he trial court must

make the requisite findings both at the sentencing hearing and in the sentencing entry.”

(Emphasis sic.) Id. at ¶ 253, citing

. While the sentencing court is

required to make findings under R.C. 2929.14(C)(4) before imposing consecutive

sentences, it is not required to give reasons explaining the findings. State v. Kubat, 6th

Dist. Sandusky No. S-13-046,

. However, the record must contain

evidence to support the trial court’s findings.

, citing R.C.

2953.08(G)(2)(a).

{¶ 35} At appellant’s sentencing hearing, the trial court stated:

The Court believes that multiple terms are necessary in this case to

protect the public from future crime and to punish the offender. They are

not disproportionate to the seriousness of the offender’s conduct and the

18. danger he poses to the public. I would say that they were committed as a

course of conduct. And the harm caused by the offenses so — are so great

and unusual that a single prison term for any of the offenses committed as

part of the course of conduct would not be enough. The Court has

considered all of the circumstance under 2929.14(C) in imposing

consecutive sentences in this particular case and believes they are

necessary.

Appellant argues that the trial court erred because its findings were not supported by the

record as there was no evidence that appellant’s conducts resulted in great or unusual

harm. I agree.

{¶ 36} At his change of plea hearing, the state identified the facts it would have

established had the case gone to trial. In its recitation, the state made no reference to the

harm the victim suffered. Similarly, at sentencing, the state did not reference any harm

suffered by the victim. Appellant did not stipulate that the victim suffered any harm

during any proceedings. Also, while not necessary for a finding of great or unusual harm,

it is also relevant that the victim did not provide a victim impact statement. See State v.

Eager, 3d Dist. Henry No. 7-15-02,

. The sole reference to the

harm the victim suffered was made by the trial court when it found that any harm

suffered was exacerbated by the victim’s age.

{¶ 37} An offender’s conduct results in “great or unusual harm” when there is

“something about the commission of [the] particular offenses that causes greater harm, or

19. more unusual harm, than [the] harm ordinarily resulting from the commission of the

offenses.” State v. Byrd, 2d Dist. Clark No. 03-CA-08,

. The harm

incurred as a result of the offense must be “more egregious” than the harm which would

normally result from the offense. State v. Kay, 2d Dist. No. 263444,

. Further, “[t]here must be actual evidence of, not the potential for, ‘great or unusual’

harm in evidence to support the finding.” State v. Williams, 6th Dist. Lucas Nos. L-15-

1259, L-15-1260,

; State v. Gessel, 6th Dist. Williams No. WM-19-

004,

. Put simply, a finding under R.C. 2929.14(C)(4)(b) must be

supported by evidence that the harm incurred is greater than that which would be

expected to result from the offenses committed. Byrd at ¶ 37.

{¶ 38} Both appellant and the state identified appellant’s sexual relationship with

the victim as consensual. Notably, appellant was not charged with a crime related to the

sexual relationship as, despite the significant age difference between appellant and the

victim, that relationship was not illegal. Instead, appellant’s conduct was illegal because

he recorded his sexual interactions with the victim, a minor, in violation of R.C.

2907.322(A)(1) and (C).

{¶ 39} Appellant’s crime—attempted pandering of sexually-oriented matter

involving a minor—was predicated on the victim’s age as defined by the statute. When

age is an element of the offense, a trial court’s reference to harm suffered by the victim as

a result of their age, without more, is not sufficient to support a finding of great or

unusual harm. See State v. Johnson, 8th Dist. Cuyahoga No. 102449,

. 21. Therefore, we review the record to determine if there is evidence of great or unusual

harm beyond concern over the victim’s age at the time of the offense. This court recently

affirmed consecutive sentences involving a conviction for pandering sexually oriented

matter involving a minor, among other charges, in State v. Smith, 6th Dist. Wood No.

WD-19-082,

. In Smith, the minor victim’s mother provided a victim

impact statement in which she stated the defendant injected her daughter with heroin over

the course of six days which resulted in her daughter becoming infected with hepatitis C.

This diagnosis “altered [the victim’s] life forever” due to ongoing medical and hygienic

concerns related to the disease. Further, the victim’s mother stated that her daughter was

fearful of others even in her own home and suffered from anxiety, depression, and low

self-esteem. These conditions were exacerbated by the defendant’s posting of the

sexually oriented material of the minor victim online. We found that this evidence of

harm was sufficient to show the victim suffered great or unusual harm and affirmed the

imposition of consecutive sentences. Id. at ¶ 14.

{¶ 40} I do not reference our holding in Smith here as a standard for the amount of

evidence or the severity of harm that a minor victim must suffer to be considered great or

unusual under R.C. 2929.14(C)(4)(b). Instead, I rely on Smith as an example of the state

identifying evidence of harm beyond a victim’s age to support the imposition of

consecutive sentences. Here, I find a complete dearth of evidence of harm to the victim

beyond concern over her age at the time of the offense. No victim impact statements

were provided and the state failed to call any witnesses to describe the nature of the harm

21. suffered by the victim from appellant’s recording of their sexual encounters—a fact

particularly notable as the relationship itself, despite the age difference, would not

constitute a crime in this state had he not made the recordings. Put simply, there is no

evidence in the record on which to find the victim suffered great or unusual harm as

described in R.C. 2929.14(C)(4)(b).

{¶ 41} In sum, the trial court’s reference to the victim’s age here does not support

its finding of great or unusual harm. Since the state failed to identify any harm arising

from appellant’s conduct, and appellant did not stipulate that any harm occurred, the

record is simply devoid of any evidence which would support a finding of great or

unusual harm under R.C. 2929.14(C)(4)(b). For these reasons, I would find appellant’s

second assignment of error well-taken and would reverse the judgment of the trial court

on that basis.

III. Scope of resentencing on remand.

{¶ 42} While I concur with the majority’s judgment that the trial court erred, my

analysis is not concluded. Rather, I must now analyze the appropriate scope of remand.

In doing so, a review of the applicable case law, both within this district and state-wide,

reveals both internal and external conflicts on what is the appropriate scope of

resentencing when a trial court’s order to serve prison terms consecutively is not

supported by the record.

{¶ 43} The Ohio Supreme Court has not directly addressed the scope of

resentencing following a trial court’s error in imposing consecutive sentences. It has,

22. however, held that a remand for resentencing generally anticipates a de novo

resentencing. State v. Wilson,

,

,

, ¶

15. Our recent decision in State v. Ter Doest, 6th Dist. Wood No. WD-18-041, 2020-

Ohio-4091, comports with Wilson in that we held that the trial court’s error in imposing

consecutive sentences rendered all other challenges to Ter Doest’s individual sentences

moot. We vacated all of appellant’s aggregate sentence and remanded the matter for a de

novo resentencing. Id. at ¶ 9. We also vacated the entirety of the defendant’s sentence in

State v. Maire, 6th Dist. Sandusky No. S-19-033,

based on the trial

court’s error in imposing consecutive sentences. However, we reached a conflicting

result in State v. Stubbs, 6th Dist. Sandusky No. S-19-048,

. There, we

limited the defendant’s resentencing to the issue of the imposition of consecutive

sentences without disturbing the individual prison terms for each of the defendant’s

convictions. Therefore, I find that this court has an internal conflict regarding the scope

of resentencing on remand when a trial court improperly orders an appellant to serve their

prison terms consecutively pursuant to R.C. 2929.14(C)(4).

{¶ 44} In addition to this court’s internal conflict, our decision in Ter Doest is in

conflict with the Eighth District Court of Appeals’ resolution of this identical issue in

State v. Nia, 8th Dist. Cuyahoga No. 99387,

. There, the Eighth District

23. found that a remand for resentencing when the trial court erred in imposing consecutive

sentences was limited to that issue only.2 Nia at ¶ 22.

{¶ 45} In order to determine the appropriate scope of the resentencing on remand,

and thereby resolve this conflict, it is necessary to determine what remedy the Ohio

General Assembly authorized this court to order upon finding an error in a felony

sentence. R.C. 2953.08(G)(2) “specifically and comprehensively defines the parameters

and standards * * * for felony-sentencing appeals.” State v. Marcum,

,

,

. I would find that the plain language of R.C.

2953.08(G)(2) authorizes this court to only vacate all sentences affected by the erroneous

consecutive sentence order and does not permit us to remand for a limited resentencing

on that issue alone.

{¶ 46} The primary concern when construing statutes is legislative intent. State ex

rel. Savarese v. Buckeye Local School Dist. Bd. Of Edn.,

,

. To determine that intent, courts first look to the plain language of the

statute. Summerville v. Forest Park,

,

,

. The plain language of R.C. 2953.08(G)(2) provides an appellate court with two

options upon finding that a trial court’s findings under R.C. 2929.14(C) are not supported

2 Nia is an en banc decision of the Eighth District Court of Appeals in which it resolved its own internal conflict regarding the scope of resentencing on remand. Neither Nia nor the underlying decisions which created the Eighth District’s internal conflict analyzed the statutory authority granted to Ohio courts of appeals under R.C. 2953.08(G)(2) regarding the scope of remand. As a result, they do not provide any persuasive authority on which we can resolve our own internal conflict.

24. by the record: (1) a court may increase, reduce, or otherwise modify a sentence or (2)

may vacate the sentence and remand the matter for resentencing.

{¶ 47} R.C. 2929.01(EE) defines a “sentence” as “the sanction or combination of

sanctions imposed by the sentencing court on an offender who is convicted of or pleads

guilty to an offense.” Using this definition in conjunction with the remaining language of

R.C. 2953.08(G)(2), the plain language therein authorizes appellate courts to vacate a

sentence upon finding the trial court erred in imposing consecutive sentences. R.C.

2953.08(G)(2)(a). The statute does not mention vacating the portion of the judgment

entry related to the consecutive sentence findings. Since, a sentence is defined as the

sanction imposed for the offense for which the appellant was convicted, the plain

language of the statute only authorizes an appellate court to vacate the entire sentence and

remand for a de novo resentencing.

{¶ 48} The Ohio Supreme Court, while not ruling directly on the scope of

resentencing, has remanded for de novo resentencing when faced with the same issue we

address here. In State v. Beasley,

,

,

,

the defendant was convicted of aggravated murder of three individuals. As to a fourth

individual, he was charged with attempted murder and several other felonies including

aggravated robbery, kidnapping, and possession of a firearm while under a disability. He

was sentenced to death on the three murders. He was sentenced to individual prison

terms on each of the other felonies with all sentences ordered to be served consecutively,

resulting in a 36-year aggregate sentence.

25. {¶ 49} The Ohio Supreme Court affirmed Beasley’s murder convictions and the

death penalty sentences. However, it found the consecutive sentence findings were not

made and reversed that aspect of the judgment. Rather than remand for the limited

purpose of determining whether consecutive sentences were appropriate, appellant’s

“sentence for his noncapital convictions” was vacated. The court stated “[w]e remand the

case for the limited purpose of resentencing Beasley on the noncapital convictions.” Id.

at ¶ 262. In the disposition of the case, the court stated “[w]e vacate his sentence for his

noncapital convictions and remand the cause to the trial court for a new sentencing

hearing consistent with this decision.” Id. at ¶ 267.

{¶ 50} Beasley suggests that the correct scope of resentencing when a consecutive

sentence order made in error is de novo. For the foregoing reasons, I agree and would

order appellant’s entire sentence to be vacated and remand this matter for a de novo

resentencing on his second assignment of error only.

IV. Conclusion

{¶ 51} My resolution of this court’s internal conflict in favor of vacating

appellant’s entire sentence and ordering a de novo resentencing brings my judgment in

conformity with that of the majority in this case, albeit for different reasons. As a result,

I concur in the majority’s judgment only.

26.