[Cite as State v. Searls,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 28995 : v. : Trial Court Case No. 2020-CR-1066 : CHRISTOPHER SEARLS : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

...........

OPINION

Rendered on the 18th day of March, 2022.

...........

MATHIAS H. HECK, JR. by ELIZABETH A. ELLIS, Atty. Reg. No. 0074332, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

JOHN C. CUNNINGHAM, Atty. Reg. No. 0082485, 1500 Yankee Park Place, Dayton, Ohio 45458 Attorney for Defendant-Appellant

.............

EPLEY, J. -2-

{¶ 1} After the trial court overruled his motion to suppress, Christopher Searls pled

guilty in the Montgomery County Court of Common Pleas to two counts of gross sexual

imposition, sixty counts of pandering obscenity involving a minor, and one count of

attempted tampering with evidence. The trial court merged the gross sexual imposition

offenses and imposed an aggregate sentence of a minimum of 18 years and a maximum

of 22 years in prison. Searls was designated a Tier III sex offender for the gross sexual

imposition and a Tier II sex offender for pandering obscenity involving a minor.

{¶ 2} Searls appeals from his convictions, claiming that the trial court erred by

(1) miscalculating his jail time credit; (2) failing to include in its judgment entry the

maximum number of years for the indefinite sentence for two of the counts of pandering

obscenity; and (3) failing to consider R.C. 2929.12(E) when imposing sentence.

{¶ 3} For the following reasons, the trial court’s judgment will be reversed as to jail

time credit; the matter will be remanded for an amended judgment entry reflecting that

Searls is entitled to 236 days of jail time credit and for the trial court to notify the

appropriate prison officials of the amended judgment entry. In addition, the matter will

be remanded for the trial court to modify its sentences for Counts 38, 41, and 53 to clarify

that the eight-year term is the stated minimum term of an indefinite sentence under the

Reagan Tokes Act. In all other respects, the trial court’s judgment will be affirmed.

I. Facts and Procedural History

{¶ 4} During the late afternoon of April 10, 2020, uniformed police officers were

dispatched to Searls’s home on a report that nine-year-old K.H. had been sexually

assaulted by Searls, K.H.’s mother’s boyfriend. K.H. subsequently disclosed during a -3-

forensic interview that while she and her mother were at Searls’s home, Searls had

touched her vagina and had shown her pornography on a laptop. K.H. also disclosed

that Searls was communicating directly with her electronically.

{¶ 5} On May 5, 2020, Searls was indicted on two counts of gross sexual

imposition, one in violation of R.C. 2907.05(A)(4) (victim less than 13 years old) and the

other in violation of R.C. 2907.05(B) (victim less than 12 years old), both felonies of the

third degree. In August 2020, Searls was indicted on 61 additional charges consisting

of 60 counts of pandering obscenity involving a minor (create, reproduce, publish), in

violation of R.C. 2907.321(A)(1), felonies of the second degree, and one count of

attempted tampering with evidence, in violation of R.C. 2921.12(A)(1) and R.C.

2923.02(A), a felony of the fourth degree. Searls moved to suppress the evidence

against him. The trial court overruled the motion on October 9, 2020.

{¶ 6} On November 9, 2020, the parties informed the trial court that a plea

agreement had been reached under which Searls agreed to plead guilty to all 63 counts

and would receive a sentence between 8 and 20 years in prison. At the plea hearing,

the State noted that the two gross sexual imposition offenses would merge at sentencing.

The prosecutor further indicated that the remaining gross sexual imposition charge

required a Tier III sex offender designation and that the pandering obscenity charges

required a Tier II sex offender designation. The State also clarified that three of the

pandering obscenity charges fell within the Reagan Tokes Act for sentencing. Defense

counsel agreed with the prosecutor’s statements. The trial court then conducted a

Crim.R. 11 hearing, following which the court ordered a presentence investigation and

set sentencing for November 24, 2020. -4-

{¶ 7} Both parties subsequently filed sentencing memoranda. In its

memorandum, the State emphasized the “thousands of files of child pornography” found

on an external hard drive in Searls’s home, Sears’s online presence regarding “age play”

sexual relationships, and his actions in planning to sexually abuse K.H., grooming her,

and ultimately touching her. The State requested 20 years in prison. In contrast,

defense counsel focused on rehabilitation. Defense counsel characterized Searls’s

actions toward K.H. as opportunistic, as opposed to predatory, and emphasized Searls’s

remorse, lack of a criminal record, and prior law-abiding life. Counsel noted that a prison

sentence was not mandated by statute, and counsel urged the court to impose the

minimum agreed-upon prison term (8 years).

{¶ 8} At the November 24 sentencing hearing, the court merged the gross sexual

imposition counts and imposed five years for gross sexual imposition (GSI). For the

three pandering obscenity charges that were subject to the Reagan Tokes Act, the court

imposed a minimum of 8 years and a maximum of 12 years on each, to be served

concurrently with each other, but consecutively to the gross sexual imposition. On the

remaining 57 counts of pandering obscenity, the court imposed six years in prison, to be

served concurrently with each other but consecutively to the GSI and the pandering

counts to which the Reagan Tokes Act applied. Finally, the court imposed 18 months in

prison for attempted tampering with evidence, to be served concurrently with the gross

sexual imposition, but “then consecutively to the other counts.” The court indicated that

Searls’s aggregate prison term was a minimum of 18 years to a maximum of 22 years in

prison. The actual aggregate prison term, however, was a minimum of 19 years to a

maximum of 23 years in prison. The court notified Searls about how the Ohio -5-

Department of Rehabilitation and Correction (ODRC) may rebut the presumption of

release at the minimum term under the Reagan Tokes Act. The court also made findings

under R.C. 2929.14(C)(4) to support its consecutive sentences. The court did not

address jail time credit at sentencing.

{¶ 9} On December 1, 2020, prior to the filing of a written judgment entry, the court

held an additional hearing to notify Searls that it had misspoken about his aggregate

sentence. The court stated: “I had an intention that your sentence would be 18 to 22

years, and because apparently, I can’t add, I advised you of a sentence that was not what

I intended. The sentence I gave you would have been 19 to 23 years.” The court asked

Searls if he anything to say, explaining that his sentence for the 57 counts of pandering

obscenity would be five years instead of six and that it was “not going to resentence” him

but was simply “going to correct that number.” Searls declined to comment. The court

then stated:

THE COURT: All right. Sir, on each of the 57 counts of pandering obscenity

involving a minor, a felony of the second degree, the correct sentence I

intended was five years on each count. And I’d already made the findings

with regard to consecutive sentences. That all continues to apply. Those

counts are five years instead of the six that I articulated erroneously, sir.

THE DEFENDANT: (Nods in affirmative).

THE COURT: All other aspects of the sentencing remain in effect, sir.

THE DEFENDANT: (Nods in affirmative).

{¶ 10} On December 23, 2020, the trial court filed its judgment entry, which

generally reflected its oral pronouncements. With respect to two of the three counts of -6-

pandering obscenity that were subject to the Reagan Tokes Act, the court’s entry stated

that Searls would serve eight years. Additionally, the judgment entry indicated that

Searls would receive 229 days of jail time credit. Searls appeals the trial court’s

judgment.

{¶ 11} Searls’s original appellate counsel filed a brief pursuant to Anders v.

California,

,

,

(1967). Upon our Anders

review, we found that a non-frivolous issue existed as to whether the trial court correctly

calculated Searls’s jail time credit as of December 1, 2020. In our decision, we

emphasized that we do not need to articulate every arguably meritorious claim that we

find, and we commented that additional non-frivolous issues may exist. We noted, by

way of example, that there also was a non-frivolous issue as to whether the trial court

properly imposed an indefinite sentence under the Reagan Tokes Act for pandering

obscenity involving a minor. We therefore rejected the Anders brief and appointed new

counsel for Searls.

{¶ 12} Searls, with new counsel, now raises three assignments of error on appeal.

II. Jail Time Credit

{¶ 13} In his first assignment of error, Searls claims that the trial court “erred by

failing to address or order the calculation of jail time credit at the December 1, 2021 [sic],

sentencing to provide credit toward Defendant’s imposed prison sentence.”

{¶ 14} Jail time credit is governed by R.C. 2967.191, which implements the equal

protection right to credit for prior incarceration. State v. Reeder, 2d Dist. Clark No. 2019-

CA-39,

, citing State v. Fugate,

, 2008-Ohio-

856,

. The statute requires ODRC to “reduce the prison term of a -7-

prisoner * * * by the total number of days that the prisoner was confined for any reason

arising out of the offense for which the prisoner was convicted and sentenced.” R.C.

2967.191. Such confinement includes confinement in lieu of bail while awaiting trial,

confinement for examination to determine the prisoner’s competence to stand trial or

sanity, and confinement while awaiting transportation to the place where the prisoner is

to serve the prisoner’s prison term.

{¶ 15} “Although the [ODRC] has a mandatory duty pursuant to R.C. 2967.191 to

credit an inmate with jail time already served, it is the trial court that makes the factual

determination as to the number of days of confinement that a defendant is entitled to have

credited toward his sentence.” State ex rel. Rankin v. Ohio Adult Parole Auth.,

,

,

, ¶ 7. At sentencing, the trial court is

required to “[d]etermine, notify the offender of, and include in the sentencing entry the

number of days that the offender has been confined for any reason arising out of the

offense for which the offender is being sentenced * * *.” R.C. 2929.19(B)(2)(g)(i); see

Reeder at ¶ 29.

{¶ 16} In this case, the presentence investigation report (PSI) indicated that Searls

was arrested on April 10, 2020, and that he was entitled to 229 days of jail time credit as

of November 24, 2020, the date of the first sentencing hearing. The trial court’s judgment

entry indicated that Searls was entitled to 229 days of jail time credit as of “the date of

sentencing stated above,” which was identified as December 1, 2020, when the second

sentencing hearing occurred.

{¶ 17} The State acknowledges that the trial court’s jail time credit calculation is

inaccurate. Specifically, it recognizes that the trial court’s judgment entry neglected to -8-

account for the additional seven days of jail time credit to which Searls was entitled

between November 24 and December 1.

{¶ 18} The State’s appellate brief focuses on the remedy for the trial court’s error.

The State argues that an inaccurate determination of jail time credit does not render the

conviction void or voidable and that the trial court may correct its error by means of a

nunc pro tunc entry, pursuant to Crim.R. 36. We agree with the State that the appropriate

remedy is to remand this matter to the trial court for the court to file an amended judgment

entry reflecting that Searls was entitled to 236 days of jail time credit as of December 1,

2020.

{¶ 19} Searls’s first assignment of error is sustained.

II. Indefinite Sentence for Pandering Obscenity Involving a Minor

{¶ 20} In his second assignment of error, Searls claims that the trial court’s

judgment entry inaccurately reflects two of his sentences for pandering obscenity

involving a minor. He raises that the judgment entry did not include an indefinite

sentence for two of the three counts that were subject to the Reagan Tokes Act. Searls

asserts that the matter should be remanded to the trial court for an amended judgment

entry that reflects the indefinite sentences orally imposed on Counts 41 and 53.

{¶ 21} In response, the State acknowledges that this is a matter of first impression.

It argues, however, that the trial court “correctly imposed sentence on Counts [41] and

[53], as the Reagan Tokes Act only requires a single maximum term for concurrent

sentences.” The State contends that a plain reading of R.C. 2929.144(B)(3), which

governs the calculation of the maximum sentence for concurrent sentences, indicates that

only one maximum sentence should be imposed where multiple qualifying felonies are -9-

run concurrently.

{¶ 22} On review, we conclude that R.C. 2929.144(B)(2) (addressing consecutive

sentences) is the appropriate statute here. We nevertheless agree with the State that

only one maximum term is calculated under R.C. 2929.144 and that the maximum term

was properly stated in the trial court’s judgment entry. We further conclude, however,

that the trial court’s individual sentences for Counts 38, 41, and 53 are not properly

imposed in the judgment entry and must be corrected via a nunc pro tunc entry.

{¶ 23} First and second-degree felonies committed after March 22, 2019, which do

not already carry a life-tail, fall under the umbrella of the Reagan Tokes Act. R.C.

2967.271; State v. Ross, 2d Dist. Montgomery No. 28875,

, ¶ 7. When

a prison sentence is imposed on such a “qualifying felony,” the statute requires the trial

court to impose an indefinite prison term with a stated minimum term and a calculated

maximum term. R.C. 2929.14(A)(1)(a); R.C. 2929.14(A)(2)(a); R.C. 2929.144.

{¶ 24} Under Ohio law, a sentencing court “must consider each offense individually

and impose a separate sentence for each offense.” State v. Monroe, 2d Dist. Clark No.

2018-CA-124,

, quoting State v. Saxon,

, 2006-

Ohio-1245,

, ¶ 9 (rejecting a sentence packaging approach to sentencing).

“A sentencing court thus ‘lacks the authority to consider the offenses as a group and to

impose only an omnibus sentence for the group of offenses.’ ” State v. Smith, 2d Dist.

Montgomery No. 28265,

, quoting Saxon at ¶ 9.

{¶ 25} A trial court may consider whether multiple sentences should be served

concurrently or consecutively only after the court has “consider[ed] each offense

individually and impose[d] a separate sentence for each offense.” Saxon at ¶ 9; see -10-

State v. Parker,

,

,

(2d Dist.);

Smith at ¶ 67; State v. Lambert, 2d Dist. Champaign No. 2018-CA-28,

.

{¶ 26} Consistent with this approach, when imposing a prison sentence under the

Reagan Tokes Act, the trial court first must select, for each offense, a stated minimum

term from the appropriate statutory range for either a first- or second-degree felony,

unless a specific penalty applies. R.C. 2929.14(A)(1)(a); R.C. 2929.14(A)(2)(a). For

felonies that do not fall within the Reagan Tokes Act, the trial court imposes a definite

prison term from the appropriate statutory range. Next, after determining whether to

impose concurrent or consecutive sentences, the trial court must calculate the maximum

term using the methodology provided in R.C. 2929.144(B).

{¶ 27} The State points to R.C. 2929.144(B)(3), which governs the calculation of

the maximum term when “all of the prison terms imposed” – not just those imposed under

the Reagan Tokes Act – are run concurrently. (Emphasis added.) However, because

the trial court ordered “some or all of the prison terms imposed” to be served

consecutively, R.C. 2929.144(B)(2) applies here instead. To determine the maximum

term under that provision, the trial court must first “add all of the minimum terms imposed

on the offender * * * for a qualifying felony * * * and all of the definite terms of the felonies

that are not qualifying felonies * * * that are to be served consecutively.” R.C.

2929.144(B)(2). The maximum term equals the sum of those prison terms “plus fifty per

cent of the longest minimum term or definite term for the most serious felony being

sentenced.”

As argued by the State, a plain reading of R.C. 2929.144(B)(2)

indicates that only a single maximum term is calculated. -11-

{¶ 28} The trial court is required to sentence the offender, as part of the court’s

sentence under R.C. 2929.14, to the calculated maximum prison term. R.C.

2929.144(C). Both the stated minimum term and the calculated maximum term must be

included in the sentencing entry.

{¶ 29} In this case, the trial court orally imposed identical sentences for the three

qualifying counts of pandering obscenity involving a minor, all felonies of the second

degree. At sentencing, the trial court told Searls: “On Counts [38], [41], and [53], all

counts subject to the Reagan Tokes Act, I’m going to sentence you to a minimum

sentence of 8 years and a maximum sentence of 12 years on each count to be served

concurrently with one another, but consecutive to Count I, the gross sexual imposition.”

The court also imposed definite sentences of five years for gross sexual imposition, five

years for the remaining 57 counts of pandering obscenity involving a minor, and 18

months for attempted tampering with evidence. The sentences for the gross sexual

imposition (5 years), the combined 57 counts of pandering obscenity (5 years), and the

combined 3 counts of pandering obscenity (minimum 8 years) were run consecutively to

each other. The trial court told Searls that his aggregate sentence was 18 to 22 years in

prison.

{¶ 30} In its judgment entry, the trial court imposed a minimum of 8 years and a

maximum of 12 years in prison on Count 38. As for Counts 41 and 53, the judgment

entry read: “COUNT [41 and 53]: PANDERING OBSCENITY INVOLVING MINOR

(create, reproduce, publish) (F2) (SUBJECT TO REAGAN TOKES ACT): EIGHT (8)

YEARS * * *.” The counts were ordered to be served concurrently with each other, but

consecutively to the other counts in the indictment. After setting forth the sentences for -12-

all offenses, the judgment entry stated: “FOR A TOTAL SENTENCE OF A MINIMUM OF

EIGHTEEN (18) YEARS AND A MAXIMUM OF TWENTY-TWO (22) YEARS.”

{¶ 31} Upon review of the court’s judgment entry, we agree with the trial court’s

calculation of the aggregate minimum term and the calculated maximum term. The sum

of the stated minimum terms and the definite terms that were being run consecutively was

18 years in prison. Pandering obscenity involving a minor was the most serious felony

(a felony of the second degree), and the longest definite or minimum term for that offense

was the eight-year sentence imposed on the three counts subject to the Reagan Tokes

Act. Upon adding fifty percent of that sentence (four years) to the 18-year aggregate

minimum term, the maximum term totaled 22 years in prison. The trial court properly

indicated that maximum term following its statement of the individual sentences.

{¶ 32} Nevertheless, we note that the language of the trial court’s judgment entry

as to Counts 38, 41, and 53, specifically, does not comport with the statutory scheme.

The sentences for Counts 41 and 53, as written, were definite sentences. Although the

judgment entry indicated that the counts were subject to the Reagan Tokes Act, nothing

in the wording of the individual sentences indicated that the eight-year terms were the

stated minimum term of an indefinite sentence. As to Count 38, the trial court’s

imposition of a maximum term of 12 years for that count was not appropriate, because

only a single maximum term (in this case, 22 years) is calculated under R.C.

2929.144(B)(3). The inclusion of both a minimum and a calculated maximum totaling 50

percent of the minimum term for the individual offense is proper only when one felony

prison term is imposed under the Reagan Tokes Act. See R.C. 2929.144(B)(1).

{¶ 33} In summary, where the trial court is imposing prison sentences on multiple -13-

counts under the Reagan Tokes Act, the trial court’s sentence for each individual count

should make clear that the prison term is a stated minimum sentence, as opposed to a

definite sentence. Where the maximum term is the calculated under R.C. 2929.14(B)(2)

or R.C. 2929.14(B)(3), the trial court should not state the maximum term for each

individual offense as if it were calculated under R.C. 2929.144(B)(1). Rather, the trial

court may state the aggregate minimum term and calculated maximum term following all

of the individual sentences, as it did here.

{¶ 34} Accordingly, we will remand for the trial court to file an amended entry

modifying the language of Counts 38, 41, and 53 to clarify that the eight-year term for

each of those counts is the stated minimum term of an indefinite sentence under the

Reagan Tokes Act. While no specific language is required, the trial court may satisfy

this mandate by modifying the language in Counts 38, 41, and 53 to read, in part:

“PANDERING OBSCENITY INVOLVING MINOR (create, reproduce, publish) (F2)

(SUBJECT TO REAGAN TOKES ACT): AN INDEFINITE PRISON TERM WITH A

MINIMUM TERM OF EIGHT (8) YEARS * * *.”

{¶ 35} Searls’s second assignment of error is sustained.

III. Sentencing Factors

{¶ 36} In his third assignment of error, Searls claims that the trial court erred in

“failing to consider at sentencing factors indicating that the offender is not likely to commit

future crimes, as required by R.C. 2929.12(E).” Searls argues that, in imposing

sentence, the trial court did not reference whether he had an extensive criminal history or

no criminal history and, thus, his criminal history apparently was not considered by the

court. -14-

{¶ 37} When reviewing felony sentences, we must apply the standard of review

set forth in R.C. 2953.08(G). Under that statute, an appellate court may increase,

reduce, or modify a sentence, or vacate it all together and remand for resentencing, if it

“clearly and convincingly finds either (1) the record does not support certain specified

findings or (2) that the sentence imposed is contrary to law.” State v. Worthen, 2d Dist.

Montgomery No. 29043,

.

{¶ 38} A trial court has full discretion to levy any sentence within the authorized

statutory range, and it is not required to make any findings or give its reasons for imposing

a maximum or more than minimum sentence. State v. Jones, 2d Dist. Clark No. 2020-

CA-8,

. In exercising its discretion, a trial court must consider the

statutory policies that apply to every felony offense, including those set out in R.C.

2929.11 and R.C. 2929.12. State v. Leopard,

,

,

(2d Dist.), citing State v. Mathis,

,

,

. On review of the trial court’s sentence, we may not independently

“weigh the evidence in the record and substitute [our] judgment for that of the trial court

concerning the sentence that best reflects compliance with R.C. 2929.11 and 2929.12.”

State v. Jones,

,

,

.

{¶ 39} In this case, Searls’s individual sentences were within the statutory ranges

for the felony offenses, and prior to imposing sentence, the trial court stated that it had

considered “all of the information that [it had] been provided and the purposes and

principles of sentencing and the seriousness and recidivism factors.” Although the trial

court did not make specific findings regarding all of the sentencing factors, there is nothing

in the record to suggest that the court failed to consider each of them. To the extent that -15-

Searls claims that his individual sentences were unsupported by the record, that

argument is foreclosed by the Ohio Supreme Court’s decision in Jones. See State v.

Matthews, 2d Dist. Montgomery No. 29079,

; State v. Worthen, 2d

Dist. Montgomery No. 29043,

.

{¶ 40} Searls’s third assignment of error is overruled.

IV. Conclusion

{¶ 41} The trial court’s judgment will be reversed as to jail time credit; the matter

will be remanded for an amended judgment entry reflecting that Searls is entitled to 236

days of jail time credit and for the trial court to notify the appropriate prison officials of the

amended judgment entry. In addition, the matter will be remanded for the trial court to

modify its sentences for Counts 38, 41, and 53 to clarify that the eight-year term is the

stated minimum term of an indefinite sentence under the Reagan Tokes Act. In all other

respects, the trial court’s judgment will be affirmed.

.............

DONOVAN, J. and WELBAUM, J., concur.

Copies sent to:

Mathias H. Heck, Jr. Elizabeth A. Ellis John C. Cunningham Hon. Mary Katherine Huffman