[Cite as State v. Williams, 2016-Ohio-6972.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 15CA0062-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
CHARLES A. WILLIAMS COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellant CASE No. 10-CR-0125
DECISION AND JOURNAL ENTRY
Dated: September 26, 2016
HENSAL, Judge.
{¶1} Charles Williams appeals his sentence for illegal manufacture of drugs and
possession of drugs from the Medina County Court of Common Pleas. For the following
reasons, this Court affirms in part and reverses in part.
I.
{¶2} A jury found Mr. Williams guilty of illegal manufacture of drugs and possession
of drugs. One offense involved methamphetamine and the other involved oxycodone. The trial
court sentenced him to six years for the first offense and twelve months for the second. It
ordered him to serve the terms consecutive to each other and consecutive to the prison term he
was already serving for a different offense. On appeal, this Court reversed, concluding that the
trial court had failed to make the findings required to impose consecutive sentences at the
sentencing hearing. On remand, the trial court held a new sentencing hearing and imposed the
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same sentence. Mr. Williams has appealed, assigning eight errors. We will address some of the
assignments of error together to facilitate our discussion.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT [ERRED] WHEN IT IMPOSED CONSECUTIVE
SENTENCES ON THE TWO (2) COUNTS PENDING WITHOUT
EXPRESSLY MAKING THE FINDINGS REQUIRED BY O.R.C. 2929.14
DURING THE SENTENCING HEARING AND IN THE SENTENCING
ENTRY.
ASSIGNMENT OF ERROR II
THE TRIAL COURT [ERRED] WHEN IT IMPOSED A SEVEN (7) YEAR
PRISON SENTENCE ON MR. WILLIAMS TO BE SERVED CONSECUTIVE
TO MR. WILLIAMS[’S] PRE-EXISTING TEN (10) YEAR PRISON
SENTENCE WITHOUT EXPRESSLY MAKING THE FINDINGS REQUIRED
BY O.R.C. 2929.14 DURING THE SENTENCING HEARING AND IN THE
SENTENCING ENTRY.
{¶3} Mr. Williams argues that the trial court did not comply with Ohio Revised Code
Section 2929.14(C)(4) when it ordered him to serve his two sentences consecutive to each other
as well as consecutive to the prison term he was already serving. Section 2929.14(C)(4)
provides:
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
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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.
If a court does not make the factual findings required by Section 2929.14(C)(4), prison terms are
served concurrent to any others. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 23.
{¶4} Mr. Williams acknowledges that the trial court recited the necessary language at
his sentencing hearing and included it in its sentencing entry. He argues, however, that there is
nothing in the record that shows the court actually engaged in the analysis required by Section
2929.14(C)(4). He argues that the trial court failed to offer any explanation for its findings,
depriving him of notice of why it found consecutive sentences necessary. He asserts that a
sentencing court should be required to explain its findings, which would allow them to be
reviewed on appeal.
{¶5} In Bonnell, the Ohio Supreme Court held that, although 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, * * * it has no obligation to state reasons to support its
findings.” Id. at syllabus. It noted that, while other criminal statutes “require a trial court to give
reasons in support of its findings, * * * no statute directs a sentencing court to give or state
reasons supporting imposition of consecutive sentences.” Id. at ¶ 27.
{¶6} This Court has no authority to modify, much less overrule, any decision of the
Ohio Supreme Court. State v. Cutlip, 9th Dist. Lorain No. 08CA009353, 2008-Ohio-4999, ¶ 17.
We conclude that Mr. Williams has failed to establish that the trial court did not comply with
Section 2929.14(C)(4). His first and second assignments of error are overruled.
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ASSIGNMENT OF ERROR III
THE TRIAL COURT [ERRED] WHEN IT ISSUED A NUNC PRO TUNC
ENTRY ORDERING FOUR HUNDRED AND FIFTY-FIVE (455) DAYS OF
CREDIT REPRESENTING DAYS OF CREDIT FROM THE ARRAIGNMENT
THROUGH ORIGINAL SENTENCING DATE, FROM THE SENTENCING
ENTRY THAT CREDITED ONE THOUSAND SIX HUNDRED AND
NINETEEN (1,619) DAYS OF CREDIT FROM ARRAIGNMENT THROUGH
RE-SENTENCING DATE.
{¶7} Mr. Williams next argues that the trial court miscalculated the amount of time-
served credit he should receive. According to Mr. Williams, he is entitled to credit for the time
he spent in custody between his arrest and when he posted bond, the time that he was
incarcerated before his case went to trial, and any time that he was incarcerated between his
original sentencing hearing and the resentencing hearing.
{¶8} Section 2929.19(B)(2)(g)(i) provides that, if the sentencing court determines that
a prison term is necessary or required, it must determine and include in the sentencing entry the
number of days “for which the * * * department of rehabilitation and correction must reduce the
stated prison term under section 2967.191 of the Revised Code.” Section 2967.191 provides that
a defendant’s prison term shall be reduced 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[.]”
{¶9} In its original sentencing entry, the trial court wrote that Mr. Williams was
entitled to 455 days of credit, which he admits is the time he spent in custody before his initial
sentencing hearing. At the resentencing hearing, the parties did not discuss Mr. Williams’ time-
served credit, and the trial court merely told him that he was entitled to credit for time served. In
its resentencing entry, the trial court wrote that Mr. Williams was entitled to 1,619 days of credit.
According to Mr. Williams, that apparently included the original 455 days plus each day between
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the original sentencing hearing and the resentencing hearing. Nine days later, however, the trial
court issued a nunc pro tunc resentencing entry, which reduced Mr. Williams’ time-served credit
back to 455 days. See State v. Thomas, 9th Dist. Summit No. 21472, 2004-Ohio-964, ¶ 11-12
(explaining that a trial court may correct its time-served credit by a nunc pro tunc order). The
State argues that the reduction is because, even though Mr. Williams was incarcerated between
the original sentencing hearing and the resentencing hearing, it was not for the offenses involved
in this case.
{¶10} In its original sentencing entry, the trial court ordered Mr. Williams to serve his
sentences in this case consecutive to his sentence for an offense he had committed in a different
county. The record indicates that Mr. Williams received a ten-year sentence for that offense in
2010. Accordingly, the time he served between his original sentencing in 2012 and his
resentencing in 2015 was for the other offense. Because Mr. Williams was only entitled to time-
served credit for time he was “confined for any reason arising out of the[se] offense[s,]” we
conclude that the trial court correctly adjusted his time-served credit back to 455 days. R.C.
2967.191. Mr. Williams’ third assignment of error is overruled.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT [ERRED] WHEN IT IMPOSED A MANDATORY SIX
(6) YEAR PRISON SENTENCE.
{¶11} Mr. Williams next argues that the trial court should have only made mandatory
the first four years of his sentence for illegal manufacture of drugs. He notes that Section
2925.04(C)(3)(b) provides that, if the drug involved in that offense is methamphetamine and
certain other conditions apply, “the court shall impose as a mandatory prison term one of the
prison terms prescribed for a felony of the first degree that is not less than four years.”
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According to Mr. Williams, under that language, only the first four years of the prison terms
should be mandatory.
{¶12} In State v. Ware, 141 Ohio St.3d 160, 2014-Ohio-5201, the Ohio Supreme Court
considered similar language and concluded that “the punishment [is] clear[.]” Id. at ¶ 13. Under
such language, “prison was mandatory-and judicial release therefore impossible-for the length of
whichever [prison term] the trial court impose[d.]” Id. Accordingly, if a statute contains
language directing the trial court to “impose as a mandatory prison term” one of a list of prison
terms, no matter what term the court imposes, the “entire prison term [is] mandatory by
operation of law.” Id. at ¶ 13, 14. Mr. Williams’ fourth assignment of error is overruled.
ASSIGNMENT OF ERROR V
THE TRIAL COURT [ERRED] IN ORDERING A $20,000 FINE AND
SUSPENDING SAME.
{¶13} Mr. Williams next argues that the trial court erred when it wrote in its judgment
entry that his fine would be suspended. Mr. Williams notes that, at the sentencing hearing, the
court told him that it was going to waive the fine because of his indigence, not suspend it.
{¶14} The State acknowledges that the trial court’s entry is inconsistent with what it told
Mr. Williams at his sentencing hearing. Upon review of the record, we agree with Mr. Williams
that there is a significant difference between whether his fine is waived or merely suspended.
See R.C. 2929.18(B)(1) (providing that the trial court shall impose a fine of at least half of the
maximum amount for an offense under Chapter 2925 unless the offender is indigent and unable
to pay the mandatory fine). Because it is not clear from the record whether the trial court made a
mistake at the sentencing hearing or in its sentencing entry, this case must be remanded so that
the trial court can resolve that issue. Mr. Williams’ fifth assignment of error is sustained.
ASSIGNMENT OF ERROR VI
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TRIAL COUNSEL WAS INEFFECTIVE IN NOT PURSUING A MOTION TO
ENFORCE A SETTLEMENT AGREEMENT REACHED BETWEEN THE
PARTIES.
{¶15} Mr. Williams next argues that his trial counsel was ineffective for not asking the
trial court to enforce a plea agreement that he reached with the State of Ohio before trial. The
record indicates that, before trial, Mr. Williams and the State reached a plea agreement, which
included a recommendation about the sentence he should receive. The trial court, however,
refused to accept the agreement. In his first appeal, Mr. Williams initially included an
assignment of error about the failed plea agreement. He later withdrew it. Nevertheless, he
argues that his counsel should have moved for enforcement of the plea agreement during the
resentencing hearing.
{¶16} To prevail on a claim of ineffective assistance of counsel, Mr. Williams must
show (1) that counsel’s performance was deficient to the extent that “counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and (2) that but
for counsel’s deficient performance the result of the trial would have been different. Strickland
v. Washington, 466 U.S. 668, 687 (1984). A deficient performance is one that falls below an
objective standard of reasonable representation. State v. Bradley, 42 Ohio St.3d 136 (1989),
paragraph two of the syllabus. A court, however, “must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the circumstances, the challenged action
‘might be considered sound trial strategy.’” Strickland at 689, quoting Michel v. Louisiana, 350
U.S. 91, 101 (1955). Further, to establish prejudice, Mr. Williams must show that there exists a
reasonable probability that, were it not for counsel’s errors, the result of the trial would have
been different. Id. at 694.
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{¶17} Criminal Rule 11(C)(2) gives a trial court the option of refusing to accept a plea
of guilt. The trial court refused Mr. Williams’ plea, and he did not seek to have its decision
reversed on appeal. Accordingly, on remand, there was no plea agreement that Mr. Williams’
counsel could seek to enforce. His lawyer’s performance was not deficient for failing to seek
enforcement of a plea agreement that did not exist. Mr. Williams’ sixth assignment of error is
overruled.
ASSIGNMENT OF ERROR VII
THE STATUTORY STRUCTURE AND FRAMEWORK TO IMPOSE
CONSECUTIVE SENTENCES IS UNCONSTITUTIONAL.
{¶18} Mr. Williams also argues that Section 2929.14(C)(4) violates his due process
rights because it allows a sentencing court to make the findings that are required for consecutive
sentences without explaining its reason for those findings. He argues that merely reciting the
statutory language does not provide him adequate notice of the reasons for consecutive
sentences.
{¶19} The Ohio Supreme Court has recognized that “there is no constitutional
requirement that a judge make findings of fact before imposing consecutive sentences.” State v.
Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, ¶ 26, citing Oregon v. Ice, 555 U.S. 160, 169-170
(2009). Accordingly, we cannot conclude that Section 2929.14(C)(4) is unconstitutional because
it allows the trial court to make consecutive-sentence findings without giving reasons for its
findings. Mr. Williams’ seventh assignment of error is overruled.
ASSIGNMENT OF ERROR VIII
THE TRIAL COURT [ERRED] IN FAILING TO ORDER A CONCURRENT
SENTENCE AT THE RESENTENCING HEARING.
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{¶20} In his last assignment of error, Mr. Williams argues that the trial court should only
have had one opportunity to make the findings required to impose consecutive sentences. He
argues that, because the default is concurrent sentences, if an appellate court determines that the
trial court failed to make the findings required to impose consecutive sentences, the trial court
should be required to impose concurrent sentences on remand. It should not get multiple
attempts to make such findings.
{¶21} In Mr. Williams’s previous appeal, this Court concluded that the trial court failed
to make the findings required to impose consecutive sentences and “remand[ed] the matter for
resentencing.” State v. Williams, 9th Dist. Medina No. 14CA0072-M, 2015-Ohio-2197, ¶ 9.
This Court did not place any limits on the scope of the remand, and Mr. Williams did not attempt
to appeal its scope to the Ohio Supreme Court. We, therefore, conclude that his argument is
barred by the doctrine of law of the case. Nolan v. Nolan, 11 Ohio St.3d 1, 3 (1984). We also
conclude that the resentencing did not violate Mr. Williams’s due process rights. Compare State
v. Jackson, 7th Dist. Mahoning No. 15 MA 93, 2016-Ohio-1063, ¶ 28-29 (requiring trial court to
impose concurrent sentences after it had failed to make consecutive sentence findings three
separate times). Mr. Williams’ eighth assignment of error is overruled.
III.
{¶22} Mr. Williams’ fifth assignment of error is sustained. His remaining assignments
of error are overruled. The judgment of the Medina County Court of Common Pleas is affirmed
in part and reversed in part, and this matter is remanded to the trial court to clarify whether Mr.
Williams’ fine is waived or suspended.
Judgment affirmed in part,
reversed in part,
and cause remanded.
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There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
JENNIFER HENSAL
FOR THE COURT
MOORE, P. J.
SCHAFER, J.
CONCUR.
APPEARANCES:
MICHAEL J. CALLOW, Attorney at Law, for Appellant.
DEAN HOLMAN, Prosecuting Attorney, and MATTHEW A. KERN, Assistant Prosecuting
Attorney, for Appellee.