State v. Ingram, III

[Cite as State v. Ingram, III, 2023-Ohio-1998.]

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

STATE OF OHIO :
:
Appellee : C.A. No. 2022-CA-75; 2022-CA-76
:
v. : Trial Court Case No. 22-CR-0411; 22-
: CR-0434
HERBERT INGRAM, III :
: (Criminal Appeal from Common Pleas
Appellant : Court)
:

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OPINION

Rendered on June 16, 2023

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ANDREW P. PICKERING, Attorney for Appellee

NICOLE K. DIETZ, Attorney for Appellant

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

LEWIS, J.

{¶ 1} Defendant-Appellant Herbert Ingram, III, appeals from judgments of

conviction of the Clark County Common Pleas Court following his guilty pleas in two

separate cases. In these appeals, Ingram challenges the trial court’s lack of notification

of jail-time credit and alleges that the trial court's imposition of consecutive sentences was
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not supported by the record. For the following reasons, we affirm the judgments in part

and reverse in part, and remand solely for purposes of a new sentencing hearing in

accordance with this opinion.

I. Statement of Facts and Course of Proceedings

{¶ 2} On May 10, 2022, Ingram was indicted by a Clark County grand jury in Clark

C.P. No. 22-CR-411 with: one count of discharge of a firearm on or near a prohibited

premises, in violation of R.C. 2923.162(A)(3), a felony of the third degree with a three-

year firearm specification in violation of R.C. 2941.145; one count of carrying a concealed

weapon, in violation of R.C. 2923.12(A), a felony of the fourth degree; one count of

improper handling of a firearm in a motor vehicle, a violation of R.C. 2923.16(B), a felony

of the fourth degree; and one count of tampering with evidence, in violation of R.C.

2921.12(A)(1), a felony of the third degree. According to the bill of particulars, the

indictment was based on events that occurred on April 23, 2021, namely that Ingram had

a loaded firearm concealed in a vehicle in which he was a passenger. As the vehicle

approached an intersection, multiple shots were fired at the vehicle from another vehicle,

and Ingram returned fire. Several neighbors, including children, were outside in a nearby

yard at the time the shots were fired. After leaving the vehicle, Ingram fled on foot along

with the driver. During a foot chase, Ingram removed his clothing to avoid detection and

was able to break away from officers after they got their hands on him.

{¶ 3} On May 17, 2022, Ingram was indicted by a Clark County grand jury in Clark

C.P. No. 22-CR-434 with: one count of receiving stolen property, in violation of R.C.

2913.51(A), a felony of the fourth degree with a three-year firearm specification in
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violation of R.C. 2941.145 and six-year automatic firearm specification in violation of R.C.

2941.144; one count of unlawful possession of a dangerous ordnance, in violation of R.C.

2923.17(A), a felony of the fifth degree with a six-year automatic firearm specification in

violation of R.C. 2941.144; and one count of tampering with evidence, in violation of R.C.

2921.12(A)(1), a felony of the third degree with a three-year firearm specification in

violation of R.C. 2941.145 and six-year automatic firearm specification in violation of R.C.

2941.144. According to the bill of particulars, the charges in this case arose from events

that occurred on May 6, 2022, at which time Ingram was alleged to have had possession

of a stolen Glock firearm that he modified to make it fire in a fully automatic fashion.

When police surrounded the house in which Ingram was located to execute a search

warrant to locate the firearm and Glock switch, Ingram attempted to disassemble it and

hide it from police.

{¶ 4} Pursuant to a negotiated plea agreement, Ingram entered a guilty plea in

Case No. 22-CR-411 to one count of improper handling of a firearm in a motor vehicle, a

violation of R.C. 2923.16(B), a felony of the fourth degree; and a guilty plea in Case No.

22-CR-434 to one count of receiving stolen property, in violation of R.C. 2913.51(A), a

felony of the fourth degree with an attached six-year automatic firearm specification in

violation of R.C. 2941.144. In exchange for his guilty pleas, the State agreed to dismiss

all remaining counts and specifications, but there was no agreement on sentencing.

{¶ 5} Following a presentence investigation report (“PSI”), the trial court sentenced

Ingram to a prison term of 18 months in Case No. 22-CR-411, to be served consecutively

to a prison term of 18 months in Case No. 22-CR-434, and with an additional mandatory
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consecutive prison term of 6 years for the automatic firearm specification. Ingram timely

appealed each of the judgments, which were consolidated on appeal. He now raises

two assignments of error for review, both related to his sentencing.

II. Jail-Time Credit

{¶ 6} In his first assignment of error, Ingram contends that the trial court failed to

notify him at the time of sentencing of the total number of days of jail-time credit to which

he was entitled. The State concedes that the trial court erred and submits that Ingram is

entitled to a resentencing hearing for a determination of jail-time credit. We agree that

the trial court erred in failing to specify Ingram’s total number of days of jail-time credit for

each of his cases, and we sustain Ingram’s first assignment of error.

{¶ 7} “Where, for whatever reason, a defendant remains in jail prior to his trial, he

must be given credit on the sentence ultimately imposed for all periods of actual

confinement on that charge.” State v. Russell, 2d Dist. Montgomery No. 26503, 2015-

Ohio-3373, ¶ 37, citing State v. Coyle, 2d Dist. Montgomery No. 23450, 2010-Ohio-2130,

¶ 5. R.C. 2929.19(B)(2)(g)(i) specifically provides that at the sentencing hearing, the trial

court must “[d]etermine, notify the offender of, and include in the sentencing entry the

total number of days, including the sentencing date but excluding conveyance time, that

the offender has been confined for any reason arising out of the offense for which the

offender is being sentenced[.]” Ohio Adm.Code 5120-2-04(B) likewise provides that the

trial court is required to determine “the amount of time the offender served locally before

being sentenced” and “must make a factual determination of the number of days credit to

which the offender is entitled by law and include this information within the sentencing
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entry[.]” However, it is the duty of the Ohio Department of Rehabilitation and Correction

(ODRC), not the trial court, to reduce the offender’s sentence “by the number of days the

offender was confined as a result of the offense, between the date of the sentencing entry

and the date committed to the [ODRC] * * *.” Ohio Adm.Code 5120-2-04(A). “[T]he trial

court's obligation in calculating jail-time credit is limited to calculating the total number of

days the defendant was confined prior to sentencing. After sentencing, * * * it is the

obligation of the Ohio Department of Rehabilitation and Correction to credit the defendant

with the number of days the defendant was confined between the date of his sentencing

and the date of the defendant's conveyance to prison.” State v. Dearmond, 2d Dist. Clark

No. 2022-CA-17, 2022-Ohio-3252, ¶ 13.

{¶ 8} Considering the aforementioned requirements, the trial court was obligated

to calculate Ingram’s jail-time credit at the time of sentencing, notify Ingram of the number

of days of jail-time credit that he was to receive in each case, and memorialize that

information in each of the judgment entries. The only discussion of jail-time credit at the

time of Ingram’s sentencing was at the very end of the colloquy wherein the trial court

stated, “You will receive credit for time spent in the Clark County Jail towards your

sentence. And that will be all.” Sentencing Tr. 9. At that point, the sentencing hearing

concluded with no opportunity to discuss Ingram’s jail-time credit. Furthermore, only the

judgment entry in Case No. 22-CR-411 makes any mention of jail-time credit, which states

that Ingram is to serve 18 months in prison “with jail time credit from May 7, 2022 until

conveyance to [ODRC].” However, the trial court may not include as jail-time credit the

number of days the defendant was confined between the date of his sentencing and the
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date of the defendant's conveyance to prison. Dearmond at ¶ 13.

{¶ 9} The trial court erred in failing to advise Ingram of the specific number of days

of jail-time credit to which he was entitled and in failing to include the number of days of

jail-time credit in each of the judgment entries. This is particularly troubling given that

Ingram was being sentenced on two separate cases, and he did not have any opportunity

to respond after the trial court’s limited jail-time credit statement. Under these

circumstances, we agree with the parties that the case should be remanded to the trial

court to correctly advise Ingram of the number of days of jail-time credit he is to receive

in each of his separate cases and to include those findings in the judgment entries.

Ingram’s first assignment of error is sustained.

III. Consecutive Sentences

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

consecutive sentence findings were not supported by the record. We agree.

{¶ 11} When reviewing felony sentences, appellate courts must apply the standard

of review set forth in R.C. 2953.08(G). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-

1002, 59 N.E.3d 1231, ¶ 7. Under that statute, an appellate court may increase, reduce,

or modify a sentence, or it may vacate the sentence and remand for resentencing, only if

it clearly and convincingly finds either: (1) the record does not support the sentencing

court's findings under certain enumerated statutes (including R.C. 2929.14(C)(4), which

concerns the imposition of consecutive sentences); or (2) the sentence is otherwise

contrary to law. Id. at ¶ 9, citing R.C. 2953.08(G)(2).

{¶ 12} “Under Ohio law, absent an order requiring sentences to be served
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consecutively, terms of incarceration are to be served concurrently.” State v. Sergent,

148 Ohio St.3d 94, 2016-Ohio-2696, 69 N.E.3d 627, ¶ 16, citing R.C. 2929.41(A). “But

there are certain circumstances that require the imposition of consecutive sentences.

For example, R.C. 2929.14(C)(1)(a), which requires that any mandatory prison term for

having a firearm in the commission of a felony shall be served consecutively to any

mandatory sentence imposed for the underlying felony. Otherwise, trial judges have

discretion to order that multiple sentences be served consecutively pursuant to R.C.

2929.14(C)(4)[.]” Id. A trial court may impose consecutive sentences under R.C.

2929.14(C)(4) if it finds that: (1) consecutive service is necessary to protect the public

from future crime or to punish the offender; (2) consecutive sentences are not

disproportionate to the seriousness of the offender's conduct and to the danger the

offender poses to the public; and (3) one or more of the following three findings are

satisfied:

(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.
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(c) The offender's history of criminal conduct demonstrates that consecutive

sentences are necessary to protect the public from future crime by the

offender.

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

{¶ 13} “[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.” State v. Bonnell,

140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. “[A] word-for-word

recitation of the language of the statute is not required,” though, “and as long as the

reviewing court can discern that the trial court engaged in the correct analysis and can

determine that the record contains evidence to support the findings, consecutive

sentences should be upheld.” Id. at ¶ 29.

{¶ 14} “The first step in consecutive-sentence review is to ensure that the

consecutive-sentence findings under R.C. 2929.14(C)(4) have been made– i.e., the first

and second findings regarding necessity and proportionality, as well as the third required

finding under R.C. 2929.14(C)(4)(a), (b), or (c).” State v. Gwynne, Ohio Slip Opinion No.

2022-Ohio-4607, __ N.E.3d __, ¶ 25. “If the trial court fails to make these findings, and

that issue is properly raised on appeal, then the appellate court must hold that the order

of consecutive sentences is contrary to law and either modify the sentence or vacate it

and remand the case for resentencing.” Id. On the other hand, if the R.C.

2929.14(C)(4) consecutive-sentence findings have been made, this Court must then

determine whether the record clearly and convincingly supports those findings. Gwynne
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at ¶ 26. If the consecutive-sentence finding “is found not to be supported by the record

under the clear-and-convincing standard provided by R.C. 2953.08(G)(2), then the trial

court's order of consecutive sentences must be either modified or vacated[.]” Id.

{¶ 15} “An appellate court's review of the record and findings is de novo with the

ultimate inquiry being whether it clearly and convincingly finds – in other words, has a firm

conviction or belief – that the evidence in the record does not support the consecutive-

sentence findings that the trial court made.” Id. at ¶ 27. Clear and convincing evidence

is that evidence “which will produce in the mind of the trier of facts a firm belief or

conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469,

120 N.E.2d 118 (1954), paragraph three of the syllabus.

{¶ 16} “When reviewing the record under the clear-and-convincing standard, the

first core requirement is that there be some evidentiary support in the record for the

consecutive-sentence findings that the trial court made.” Gwynne at ¶ 28. For

purposes of this review, the record includes any of the following that may apply: “written

presentence, psychiatric, or other investigative reports submitted to the trial court prior to

sentencing; the trial court record in the case in which the sentence was imposed; any oral

or written statements made to or by the court at sentencing; and any written findings the

court was required to make in connection with a grant of judicial release.” Id. at ¶ 28, fn.

6, citing R.C. 2953.08(F)(1)-(4). This Court must “focus on both the quantity and quality

of the evidence in the record that either supports or contradicts the consecutive-sentence

findings.” Id. at ¶ 29. This Court “may not, for example, presume that because the

record contains some evidence relevant to and not inconsistent with the consecutive-
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sentence findings, that this evidence is enough to fully support the findings.” Id. “R.C.

2953.08(G)(2) explicitly rejects this type of deference to a trial court's consecutive-

sentence findings.” Id. Instead, this Court is “authorized to substitute its judgment for

the trial court's judgment if [we have] a firm conviction or belief, after reviewing the entire

record, that the evidence does not support the specific findings made by the trial court to

impose consecutive sentences, which includes the number of consecutive terms and the

aggregate sentence that results.” Id.

{¶ 17} Because these cases involved guilty pleas, the facts are limited. However,

in considering the indictments, the bills of particulars, statements of the parties, and the

PSI, we clearly and convincingly find that the record does not support the trial court’s

findings for consecutive sentences under R.C. 2929.14(C)(4)(b). The events in Case

No. 22-CR-411 occurred on April 23, 2021. At that time, Ingram had possession of a

loaded firearm concealed on his person while a passenger inside a vehicle. While near

an intersection, multiple shots were fired at the car in which Ingram was seated. As a

result, Ingram got out of the car and returned fire. After shooting, Ingram fled the scene

on foot, although at some point he returned to the car to retrieve a bag before fleeing

again. While attempting to evade the police who were chasing him, Ingram disposed of

some of his clothing. When eventually grabbed by police, he was able to break free and

was not recaptured. The shooting was captured on video, and officers identified Ingram

as the shooter. However, because officers were unable to arrest Ingram at that time,

they issued a warrant for his arrest. During that incident, two houses and a vehicle were

struck by gunfire. There were also several bystanders outside, including children, who
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were caught in the crossfire but were apparently uninjured. For this case, Ingram was

convicted of one count of improper handling of a firearm in a motor vehicle.

{¶ 18} In Case No. 22-CR-434, Ingram was arrested on May 6, 2022, following the

execution of a search warrant in an ongoing homicide investigation. Ingram was located

inside the home that was the subject of the warrant. Based on information related to the

homicide investigation, officers were searching for a handgun that was believed to have

a “Glock switch,” an item that would convert the semi-automatic firearm into a fully

automatic firearm. A disassembled Glock firearm was recovered from inside the home.

However, the Glock switch had been removed, and Ingram had secretly passed it to his

mother; it was later recovered from her person. The firearm was found to have been

reported as a stolen firearm approximately two weeks earlier. For this case, Ingram was

convicted of one count of receiving stolen property with a six-year automatic firearm

specification.

{¶ 19} By operation of statute, the six-year automatic firearm specification required

the trial court to impose a mandatory six-year prison term consecutively to and prior to

any other prison term previously or subsequently imposed, including any prison term

imposed for the underlying felony. R.C. 2929.14(B)(1)(a)(i) and 2929.14(C)(1)(a).

Accordingly, the trial court was obligated to order, as it did, that Ingram serve his sentence

for the six-year firearm specification consecutively to his sentences for receiving stolen

property and improper handling of a firearm in a motor vehicle.

{¶ 20} Although those sentences were required by statute to be served

consecutively to the mandatory six-year prison sentence for the automatic firearm
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specification, there was no statutory requirement for them to be served consecutively to

one another. Consequently, the trial court had discretion to impose consecutive

sentences for receiving stolen property and improper handling of a firearm in a motor

vehicle, but it was required to make consecutive sentence findings pursuant to R.C.

2929.14(C) in order to do so.

{¶ 21} At the time of sentencing, the trial court stated the following:

I do find that consecutive sentences are necessary to protect the public from

future crime and to punish the Defendant. They are not disproportionate

to the seriousness of his conduct and to the danger he poses to the public

and that these offenses were committed as part of a course of conduct and

the harm caused was so great that no single prison term adequately reflects

the seriousness of his conduct.

(Emphasis added.) Sentencing Tr. 8. The judgment entry in Case No. 22-CR-434

contained similar language.

{¶ 22} Although not stated verbatim, it is clear that the trial court was making a

finding that R.C. 2929.14(C)(4)(b) applied. Compare with R.C. 2929.14(C)(4)(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.”). According to Ingram, however, because the offenses in this case were not

committed as part of a course of conduct, rather, they were separate offenses that
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occurred approximately one year apart, the record did not support the trial court’s specific

consecutive sentence findings.

{¶ 23} “Typically, a finding of the course of conduct factor is reserved for multiple

instances or related acts.” State v. Robinson, 2019-Ohio-2155, 137 N.E.3d 501, ¶ 35

(4th Dist.). “In order to find that two offenses were part of a single course of conduct, a

trial court ‘must * * * discern some connection, common scheme, or some pattern or

psychological thread that ties [the offenses] together.’ ” (Brackets sic.) (Citation omitted.)

State v. Lambert, 2d Dist. Champaign No. 2018-CA-28, 2019-Ohio-2837, ¶ 33, quoting

State v. Sapp, 105 Ohio St.3d 104, 2004-Ohio-7008, 822 N.E.2d 1239, syllabus. “A

course of conduct may be established by factual links such as time, location, weapon,

cause of death, or similar motivation.” (Citations omitted.) Id.

{¶ 24} As part of the discretionary consecutive sentencing findings, the trial court

explicitly found that “these offenses were committed as part of a course of conduct.”

Sentencing Tr. 8. But there was no discernable connection, common scheme, pattern,

or psychological thread that tied the two offenses together. The offenses occurred

approximately a year apart, in separate locations, and involved different firearms.

Because the record failed to establish that the offenses in Case Nos. 22-CR-411 and 22-

CR-434 were part of a course of conduct as the trial court found, we clearly and

convincingly find the record did not support the sentencing court's findings under R.C.

2929.14(C)(4)(b). Furthermore, an appellate court is constrained to considering only the

findings in R.C. 2929.14(C)(4) that the trial court has actually made, meaning that “a

reviewing court cannot determine for itself which of the three permissible findings within
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R.C. 2929.14(C)(4)(a)-(c) might apply to satisfy the third required finding for imposing

consecutive sentences, as the trial court is permitted to do.” Gwynne, Ohio Slip Opinion

2022-Ohio-4607, __ N.E.3d.__, at ¶ 21. Because the trial court only found that

consecutive sentences were appropriate under R.C. 2929.14(C)(4)(b), we agree with

Ingram that we cannot consider whether the record supported consecutive sentences

under R.C. 2929.14(C)(4)(a) or (c). Accordingly, Ingram’s second assignment of error is

sustained.

IV. Conclusion

{¶ 25} Having sustained both of Ingram’s assignments of error, we reverse the

judgments to the extent they impose consecutive sentences under R.C. 2929.14(C)(4)(b)

and remand for a new sentencing hearing at which the trial court shall correctly advise

Ingram of the number of days of jail-time credit he is to receive in each of his cases and

include those findings in the judgment entries. In all other respects, the judgments of the

trial court will be affirmed.

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EPLEY, J. and HUFFMAN, J., concur.