[Cite as State v. Carter, 2016-Ohio-2725.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 103279

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. 

CHARLES CARTER

DEFENDANT-APPELLANT

JUDGMENT:

AFFIRMED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-13-576912-A 

 BEFORE: Blackmon, J., E.T. Gallagher, P.J., and S. Gallagher, J. 

 RELEASED AND JOURNALIZED: April 28, 2016 

-i-
ATTORNEY FOR APPELLANT 

Edward M. Heindel 

450 Standard Building 

1370 Ontario Street 

Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

By: Norman Schroth 

Christopher D. Schroeder 

Assistant County Prosecutors 

8th Floor Justice Center 

1200 Ontario Street 

Cleveland, Ohio 44113 
PATRICIA ANN BLACKMON, J.: 

{¶1} Charles Carter (“Carter”) appeals his sentence and assigns the following 

error for our review: 

I. The trial court erred when it sentenced Carter to a 19-year prison term 

without seriously considering the purposes and principles of sentencing and 

the seriousness and recidivism factors. 

{¶2} Having reviewed the record and pertinent law, we affirm Carter’s sentence. 

 The apposite facts follow. 

{¶3} In August 2013, Carter was bound over from juvenile court to adult court 

under R.C. 2152.10(A)(1)(a) and 2152.12(A)(1)(a)(i) in connection with the robbery and 

murder of Nathan Brown. At the time of the crime, Carter was 16 years old, and at the 

time of the bindover he was 17 years old. He had a history of delinquencies as a 

juvenile; he also had another pending case, which had been bound over from juvenile 

court to adult court (State v. Carter, Cuyahoga C.P. No. CR-13-576911). 

{¶4} In September 2013, the grand jury indicted Carter in this case, along with 

codefendants brothers Montell and Marcellus Smith. Carter was charged as follows: 

Counts 1 and 2, aggravated murder; Count 3, murder; Count 4, felonious assault; Count 5, 

aggravated burglary; Count 6, kidnapping; and Count 7, aggravated robbery. The 

charges against Carter all included one-and three-year firearm and forfeiture of a weapon 

specifications. 

{¶5} After negotiations with the state, Carter pleaded guilty to an amended Count 

3, involuntary manslaughter with the firearm specifications; and an amended Count 7, 
aggravated robbery, with deletion of the one- and three-year firearm specifications. The 

remaining counts and specifications were dismissed. Carter and the state agreed on a 

recommended sentence in the range of 13 to 20 years. 

{¶6} In August 2014, the trial court sentenced Carter to a 19-year prison term, 

which included consecutive sentences. The trial court incorrectly stated that it was 

sentencing Carter on Counts 1 and 5, rather than Counts 3 and 7. The court’s sentencing 

judgment entry also incorrectly stated the counts. The court subsequently issued a nunc 

pro tunc order correcting the counts. 

{¶7} Carter filed an appeal from his conviction. This court in State v. Carter, 

8th Dist. Cuyahoga No. 101810, 2015-Ohio-1834, concluded that the trial court complied 

with R.C. 2929.14(C)(4) in imposing consecutive sentences and that the crimes did not 

constitute allied offenses. However, this court remanded the matter for resentencing 

because the trial court sentenced Carter on the wrong counts at the hearing and in the 

sentencing entry. In resolving this assigned error, this court held as follows: 

Thus, although we find no issue with merger or the imposition of 

consecutive sentences, we find that Carter must be resentenced on the 

correct counts. The case is therefore remanded for resentencing Carter to 

the 19-year term on the correct counts. The same findings made by the 

trial court for the imposition of consecutive sentences may be reiterated and 

thereafter incorporated into its sentencing judgment entry. 

Id. at ¶ 42. 

{¶8} In the final paragraph of the opinion, we summarized our holding as 

follows: 
Carter’s conviction is affirmed. The involuntary manslaughter and 

aggravated robbery counts were not subject to merger. The trial court 

made the statutorily required findings for the imposition of consecutive 

sentences and the record supported the findings. However, because the 

court sentenced Carter on the wrong counts, the case is remanded for 

resentencing. In resentencing Carter, the court may rely on its prior 

findings in support of consecutive sentences, which it must then incorporate 

into its sentencing judgment entry. 

Id. at ¶ 56. 

{¶9} On remand, Carter’s counsel presented mitigating factors regarding 

sentencing. He cited the fact that Carter was young and although he had a juvenile 

record, he had never served time in prison. The prosecutor reiterated that the court of 

appeals had no problem with the consecutive sentence or the fact the counts did not 

merge. The prosecutor then incorporated all of the victim impact statements from the 

first sentencing hearing. Although the prosecutor incorporated the facts from the first 

sentencing hearing, the prosecutor also stressed the facts that supported the 19-year 

sentence. The trial court resentenced Carter to 19 years in prison. 

Seriousness and Recidivism Factors
{¶10} In his sole assigned error, Carter contends that the trial court failed to 

consider the purposes and principles of felony sentencing and the seriousness and 

recidivism factors outlined in R.C. 2929.12 prior to entering the sentence. 

{¶11} Recently, in State v. Marcum, Slip Opinion No. 2016-Ohio-1002, the Ohio 

Supreme Court revisited the law applicable to an appellate court’s review of felony 

sentences. The Supreme Court held that pursuant to R.C. 2953.08(G)(2): 

[A]n appellate court may vacate or modify a felony sentence on appeal only 

if it determines by clear and convincing evidence that the record does not 

support the trial court’s findings under relevant statutes or that the sentence 

is otherwise contrary to law. 

Id. at ¶ 1. 

{¶12} The Supreme Court acknowledged that not all felony sentences require the 

findings listed in R.C. 2953.08(G)(2)(a) and explained: 

We note that some sentences do not require the findings that R.C. 

2953.08(G) specifically addresses. Nevertheless, it is fully consistent for 

appellate courts to review those sentences that are imposed solely after 

consideration of the factors in R.C. 2929.11 and 2929.12 under a standard 

that is equally deferential to the sentencing court. That is, an appellate 

court may vacate or modify any sentence that is not clearly and 

convincingly contrary to law only if the appellate court finds by clear and 

convincing evidence that the record does not support the sentence. 

Id. at ¶ 23. 
{¶13} Under R.C. 2929.11(A), a felony sentence shall be reasonably calculated to 

achieve two “overriding purposes”: (1) to protect the public from future crimes by the 

offender, and (2) to punish the offender using the minimum sanctions the court 

determines will achieve those purposes. Further, under R.C. 2929.11(B), the sentence 

imposed for a felony must be commensurate with the seriousness of the offender’s 

conduct and consistent with sentences imposed for similar crimes committed by similar 

offenders. 

{¶14} Under R.C. 2929.12(A), a court sentencing a felony offender has discretion 

to determine the most effective way to comply with the purposes and principles of 

sentencing outlined in the statute. In exercising its discretion, however, the sentencing 

court must consider the seriousness, recidivism, and other mitigating factors set forth in 

R.C. 2929.12. Id. 

 {¶15} Although the trial court must consider the principles and purposes of 

sentencing as well as the mitigating factors, the court is not required to use particular 

language or make specific findings on the record regarding its consideration of those 

factors. State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31; 

State v. Jones, 8th Dist. Cuyahoga No. 99759, 2014-Ohio-29, ¶ 13. 

{¶16} Consideration of the appropriate factors can be presumed unless the 

defendant affirmatively shows otherwise. Jones, citing State v. Stevens, 1st Dist. 

Hamilton No. C-130279, 2013-Ohio-5218, ¶ 12. Further, a trial court’s statement in its 

sentencing entry that it considered the required statutory factors is sufficient to fulfill a 

trial court’s obligations under R.C. 2929.11 and 2929.12. State v. Sutton, 8th Dist. 
Cuyahoga Nos. 102300 and 102302, 2015-Ohio-4074, ¶ 72, citing State v. Clayton, 8th 

Dist. Cuyahoga No. 99700, 2014-Ohio-112, ¶ 9. 

{¶17} Here, the trial court stated on the record at the sentencing hearing that it had 

“considered all this information, all the principles and purposes of felony sentencing, all 

the appropriate recidivism and seriousness factors.” Tr. 15. The trial court also noted in 

the sentencing entry that “the court considered all required factors of law. The court 

finds that prison is consistent with the purpose of R.C. 2929.11.” 

{¶18} Moreover, the court also noted that: (1) Carter committed the crimes while 

awaiting trial or sentencing under a sanction or under postrelease control, (2) Carter was 

on probation in the juvenile court when he committed the crime for having a weapon 

while under disability and also while a robbery case was pending in the court of common 

pleas, (3) Carter had a criminal history dating back to 2009 for receiving stolen property, 

possession of criminal tools, theft, and criminal damaging, (4) Carter orchestrated the 

home invasion and robbery because he knew the victim and was familiar with the home, 

and (5) although Carter did not shoot the victim, he was seen with a firearm prior to the 

incident. 

{¶19} Thus, based on the above, Carter has not shown by “clear and convincing 

evidence that the record does not support the sentence.” Accordingly, Carter’s sole 

assigned error is overruled. 

 {¶20} Judgment affirmed. 

It is ordered that appellee recover of appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 
It is ordered that a special mandate be sent to the Cuyahoga County Court of 

Common Pleas to carry this judgment into execution. The defendant’s conviction having 

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court 

for execution of sentence. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

 

PATRICIA ANN BLACKMON, JUDGE 

EILEEN T. GALLAGHER, P.J., CONCURS; 

SEAN C. GALLAGHER, J., CONCURS 

IN JUDGMENT ONLY WITH SEPARATE 

OPINION 

SEAN C. GALLAGHER, J., CONCURRING IN JUDGMENT ONLY: 

{¶21} I agree with the decision of the majority but write to express my concerns 

with the procedural posture of this case. In State v. Carter, 8th Dist. Cuyahoga No. 

101810, 2015-Ohio-1834, the panel concluded that the nunc pro tunc entry was not the 

appropriate mechanism for correcting a trivial mistake. At the change of plea hearing 

and the original sentencing entry, the parties and the trial court referred to the involuntary 

manslaughter and aggravated robbery counts, to which Carter pleaded guilty, as being 

Counts 1 and 5 instead of Counts 3 and 7. Counts 1 and 5 were nolled at the plea 

hearing, and Counts 3 and 7 were amended. As a result, the only counts for sentencing 

were Counts 3 and 7. I fundamentally disagree with that panel’s conclusion that a nunc 

pro tunc entry to correct the references to the counts, and not the substance of the crimes, 
was inappropriate. The only counts left to be sentenced on were Counts 3 and 7, and the 

trial court properly identified the substance of those counts. Mislabeling the counts was 

ministerial at best. 

{¶22} If, as that panel concluded, the trial court could not correct the sentencing 

entry to properly sentence the defendant on Counts 3 and 7, then there was no final 

appealable order for the purpose of appellate review because the original sentencing entry 

only sentenced Carter on Counts 1 and 5. State v. Baker, 119 Ohio St.3d 197, 

2008-Ohio-3330, 893 N.E.2d 163, ¶ 17. No individual sentences were rendered on 

Counts 3 and 7. After concluding that there were no sentences imposed on Counts 3 and 

7, the panel then considered the merits of the appeal with respect to those counts on 

several other issues (including the validity of the plea and the consecutive sentencing, and 

the failure to merge counts). 

{¶23} That panel’s conclusion is not only at odds with itself, but also led to 

confusion. The resentencing hearing was limited to the length of the sentence 

specifically based on the original panel’s conclusions on the merits of the merger, plea, 

and consecutive sentencing issues. Those issues, however, should have been raised 

following the remand after this court had jurisdiction over the sentencing entry. The 

original panel was without jurisdiction to render any merit decisions after confirming the 

lack of a final appealable order. The remand should have been for a complete 

sentencing from which the appeal of right could have been taken addressing all issues, 

from plea through sentencing, in one decision. Any error in this procedural posture may 

well be harmless at this point, but bifurcating the appeal in this manner is far from ideal. 
{¶24} On the issue actually briefed in the current appeal, I agree that the individual 

sentences are not contrary to law because the trial court considered the appropriate 

sentencing factors before imposing the prison terms.