[Cite as State v. Shepherd, 2009-Ohio-3315.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

HARDIN COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 6-08-16 

 v. 

TERRY DALE SHEPHERD, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Hardin County Common Pleas Court 

Trial Court No. 20082218 CRI 

Judgment Reversed and Cause Remanded 

Date of Decision: July 6, 2009 

 

APPEARANCES: 

Scott B. Johnson for Appellant 

Maria Santo for Appellee 
Case No. 6-08-16 

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WILLAMOWSKI, J.

{¶1} Defendant-appellant Terry D. Shepherd (“Shepherd”) brings this 

appeal from the judgment of the Court of Common Pleas of Hardin County 

sentencing him to two consecutive life sentences in prison without the possibility 

of parole as well as to twenty-six years in prison for violation of parole. For the 

reasons set forth below, the sentence is reversed. 

{¶2} On the night of October 12, 2008, Shepherd killed Judy Kearley and 

Debra England. He took their bodies to an abandoned farm house where he placed 

them. Shepherd then set fire to the home to destroy the bodies and fled the scene 

in the victims’ truck. On October 13, 2008, the police located the truck parked 

behind Shepherd’s brother’s home and observed blood in the truck bed, damage to 

the body, and the shattered rear window. Shepherd was soon found hiding in the 

basement of a nearby residence. Shepherd admitted to the murders when 

questioned by the police. At the time of the murders, Shepherd was on parole for 

convictions of rape, aggravated robbery and theft in Hancock County. 

{¶3} On November 7, 2008, the Hardin County Grand Jury indicted 

Shepherd for two counts of aggravated murder in violation of R.C. 2903.01(D). 

Shepherd entered pleas of not guilty to the charges on November 14, 2008. On 

December 12, 2008, Shepherd changed his plea to guilty of the charges in the 

indictment. The trial court immediately proceeded to sentencing. The judgment 
Case No. 6-08-16 

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entry of conviction and sentence was filed on December 15, 2008. Shepherd 

appeals from this entry and raises the following assignment of error concerning his 

sentence. 

The trial court erred by sentencing [Shepherd] to maximum, 

consecutive sentences and imposing an additional 26 years for a 

parole violation.

This court notes that the conviction itself is not being appealed, only the sentence. 

Thus, regardless of the outcome, the judgment of conviction will stand. 

{¶4} In the assignment of error, Shepherd argues that the trial court erred 

by making findings of fact in its journal entry. In State v. Foster, 109 Ohio St.3d 

1, 2006-Ohio-856, 845 N.E.2d 470, the Ohio Supreme Court found that the fact 

finding provisions of R.C. 2929.14, including section (E)(4), were 

unconstitutional and severed them. Any judgment based upon an unconstitutional 

statute is void and the defendant must be resentenced. Id. at ¶103. See also State 

v. Baez, 6th Dist. No. L-06-1320, 2007-Ohio-3825 (holding that a sentence based 

upon judicial fact finding is void). Statements made in support of a sentence 

containing language from the severed sections also violate Foster. State v. Frost, 

6th Dist. Nos. L-06-1142, L-06-1143, 2007-Ohio-3469, ¶67. 

{¶5} At the sentencing hearing, the trial court did not make any invalid 

factual findings in support of the sentence. However, in its journal entry, the trial 

court made the following statement. 
Case No. 6-08-16 

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Pursuant to [R.C. 2929.14(E)] the Court FINDS for the reasons 

stated on the record that consecutive sentences are necessary to 

protect the public from future crime or to punish Defendant and 

not disproportionate to the seriousness of Defendant’s conduct 

and the danger Defendant poses to the public.

Dec. 15, 2008, Entry, 2-3. The State concedes that this is an error that must be 

corrected. However, the State claims that since nothing concerning the findings 

from the severed portions of the statute was mentioned at the hearing, it is merely 

a clerical one which may be corrected via a nunc pro tunc order. 

{¶6} This court has previously held and continues to hold that the trial 

court speaks through its journal entry. State v. Hankins (1993), 89 Ohio App.3d 

567, 626 N.E.2d 965. “If the journal entry and the judge’s comments conflict, the 

journal entry controls.” Id. at 569. The journal entry in this case clearly indicates 

that the trial court considered the sentencing factors set forth in R.C. 2929.14(E) 

concerning the imposition of consecutive sentences. Despite the State’s 

argument, we cannot merely assume that this is an instance where a clerk 

mistakenly typed the wrong number or a clerical mistake that may be corrected 

via a nunc pro tunc order.1

 The record is that the trial court made findings based 

upon an unconstitutional statute. Thus, Shepherd must be resentenced.2

 

1

 We have nothing before us in the record indicating any attempt by or intent of the lower court to issue a 

nunc pro tunc order. Thus, we must assume that the judgment entry of sentence accurately reflects the 

intent of the lower court. 

2

 In determining that resentencing is necessary, this court makes no determination as to the appropriateness 

of the given sentence had the trial court not indicated that it had considered the sentencing factors set forth 

in R.C. 2929.14(E). 
Case No. 6-08-16 

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{¶7} This court shares the frustration of all involved that a new 

sentencing must occur. However, the Ohio Supreme Court in Foster addressed 

the issue of whether sentences based upon unconstitutional statutes must be 

returned for new sentencing hearings and held that new sentencing hearings were 

necessary to comply with the dictates of the United States Supreme Court and the 

Sixth Amendment of the United States Constitution. Foster, supra at ¶104. This 

court must follow the dictates of the Ohio Supreme Court. For the reasons 

discussed above, the assignment of error is sustained. 

{¶8} The judgment of the Court of Common Pleas of Hardin County as 

to the sentence is reversed and the matter is remanded for resentencing consistent 

with this opinion. 

Judgment Reversed and 

Cause Remanded 

PRESTON, P.J., concurs. 

ROGERS, J., concurs in Judgment Only. 

/jlr