[Cite as Animal Control v. Keller, 2022-Ohio-2164.]

IN THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT 

GREENE COUNTY

ANIMAL CONTROL

Plaintiff-Appellee

v.

NICOLE M. KELLER

Defendant-Appellant 

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Appellate Case Nos. 2021-CA-34, 

2021-CA-35, 2021-CA-36

Trial Court Case Nos. CRB2100837A, 

CRB2100966A, CRB2100966B, 

CRB2100965A, CRB2100965B

(Criminal Appeal from Municipal Court)

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O P I N I O N

Rendered on the 24th day of June, 2022.

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BETSY A. DEEDS, Atty. Reg. No. 0076747, Assistant City of Fairborn Prosecuting 

Attorney, 510 West Main Street, Fairborn, Ohio 45324

Attorney for Plaintiff-Appellee

 

DONALD K. POND, Atty. Reg. No. 0068880, 567 East Turkeyfoot Lake Road, Suite 107, 

Akron, Ohio 44319

Attorney for Defendant-Appellant

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TUCKER, P.J.
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{¶ 1} Nicole M. Keller appeals from her conviction on multiple misdemeanor 

charges of failure to confine or control a dog in three cases. 

{¶ 2} Keller contends the trial court erred in each case by journalizing a sentence 

that conflicts with the sentence orally imposed at her sentencing hearing. The State 

effectively concedes error and “does not object” to Keller’s request for resentencing. 

{¶ 3} We agree that the trial court’s journalized sentence in each case differs from 

the sentence it orally imposed. Accordingly, we will reverse the trial court’s judgment in 

each case and remand for resentencing. 

I. Background

{¶ 4} In Fairborn M.C. No. CRB2100837, Keller pled no contest to one count of 

failure to confine or control a dog, a fourth-degree misdemeanor, and was found guilty.

{¶ 5} In Fairborn M.C. No. CRB2100965, Keller pled guilty to two counts of failure 

to confine or control a dangerous dog, a third-degree misdemeanor. 

{¶ 6} In Fairborn M.C. No. CRB2100966, Keller pled guilty to two counts of failure 

to confine or control a dangerous dog, a third-degree misdemeanor. 

{¶ 7} The trial court held a September 30, 2021 sentencing hearing for all three 

cases. In Case No. CRB2100837, the trial court imposed and suspended a 30-day jail 

sentence along with a fine, restitution, and an order to pay costs. 

{¶ 8} In Case No. CRB2100965, the trial court imposed and suspended a 30-day 

jail sentence on each charge “running concurrently or consecutively to the other cases.” 

The trial court also ordered Keller to pay a fine and costs.

{¶ 9} In Case No. CRB2100966, the trial court imposed and suspended “30 days 
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of jail running cons—concurrently or consecutively to the other case.” It also ordered 

Keller to pay a fine and costs. 

{¶ 10} The trial court’s subsequent journal entry in Case No. CRB2100837 ordered 

the suspended jail sentence to be served consecutive to the sentences in the other two 

cases. 

{¶ 11} The journal entry in Case No. CRB2100965 ordered the two suspended jail 

sentences to be served concurrent to each other and consecutive to the sentences in the 

other two cases. 

{¶ 12} Finally, the journal entry in Case No. CRB2100966 ordered the two 

suspended jail sentences to be served concurrent to each other and consecutive to the 

sentences in the other two cases. 

{¶ 13} The trial court stayed execution of sentence pending appeal in each case. 

II. Analysis

{¶ 14} In her sole assignment of error, Keller contends the sentences imposed in 

the three judgment entries differ from the sentences imposed at her sentencing hearing. 

Keller notes that the journal entry in Case No. CRB2100837 made her sentence 

consecutive to the sentences in the other two cases, whereas the trial court did not 

mention consecutive service at the sentencing hearing. In Case No. CRB2100965, the 

journal entry made her two sentences concurrent with each other and consecutive to the 

sentences in the other two cases, whereas at the sentencing hearing the trial court 

imposed two sentences “running concurrently or consecutively to the other cases.” In 

Case No. CRB2100966, the journal entry made her two sentences concurrent with each 
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other and consecutive to the sentences in the other two cases, whereas the trial court 

orally imposed “30 days of jail running cons—concurrently or consecutively to the other 

case.”

{¶ 15} The primary problem in Case No. CRB2100837 is that the trial court did not 

mention consecutive service at the sentencing hearing. The primary problem in Case No.

CRB2100965 is that the trial court orally imposed her sentences “concurrently or 

consecutively” with the other cases, which does not make sense. It also did not specify 

whether the two suspended sentences in that case were to be served concurrently or 

consecutively with each other. The problems in Case No. CRB2100966 are three-fold. 

First, the trial court orally imposed “30 days of jail” without making clear whether that was 

on one or both convictions. Second, the trial court stated that the suspended 30-day 

sentence was to be served “concurrently or consecutively,” which makes no sense. Third, 

the trial court stated that the sentence was to be served concurrently or consecutively “to 

the other case,” which is unclear because there were two other cases. The trial court later 

journalized sentences in all three cases that varied from the terms recited at the 

sentencing hearing. 

{¶ 16} We have recognized that “ ‘a trial court errs when it issues a judgment entry 

imposing a sentence that differs from the sentence pronounced in the defendant’s 

presence.’ ” State v. Culver, 160 Ohio App.3d 172, 2005-Ohio-1359, 826 N.E.2d 367, 

¶ 70 (2d Dist.), quoting State v. Aliane, 10th Dist. Franklin No. 03AP-840, 2004-Ohio3730, ¶ 8; see also State v. Walker, 2d Dist. Clark Nos. 2013-CA-8, 2013-CA-9, 2014-

Ohio-526, ¶ 22. In such a case, one remedy is a remand for resentencing with the 
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defendant present. Culver at ¶ 70, citing State v. Ranieri, 84 Ohio App.3d 432, 434, 616 

N.E.2d 1191 (8th Dist. 1992). A second possible remedy is the appellate court’s 

modification of a judgment entry to impose a more lenient sentence pronounced at the 

sentencing hearing. State v. Rutledge, 2d Dist. Montgomery No. 11961, 1991 WL 21508, 

*3 (Feb. 21, 1991). 

{¶ 17} We agree with the parties that the terms of the judgment entries differed 

from the sentences orally imposed in Keller’s presence. To some extent, the judgment 

entries needed to modify what was imposed at the sentencing hearing because orally 

imposing sentences “consecutively or concurrently” to other sentences effectively says 

nothing. Therefore, it is impossible for us to modify the judgment entries to impose the 

sentences pronounced at sentencing. In light of the parties’ mutual request for 

resentencing and the other problems identified above, we find a remand for resentencing 

appropriate. Accordingly, Keller’s assignment of error is sustained.

III. Conclusion

{¶ 18} We reverse the trial court’s judgment in Case Nos. CRB2100837, 

CRB2100965, and CRB2100966 and remand for resentencing with a new sentencing 

hearing in each case.

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DONOVAN, J. and EPLEY, J., concur. 

Copies sent to: 
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Betsy A. Deeds

Donald K. Pond

Hon. Beth W. Cappelli