[Cite as State v. Ackles, 2018-Ohio-3718.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

ALLEN COUNTY 

 

STATE OF OHIO, 

 CASE NO. 1-18-16 

 PLAINTIFF-APPELLEE, 

 v. 

 

TREY LEE ACKLES, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Allen County Common Pleas Court 

Trial Court No. CR20170194 

Judgment Reversed 

Date of Decision: September 17, 2018 

 

APPEARANCES: 

Michael J. Short for Appellant 

Jana E. Emerick for Appellee 

 
Case No. 1-18-16 

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WILLAMOWSKI, P.J. 

{¶1} Defendant-appellant Trey L. Ackles (“Ackles”) appeals the judgment 

of the Allen County Court of Common Pleas. For the reasons set forth below, the 

judgment of the trial court is reversed. 

Facts and Procedural History 

{¶2} On June 15, 2017, Ackles was charged with two counts of trafficking 

in marihuana in violation of R.C. 2925.03(A)(1) and one count of possession of 

marihuana in violation of R.C. 2925.11(A). Doc. 1. These charges formed the basis 

of case 2017-CR-0194. As a result of these charges, Ackles was the subject of a 

motion for a community control revocation in case 2016-CR-0423. Tr. 1. On March 

28, 2018, Ackles appeared before the court for a change of plea hearing in case 

2017-CR-0194 and a hearing on his community control violation in case 2016-CR0423. Tr. 1. He pled guilty in open court to two felony charges: count one—

trafficking in marihuana—and count three—possession of marihuana. Doc. 31. Tr. 

2-3. Count two—trafficking in marihuana—was dismissed. Doc. 31. Tr. 2-3. 

{¶3} The trial court accepted Ackles’s guilty plea and then proceeded to 

sentencing. Doc. 33. For the charges against Ackles in case 2017-CR-0194, the 

trial court ordered a sentence of thirty-six months in prison for the first count and a 

sentence of six months in prison for the third count. Doc. 33. These two sentences 

were to be served concurrently. Doc. 33. The trial court then sentenced Ackles to 

twelve months in prison for his community control violation in case 2016-CR-0423. 
Case No. 1-18-16 

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Tr. 31. The trial court ordered that the prison term in case 2017-CR-0194 be served 

consecutively to the prison term of twelve months imposed in case 2016-CR-0423. 

Doc. 33. Tr. 31-32. 

{¶4} Appellant filed his notice of appeal on March 30, 2018. Doc. 34. On 

appeal, appellant raises one assignment of error: 

The sentence is not supported by the record and is contrary to 

law. 

Ackles argues that the trial court failed to make the findings required to impose 

consecutive sentences. 

Legal Standard 

{¶5} Appellate review of issues related to felony sentencing guidelines is 

governed by R.C. 2953.08(G)(2), which reads as follows: 

(2) The court hearing an appeal under division (A), (B), or (C) of 

this section shall review the record, including the findings 

underlying the sentence or modification given by the sentencing 

court. 

The appellate court may increase, reduce, or otherwise modify a 

sentence that is appealed under this section or may vacate the 

sentence and remand the matter to the sentencing court for 

resentencing. The appellate court’s standard for review is not 

whether the sentencing court abused its discretion. The appellate 

court may take any action authorized by this division if it clearly 

and convincingly finds either of the following: 

(a) That the record does not support the sentencing court’s 

findings under division (B) or (D) of section 2929.13, division 

(B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 

2929.20 of the Revised Code, whichever, if any, is relevant; 
Case No. 1-18-16 

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(b) That the sentence is otherwise contrary to law. 

R.C. 2953.08(G)(2). Thus, “an appellate court will reverse a sentence ‘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.’” State v. Nienberg, 3d Dist. Putnam No. 12-16-15 and 12-16-16, 

2017-Ohio-2920, ¶ 8, quoting State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio1002, 59 N.E.3d 1231, ¶ 1. 

Clear and convincing evidence is that measure or degree of proof 

which is more than a mere ‘preponderance of the evidence,’ but 

not to the extent of such certainty as is required ‘beyond a 

reasonable doubt’ in criminal cases, and which will produce in the 

mind of the trier of facts a firm belief or conviction as to the facts 

sought to be established. 

State v. Sullivan, 2017-Ohio-8937, 102 N.E.3d 86 (3d Dist.), ¶ 12, quoting Cross v. 

Ledford, 161 Ohio St. 469, 120 N.E.2d 118, at paragraph three of the syllabus 

(1954). 

{¶6} “In order to impose consecutive sentences, a trial court is required under 

R.C. 2929.14(C)(4) to make certain findings for the record and to incorporate these 

findings into the judgment entry.” State v. Taflinger, 3d Dist. Logan No. 8-17-20, 

2018-Ohio-456, ¶ 10. 

(4) 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 
Case No. 1-18-16 

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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 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. 

R.C. 2929.14(C)(4). Thus, “the trial court must find that 1) consecutive sentences 

are necessary to either protect the public or punish the offender, 2) the sentences 

would not be disproportionate to the offense committed, and 3) one of the factors 

set forth in R.C. 2929.14(C)(4)(a, b, or c).” State v. Peddicord, 3d Dist. Henry No. 

7-12-24, 2013-Ohio-3398, ¶ 33. 

[A] trial court must state the required findings as part of the 

sentencing hearing * * *. And because a court speaks through its 

journal the court should also incorporate its statutory findings 

into the sentencing entry. However, a word-for-word recitation 

of the language of the statute is not required, 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. 
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A trial court’s inadvertent failure to incorporate the statutory 

findings in the sentencing entry after properly making those 

findings at the sentencing hearing does not render the sentence 

contrary to law; rather, such a clerical mistake may be corrected 

by the court through a nunc pro tunc entry to reflect what actually 

occurred in open court. But a nunc pro tunc entry cannot cure 

the failure to make the required findings at the time of imposing 

sentence. 

(Citations omitted.) State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 

N.E.3d 659, ¶ 29-30. 

Legal Analysis 

{¶7} In this case, the judgment entry does not contain the findings required 

by R.C. 2929.12(C)(4) to support the imposition of consecutive sentences.1

 In 

imposing consecutive sentences, the trial court stated the following: 

In the 2016 case, having found the defendant to have violated 

community control and based upon the factors I found, I’m going 

to sentence the defendant in that case to twelve months. It’s not 

mandatory. But the 2017 case will be consecutive to CR2016 0423. 

So, the aggregate is, taking the thirty-six months concurrent with 

six months, consecutive to twelve months, it’s forty-eight months, 

or four years. That means the defendant is eligible for community 

control—excuse me—judicial release. But, it’s an aggregate of 

forty-eight months. 

Tr. 32. Thus, as the State of Ohio concedes, the trial court did not make a finding 

“that 1) consecutive sentences were necessary for the statutory reasons or 2) that 

 

1

 The trial court was required to make the findings listed in R.C. 2929.12(C)(4) in order to impose consecutive 

sentences even though Ackles’s community control violation arose from a different case (2016-CR-0423) 

from the two felonies in 2017-CR-0194. See State v. Duncan, 2016-Ohio-5559, 61 N.E.3d 61, ¶ 41 (12th 

Dist.). 
Case No. 1-18-16 

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consecutive sentences were not disproportionate.” State v. Upkins, 3d Dist. Shelby 

No. 17-12-13, 2012-Ohio-6114, ¶ 4. Since the trial court did not make the required 

findings, “the imposition of consecutive sentences in this case is contrary to law.” 

Bonnell, supra, at ¶ 37. The appellant’s sole assignment of error is sustained. 

Conclusion 

{¶8} Having found error prejudicial to the appellant in the particulars 

assigned and argued, the judgment of the Allen County Court of Common Pleas is 

reversed. This cause is remanded to the trial court for resentencing. 

Judgment Reversed

And Cause Remanded 

SHAW and PRESTON, J.J., concur. 

/hls