[Cite as State v. Sprouse , 2023
- Ohio
- 2983.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY State of Ohio Court of Appeals No. L

- 22

- 1230 Appellee /Cross

- appellant Trial Court No. CR0202002013

v. Cole Sprouse DECISION AND JUDGMENT Appellant /Cross

- appellee Decided: August 25, 2023

* * * * * Julia R. Bates, Lucas County Prosecuting Attorney, and Jessica M. Worley, Assistant Prosecuting Attorney, for appellee. Laurel A. Kendall, for appellant.
* * * * * SULEK, J. {¶ 1} Appellant , Cole Sprouse, appeals the August 30, 2022 judgment of the Lucas County Court of Common Pleas which, following guilty pleas to three counts of illegal u se of a minor in nudity

- oriented material or performance, second

- degree felonies, one count of unlawful sexual conduct with a minor, a fourth

- degree felony, two counts of2

.

pandering obscenity involving a minor, fourth

- degree felonies, and one fifth

- degree f elony count of importuning , imposed an aggregate sentence of 15 years and 10 months of imprisonment and 3 years of postrelease control

. {¶ 2} The state cross

- appeals, maintaining that the trial court failed to: (1) sentence Sprouse to a mandatory five

- year pos trelease control term under R.C. 2967.28(B) ; and (2) include Sprouse’s Tier I and Tier II sex offender status in the sentencing entry. {¶ 3} For the reasons set forth below, the trial court did not err in imposing consecutive sentences or in failing to include Sprouse’s Tier I and Tier II sex offender status in the sentencing judgment; however, the trial court did err in failing to impose a five

- year postrelease control term. Accordingly, the postrelease portion of Sprouse’s sentence is vacated and the matter is remanded for a limited resentencing on the issue of postrelease control pursuant to R.C. 2929.191

. I. Facts and Procedural History {¶ 4} On August 26, 2020, a grand jury indicted Sprouse o n eight counts of illegal use of a minor in a nudity

- oriented material or performance , five counts of pandering obscenity involving a minor, one count of unlawful sexual conduct with a minor, one count of importuning, and one count of interfering with custod y . The charges involved multiple victims and encompassed th e time frames of April 25, 201 7, to April 25, 2018, and February 1

- 27, 20203

. {¶ 5} Following plea negotiations with the state, Sprouse pleaded guilty to three

counts of illegal use of a minor in nudity

- oriented material or performance, one count of unlawful sexua l conduct w i th a minor, two counts of pandering obscenity involving a minor, and one count of importuning

. The state agreed to enter a nolle prosequi as to the remaining counts. {¶ 6} At the plea hearing held pursuant to Crim.R. 11, the trial court inform ed Spr ouse of the potential penalties including the maximum possible prison term , the five

year mandatory postrelease control term, and Tier I and Tier II sex

- offender registration requirements (and that the Tier I reporting requirements would be absorbed into the Tier
II requirements

. ) Sprouse’s signed plea form reflected the notifications. {¶ 7} On August 29, 2022 , the trial court sentenced Sprouse to consecutive sentences totaling 15 years and 10 months of imprisonment. The court also impo sed a mandatory 18

- months to 3 years of postrelease control and notified Sprouse of his T ier I and II sex offender status and the registration requirements. Sprouse also signed an explanation of duties form acknowledging his registration requirements. Th e form was filed in the record. {¶ 8} The August 30, 2022 sentencing judgment entry reflected the sentence imposed at the hearing excepting the omission of Sprouse’s specific sex offender designation s . This appeal and cross

- appeal timely followed.4

. II. Assignme nts of Error

{¶ 9} Sprouse asserts the following assignment of error: The trial court erred by imposing consecutive sentences for counts for an aggregate sentence of 15 years, ten months, which this court should find is disproportionate to the harm caused in this matter. {¶ 10} The state’s cross

- appeal raises two assign ments of error:
I. Appellant is subject to a mandatory term of five years of post

release control.
II. Appellant’s sex offender registry designation should be included in the sentencing judgment entry. III. Analysis A. Proportionality {¶ 11} Sprouse ’s sole assignment of error argues that h is 15

- year, 10

- month consecutive sentence is disproportionate to the harm caused in this case . Sentencing challenges are reviewed under R.C. 2953.08(G)(2). The statute permits an appellate court to increase, reduce, or otherwise modify a sentence, or vacate a sentence and remand the matter for resentencing wher e the court finds :

(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) of5

. section 2929.14, or division (I) of section 2929.20 of the Revised Code,

whichever, if any, is relevant; (b) That the sentence is otherwise contrary to law. R.C. 2953.08(G)(2) {¶ 12} Prior to imposing a consecutive sentence, a trial court must consider the factors under R.C. 2929.14(C)(4), which relevantly provide s :

(4) If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve
t he 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 offender’s conduc t and to the danger the offender poses to the public, and if the court also finds any of the following:
* * * (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 mult iple 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.6

. (c) The offender’s history of criminal c onduct demonstrates that

consecutive sentences are necessary to protect the public from future crime by the offender. {¶ 13} When imposing consecutive sentences, “[t]he trial court must engage in the correct analysis, state its statutory findings during the sente ncing hearing, and incorporate those findings into its sentencing entry.” State v. Gregory , 2023

- Ohio

- 331, 208 N.E.3d 166, ¶ 110 (6th Dist.) , citing State v. Beasley , 153 Ohio St.3d 497, 2018

- Ohio

- 493, 108 N.E.3d 1028, ¶ 253; State v. Bonnell , 140 Ohio St .3d 209, 2014

- Ohio

- 3177, 16 N.E.3d 659, ¶ 37. {¶ 14} Relying on State v. Gwynne , Slip Opinion No. 2022

- Ohio

- 4607, 1 Sprouse claims that his aggregate total sentence of nearly 16 years exceeds what is necessary to protect the public and inflict punishment and is t herefore disproportionate to the seriousness of his conduct and the danger he poses to the public. {¶ 15} In Gwynne , the Supreme Court of Ohio explained a trial court’s obligations when imposing consecutive sentences and the scope of an appellate court’s review o f the sentence. The court interpreted R.C. 2929.14(C)(4) as requiring the trial court’s consideration of the number of consecutive sentence s and the aggregate term of the consecutive sentences that will result.

1 An application for reconsideration was filed in Gwynne on January 3, 2023, and remains pending a t the time of this decision.7

. {¶ 16} Appellate review begins with a determination of whether the trial court

made the required R.C. 2929.14 (C)(4) findings. If not, the sentence if contrary to law and it must be vacated or remanded for resentencing. Id. at ¶ 25. If the findings have been m ade, appellate review of consecutive sentences under R.C. 2953.08(G)(2) , requires that the court consider only the R.C. 2929.14(C)(4) findings actually made by the trial court, the court then determines whether clear and convincing evidence supports the fi ndings, and finally, whether the findings are supported by the record. An appellate court’s review of the record is de novo and assesses the “both the quantity and quality of the evidence.” Id. at ¶ 23, 29. {¶ 17} Further, the “‘proportionality analysis [required by R.C. 2929.14(C)(4)] “does not occur in a vacuum, but, instead, focuses upon the defendant’s current conduct and whether this conduct, in conjunction with the defendant’s past conduct, allows a finding th at consecutive service is not disproportionate [to the seriousness of the defendant’s conduct and to the danger the defendant poses to the public].”’” State v. Johnson , 6th Dist. Lucas No. L

- 22

- 1095, 2023

- Ohio

- 2008, ¶ 35, quoting State v. Kelly , 2d Dist. Clark No. 2020

- CA

- 8, 2021

- Ohio

- 325, ¶ 80, quoting State v. Crim , 2d Dist. Clark No. 2018

- CA

- 38, 2018

- Ohio

- 4996, ¶ 11. {¶ 18} Here, the trial court made the necessary R.C. 2929.14(C)(4) findings.
I mposing consecutive sentences the trial court stated:8

. The Court f inds these sentences are to be served consecutively to one another, this being necessary to fulfill the purposes of Revised Code 2929.11, 2929.14(E), and not disproportionate to the seriousness of the offender’s conduct or the danger the offender poses.
Th e court further finds to protect the public from future crime or to punish the offender that t he harm caused was great and unusual, that no single prison term is adequate, and that your criminal history requires consecutive sentencing. {¶ 19} Next, under Gwynne t he court conducts a de novo review consider ing whether the record clearly and convincingly supports the trial court’s findings. The record demonstrates that a man in his 30s befriended a 15

- year - old boy on social media and attempted to entice him in to a s exual relationship through expensive gifts. He specifically asked the boy if he could perform oral sex on him and sent him sexually explicit texts. A search of Sprouse’s computer revealed over 1000 photographs of teenage boys in stages of undress or nake d. A second victim , identified from the photos , stated that when he was 14 or 15, Sprouse contacted him and they entered into a sexual relationship. The victim stated that Sprouse pressured him into sexual relations and would become angry if he refused. Sprouse had a juvenile sex conv iction and sex offender treatment and prior police and agency contact relating to allegation s of inappropriate contact with minors. Sprouse was also on probation for theft.9

. {¶ 20} Reviewing the record de novo, we do not clearly and convincingly find that

it does not support the trial court’s findings. The above facts do no t lead this court to a firm belief that a lengthy sentence is not necessary to protect the public from Sprouse. Nor do we have a firm belief that the sentence is disproportionate to Sprouse’s conduct. Sprouse’s assignment of error is not well

- taken. B. The Cross
- appeal {¶ 21} As the aggrieved party, the state properly raises the following alleged sentencing defects: the imposition of an improper postrelease control term and the court’s failure to provide Sprouse’s sex offender designation in the sentencing judgment entry. See State v. Bates , 167 Ohio St.3d 197, 2022

- Ohio

- 475, 190 N.E.3d 610. 1. Postrelease C ontrol {¶ 22} Th e state’s first cross - assignment of error asserts that the trial court f ail ed
to sentence Sprouse to a manda tory five

- year postrelease control term

. Sprouse argues that any error in the imposition of postrelease control renders that portion of the sentence void or, at minimum, requires resentencing. {¶ 23} S ection R.C. 2967.28(B) of the postrelease control statute , provides: (B) Each sentence to a prison te rm, other than a term of life imprisonment, for a felony of the first degree, for a felony of the second degree, for a felony sex offense, or for a felony of the third degree that is an offense of violence and is not a felony sex offense shall include a10

. re quirement that the offender be subject to a period of post

- release control

imposed by the parole board after the offender ’ s release from imprisonment. * * *. Unless reduced by the parole board pursuant to division (D) of this section when authorized under that division, a period of postrelease control required by this division for an offender shall be of one of the following periods: (1) For a felony sex offense, five years [.] {¶ 24} As elaborated upon in Bates , t he above

- quoted section requires the trial court p rovide notice of postrelease control at the sentencing hearing and in the sentencing judgment entry

. Id. at ¶ 11

- 12 , quoting State v. Jordan , 104 Ohio St.3d 21, 2004

- Ohio

6085, 817 N.E.2d 864, ¶ 23, overruled on other grounds , State v. Harper , 160 Ohio St .3d 480, 2020

- Ohio

- 2913, 159 N.E.3d 248, ¶ 40. At both the sentencing hearing and in the sentencing judgment entry, “[t]he trial court must advise the offender * * * of the term of supervision, whether postrelease control is discretionary or mandatory, an d the consequences of violating postrelease control.” Id. , citing State v. Grimes , 151 Ohio St.3d 19, 2017

- Ohio

- 2927, 85 N.E.3d 700, ¶ 11. “[S]entencing errors in the imposition of postrelease control render the sentence voidable, not void, and the sente nce may be set aside if successfully challenged on direct appeal.” Harper at ¶ 42; see Bates at ¶ 13.

“ And if a court improperly imposes postrelease control on a sentence imposed on or after July 11, 2006, it may correct the sentence in accordance with the procedures set forth in11

.

R.C. 2929.191, which provides that a court must hold a hearing before issuing the correction

. ” State v. Schleiger , 141 Ohio St.3d 67, 2014

- Ohio

- 3970, 21 N.E.3d 1033, ¶ 15

. {¶ 25} Sprouse was apprised of the mandatory 5

- year postrelease control term for felony sex offenses at t he plea hearing and on the plea form. A t the sentencing hearin g and in the sentencing judgment entry, however, the trial court incorrectly sentenced Sprouse to a n 18

- month to 3

- year postrelease

- control term. The imposition of an incorrect postrelease control term render s that portion of his sentence voidable, not vo id ; thus, the state’s first cross - assignment of error is well

- taken. 2. Sex
- O ffender Designation {¶ 26} T he state ’s second cross - assignment of error addres s es the court ’s fai l ure to properly include Sprouse ’s designation as a Tier I and Tier II sex offender in the sentencing judgment entry. Sprouse stat es that because he received proper notification at sentencing, the exclusion of the designation was harmless error. {¶ 27} W here the sex

- offender designation is properly imposed at sentencing but either omit ted from or incorrectly designated in the sentencing judgment entry, such error may properly be corrected by a nunc pro tunc judgment entry. See State v. Knox , 8th Dist. Cuyahoga No. 107414, 2019

- Ohio

- 1246, ¶ 72; State v. Straley , 4th Dist. Highland
No. 12CA3, 2013

- Ohio

- 3334, ¶ 17 (the offender’s Tier III sex

- offender designation was omitted from the sentencing judgment entry).12

. {¶ 28} R.C. 2929.19(B)(3)(a) states that “the court shall include in the offender ’ s

sentence a statement that the offender is a tier III sex offender/child

- victim offender.” (Emphasis added.) T here is , however, no statutory requirement to include an offender’s Tier I or Tier II sex offender designation in a final sentencing judgment. {¶ 29} Sprouse pleaded guilty to multiple felony sex crimes qualifying him as a Tier I and T ier II sex offender

. A lth o ugh the trial cou rt did not include Sprouse’s sex offender designation in the entry, there is no statutory requirement that it do so. The trial court did, however, notify Sprouse a t the sentencing hearing of his sex

- offender designation and the registration requirements i n accordance with R.C. 2950.03(A) (2). Sprouse also signed an acknowledgment that his duties under R.C. Chapter 2950 were fully explained. {¶ 30} As a final matter, it is necessary to note that the First and Tenth Districts have held that, although there is no st atutory language requiring Tier I and Tier II sex offender classifications to be included in the sentencing entry, “ all sex offender tier classifications under the AWA are part of the sanction [imposed] and must be included in the sentencing entry.” State v. Sipple , 2021

- Ohio

- 1319, 170 N.E.3d 1273, ¶ ¶ 31

- 32 (1st Dist.) ; see also State v. Wright , 10th Dist. Franklin No. 22AP

- 275, 2023

- Ohio

- 2134, ¶ 24, citing Sipple

. We disagree. Although a trial court may include Tier I and Tier II designations in a sentencing judgment, there is no requirement that it do so. {¶ 31} Accordingly, the state’s second cross

- assignment of error is not well

- taken.13

. IV. Conclusion

{¶ 32} The trial court’s judgment is vacated, in part, and the matter is remanded for a limited resentencing on postrel ease control pursuant to R.C. 2929.191(C)

. Under App.R. 24, Sprouse is ordered to pay the costs of this appeal. Judgment vacated, in part, and remanded.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4. Gene A. Zmuda, J.

____________________________ JUDGE Myron C. Duhart, P.J.

____________________________ Charles E. Sulek, J. JUDGE CONCUR.

____________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.