[Cite as State v. Rammel , 2013-Ohio-3045.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY STATE OF OHIO : : Appellate Case Nos. 24871 Plaintiff-Appellee : Appellate Case Nos. 24872 : v. : Trial Court Nos. 11-CR-435 : Trial Court Nos. 10-CR-3732 MATTHEW RAMMEL : : (Criminal Appeal from Defendant-Appellant : ( Common Pleas Court) :

. . . . . . . . . . . O P I N I O N Rendered on the 12th day of July, 2013.

. . . . . . . . . . . MATHIAS H. HECK, JR., by KIRSTEN A. BRANDT, Atty. Reg. #0070162, Montgomery County Prosecutor’s Office, Appe llate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee E. KELLY MIHOCIK, Atty. Reg. #0077745, Office of the Ohio Public Defender, 250 East Broad Street, Suite 1400, Columbus, Ohio 43215 Attorney for Defendant-Appellant

. . . . . . . . . . . . . FAIN, P.J. {¶ 1} Defendant-appellant Matthew Rammel appeals from his conviction and sentence for Burglary, Receiving Stolen Property, and Breaking and Entering. Rammel contends that his 2

 sentence is contrary to law and void, because the trial court failed to sentence him pursuant to the reduced penalties and required findings for consecutive sentences in 2011 Am.Sub.H.B. No. 86 (H.B. 86). Rammel further contends that he received ineffective a ssistance of trial counsel when his counsel failed to ask th e trial court to sentence Rammel pursuant to H.B. 86. {¶ 2} We conclude that the trial court’s failure to apply H.B. 86 to Rammel resulted in a sentence that is contrary to law and void. Acco rdingly, the sentencing portion of the judgment of the trial court is Vacated, and the cause is Remanded for re-sentencing. The trial court’s judgment of conviction is Affirmed.

I. Rammel Commits a Series of Burglaries {¶ 3} In September and October 2010, Matth ew Rammel burglarized two homes on Croftshire Drive in Kettering. In early Novemb er, he burglarized two more Kettering homes on Harwich Court. Later that month, Rammel burgl arized one of the Croftshire Drive homes a second time. {¶ 4} The police recovered property that had been taken during the burglaries when they executed search warrants at both Rammel’s home and the home of his girlfriend. After the search of Rammel’s apartment, Kettering Police Detective Walker informed Rammel that he was under arrest for Burglary and Receiving Stolen Property. {¶ 5} Detective Walker later interviewed Rammel. Detective Walker advised Rammel of his Miranda rights, which Rammel waived. During the ensuing interview, Rammel made several admissions to Detective Walker. After twenty or thirty minutes of questioning, Rammel stated, “I don’t want to in criminate myself any more. I just want to remain silent.” The 3

 interview ended at that point.

II. Course of the Proceedings {¶ 6} In December 2010, Rammel was indicted on one count each of Burglary and Receiving Stolen Property, unde r Montgomery County Case Nu mber 10-CR-3732. In February 2011, Rammel was indicted under Montgomery County Case Number 11-CR-435 on ten counts of Receiving Stolen Property and three counts of Burglary. Later that month, Rammel filed a motion to suppress, which the trial court overruled following a hearing. {¶ 7} In June 2011, Rammel filed a motion to sever the Burglary charges from the Receiving Stolen Property charge s. The State opposed Rammel’s motion and requested that all of the counts under both case numbers be tried together. The trial c ourt overruled Rammel’s motion to sever and granted the State’s motion for joinder of the indictments. {¶ 8} In August 2011, Rammel was charged under a “B” indictment in Case Number 11-CR-435 with an additional count of Burglary. Pursuant to a negotiated plea agreement, Rammel pled no contest to all sixteen of th e pending charges in both case numbers. In exchange, the State agreed to a sentence within the range of five to eight years. On the day of sentencing, Rammel also pled no contest to a char ge of Breaking and Entering, presented by way of bill of information, with the understanding that his sentence would remain in the five-to-eight-year range. The trial court sentenced Rammel to an aggregate term of eight years in prison, which included five-year sentences on the Burglary counts and ei ghteen-month sentences on the Receiving Stolen Property counts. The tr ial court ran the five-year Burglary sentences concurrent with each other, but consecutive to the two eighteen-month Receiving Stolen Property 4

 sentences, which the trial court also ordered to be served consecutively to one another, resulting in a total prison term of eight years. {¶ 9} Rammel appealed, raising four assignments of error, challenging the trial court’s decision to join, not sever, the offenses, the trial court’s denial of the moti on to suppress, the trial court’s imposition of consecutive sent ences, and the trial court’s failure to consider the principles of sentencing and recidivism. On August 17, 2012, we overruled all four assignments of error and affirmed the judgment of the trial court. State v. Rammel , 2d Dist. Montgomery Nos. 24871, 24872, 2012-Ohio-3724. {¶ 10} Rammel filed an App.R. 26(B) application to re-open hi s direct appeal on a claim of ineffective assistance of appella te counsel, contending that becau se the trial court did not apply H.B. 86 when sentencing him, his sentence was not authorized by law. In particular, Rammel challenged the maximum term that could be imposed for his third-degree felony Burglary convictions and the tria l court’s imposition of consecutive se ntences without making the new statutorily-required findings. We found that Ra mmel had demonstrated a genuine issue as to whether he has a colorable claim of ineffective assistance of c ounsel on appeal. Consequently, we granted Rammel’s application to re-open his direct appeal and confined the re-opened appeal to the issue of the validity of Rammel’s sentence.

III. The Sentences Imposed on Rammel Are Contrary to Law and Void {¶ 11} Rammel’s Second Assignme nt of Error states: THE TRIAL COURT’S FAILURE TO APPLY H.B. 86 TO MR. RAMMEL RESULTED IN SENTENCES THAT ARE CONTRARY TO LAW 5

 AND ARE VOID. A. H.B. 86 Applies to Rammel {¶ 12} The General Assembly ex pressly provided in Section 4 of H.B. 86 that the amendments to R.C. 2929.14(A) “apply to a pe rson who commits an offense specified or penalized under those sections on or after the eff ective date of this sec tion and to a person to whom division (B) of section 1.58 of the Revise d Code makes the amendm ents applicable.” R.C. 1.58(B) states that “[i]f the penalty, forfeiture , or punishment for any offense is reduced by a reenactment or amendment of a statute, the penalty, forfeiture, or punishment, if not already imposed, shall be imposed according to the statute as amended.” {¶ 13} Rammel committed his offenses prior to September 30, 2011, the effective date of H.B. 86. Furthermore, Rammel’s sentenci ng hearing took place on September 29, 2011, prior to the effective date of H.B. 86. However, th e trial court did not j ournalize Rammel’s sentence until October 17, 2011, after the effec tive date of H.B. 86. Conseque ntly, the issue before us is whether the date of the sentencing hearing or the date a sentence is journalized controls for the purposes of determining whether H.B. 86 applies to a defendant. {¶ 14} The First District Court of Appeals recently addressed this identical issue in State
v. Jones , 1st Dist. Hamilton No. C-110603, 2012-Ohio-2075. The First District wrote, at ¶ 11: The record reflects that while the trial court held [defendant’s] sentencing hearing on September 22, 2011, it did not journalize its judgment entry until October 7, 2011. Although raised by neither [defendant’s] counsel nor the state, we note that Am.Sub.H.B. No. 86 was enacted on June 29, 2011, and became effective September 30, 2011. Because a trial court speaks only through its 6

 docket and journal entries, [defendant] was not sentenced until the trial court’s sentencing entry had been journalized. See , e.g. , State v. Miller , 127 Ohio St.407, 2010-Ohio-5705, 940 N.E.2d 924, ¶ 12. Cons equently, Am.Sub.H.B. No. 86 was in effect at the time [defendant] was sentenced. {¶ 15} We agree with the reasoning of the First District in Jones . A trial court speaks only through its docket and journal entries, which in this cas e means a defendant’s punishment is imposed on the date a sentencing court journalizes its sentencing entry, not the date on which the sentencing court conducts a sentencing hearing and orally pronounces sent ence. Consequently, Rammel fits within the R.C. 1.58(B) exception provided in Section 4 of H.B. 86. While Rammel committed the Burglary offense prior to the effective date of H.B. 86, he was not sentenced until October 17, 2011, when the trial cour t journalized his sentence. Therefore, the trial court should ha ve sentenced Rammel pursuant to H.B. 86.

B. Rammel’s Sentence Is Contrary to H.B. 86 and Is Therefore Void {¶ 16} H.B. 86, among other things, amende d R.C. 2929.14(A) to reduce the maximum prison sentence for certain third-degree felony offenses from five years to three years and amended R.C. 2929.14(C) to require trial courts to make findi ngs before imposing consecutive sentences. Specifically, R.C. 2929.14(A)(3)(b) decreas es the range of penalties for most felonies of the third degree, including Burglary, to 9, 12, 18, 24, 30, or 36 months. R.C. 2929.14(A)(3)(a) maintains the ma ximum 60-month penalty for the following offenses: aggravated vehicular homicide, aggravated vehicular assault, vehicular assau lt, sexual battery, or unlawful sexual conduct with a minor , or robbery or burglary if th e offender previously has been 7

 convicted of or pleaded guilty in two or mo re separate proceedings to two or more aggravated-robbery, robbery, aggravated -burglary, or burglary offenses. {¶ 17} Furthermore, after Septembe r 30, 2011, R.C. 2929.14(C)(4) provides: 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 puni sh the offender and that consecutive sentences are not disproportionate to th e seriousness of the 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 th e 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, a nd the harm caused by two or more of the multiple offenses so committed was so great or unus ual that no single prison term for any of the offenses committed as part of an y of the courses of conduct adequately reflects the seriousness of the offender's conduct. (c) The offender's history of cr iminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender. 8

 {¶ 18} The parties agree that the trial court di d not apply H.B. 86 to Rammel. We have reviewed the sentencing transcript and sentencing entry and agree that the trial court applied the pre-H.B. 86 penalties to Rammel. As a result of the trial court’s failure to apply H.B. 86, Rammel was sentenced to five year s in prison on his Burglary counts, despite the fact that the maximum allowed under H.B. 86 is only three y ears, unless the trial court found that Rammel previously has been convicted of or pleaded guilty in two or more separate proceedings to two or more aggravated-robbery, robbery, aggravated -burglary, or burglary offenses. R.C. 2929.14(A)(3)(a). The court did not make that findi ng. Furthermore, the trial court failed to make the required findings set forth in R.C. 2929.14(C)(4) before ordering Rammel to serve his prison terms consecutively. {¶ 19} By not applying H.B. 86 to Rammel, the trial court imposed sentences on Rammel that are contrary to law. Based on Ohio Supreme Court precedent, these unlawful sentences are not merely voidable, but void. State v. Billiter , 134 Ohio St.3d 103, 2012-Ohio-5144, 980 N.E.2d 960, ¶ 10, citing State v. Bezak , 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, ¶ 12, and State v. Fischer , 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, paragraph two of th e syllabus. Therefor e, Rammel is entitled to a new sentencing hearing. State v. Taylor , 2d Dist. Greene No. 2011-CA-67, 2013-Ohio-1074, ¶ 25, citing State v. Foster , 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 105. {¶ 20} Rammel’s Second Assignment of Error is sustained.

IV. Rammel’s First Assignment of Error Is Overruled as Moot 9

 {¶ 21} Rammel’s First Assignment of Error states: MR. RAMMEL’S ATTORNEY WAS INEFFECTIVE BECAUSE HE DID NOT REQUEST THAT MR. RAMMEL BE SENTENCED UNDER H.B. 86. {¶ 22} Given our disposition of Ra mmel’s Second Assignment of Error, this assignment of error is moot. App.R. 12(A)(1)(c). Theref ore, Rammel’s First Assignment of Error is overruled as moot.

V. Conclusion {¶ 23} Rammel’s Second Assign ment of Error having been sustained, that part of the trial court’s judgment imposing sentence is Reversed; the judgment is Affirmed in all other respects; and this cause is Remande d for a new sentencing hearing.

. . . . . . . . . . . . . DONOVAN and HALL, JJ., concur.

Copies mailed to: Mathias H. Heck Kirsten A. Brandt E. Kelly Mihocik Hon. Mary L. Wiseman