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Date: 06-10-2021

Case Style:

State of Ohio v. Randy Merer

Case Number: WD-20-015

Judge: Christine Mayle

Court: IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY

Plaintiff's Attorney: Paul A. Dobson, Wood County Prosecuting Attorney, and
David T. Harold, Assistant Prosecuting Attorney

Defendant's Attorney:


Toledo, Ohio Criminal Defense Lawyer Directory


Description:

Toledo, Ohio - Criminal defense attorney represented Randy Merer with attempted pandering of sexually-oriented matter involving a minor and possessing criminal tools charge.



{¶ 2} On June 9, 2019, Merer was indicted on seven counts of pandering sexuallyoriented matter involving a minor in violation of R.C. 2907.322(A)(1), all second-degree
felonies, and one count of possessing criminal tools in violation of R.C. 2923.24(A), a
fifth-degree felony, which included a forfeiture specification under R.C. 2941.1417(A).
The charges arose from Merer’s use of cellphones to record his sexual encounters with
the victim, who was 17 years old at the time that Merer recorded the videos.
{¶ 3} Merer and the state reached a plea agreement that allowed him to plead
guilty to seven counts of attempted pandering sexually-oriented matter involving a minor,
all third-degree felonies, and the indicted charge of possessing criminal tools. The trial
court accepted Merer’s pleas and found him guilty on all counts.
{¶ 4} On January 24, 2020, the trial court held Merer’s sentencing hearing. When
Merer’s attorney addressed the court, she asked the court to impose community control
and said that “[t]hese are felonies of the third degree with no presumption of prison, no
presumption of probation.” She argued that the sentencing factors under R.C. 2929.12
favored a term of community control. The state disagreed and asked the court to impose
prison terms. The trial court also heard statements from Merer and his father.
{¶ 5} Before imposing sentence, the court reviewed the circumstances of the
underlying offenses and some of Merer’s other, unindicted conduct and the factors in
R.C. 2929.11 and 2929.12. It then sentenced Merer to a prison term of 36 months on
each attempted pandering charge and a prison term of 12 months on the criminal tools 3.
charge. The court ordered the seven attempted pandering charges to be served
concurrently to one another and ordered the criminal tools charge to be served
consecutively to the attempted pandering charges, for an aggregate prison term of 48
months.
{¶ 6} The trial court filed its sentencing entry on January 29, 2020. The judgment
entry reflects the 36-month sentences for each of the attempted pandering charges and the
12-month sentence for the criminal tools charge. It also orders that the attempted
pandering sentences are to be served concurrently to one another and that the criminal
tools sentence is to be served consecutively to the attempted pandering sentences.
Additionally, the judgment entry states that “pursuant to R.C. 2929.13(B) it is presumed
that a prison term is necessary in order to comply with the purposes and principles of
sentencing under R.C. 2929.11.”
{¶ 7} Merer now appeal, raising two assignments of errors:
ASSIGNMENT OF ERROR I: THE TRIAL COURT ERRED IN
SENTENCING APPELLANT TO A TERM OF INCARCERATION.
ASSIGNMENT OF ERROR II: THE TRIAL COURT ERRED IN
SENTENCING APPELLANT TO SERVE CONSECUTIVE
SENTENCES.
II. Law and Analysis
A. The trial court’s judgment entry incorrectly presumed that
Merer’s convictions required the imposition of prison time. 4.
{¶ 8} In his first assignment of error, Merer argues that the trial court erred by
sentencing him to a term of incarceration rather than community control for three
reasons: (1) the record does not support the imposition of a prison term under R.C.
2929.11 and 2929.12, (2) the trial court improperly presumed that a prison term was
required for his third-degree felony convictions, and (3) the trial court improperly
considered uncharged conduct when weighing the seriousness and recidivism factors in
R.C. 2929.12. Because the second argument is dispositive, we will consider it first.
{¶ 9} We review a challenge to a felony sentence under R.C. 2953.08(G)(2). The
statute provides that an appellate court may increase, reduce, or otherwise modify a
sentence or may vacate the sentence and remand the matter to the sentencing court for
resentencing 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;
(b) That the sentence is otherwise contrary to law.
R.C. 2953.08(G)(2).
{¶ 10} Merer argues that his prison sentence is contrary to law because the trial
court stated in its judgment entry that “pursuant to R.C. 2929.13(B) it is presumed that a
prison term is necessary in order to comply with the purposes and principles of
sentencing under R.C. 2929.11[,]” despite his third- and fifth-degree felony convictions 5.
not carrying presumptions that prison time is necessary to comply with the purposes and
principles of sentencing in R.C. 2929.11. We agree.
{¶ 11} Under the applicable provisions of the sentencing statute, neither thirddegree attempted pandering sexually-oriented matter involving a minor nor fifth-degree
possessing criminal tools carries a presumption that a prison term is necessary to comply
with the purposes and principles of sentencing in R.C. 2929.11. Third-degree felony
sentences are controlled by R.C. 2929.13(C), which states that “in determining whether to
impose a prison term as a sanction for a felony of the third degree * * *, the sentencing
court shall comply with the purposes and principles of sentencing under section 2929.11
of the Revised Code and with section 2929.12 of the Revised Code.” Fifth-degree felony
sentences are controlled by R.C. 2929.13(B), which mandates community control
sanctions in certain circumstances, makes prison discretionary in certain circumstances,
and, if neither of those options applies, requires the court to “comply with the purposes
and principles of sentencing under section 2929.11 of the Revised Code and with section
2929.12 of the Revised Code” in determining whether to impose a prison term.
{¶ 12} Despite the contrary requirements of R.C. 2929.13, the trial court stated in
its sentencing entry that it found “pursuant to R.C. 2929.13(B) it is presumed that a
prison term is necessary in order to comply with the purposes and principles of
sentencing under R.C. 2929.11.”1
At the sentencing hearing, the trial court did not say—

1
Notably, R.C. 2929.13(B) does not presume a prison term for any offenses to which it
applies. 6.
one way or the other—whether it presumed that a prison term was necessary for any of
Merer’s offenses. However, it is axiomatic that “a trial court speaks through its judgment
entries,” State v. Payne, 6th Dist. Lucas Nos. L-13-1024 and L-13-1025, 2014-Ohio1147, ¶ 14, and what the trial court’s entry in this case tells us is that the court “presumed
that a prison term is necessary * * *” to protect the public, punish Merer, and rehabilitate
Merer using minimal government resources. R.C. 2929.11(A). So, instead of starting
from a place of neutrality, as required by R.C. 2929.13(C), the judgment entry clearly
states that the trial court started its sentencing analysis under the impression that Merer
had to go to prison. Even if the trial court did everything else right in fashioning Merer’s
sentence, when the court starts its consideration of a defendant’s punishment from the
wrong place, the resulting sentence cannot stand. See State v. Wheeler, 6th Dist. Wood
No. WD-20-053, 2021-Ohio-1074, ¶ 12; State v. Robinson, 7th Dist. Mahoning No. 07
MA 224, 2008-Ohio-4321, ¶ 9.
{¶ 13} In some cases, the appellate court can determine from the record that an
apparent error in the sentencing entry is nothing more than a clerical error that the trial
court can correct with a nunc pro tunc entry. This is not such a case.
{¶ 14} A “clerical error” is “a mistake or omission, mechanical in nature and
apparent on the record, which does not involve a legal decision or judgment.” (Internal
quotations omitted.) State v. Love, 6th Dist. Lucas No. L-05-1087, 2006-Ohio-2925, ¶
27. The trial court can correct a clerical error at any time. Crim.R. 36. But, although a
court possesses inherent authority to correct a clerical error in its judgment entry so that 7.
“the record speaks the truth, nunc pro tunc entries are limited in proper use to reflecting
what the court actually decided, not what the court might or should have decided.”
(Internal quotations omitted.) State v. Miller, 127 Ohio St.3d 407, 2010-Ohio-5705, 940
N.E.2d 924, ¶ 15.
{¶ 15} For example, in Love, the trial court cited inapplicable statutes—which
required a mandatory three-year term of incarceration—in its judgment entry imposing a
three-year prison term for appellant’s first-degree felonious assault conviction. Love at ¶
22. Under the correct statute, appellant’s conviction for first-degree felonious assault was
punishable by a non-mandatory term of three to ten years of incarceration. Id. at ¶ 23.
However, the trial court’s “comments at the sentencing hearing reflect[ed] its intention *
* *” to sentence appellant to a non-mandatory term. Id. at ¶ 24. While the appeal was
pending, the trial court entered a nunc pro tunc order correcting the error pursuant to
Crim.R. 36. Id. at ¶ 23. We found that the trial court’s action was proper because “the
sentencing hearing transcript and the judgment entry” reflected that the error was
“mechanical in nature and apparent on the record.” (Emphasis added.) Id. at ¶ 27.
{¶ 16} In contrast, in Merer’s case, there is nothing in the transcript of the
sentencing hearing making it “apparent on the record” that the reference to a “presumed”
prison term in the judgment entry was merely “mechanical in nature.” Id. Although
Merer’s attorney mentioned at the beginning of the hearing that “[t]hese are felonies of
the third degree with no presumption of prison, no presumption of probation[,]” the trial
court never stated whether or not a prison term was presumed for Merer’s offenses. And, 8.
although the trial court cited an inapplicable statute in its judgment entry—i.e., R.C.
2929.13(B), which does not impose a presumption of prison under any circumstance—it
is possible that the trial court mistakenly cited R.C. 2929.13(B) as supporting its
erroneous belief that a prison term was presumed in this case. Either way, it is not
“apparent from the record” that either of these mistakes was “mechanical in nature.”
{¶ 17} Moreover, the trial court’s consideration of R.C. 2929.11 and 2929.12 on
the record is not conclusive proof that it did not presume a prison term because R.C.
2929.11(A) requires a sentencing court to consider the purposes and principles of
sentencing in every case—including cases in which a prison term is presumed.
Additionally, under R.C. 2929.13(B)(2), Merer’s fifth-degree felony conviction required
the court to consider the seriousness and recidivism factors in R.C. 2929.12(B) through
(F) in exercising its “discretion to determine the most effective way to comply with the
purposes and principles of sentencing set forth in [R.C. 2929.11].” R.C. 2929.12(A). So,
given that the trial court was required to make the findings it made on the record—
whether or not there was a presumption of prison for Merer’s third-degree felony
convictions—the fact that the court made these findings does not show that the court
made a clerical error in its sentencing entry.
{¶ 18} Finally, the determination of whether or not a prison term is presumed for
an offense involves a legal judgment. Wheeler, 6th Dist. Wood No. WD-20-053, 2021-
Ohio-1074, at ¶ 12. This takes such a determination outside of the scope of a clerical 9.
error that can properly be corrected with a nunc pro tunc entry. Crim.R. 36; Miller, 127
Ohio St.3d 407, 2010-Ohio-5705, 940 N.E.2d 924, at ¶ 15.
{¶ 19} In short, there is nothing in the record to clearly demonstrate that the trial
court’s unambiguous statement in its judgment entry that “it is presumed that a prison
term is necessary * * *” was anything other than a substantive sentencing error. For that
reason, we find that Merer’s sentence must be vacated, and the matter must be remanded
for a new sentencing hearing. Compare State v. Showalter, 7th Dist. Belmont No. 16 BE
0027, 2018-Ohio-5411, ¶ 36 (trial court’s incorrect citation to a presumption of a prison
term under R.C. 2929.13(F) could be corrected by a nunc pro tunc entry because the
record demonstrated that the trial court “clearly considered the correct law but cited to the
wrong revised code section in its sentencing entry * * *”). Accordingly, Merer’s first
assignment of error is well-taken.
B. Merer’s second assignment of error is moot.
{¶ 20} In his second assignment of error, Merer argues that the trial court erred in
sentencing him to consecutive sentences because the record does not support the court’s
finding that Merer’s conduct caused great or unusual harm. Because we are vacating
Merer’s sentence, Merer’s arguments regarding consecutive sentences are moot, and his
second assignment of error is not well-taken.

Outcome: The January 29, 2020 judgment of the Wood County Court of Common
Pleas is reversed. Merer’s sentence is vacated, and this matter is remanded for 10.
resentencing consistent with this decision. The state is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgement reversed.

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