Opinion

State v. Szozda

2022 Ohio 2294

Court: Ohio Court of Appeals
Filed: Jun 30, 2022
Status: Published
On the bench: Osowik
Cited by: 4 cases
Authority: More cited than 55.4%

The opinion

[Cite as State v. Szozda, 2022-Ohio-2294.]

IN THE COURT OF APPEALS OF OHIO

SIXTH APPELLATE DISTRICT

LUCAS COUNTY

State of Ohio Court of Appeals No. L-21-1026

Appellee Trial Court No. CR0202001368

Michelle Szozda DECISION AND JUDGMENT

Appellant Decided: June 30, 2022

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and

Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.

David Klucas, for appellant.

*****

OSOWIK, J.

{¶ 1} This is an appeal from a January 13, 2021 judgment of the Lucas County

Court of Common Pleas, sentencing appellant to an indefinite term of incarceration,

ranging from a minimum term of six years to a maximum term of nine years, following

appellant’s negotiated no contest plea on one count of aggravated vehicular homicide, in

violation of R.C. 2903.06, a felony of the second degree. For the reasons set forth more

fully below, this court affirms the judgment of the trial court and remands the case to the

trial court for the sole purpose of issuance of a nunc pro sentencing entry.

{¶ 2} Appellant, Michelle Szozda, sets forth the following sole assignment of

error:

THE SENTENCE IMPOSED BY THE TRIAL COURT IS

CONTRARY TO LAW.

{¶ 3} The following undisputed facts are relevant to this appeal. On October 6,

2019, appellant attended a bridal shower at the residence of a co-worker, with whom

appellant worked at a Toledo-area restaurant.

{¶ 4} It is undisputed that while at the bridal shower over the course of the

afternoon, appellant consumed approximately three alcoholic drinks, 10 alcohol-infused

jello shots, and ingested several lines (“bumps”) of cocaine.

{¶ 5} At approximately 8:00pm, after consuming the above-detailed drugs and

alcohol, appellant agreed to drive another party attendee to the residence of his sister’s

boyfriend in order to purchase additional cocaine.

{¶ 6} After driving to the location and purchasing an additional $200 in cocaine,

appellant began the return trip to the bridal shower. While driving back to the bridal

shower, appellant turned directly into the path of a lawfully traveling vehicle at the

intersection of Dorr St. and Detroit Ave.

{¶ 7} A Toledo father traveling with his 22-month old daughter was driving the

other vehicle. At the intersection, appellant turned and drove directly into the path of the

oncoming vehicle. A high-impact collision occurred.

{¶ 8} The man driving the other vehicle sustained fatal injuries and died at the

scene. He was declared dead by the responding members of the Toledo Fire Department.

His infant daughter, who had been secured in her infant car seat, was uninjured.

{¶ 9} Appellant falsely claimed to responding officers that she had not consumed

alcohol prior to the accident. However, post-collision testing of appellant confirmed that

she had a blood alcohol level of .13, as well as cocaine metabolites in her system. In

conjunction, appellant’s passenger truthfully disclosed to the officers that both he and

appellant consumed alcohol prior to the accident.

{¶ 10} Testing further confirmed that the victim had no drugs or alcohol in his

system. The post-mortem conducted by the Lucas County Coroner determined that the

decedent’s cause of death was blunt force trauma to the chest sustained in the collision.

{¶ 11} On February 28, 2020, appellant was indicted on two counts of aggravated

vehicular homicide, in violation of R.C. 2903.06, with the charges being second degree

and third degree felonies, respectively.

{¶ 12} On September 30, 2020, following plea negotiations, appellant entered a

voluntary plea of no contest to the first count set forth in the indictment, one count of

aggravated vehicular homicide, in violation of R.C. 2903.06, a felony of the second

degree. In exchange, the remaining felony offense was dismissed. A presentence

investigation was ordered.

{¶ 13} During the change of plea colloquy, uncontroverted evidence was

presented by appellee establishing that on October 6, 2019, appellant was driving while

returning to a bridal shower, after consuming alcohol and cocaine, and then leaving the

party to purchase additional cocaine.

{¶ 14} Evidence was presented reflecting that while appellant falsely claimed to

investigators that she had not consumed alcohol or drugs prior to the accident, subsequent

blood alcohol testing and subsequently obtained recorded telephone conversations

between appellant and her husband established that she had consumed both drugs and

alcohol during the party and that she was trying to “beat a traffic light” when the collision

occurred.

{¶ 15} On January 13, 2021, the trial court conducted appellant’s sentencing

hearing. In conformity with the terms of the negotiated plea agreement, appellee

declined to make a sentencing recommendation and deferred to the discretion of the trial

court.

{¶ 16} At sentencing, counsel for appellant presented a vigorous statement in

mitigation on his client’s behalf, discussing her responsibilities and history as a working

mother.

{¶ 17} Although advocating for a minimum sentence for appellant, counsel

conceded that, “[T]here may be an argument made by some that a sentence at the bottom

of the range isn’t adequately punitive [given that appellant caused a fatal accident while

under the influence of cocaine and alcohol].”

{¶ 18} During this statement in mitigation, counsel for appellant acknowledged,

“In these kind of offenses, maybe more than any other kind[,] the court has to consider a

deterrent factor here because try as we might as a society we seem to be only marginally

successful keeping people from driving when they shouldn’t. And I know that in this

effect -- or in this offense[,] that deterren[ce] is a real factor.” (Emphasis added).

{¶ 19} The family members impacted by the death in this case elected to have the

victim’s mother present a collective victim impact statement to the trial court at

sentencing. In addition, letters from the family members were read into evidence.

{¶ 20} The victim’s mother detailed the life altering consequences resulting from

the sudden, untimely death of her son. She described arriving on the scene of the

accident and seeing her son’s body lying on the pavement and not being permitted to hold

him. She described witnessing her 22-month-old granddaughter placed in the back of a

police cruiser because the infant’s father had just been killed in an accident.

{¶ 21} The victim’s mother then described how her son’s girlfriend had

coincidentally called him just after the accident occurred, but before he passed away. He

managed to hit the answer button on his mobile phone, but was unable to communicate.

The victim’s girlfriend heard loud background noises, including hearing the moans of her

dying boyfriend.

{¶ 22} The victim’s mother stated, “She destroyed our family and [also] damaged

her own family. She wasn’t thinking of anyone that night, only herself and having a good

time.”

{¶ 23} Additional victim impact letters within read into the record that had been

written by the victim’s father, brother, sons, and several close family members.

{¶ 24} The letter from the victim’s father stated, “I think she deserves the

maximum. She took a part of our lives [that] we will never get back. Less than the

maximum is a slap on the hand. She gets to go back to her family, he doesn’t have that

choice.” (Emphasis added).

{¶ 25} Following the statement in mitigation and the victim impact statement and

letters, the trial court reflected and discussed in detail the competing interests to be

weighed in crafting a sentence.

{¶ 26} Ultimately, the trial court imposed a mandatory, less than maximum,

indefinite sentence, ranging from six years to nine years. The sentence was more than

that the minimum requested by appellant, and less than the maximum requested by the

victim’s family. This appeal ensued.

{¶ 27} In the sole assignment of error, appellant argues that the felony sentence

imposed in this case is contrary to law.

Analysis

{¶ 28} We review felony sentences pursuant to R.C. 2953.08(G)(2). State v.

Bothuel, 6th Dist. Lucas No. L-20-1053, 2021-Ohio-875, ¶ 7. R.C. 2953.08(G)(2) allows

an appellate court to increase, reduce, or otherwise modify a sentence, or vacate the

sentence and remand for resentencing if the court finds by clear and convincing evidence

that the sentence is contrary to law.

{¶ 29} That section states in relevant part:

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;

(b) That the sentence is otherwise contrary to law. R.C. 2953.08

(G)(2).

State v. Jones

{¶ 30} In principle support, appellant argues, “Jones [State v. Jones], 163 Ohio

St.3d 649, 2020-Ohio-6729, 169 N.E.3d 242] extinguishes meaningful appellate review

for thousands of sentences.”

{¶ 31} In State v. Jones, 163 Ohio St.3d 649, 2020-Ohio-5729, 169 N.E.3d 242,

the Ohio Supreme Court explicitly defined the issue of law pending before it for

determination as, “The state sought this court’s discretionary review on one proposition

of law: ‘R.C. 2953.08(G)(2) does not allow a Court of Appeals to review the trial court’s

findings made pursuant to R.C. 2929.11 and R.C. 2929.12.’ We accept jurisdiction.”

Jones at ¶ 16. (Emphasis added.)

{¶ 32} In chief support of that proposition of law, the state argued, “R.C.

2953.08(G)(2)(a) permits a sentence to be modified or vacated due to a lack of support in

the record only with respect to findings made pursuant to several specifically identified

statutes – and R.C. 2929.11 and 2929.12 are not among them.” Jones at ¶ 21. (Emphasis

added.)

{¶ 33} Upon ruling on this proposition of law, the Ohio Supreme Court held, in

pertinent part, “Nothing in R.C. 2953.08(G)(2) permits an appellate court to

independently weigh the evidence in the record and substitute its judgment for that of the

trial court concerning the sentence that best reflects compliance with R.C. 2929.11 and

2929.12.” Jones at ¶ 42. (Emphasis added.)

{¶ 34} The Ohio Supreme Court further elucidated in State v. Toles, -- N.E.3d --,

2021 WL 4516062, 2021-Ohio-3531, ¶ 10, “R.C. 2953.08, as amended, precludes

second-guessing a sentence imposed by the trial court based on its weighing of the

considerations in R.C. 2929.11 and 2929.12.” (Emphasis added).

{¶ 35} As evident from the above, appellant’s legal reasoning underpinning this

appeal is premised upon discord with the Ohio Supreme Court decision in Jones.

{¶ 36} Given the impact of such a position upon our consideration of this case, we

note at the outset that, pursuant to the linchpin judicial doctrine of stare decisis, this court,

as a lower court, “is bound to follow a decision of the Supreme Court of Ohio.” State v.

Abuhashish, 6th Dist. Wood No. WD-07-048, 2008-Ohio-3849, ¶ 42.

{¶ 37} The Ohio Supreme Court encapsulated the stare decisis doctrine with

clarity in Westfield v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, ¶

43, “[A] supreme court not only has the right, but is entrusted with the duty to examine

its former decisions and, when reconciliation is impossible, to discard its former errors.”

{¶ 38} As such, it is not within the proper purview of this court, as a lower court,

to entertain requests to overturn intact rulings of the Ohio Supreme Court, a court of

higher authority to this court.

{¶ 39} In accord with the above, as this court held in Hoeflinger, et al. v. AM

Mart, LLC, 6th Dist. Lucas No. L-16-1124, 2017-Ohio-7530, 96 N.E.3d 1247,

“[A]lthough a prior decision of the supreme court may be overruled under limited

circumstances, the authority to examine previous decisions is vested in a ‘supreme court,’

not lower courts.” Hoeflinger at ¶ 37. (Emphasis added).

{¶ 40} Appellant next argues, without evidentiary support that, “Punishment and

retribution are the only considerations [of the trial court],” thereby suggesting that the

sentence in this case was improperly rooted on a purely punitive basis.

{¶ 41} We note that this claim is incongruous with appellant’s concession at

sentencing that the nature of this case necessarily entails deterrence consideration by the

trial court given that the fatal danger of people driving motor vehicles when under the

influence remains a societal ill.

{¶ 42} This is also unpersuasive given that the trial court exercised discretion in

diverging from the express request of the decedent’s family to impose a maximum

sentence, but rather, it imposed a less than maximum sentence.

{¶ 43} The trial court properly elected to do so given that it is well-established that

trial courts are vested with, “full discretion to impose a prison sentence within the

10.

statutory range.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d

1231, ¶ 13. The trial court did not do otherwise in this case.

{¶ 44} Beyond appellant’s conjecture, the record is devoid of evidence in support

of the notion that the sentence was strictly punitive, rather than the product of the trial

court striking a balance in weighing competing considerations, as the transcripts of the

sentencing hearing reflect it to be.

{¶ 45} As referenced above, recent Ohio Supreme Court decisions establish that

appellate courts may not dispute a trial court’s R.C. 2929.11 and R.C. 2929.12

considerations, so as to then arguably warrant a felony sentence modification pursuant to

R.C. 2953.08(G)(2).

{¶ 46} Thus, in accord with the doctrine of stare decisis and the Ohio Supreme

Court decisions set forth in Jones and Toles, we find that the legal premise underlying

this appeal, arguing that Jones, and thereby its progeny, should be deemed unlawful by

this court, countermands controlling precedent and runs afoul of stare decisis.

Due Process and Equal Protection Post-State v. Jones

{¶ 47} As an alternative argument, appellant invites us to consider a due process

and equal protection violation since, post Jones, an appellate review is limited to R.C.

2953.08(G)(2) without consideration of the factors enumerated in R.C. 2911.11 and

2911.12. This argument was not specifically addressed in Jones.

11.

Meaningful Appellate Review and Due Process

{¶ 48} Appellant argues that this court “still has the authority to examine her

sentence for compliance with O.R.C. 2929.11 and 2929.12 because denial of that review

violates her rights to meaningful appellate review and equal protection under the law.”

{¶ 49} The fundamental hypothesis underlying this contention is that appellant has

a right to appellate review. However, while the United States Supreme Court has long

held that a “right” to appeal is not found in the Constitution, McKane v. Durston, 153

U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867 (1894), the court has also held that where a state

provides a process of appellate review, the procedures used must comply with

constitutional dictates of due process and equal protection. Griffin v. Illinois (1956), 351

U.S. 12, 18, 76 S.Ct. 585,100 L.Ed. 891.

{¶ 50} The Ohio Constitution does not specifically provide for a “right” to appeal.

Section 3(B)(1)(f), Article IV of the Constitution provides, however, for the

establishment of an appellate court system with jurisdiction “[i]n any cause on review as

may be necessary to its complete determination.” Atkinson v. Grumman Ohio Corp., 37

Ohio St.3d 80, 84-85, 523 N.E.2d 851, (1988).

{¶ 51} We have recently noted that the Ohio Supreme Court observed that there

are other grounds and avenues for appeal available beyond R. C. 2953.08(G)(2). In State

v. Bowles, 6th Dist No. L-21-1074, 2021-Ohio-4401 we stated:

12.

In her concurring opinion, Justice Brunner summarized the holding

in Jones stating “in Jones we simply observed that R.C. 2953.08 * * *

precludes second-guessing a sentence imposed by a trial court based on its

weighing of the considerations of R.C. 2929.11 and 2929.12.” Id. at ¶ 10 (J.

Brunner, concurring). Justice Brunner noted, however, that there are other

statutory and constitutional provisions under which an offender may appeal

their felony sentences outside of R.C. 2953.08(G)(2). Id. at ¶ 10,

citing State v. Patrick, 164 Ohio St.3d 309, 2020-Ohio-6803, 172 N.E.3d

952, ¶ 15-22 (R.C. 2953.08 is not the only basis for appealing a sentence

and it does not preclude an appeal of a sentence on constitutional grounds);

Jones at ¶ 48-49 (Fischer, J., concurring) (an appellate court may review

the trial court's findings under R.C. 2929.11 and 2929.12 for “certain

limited purposes,” including whether the sentence was “based on an

offender's ‘race, ethnic background, gender, or religion’ ”); R.C.

2953.08(F) (requiring an appellate court to review essentially the entire

trial-court record in evaluating the legality of a sentence). In these

instances, felony sentences are properly reviewed outside of the limitations

of Jones since that review is not established under the limits of R.C.

2953.08(G)(2). In resolving an appeal of felony sentences, we must,

therefore, limit our application of Jones to appeals in which the appellant’s

13.

sole argument is that the record does not support the trial court’s imposition

of a prison term after considering R.C. 2929.11 and 2929.12. That

argument remains “squarely prohibited” and, in light of Toles, appeals

based on that argument alone are subject to summary resolution as a matter

of law. Toles at ¶ 11.

Applied here, the limit of our appellate review established

in Jones precludes our review of appellant's assignment of error.

Appellant's sole argument is that his sentence was contrary to law as

described in R.C. 2953.08(G)(2) because the trial court improperly weighed

the sentencing factors established in R.C. 2929.11 and 2929.12 prior to

imposing his sentence. Notably, he does not assign error to his sentence

under any other statutory or constitutional provision which would permit

our review of his sentence. Therefore, in light of Jones and Toles, it is clear

that we are “squarely prohibited” from reviewing appellant's sentence as

requested and we find his assignment of error not well-taken. Id. at ¶ 9-10.

{¶ 52} Accordingly, following State v. Toles, Slip Opinion No. 2021-Ohio-3531, ¶ 10

(Brunner, J., concurring), appellant’s argument that she has been denied any meaningful

review under R.C. 2953.08(G)(2) is found not violative of process due her in appellate

review under the federal or state constitutions and is, therefore, not well-taken.

14.

Equal Protection

{¶ 53} Appellant further argues that 2953.08(G)(2) establishes an irrational

classification and provides no remedy for review of sentences imposed that are

considered to be too harsh or too lenient and is contrary to her equal protection treatment

under the federal and state constitutions.

{¶ 54} In support, appellant cites State v. Mole, 149 Ohio St.3d 215, 2016-Ohio-

5124, 74 N.E.3d 368 (holding that R.C. 2907.03[A][13], which criminalizes sexual

conduct between a minor and a peace officer at least two years older than the minor,

violates the Equal Protection Clause of the Ohio Constitution).

{¶ 55} We first note that, like Mole, appellant herein does not claim that this

purported classification of being too harshly sentenced involves a fundamental right or a

suspect class. Accordingly, the standard of review in this case is the “rational basis” test,

which requires that the statute be upheld if it is rationally related to a legitimate

governmental purpose. State v. Peoples, 102 Ohio St.3d 460, 2004-Ohio-3923, 812

N.E.2d 963, ¶ 7, citing Roseman v. Firemen & Policemen's Death Benefit Fund, 66 Ohio

St.3d 443, 447, 613 N.E.2d 574 (1993).

{¶ 56} The Supreme Court in Mole reasoned:

Under a federal rational-basis analysis, the appropriate standard of

review is whether the difference in treatment between [the affected class

and those outside the class] rationally furthers a legitimate state interest. In

15.

general, the Equal Protection Clause is satisfied so long as there is a

plausible policy reason for the classification, see United States Railroad

Retirement Bd. v. Fritz, 449 U.S. 166, 174, 179, 101 S.Ct. 453, 459, 461, 66

L.Ed.2d 368 (1980), the legislative facts on which the classification is

apparently based rationally may have been considered to be true by the

governmental decisionmaker, see Minnesota v. Clover Leaf Creamery Co.,

449 U.S. 456, 464, 101 S.Ct. 715, 724, 66 L.Ed.2d 659 (1981), and the

relationship of the classification to its goal is not so attenuated as to render

the distinction arbitrary or irrational, see Cleburne v. Cleburne Living

Center, Inc., 473 U.S. [432] at 446, 105 S.Ct. [3249] at 3257 [87 L.Ed.2d

313]. Nordlinger v. Hahn, 505 U.S. 1, 11, 112 S.Ct. 2326, 120 L.Ed.2d 1

(1992).

Similarly, under the Ohio Constitution,

“The rational-basis test involves a two-step analysis. We must first

identify a valid state interest. Second, we must determine whether the

method or means by which the state has chosen to advance that interest is

rational.” McCrone v. Bank One Corp., 107 Ohio St.3d 272, 2005-Ohio-

6505, 839 N.E.2d 1, ¶ 9, citing Buchman v. Wayne Trace Local School

Dist. Bd. of Edn. (1995), 73 Ohio St.3d 260, 267, 652 N.E.2d 952.

16.

“Under the rational-basis standard, a state has no obligation to produce

evidence to sustain the rationality of a statutory classification.” Columbia

Gas Transm. Corp. v. Levin, 117 Ohio St.3d 122, 2008-Ohio-511, 882

N.E.2d 400, ¶ 91, citing Am. Assn. of Univ. Professors, Cent. State Univ.

Chapter, 87 Ohio St.3d at 58, 60, 717 N.E.2d 286. “[S]tatutes are presumed

to be constitutional and * * * courts have a duty to liberally construe

statutes in order to save them from constitutional infirmities.” **379

Eppley [v. Tri–Valley Local School Dist. Bd. of Edn.], 122 Ohio St.3d 56,

2009-Ohio-1970, 908 N.E.2d 401, ¶ 12, citing Desenco, Inc. v. Akron

(1999), 84 Ohio St.3d 535, 538, 706 N.E.2d 323. The party challenging the

constitutionality of a statute “bears the burden to negate every conceivable

basis that might support the legislation.” Columbia Gas Transm. Corp. at ¶

91, citing Lyons v. Limbach (1988), 40 Ohio St.3d 92, 94, 532 N.E.2d 106.

*224 Pickaway Cty. Skilled Gaming, L.L.C. v. Cordray, 127 Ohio St.3d

104, 2010-Ohio-4908, 936 N.E.2d 944, ¶ 19–20. Id. at ¶ 27.

{¶ 57} In this case, appellant believes that her less than maximum sentence was

too harsh and that she is effectively placed in a class of appellants that have no

meaningful appellate review under R.C. 2953.08(G)(2).

17.

{¶ 58} Nevertheless, the legislature has established an appellate review process

that requires a finding by clear and convincing evidence that the sentence violates the

relevant sections of R.C. 2953.08(G)(2) or the sentence is otherwise contrary to law.

{¶ 59} Although appellant would have preferred that the state legislature establish

a substantially less deferential standard of review, she has not established that the

standard of review fails the rational-basis test by an irrational relationship to a legitimate

governmental interest. Therefore, appellant’s due process and equal protection

challenges are also found not well-taken and are denied.

The Sentencing Judgment Entry

{¶ 60} In additional support of this appeal, appellant argues that an error in the

sentencing judgement entry requires reversal and resentencing before a new judge.

Specifically, the January 13, 2021 sentencing entry states the following:

The Court further finds that this offense is an offense of violence

pursuant to R.C. 2901.01(A)(9)(a)-(d).

R.C. 2901.01 specifically defines an offense of violence as:

(9) “Offense of violence” means any of the following:

(a) A violation of section 2903.01, 2903.02, 2903.03, 2903.04,

2903.11, 2903.12, 2903.13, 2903.15, 2903.21, 2903.211, 2903.22, 2905.01,

2905.02, 2905.11, 2905.32, 2907.02, 2907.03, 2907.05, 2909.02, 2909.03,

2909.24, 2911.01, 2911.02, 2911.11, 2917.01, 2917.02, 2917.03, 2917.31,

18.

2919.25, 2921.03, 2921.04, 2921.34, or 2923.161, of division (A)(1) of

section 2903.34, of division (A)(1), (2), or (3) of section 2911.12, or of

division (B)(1), (2), (3), or (4) of section 2919.22 of the Revised Code or

felonious sexual penetration in violation of former section 2907.12 of the

Revised Code;

(b) A violation of an existing or former municipal ordinance or law

of this or any other state or the United States, substantially equivalent to

any section, division, or offense listed in division (A)(9)(a) of this section;

former municipal ordinance or law of this or any other state or the United

States, committed purposely or knowingly, and involving physical harm to

persons or a risk of serious physical harm to persons;

(d) A conspiracy or attempt to commit, or complicity in committing,

any offense under division (A)(9)(a), (b), or (c) of this section.

{¶ 61} In fact, on September 30, 2020, the defendant entered a plea of No Contest

and was found guilty by the Court of Aggravated Vehicular Homicide, Count One of the

indictment, a violation of R.C. 2903.06(A)(1)(a) and (B).

{¶ 62} The state acknowledges this error that this is not one of the offenses

enumerated in 2901.01(A)(9)(a)-(d), nor is it substantially equivalent to such offenses

required by R.C. 2901.01(A)(9)(b).

19.

{¶ 63} We concur with the suggestion of the state that this error can be corrected

by remanding the case to the trial court with an order to issue a nunc pro tunc judgment

entry to correct the error. See State v. Simmons, 6th Dist. Lucas No. L-20-1150, 2021-

Ohio-4038.

Conclusion

{¶ 64} On consideration whereof, we find that appellant has failed to establish that

the felony sentence in this case was clearly and convincingly in violation of R.C.

2953.08, or was otherwise contrary to law.

{¶ 65} Wherefore, we find appellant’s sole assignment of error not well-taken.

However, we will remand this case back to the trial court to effectuate a nunc pro tunc

entry, deleting the finding that the offense for which appellant was convicted is an

offense of violence pursuant to R.C. 2901.01(A)(9)(a)-(d).

{¶ 66} On consideration whereof, the judgment of the Lucas County Court of

Common Pleas is hereby affirmed but remanded to effectuate an appropriate nunc pro

tunc entry as directed. Appellant is ordered to pay the costs of this appeal pursuant to

App.R. 24.

Judgment affirmed

and remanded.

20.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.