State v. Arnold

938 N.E.2d 45, 189 Ohio App. 3d 238
CourtOhio Court of Appeals
DecidedJuly 24, 2009
DocketNo. 22856
StatusPublished
Cited by12 cases

This text of 938 N.E.2d 45 (State v. Arnold) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Arnold, 938 N.E.2d 45, 189 Ohio App. 3d 238 (Ohio Ct. App. 2009).

Opinion

Fain, Judge.

{¶ 1} Defendant-appellant Terry Arnold appeals from sentences imposed by the trial court during a resentencing hearing held pursuant to R.C. 2929.191. Arnold contends that the trial court failed to provide him with proper notice of the resentencing. Arnold also contends that the trial court erred in resentencing him, because he has already served one of two consecutive ten-year sentences. In addition, Arnold points out an inconsistency in the termination entries that were filed, which state that the sentence in each of two pending cases is to be served consecutively to the sentence in the other case.

{¶ 2} We conclude that the trial court provided appropriate notice of the hearing. We further conclude that the trial court retained jurisdiction to sentence Arnold under R.C. 2929.191. Arnold was sentenced in two cases, and one sentence had expired prior to the resentencing hearing, due to completion of Arnold’s term of imprisonment. However, the trial court retained jurisdiction to resentence Arnold in the other case, because Arnold’s term of imprisonment had not yet expired. This cause must be remanded, however, because the termination entries fail to state which of the consecutive sentences is to be served first, which could have significance with respect to the single term of five years of postrelease control that has been imposed. We express no opinion on whether the trial court must hold a new sentencing hearing or may file nunc pro tunc entries correcting the original termination entries. We have no idea of the trial court’s intent, because the transcripts of the original sentencing hearings are not in our record.

{¶ 3} Accordingly, the judgment of the trial court is reversed, and this cause is remanded to the trial court for further proceedings.

I

{¶ 4} In May 1998, Arnold was indicted on 11 counts, including six counts of aggravated robbery (three with firearm specifications), four counts of kidnapping, and one count of felonious assault, in connection with an incident that occurred on May 1, 1998. The case was designated as Montgomery County Common Pleas Court case No. 98-CR-1491.

{¶ 5} Arnold subsequently pleaded guilty to six counts of aggravated robbery, and a termination entry was filed in December 1998. The entry stated that [241]*241Arnold was to serve ten years in prison on each count, with the terms to be served concurrently with each other and consecutively to a sentence imposed in Montgomery County Common Pleas Court case No. 98-CR-4759. The termination entry also said, “Following the defendant’s release from prison, the defendant will/may serve a period of post-release control under the supervision of the parole board.”

{¶ 6} A bill of information had been filed previously in December 1998, in case No. 98-CR-4759. The bill charged Arnold with having committed two counts of aggravated robbery, with a handgun, in November 1997. The bill did not include firearm specifications.

{¶ 7} Arnold waived prosecution by indictment and consented to proceed by information. He also pleaded guilty to these charges in December 1998 and was sentenced to ten years on each count. The termination entry provided that the terms on each count would be served concurrently and consecutively to the sentence imposed in ease No. 98-CR-1491. The termination entry also contained the same provision about postrelease control, indicating that Arnold “will/may” serve postrelease control.

{¶ 8} In June 2008, the trial court filed an entry and order, commanding the Montgomery County Sheriff to bring Arnold from the Warren Correctional Institution to the trial court for resentencing. A hearing date was set for July 10, 2008.

{¶ 9} The transcript of the hearing indicates that Arnold appeared with counsel and did not object to the proceeding, other than on double-jeopardy grounds. At the beginning of the hearing, Arnold pointed out that he had already served the ten-year sentence on one case. The prosecutor noted that there had been some confusion in the termination entries as to which ten-year sentence was to be served consecutively. As a result, the state had requested resentencing on both case numbers. The following colloquy then took place:

{¶ 10} “THE COURT: So do you understand that, Mr. Arnold, that you’ve done, in terms of the time being served, it’s unclear as to which case you’re finishing up on so they’re just going to re-sentence as to both. Again, it is out [sic] effecting [sic] your out date. That is the point that I think is the greatest importance to people.

{¶ 11} “MR. ARNOLD: Okay. I have one question.

{¶ 12} “THE COURT: Absolutely.

{¶ 13} “MR. ARNOLD: Will this double up whatever I have to do afterwards. Like instead of three years have six years?

[242]*242{¶ 14} “PROSECUTOR: It appears he would have a mandatory five years, your Honor.

{¶ 15} “MR. HODGE: That’s the way I understand it, Judge. I also think the sentencing statutes for this indefinite sentencing date. They stack them like this, it becomes a single sentence. They carry both case numbers which you got a five year PRC. That’s what I understand.

{¶ 16} “PROSECUTOR: And the State agrees with that, your Honor.

{¶ 17} “THE COURT: “Yeah, that would be my understanding as well. So your PRC would not be getting stacked, okay?

{¶ 18} “MR. HODGE: All right.

{¶ 19} “THE COURT: It’s just going to be that single five year mandatory PRC. Any other questions, Mr. Arnold?

{¶ 20} “MR. ARNOLD: None that I can think of.”

{¶ 21} Following the above discussion, the trial court resentenced Arnold to the same sentence in both cases and to five years of postrelease control. The court also explained the consequences of violating postrelease control provisions or committing additional violations of the law.

{¶ 22} In July 2008, the trial court filed nunc pro tunc termination entries in each case, reflecting the addition of five years of postrelease control. The court did not change the original wording of the termination entries, which state that the sentence in each case is to be served concurrently with the other sentences in the same case, but consecutively to the sentence in the other pending case.

{¶ 23} Arnold appeals from the termination entries filed in each case.

II

{¶ 24} Arnold’s sole assignment of error is as follows:

{¶ 25} “The trial court’s addition of post-release control to appellant’s original sentence constituted successive punishment in violation of the Fifth and Fourteenth Amendments of the United States Constitution and Article I, Section 10 of the Ohio Constitution.”

{¶ 26} Under this assignment of error, Arnold first contends that the trial court erred in failing to provide him notice as specified by R.C. 2929.191(C).

{¶ 27} R.C. 2929.191(A) allows a trial court to correct judgments of conviction when the court originally failed to notify an offender of postrelease supervision requirements or failed to include a statement to that effect in the judgment of conviction. Under R.C. 2929.191(C), the court must hold a hearing before issuing the correction and must give notice to the offender, the prosecution, and the [243]*243Department of Rehabilitation and Correction. The offender is also entitled to appear at the hearing, either in person or by video-conferencing. Regarding notice, R.C.

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Cite This Page — Counsel Stack

Bluebook (online)
938 N.E.2d 45, 189 Ohio App. 3d 238, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-arnold-ohioctapp-2009.