State v. Barton

2011 Ohio 4971

• Court: Ohio Court of Appeals
• Decided: September 21, 2011
• Docket: 10-113
• Status: Published

Opinion

[Cite as State v. Barton, 2011-Ohio-4971.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. Sheila G. Farmer, P.J. Plaintiff-Appellee : Hon. John W. Wise, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 10-CA-113 JEREMIAH BARTON : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas Case No. 2002-CR-571

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: September 21, 2011

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

JAMES J. MAYER, JR 0021148 MELISSA PRENDERGAST 0075482 Richland County Prosecutor Assistant State Public Defender 38 S. Park St. 250 E. Broad St., Ste. 1400 Mansfield, Ohio 44902 Columbus, Ohio 43215

BENJAMIN ELDER 0069358 Assistant Prosecuting Attorney (Counsel of Record) [Cite as State v. Barton, 2011-Ohio-4971.]

Delaney, J.

{¶1} Defendant-Appellant Jeremiah Barton appeals from the amended

sentencing entry of the Richland County Court of Common Pleas, correcting an

omission pursuant to State v. Baker (2008), 119 Ohio St.3d 197, 893 N.E.2d 163. The

State of Ohio is Plaintiff-Appellee.

STATEMENT OF THE CASE1

{¶2} On September 20, 2002, Appellant was indicted by the Richland County

Grand Jury for one count of endangering children, a felony of the second degree, in

violation of R.C. 2919.22(B)(1) (count one). He was also charged with one count of

felonious assault, a felony of the second degree, in violation of R.C. 2903.11(A)(1)

(count two).

{¶3} The court ordered a presentence investigation and a forensic examination

to determine Appellant’s amenability to treatment. On November 15, 2002, Appellant

pled guilty to the charges. On February 28, 2003, the trial court sentenced Appellant to

five years in prison on the felonious assault to be served consecutively to a four year

sentence on the child endangering. The trial court, however, reserved the four year

sentence for future evaluation. Appellant was delivered to the Ohio Department of

Rehabilitation and Corrections (“ODRC”) on March 5, 2003, to begin serving his five

year sentence on the felonious assault. That sentence was set to expire on March 5,

2008. Appellant did not file a direct appeal of the trial court’s February 28, 2003

sentencing entry.

1 A Statement of Facts is not necessary for determining this appeal. Richland County, Case No. 10-CA-113 3

{¶4} On July 26, 2007, the trial court ordered Appellant to be conveyed from

prison to the Richland County Jail. The court scheduled Appellant for pre-trial hearing

on July 30, 2007. On October 3, 2007, the court then ordered another forensic exam.

On October 30, 2007, the court held a sentencing hearing. By entry dated November 8,

2007, the trial sentenced Appellant to the four years on count one, consecutive to the

five years previously imposed on count two. Appellant likewise did not file an appeal of

the trial court’s November 8, 2007 sentencing entry.

{¶5} Appellant was then sent back to ODRC on November 9, 2007. The court

granted Defendant 103 days credit for jail time served between July 30 and November

9, 2007. Appellant was never released from custody and was still serving his original

five year portion of his sentence on count two when the sentence on count one was

imposed.

{¶6} On August 3, 2010, Appellant filed a Motion for Final Appealable Order,

pursuant to State v. Baker (2008), 119 Ohio St.3d 197, 893 N.E.2d 163. On August 27,

2010, the trial court filed an Amended Sentencing Entry. The trial court’s amended

sentencing entry stated that on October 30, 2007, Appellant was convicted by admitting

guilt and was sentenced to a four year term on count one and to a five year term on

count two, and that the sentences were to be served consecutively.

{¶7} Appellant raises two Assignments of Error:

{¶8} “I. THE TRIAL COURT ACTED WITHOUT AUTHORITY WHEN IT

SENTENCED MR. BARTON TO PRISON IN 2007. FIFTH AND FOURTEENTH

AMENDMENTS, UNITED STATES CONSTITUTION SECTION 10, ARTICLE I, OHIO

CONSTITUTION. Richland County, Case No. 10-CA-113 4

{¶9} “II. TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF

COUNSEL, IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES

CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.”

I & II

{¶1} At this time, Appellant appears to raise two claims related to the

sentencing entry of November 8, 2007. First, Appellant argues the trial court lacked

jurisdiction to impose a sentence on count one because Appellant had already been

released from serving his sentence on count two. Second, Appellant argues his trial

counsel was ineffective for failing to object to the court exercising it authority to impose

a sentence on count one.

{¶2} At the outset, this appeal arises from the trial court’s amended sentencing

entry to include the language that he was convicted by admitting guilt and now appeals

this entry; however, he does not limit his arguments to the entry with respect to his

manner of conviction. We do not find this to be the intent of the Supreme Court in

Baker.

{¶3} The purpose of trial court’s October 27, 2010 amended sentencing entry

was to comply with Crim.R. 32 to identify the “means of conviction”. This Court has

previously rejected review of assignments of error which attempt to raise additional

issues that are not related to narrow function of including the manner of conviction.

State v. Harris, 5th Dist. No. 10-CA-49, 2011-Ohio-1626.

{¶4} Accordingly, Appellant’s assignments of error are overruled. Richland County, Case No. 10-CA-113 5

{¶5} For the foregoing reasons, the judgment of the Richland County Court of

Common Pleas is affirmed.

By: Delaney, J. and

Wise, J. concur; and

Farmer, P.J., dissents

HON. PATRICIA A. DELANEY

HON. SHEILA G. FARMER

HON. JOHN W. WISE Richland County, Case No. 10-CA-113 6

{¶6} I respectfully dissent based upon the reasoning in my dissent in State v.

Harris, Richland App. No. 10-CA-49, 2011-Ohio-1626.

________________________________ HON. SHEILA G. FARMER [Cite as State v. Barton, 2011-Ohio-4971.]

IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : JEREMIAH BARTON : : Defendant-Appellant : Case No. 10-CA-113 :

For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Richland County Court of Common Pleas is affirmed. Costs assessed

to Appellant.

_________________________________ HON. PATRICIA A. DELANEY

_________________________________ HON. SHEILA G. FARMER

_________________________________ HON. JOHN W. WISE