State v. Broyles

2013 Ohio 1130

Opinion

[Cite as State v. Broyles, 2013-Ohio-1130.]

IN THE COURT OF APPEALS FIFTH APPELLATE DISTRICT RICHLAND COUNTY, OHIO

STATE OF OHIO : JUDGES: : Plaintiff-Appellee : : Hon., Sheila G. Farmer P.J. : Hon., William B. Hoffman J. -vs- : Hon., John W. Wise J. : WADE G. BROYLES : CASE NO. 12CA67 : Defendant-Appellant : : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2009CR138

JUDGMENT: Reversed

DATE OF JUDGMENT ENTRY: March 12, 2013

APPEARANCES:

For Appellant: For Appellee:

Dale M. Musilli - #38035 Jill M. Cochran - #79088 Attorney for Appellant Assistant Richland County Pros. 105 Sturges Avenue 38 South Park Street Mansfield, OH 44903 Mansfield, OH 44902 Richland County, Case No. 12CA67 1

Farmer, J.

{¶1} Defendant-appellant, Wade Broyles, appeals his sentence from the

Richland County Court of Common Pleas on one count of tampering with evidence.

STATEMENT OF THE FACTS AND CASE

{¶2} On May 5, 2009, appellant was convicted and sentenced on one count of

burglary and one count of tampering with evidence. At that time, the trial court imposed

a sentence of six years for the burglary conviction and one year for the tampering with

evidence conviction for a total term of incarceration of seven years. Appellant appealed

his conviction and sentence as to the burglary count only. This Court reversed the

appellant’s burglary conviction and remanded the cause to the trial court with

instructions “to enter a conviction on the lesser-included offense of burglary in violation

of R.C. 2911.12(A)(3) and to resentence appellant.” State v. Broyles, 5th Dist. No. 2009

CA 0072, 2010 WL 1694509 (Apr. 21, 2010).

{¶3} Upon remand, the trial court sentenced appellant to a term of three years

as to the burglary count and resentenced appellant to three years as to the tampering

with evidence count.

{¶4} Appellant now appeals, assigning as error:

“I. THE LOWER COURT COMMITTED PLAIN ERROR BY RE-SENTENCING

ON THE SECOND CHARGE (TAMPERING WITH EVIDENCE).”

I.

{¶5} The issue presented here is whether the trial court lacks jurisdiction to

resentence appellant on a count which was not appealed to this Court and was not Richland County, Case No. 12CA67 2

remanded to the trial court for the purpose of resentencing. We find the trial court

lacked jurisdiction to impose a new sentence upon appellant on the tampering with

evidence count. For this reason, we sustain appellant’s sole assignment of error.

{¶6} In its brief, appellee, the State of Ohio, concedes the trial court lacked

jurisdiction to resentence appellant on the tampering with evidence count.

{¶7} The Ohio Supreme Court addressed an issue analogous to the instant

case holding, “An appellate court may modify or vacate only a sentence that is appealed

by the defendant and may not modify or vacate the entire multiple-offense sentence

based upon an appealed error in the sentence for a single offense.” State v. Saxon,

109 Ohio St.3d 176, 183, 846 N.E.2d 824, 831 (Ohio, 2006). Similarly, the trial court

cannot vacate a sentence which was not reversed as part of the appeal.

{¶8} We must now consider whether it is necessary to remand this case for the

purpose of imposing the original sentence as to the tampering with evidence charge.

The Supreme Court has explained, “Correcting a defect in a sentence without a remand

is an option that has been used in Ohio and elsewhere for years in cases in which the

original sentencing court, as here, had no sentencing discretion.” State v. Fischer,128

Ohio St.3d 92, 942 N.E.2d 332 (2010).

{¶9} Because we have jurisdiction to do so, we vacate the three year sentence

imposed by the trial court on July 25, 2013 for tampering with evidence. We reinstate

and impose the one year sentence for tampering with evidence as entered by the trial

court on May 5, 2009. All other portions of the tampering with evidence sentence, Richland County, Case No. 12CA67 3

including the imposition of any post release control, imposed by the trial court remain

unchanged.

{¶10} The judgment of the Court of Common Pleas of Richland County, Ohio is

hereby reversed.

By: Farmer, P.J. Hoffman, J. and Wise, J. concur

s/Sheila G. Farmer______________ HON. SHEILA G. FARMER

s/ William B. Hoffman____________ HON. WILLIAM B. HOFFMAN

s/ John W. Wise_________________ HON. JOHN W. WISE IN THE COURT OF APPEALS FIFTH APPELLATE DISTRICT RICHLAND COUNTY, OHIO

STATE OF OHIO : : CASE NO. 12CA67 Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : WADE G. BROYLES : : : Defendant-Appellant : :

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

judgment of the Court of Common Pleas of Richland County, Ohio is reversed.

Costs to Appellee.

s/ John W. Wise_________________ HON. JOHN W. WISE