[Cite as State v. Hamby, 2011-Ohio-4542.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24328
vs. : T.C. CASE NO. 08CR4887
MICHAEL L. HAMBY : (Criminal Appeal from Common Pleas Court) Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 9th day of September, 2011.
Mathias J. Heck, Jr., Pros. Attorney; Kirsten A. Brandt, Asst. Pros. Attorney, Atty. Reg. No. 0070162, P.O. Box 972, Dayton, OH 45422 Attorney for Plaintiff-Appellee
Robert Alan Brenner, Atty. Reg. No. 0020084, P.O. Box 341021, Beavercreek, OH 45434-1021 Attorney for Defendant-Appellant
VUKOVICH, J. (BY ASSIGNMENT):
{¶ 1} Defendant-appellant Michael Hamby appeals from the
sentencing decision of the Montgomery County Common Pleas Court.
He presents four contentions on appeal: the entry states the wrong
manner of conviction; the sentence was too harsh and thus 2
constituted an abuse of discretion; the court prematurely
disapproved transitional control; and the entry did not explain
that the post-release control terms will run concurrently. For
the following reasons, this case is remanded for a revised
sentencing entry to state that appellant was convicted after a jury
trial rather than that he pled guilty, to omit the disapproval of
a future request for transitional control, and to explain that
post-release control terms will be served concurrently.
STATEMENT OF THE CASE
{¶ 2} A jury convicted appellant of two counts of felonious
assault with a deadly weapon (one for each victim), one count of
felonious assault for causing serious physical harm, and one count
of kidnapping. He was then sentenced to eight years in prison.
In the original appeal, appellant’s convictions were affirmed, but
his sentence was reversed and remanded because the merger doctrine
is not satisfied by the imposition of concurrent sentences, and
because the court should not have only merged the one deadly weapon
felonious assault with the serious harm felonious assault but also
should have merged the felonious assault of this same victim with
the kidnapping because the kidnapping was merely incidental to the
assault. State v. Hamby, Montgomery App. No. 23618, 2010-Ohio-404,
¶52-53, 58.
{¶ 3} On remand, the trial court entered convictions and
sentences on felonious assault with a deadly weapon for one victim 3
and kidnapping for the other victim. In a September 20, 2010
entry, appellant was then sentenced to three years for felonious
assault and five years for kidnapping for a total of eight years
in prison. On November 17, 2010, appellant filed an untimely
notice of appeal and a request to file a delayed appeal, which this
court permitted.
ASSIGNMENT OF ERROR NUMBER ONE
{¶ 4} Appellant’s first assignment of error provides:
{¶ 5} “THE TRIAL COURT FAILED TO COMPLY WITH OHIO CRIMINAL RULE
32(C).”
{¶ 6} The court’s sentencing entry states that appellant had
entered a guilty plea to the four counts. This is incorrect as
the manner of conviction was by way of a jury verdict in this case.
{¶ 7} Pursuant to Crim.R. 32(C), a “judgment of conviction shall
set forth the plea, the verdict, or findings upon which each
conviction is based, and the sentence.” A judgment of conviction
is not considered to be a final appealable order if it fails to
set forth the manner of conviction, which is either: a guilty
plea, a no contest plea upon which the court has made a finding
of guilt, a finding of guilt based upon a bench trial, or a guilty
verdict resulting from a jury trial. State v. Baker, 119 Ohio St.3d
197, 2008-Ohio-3330, ¶10, 18. See, also, State ex rel. DeWine v.
Burge, 128 Ohio St.3d 236, 2011-Ohio-235, ¶13 (where the sentencing 4
entry recited only that a defendant had been found guilty of the
various offenses but did not disclose that she had been found guilty
by a jury, the order was not final).
{¶ 8} Appellant states that where an entry provides the wrong
manner of conviction, the entry is similarly not final and asks
that his appeal be dismissed. The state responds that as long as
some manner of conviction is provided, the order is final because
providing the wrong manner of conviction is merely an error. The
state also urges that the remedy is a nunc pro tunc entry, not
dismissal or reversal. See id. at ¶17-19 (court issues revised
sentencing entry rather than vacating a conviction or holding a
new hearing).
{¶ 9} The entry here sets forth a manner of conviction (a guilty
plea), just as it sets forth a sentence. If it failed to set forth
a manner of conviction, the entry would not be final, just as it
would not be final if it failed to set forth a sentence. The manner
of conviction is incorrect, but as the state argues, this is an
error. It is not an omission of an element of a final order. Along
the same vein, if a sentence was incorrect (for instance if it was
higher than permitted for the type of felony), then the sentencing
entry is still final, but subject to the defendant’s appeal of the
error.
{¶ 10} Appellant has appealed this error, and he is entitled to
have the error corrected to show that he was convicted by way of 5
a jury verdict. As such, this matter is remanded for a corrected
sentencing entry reflecting that appellant was convicted by a jury
rather than a plea of guilty.
ASSIGNMENT OF ERROR NUMBER TWO
{¶ 11} Appellant’s second assignment of error alleges:
{¶ 12} “THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING THE
DEFENDANT.”
{¶ 13} Appellant argues that his consecutive sentences of five
years for kidnapping and three years for felonious assault are too
harsh and thus constitute an abuse of discretion. See State v.
Gratz, Mahoning App. No. 08MA101, 2009-Ohio-695, ¶8, applying
plurality in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912
(felony sentences are reviewed using both the clearly and
convincingly contrary to law and abuse of discretion standards of
review). He minimizes the victims’ injuries and makes credibility
arguments regarding who was the aggressor. Appellant notes that
his criminal record was not recent and that his longest prior
sentence was one year.
{¶ 14} However, a jury already found him guilty of the offenses
and disbelieved his claim of self-defense. Thus, the court did
not abuse its discretion in proceeding under the assumption that
his nephew did not break into appellant’s house and that appellant
was the aggressor. As for the details of the incident, appellant 6
was living in what had been his mother’s house before she entered
a nursing home. Days after their mother died, appellant’s sister
came over with her two sons (aged sixteen and twenty-seven) to
retrieve photographs and shoes for the funeral. Appellant
initially would not respond; he then set a photograph on the back
steps. The sister spoke to him through an open window asking him
to provide her with photo albums. At that point, appellant pushed
the air conditioner through the window.
{¶ 15} Appellant then pulled his oldest nephew into the house
and hit him around the head and arms with a metal pipe. Appellant
threatened to kill his nephew as the nephew lay on the floor
bleeding.
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[Cite as State v. Hamby, 2011-Ohio-4542.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24328
vs. : T.C. CASE NO. 08CR4887
MICHAEL L. HAMBY : (Criminal Appeal from Common Pleas Court) Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 9th day of September, 2011.
Mathias J. Heck, Jr., Pros. Attorney; Kirsten A. Brandt, Asst. Pros. Attorney, Atty. Reg. No. 0070162, P.O. Box 972, Dayton, OH 45422 Attorney for Plaintiff-Appellee
Robert Alan Brenner, Atty. Reg. No. 0020084, P.O. Box 341021, Beavercreek, OH 45434-1021 Attorney for Defendant-Appellant
VUKOVICH, J. (BY ASSIGNMENT):
{¶ 1} Defendant-appellant Michael Hamby appeals from the
sentencing decision of the Montgomery County Common Pleas Court.
He presents four contentions on appeal: the entry states the wrong
manner of conviction; the sentence was too harsh and thus 2
constituted an abuse of discretion; the court prematurely
disapproved transitional control; and the entry did not explain
that the post-release control terms will run concurrently. For
the following reasons, this case is remanded for a revised
sentencing entry to state that appellant was convicted after a jury
trial rather than that he pled guilty, to omit the disapproval of
a future request for transitional control, and to explain that
post-release control terms will be served concurrently.
STATEMENT OF THE CASE
{¶ 2} A jury convicted appellant of two counts of felonious
assault with a deadly weapon (one for each victim), one count of
felonious assault for causing serious physical harm, and one count
of kidnapping. He was then sentenced to eight years in prison.
In the original appeal, appellant’s convictions were affirmed, but
his sentence was reversed and remanded because the merger doctrine
is not satisfied by the imposition of concurrent sentences, and
because the court should not have only merged the one deadly weapon
felonious assault with the serious harm felonious assault but also
should have merged the felonious assault of this same victim with
the kidnapping because the kidnapping was merely incidental to the
assault. State v. Hamby, Montgomery App. No. 23618, 2010-Ohio-404,
¶52-53, 58.
{¶ 3} On remand, the trial court entered convictions and
sentences on felonious assault with a deadly weapon for one victim 3
and kidnapping for the other victim. In a September 20, 2010
entry, appellant was then sentenced to three years for felonious
assault and five years for kidnapping for a total of eight years
in prison. On November 17, 2010, appellant filed an untimely
notice of appeal and a request to file a delayed appeal, which this
court permitted.
ASSIGNMENT OF ERROR NUMBER ONE
{¶ 4} Appellant’s first assignment of error provides:
{¶ 5} “THE TRIAL COURT FAILED TO COMPLY WITH OHIO CRIMINAL RULE
32(C).”
{¶ 6} The court’s sentencing entry states that appellant had
entered a guilty plea to the four counts. This is incorrect as
the manner of conviction was by way of a jury verdict in this case.
{¶ 7} Pursuant to Crim.R. 32(C), a “judgment of conviction shall
set forth the plea, the verdict, or findings upon which each
conviction is based, and the sentence.” A judgment of conviction
is not considered to be a final appealable order if it fails to
set forth the manner of conviction, which is either: a guilty
plea, a no contest plea upon which the court has made a finding
of guilt, a finding of guilt based upon a bench trial, or a guilty
verdict resulting from a jury trial. State v. Baker, 119 Ohio St.3d
197, 2008-Ohio-3330, ¶10, 18. See, also, State ex rel. DeWine v.
Burge, 128 Ohio St.3d 236, 2011-Ohio-235, ¶13 (where the sentencing 4
entry recited only that a defendant had been found guilty of the
various offenses but did not disclose that she had been found guilty
by a jury, the order was not final).
{¶ 8} Appellant states that where an entry provides the wrong
manner of conviction, the entry is similarly not final and asks
that his appeal be dismissed. The state responds that as long as
some manner of conviction is provided, the order is final because
providing the wrong manner of conviction is merely an error. The
state also urges that the remedy is a nunc pro tunc entry, not
dismissal or reversal. See id. at ¶17-19 (court issues revised
sentencing entry rather than vacating a conviction or holding a
new hearing).
{¶ 9} The entry here sets forth a manner of conviction (a guilty
plea), just as it sets forth a sentence. If it failed to set forth
a manner of conviction, the entry would not be final, just as it
would not be final if it failed to set forth a sentence. The manner
of conviction is incorrect, but as the state argues, this is an
error. It is not an omission of an element of a final order. Along
the same vein, if a sentence was incorrect (for instance if it was
higher than permitted for the type of felony), then the sentencing
entry is still final, but subject to the defendant’s appeal of the
error.
{¶ 10} Appellant has appealed this error, and he is entitled to
have the error corrected to show that he was convicted by way of 5
a jury verdict. As such, this matter is remanded for a corrected
sentencing entry reflecting that appellant was convicted by a jury
rather than a plea of guilty.
ASSIGNMENT OF ERROR NUMBER TWO
{¶ 11} Appellant’s second assignment of error alleges:
{¶ 12} “THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING THE
DEFENDANT.”
{¶ 13} Appellant argues that his consecutive sentences of five
years for kidnapping and three years for felonious assault are too
harsh and thus constitute an abuse of discretion. See State v.
Gratz, Mahoning App. No. 08MA101, 2009-Ohio-695, ¶8, applying
plurality in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912
(felony sentences are reviewed using both the clearly and
convincingly contrary to law and abuse of discretion standards of
review). He minimizes the victims’ injuries and makes credibility
arguments regarding who was the aggressor. Appellant notes that
his criminal record was not recent and that his longest prior
sentence was one year.
{¶ 14} However, a jury already found him guilty of the offenses
and disbelieved his claim of self-defense. Thus, the court did
not abuse its discretion in proceeding under the assumption that
his nephew did not break into appellant’s house and that appellant
was the aggressor. As for the details of the incident, appellant 6
was living in what had been his mother’s house before she entered
a nursing home. Days after their mother died, appellant’s sister
came over with her two sons (aged sixteen and twenty-seven) to
retrieve photographs and shoes for the funeral. Appellant
initially would not respond; he then set a photograph on the back
steps. The sister spoke to him through an open window asking him
to provide her with photo albums. At that point, appellant pushed
the air conditioner through the window.
{¶ 15} Appellant then pulled his oldest nephew into the house
and hit him around the head and arms with a metal pipe. Appellant
threatened to kill his nephew as the nephew lay on the floor
bleeding. When appellant’s sister tried to protect her son,
appellant hit her with the metal pipe on her cheek, behind her ear,
and on her arm. At that point, the sixteen-year-old threw a log
at the window, allowing his brother to escape.
{¶ 16} The victims were transported to the hospital by
ambulance. The injured nephew testified that appellant hit him
“as hard as somebody could hit somebody.” He had gashes on his
arms and back and lumps on the back and side of his head. He
experienced headaches at least every other day for a few months.
He still has a scar on his arm. Appellant’s sister testified that
her head and face were visibly injured and sore after the incident.
{¶ 17} Regarding a criminal record, appellant was convicted of
misdemeanor assaults in 1981 and 1990. He was convicted of felony 7
theft in 1983 and felony fleeing and eluding in 1993. He has other
failure to comply and fleeing and eluding convictions as well. As
for arrests, he had a 1997 felonious assault charge dismissed and
was acquitted of rape in 1993. He was diagnosed with alcohol and
cannabis dependence in 2009.
{¶ 18} As the state points out, appellant does not accept
responsibility for his actions and portrays himself as the victim.
The state acknowledges that his record does not contain recent
violent offenses, but urges that this behavior now shows that he
has not resolved his past problems with violence. It is also noted
that the victims were family members, who were attempting to
retrieve items for a funeral.
{¶ 19} The five and three year sentences were at the low end of
the statutory range for the offenses: three to ten years for
kidnapping (which the state chose over the merged offense for
felonious assault of the nephew) and two to eight years for
felonious assault (of appellant’s sister). See R.C.
2929.14(A)(1),(2). The court had a broad range of information
before it when it sentenced appellant, including appellant’s own
trial testimony, which may have been very revealing of his
personality and control problems. It is not unreasonable,
arbitrary, or unconscionable to disbelieve appellant’s
self-defense claim and believe the victims’ claims that appellant
pulled his nephew into his house and beat him senseless with a metal 8
pipe then turned that pipe on his sister when she tried to assist
her son. There is no indication that the eight-year sentence for
two victims is an abuse of discretion. See State v. Foster, 109
Ohio St.3d 1, ¶100, 102 (full discretion to sentence within range).
As such, this assignment of error is overruled.
ASSIGNMENT OF ERROR NUMBER THREE
{¶ 20} Appellant’s third assignment of error states:
{¶ 21} “THE TRIAL COURT ERRED BY DISAPPROVING THE TRANSFER OF
THE DEFENDANT TO TRANSITIONAL CONTROL IN THE SENTENCING ENTRY.”
{¶ 22} In its sentencing entry, the court announced that it
“disapproves the transfer of the defendant to transitional control
under Section 2967.26 of the Revised Code.” Pursuant to this
section, the prison can establish a transitional control program
and the adult parole authority may transfer eligible prisoners to
transitional control status during the final one hundred eighty
days of their confinement. R.C. 2967.26(A). Before such
transfer, the parole authority must provide the court with an
opportunity to disapprove the transfer and must send the court a
report on the prisoner's conduct in the institution covering the
prisoner's participation in school, vocational training, work,
treatment, and other rehabilitative activities and any
disciplinary action taken against the prisoner. R.C.
2967.25(A)(2). 9
{¶ 23} This appellate district has ruled that a sentencing court
cannot disapprove transitional control in a sentencing entry.
State v. Howard, 190 Ohio App.3d 735, 2010-Ohio-5283, ¶2, 40, 44.
The trial court’s decision in such case is premature and unaided
by a report of the prisoner’s conduct. Id. Thus, this argument
has merit. Id. As another district has explained:
{¶ 24} “While the statute does not specifically prohibit the
court from denying the transitional control prior to notice, we
find to do so clearly thwarts the design and purpose of the statute.
The statute is designed to promote prisoner rehabilitation effort
and good behavior while incarcerated. To prematurely deny the
possibility of transitional control runs contra to those purposes.
While the trial court retains discretion to disapprove the
transitional control, we find to do so in the sentencing entry prior
to notice from the adult parole authority is premature.” State
v. Spears, Licking App. No. 10CA95, 2011-Ohio-1538, ¶37.
{¶ 25} At this point, the state claims waiver because appellant
failed to object when the court advised at the sentencing hearing
that it disapproves the transfer to transitional control. The
state cites a case holding that a defendant must object to errors
at sentencing or he waives all but plain error. See State v. Young,
Montgomery App. No. 23438, 2010-Ohio-5157, ¶13. To reverse based
on plain error, a reviewing court must determine that a plain or
obvious error occurred that affected the outcome. State v. Barnes 10
(2002), 94 Ohio St.3d 21, 27. See, also, Crim.R. 52(B).
{¶ 26} Even if an objection was required to an oral announcement
at sentencing, the error here is plain on the face of the sentencing
entry. Under the law of the district, the entry is improper. This
assignment of error is sustained, and the trial court is hereby
instructed to remove the premature denial of transitional control
from the sentencing entry.
ASSIGNMENT OF ERROR NUMBER FOUR
{¶ 27} Appellant’s fourth assignment of error contends:
{¶ 28} “THE TRIAL COURT ERRED BY SENTENCING THE DEFENDANT TO
MORE THAN ONE TERM OF POST-RELEASE CONTROL.”
{¶ 29} The sentencing entry states the following with regards
to post-release control:
{¶ 30} “The Court notifies the defendant that, as a part of this
sentence, on Count 2: FELONIOUS ASSAULT (deadly weapon) -
2093.11(A)(2) F2 the defendant will be supervised by the Parole
Board for a period of Three years Post-Release Control after the
defendant’s release from imprisonment.”
{¶ 31} “The Court notifies the defendant that, as a part of this
sentence, on Count 4: KIDNAPPING (terrorize/physical harm) -
2905.01(A)(3) F1 the defendant will be supervised by the Parole
Board for a period of five years Post-Release Control after the
defendant’s release from imprisonment.” 11
{¶ 32} Appellant contends that this language makes it sound as
though he is subject to eight years of post-release control. He
urges that the court should have stated that the terms of
post-release control would run concurrently. He cites R.C.
2967.28(F)(4)(c), which provides:
{¶ 33} “If an offender is subject to more than one period of
post-release control, the period of post-release control for all
of the sentences shall be the period of post-release control that
expires last, as determined by the parole board or court. Periods
of post-release control shall be served concurrently and shall not
be imposed consecutively to each other.”
{¶ 34} We note that this provision is prefaced by this
statement:
{¶ 35} “(4) Any period of post-release control shall commence
upon an offender's actual release from prison. If an offender is
serving an indefinite prison term or a life sentence in addition
to a stated prison term, the offender shall serve the period of
post-release control in the following manner: * * * ”
{¶ 36} This case does not involve a life sentence or an
indefinite sentence. However, the Supreme Court has applied
(F)(4)(c) in a case that did not involve these types of sentences.
Durain v. Sheldon, 122 Ohio St.3d 582, 2009–Ohio–4082, ¶1 (citing
only part (c) in a case with definite, non-life sentences). See, 12
also, State v. Meredith, Summit App. No. 25198, 2011-Ohio-1517,
¶18.
{¶ 37} In any event, the state does not dispute that the terms
of post-release control run concurrently. See State v. Sulek,
Greene App. No. 09CA75, 2010-Ohio-3919, ¶23 (“Only one term of
post-release control is actually served, even though a defendant
was sentenced to multiple prison terms”); Meredith, Summit App.
No. 25198 at ¶18; State v. Maag, Hancock App. No. 5-08-35,
2009-Ohio-90, ¶18 (court cannot impose multiple terms for multiple
felonies). As the state points out, however, the statute does not
require notice of the concurrent nature of the terms; it merely
states how they will run.
{¶ 38} Moreover, the trial court did not purport to run the terms
consecutively. See Meredith, Summit App. No. 25198 at ¶18. Since
the terms are legally to be served concurrently and since we are
remanding for a revised entry on other assignments of error, we
order the trial court to add to the entry that the post-release
control terms are concurrent and that the longest term will apply.
See State v. Sulek, Greene App. No. 09CA75, 2010-Ohio-3919, ¶23
(court can merely state longest term to encompass all felonies).
CONCLUSION
{¶ 39} For the foregoing reasons, the sentencing entry is
remanded for the issuance of a revised entry. The trial court
shall amend the manner of the conviction from a guilty plea to a 13
jury verdict. The trial court shall remove its statement that it
disapproves transitional control. Finally, the trial court shall
state that the post-release control terms will run concurrently.
FAIN, J. And DONOVAN, J., concur.
(Hon. Joseph J. Vukovich, Seventh District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.)
Copies mailed to:
Kirsten A. Brandt, Esq. Robert Alan Brenner, Esq. Hon. Mary Lynn Wiseman