[Cite as State v. Lett, 2010-Ohio-3167.] STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 09 MA 131 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) MARK S. LETT ) ) DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Youngstown Municipal Court of Mahoning County, Ohio Case Nos. 07TRD4978; 07TRD8037
JUDGMENT: Reversed and Modified.
APPEARANCES:
For Plaintiff-Appellee: Atty. Joseph Macejko Youngstown City Prosecutor 26 S. Phelps Street Youngstown, Ohio 44503
For Defendant-Appellant: Atty. James E. Lanzo 4126 Youngstown-Poland Road Youngstown, Ohio 44503
JUDGES:
Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Joseph J. Vukovich
Dated: June 25, 2010
WAITE, J. -2-
{¶1} Appellant Mark S. Lett is appealing the denial of a motion to modify his
sentence in the Youngstown Municipal Court. The motion is being treated on appeal
as the denial of a petition for postconviction relief. Appellant was sentenced to 180
days in jail in Youngstown Municipal Court Case No. 07TRD4978. After a failed
appeal of that judgment, the trial court modified the sentence and ordered Appellant
to serve 100 days in jail concurrent with the 60-day jail sentence ordered in another
matter, Case No. 07TRD8037. Appellant served 12 days of the sentence when the
sentence was again stayed on appeal. The stay was later lifted. When it became
time to serve the remainder of the sentence, the court held an execution of sentence
hearing and ordered Appellant to serve 180 days in jail. Appellant filed this appeal
challenging the extra 80 days of jail time. The record contains no explanation as to
why the 100-day sentence was subsequently increased to 180 days. Because
Appellant’s sentence had been reduced to 100 days in jail, and Appellant had already
served part of the sentence when the court attempted to increase the sentence to
180 days, the decision of the trial court increasing the sentence to 180 days is hereby
reversed and the 100-day jail term is reinstituted.
{¶2} Appellee has not responded to this appeal. The record indicates that
on June 11, 2007, Appellant was cited for speeding, driving under suspension, and a
seat belt violation in Case No. 07TRD4978. On September 26, 2007, he entered into
a Crim.R. 11 plea agreement. He pleaded no contest to driving under suspension,
R.C. 4510.16, a first degree misdemeanor. The other two charges were dismissed.
Sentencing was scheduled for November 9, 2007. -3-
{¶3} On October 24, 2007, Appellant was cited for driving under suspension,
operating a motor vehicle without a license, and failure to signal in Case. No.
07TRD8037.
{¶4} On November 9, 2007, in Case No. 07TRD4978, the court sentenced
Appellant to 180 days in jail.
{¶5} On November 9, 2007, Appellant filed an appeal in Case No.
07TRD4978. The appeal was dismissed for failure to prosecute on April 18, 2008.
{¶6} On February 15, 2008, Appellant entered into a Crim.R. 11 plea
agreement in Case No. 07TRD8037. He pleaded no contest to operating a motor
vehicle without a license, R.C. 4510.12, a first degree misdemeanor, and the other
two charges were dismissed. Sentencing was scheduled for April 23, 2008, but
Appellant filed an appeal and sentencing was postponed. On December 9, 2008, the
appeal was dismissed for failure to prosecute.
{¶7} On February 26, 2009, the court held a sentencing hearing on both
cases. The court modified the sentence in Case No. 07TRD4978 to 100 days in jail,
and in Case No. 07TRD8037 the court imposed a 60-day jail sentence, to be served
concurrently. The court ordered Appellant to report to the jail on March 6, 2009.
{¶8} On March 4, 2009, Appellant filed another appeal, designated as
Appeal No. 09 MA 46. Appellant filed a stay of execution with the trial court, but the
stay was denied. Appellant began serving his 100-day jail term in Case No.
07TRD4978 on March 6, 2009. On March 18, 2009, we granted a stay of execution
of the jail sentence in Case No. 07TRD4978. Appellant had served 12 days of his jail
sentence. We vacated the stay on May 29, 2009. -4-
{¶9} On June 8, 2009, the trial court held an execution of sentence hearing
in Case No. 07TRD4978. The court ordered Appellant to serve 180 days in jail to be
executed concurrently with the sentence in Case No. 07TRD8037. Appellant did not
appeal this judgment entry.
{¶10} On July 14, 2009, Appellant filed a motion to modify his sentence. The
trial court denied the motion on August 5, 2009. Appellant filed this appeal on August
6, 2009.
{¶11} On September 8, 2009, this Court issued a judgment entry ordering the
parties to file jurisdictional memos. It was evident from the record that Appellant had
not filed a timely appeal of the June 8, 2009, execution of sentence judgment entry.
The question arose as to whether the order denying the motion to modify sentence
was a final appealable order.
{¶12} On September 23, 2009, we issued a judgment entry holding that
Appellant’s motion to modify sentence would be treated as a petition for
postconviction relief, and that the trial court’s judgment of August 5, 2009, was a final
appealable order. We also granted a stay of execution of the final 80 days of the
180-day sentence imposed in Case No. 07TRD4978.
{¶13} Appellant asserts one assignment of error on appeal. Appellee has not
filed a responsive brief.
ASSIGNMENT OF ERROR
{¶14} “THE TRIAL COURT ERRED BY DENYING APPELLANT’S MOTION
TO MODIFY SENTENCE, AS THE TRIAL COURT LACKED THE AUTHORITY TO -5-
INCREASE APPELLANT’S SENTENCE AFTER THE SENTENCE WAS
EXECUTED.”
{¶15} We previously determined that we would treat Appellant’s motion to
correct sentence as a petition for postconviction relief. “Courts may recast irregular
motions into whatever category necessary to identify and establish the criteria by
which the motion should be judged.” State v. Schlee, 117 Ohio St.3d 153, 2008-
Ohio-545, ¶12.
{¶16} Petitions for post-conviction relief are governed by R.C. 2953.21 and
R.C. 2953.23. Under R.C. 2953.21, relief from a judgment or sentence is available
for a person convicted of a criminal offense who shows that, “there was such a denial
or infringement of the person's rights as to render the judgment void or voidable
under the Ohio Constitution or the Constitution of the United States.” Postconviction
relief petitions are reviewed for abuse of discretion: “Absent a showing of an abuse
of discretion, a reviewing court will not overrule a trial court's findings on a petition for
postconviction relief that are supported by competent and credible evidence.” State
v. Davis (1999), 133 Ohio App.3d 511, 515, 728 N.E.2d 1111. An abuse of discretion
connotes more than an error of law or judgment; it implies that the court's attitude is
unreasonable, arbitrary, or unconscionable. State v. Adams (1980), 62 Ohio St.2d
151, 157, 404 N.E.2d 144.
{¶17} When execution of the sentence has not begun, the trial court
possesses authority to modify the sentence. State v. Evans, 161 Ohio App.3d 24,
2005-Ohio-2337, ¶15-17. Due primarily to the constitutional right prohibiting double
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[Cite as State v. Lett, 2010-Ohio-3167.] STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 09 MA 131 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) MARK S. LETT ) ) DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Youngstown Municipal Court of Mahoning County, Ohio Case Nos. 07TRD4978; 07TRD8037
JUDGMENT: Reversed and Modified.
APPEARANCES:
For Plaintiff-Appellee: Atty. Joseph Macejko Youngstown City Prosecutor 26 S. Phelps Street Youngstown, Ohio 44503
For Defendant-Appellant: Atty. James E. Lanzo 4126 Youngstown-Poland Road Youngstown, Ohio 44503
JUDGES:
Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Joseph J. Vukovich
Dated: June 25, 2010
WAITE, J. -2-
{¶1} Appellant Mark S. Lett is appealing the denial of a motion to modify his
sentence in the Youngstown Municipal Court. The motion is being treated on appeal
as the denial of a petition for postconviction relief. Appellant was sentenced to 180
days in jail in Youngstown Municipal Court Case No. 07TRD4978. After a failed
appeal of that judgment, the trial court modified the sentence and ordered Appellant
to serve 100 days in jail concurrent with the 60-day jail sentence ordered in another
matter, Case No. 07TRD8037. Appellant served 12 days of the sentence when the
sentence was again stayed on appeal. The stay was later lifted. When it became
time to serve the remainder of the sentence, the court held an execution of sentence
hearing and ordered Appellant to serve 180 days in jail. Appellant filed this appeal
challenging the extra 80 days of jail time. The record contains no explanation as to
why the 100-day sentence was subsequently increased to 180 days. Because
Appellant’s sentence had been reduced to 100 days in jail, and Appellant had already
served part of the sentence when the court attempted to increase the sentence to
180 days, the decision of the trial court increasing the sentence to 180 days is hereby
reversed and the 100-day jail term is reinstituted.
{¶2} Appellee has not responded to this appeal. The record indicates that
on June 11, 2007, Appellant was cited for speeding, driving under suspension, and a
seat belt violation in Case No. 07TRD4978. On September 26, 2007, he entered into
a Crim.R. 11 plea agreement. He pleaded no contest to driving under suspension,
R.C. 4510.16, a first degree misdemeanor. The other two charges were dismissed.
Sentencing was scheduled for November 9, 2007. -3-
{¶3} On October 24, 2007, Appellant was cited for driving under suspension,
operating a motor vehicle without a license, and failure to signal in Case. No.
07TRD8037.
{¶4} On November 9, 2007, in Case No. 07TRD4978, the court sentenced
Appellant to 180 days in jail.
{¶5} On November 9, 2007, Appellant filed an appeal in Case No.
07TRD4978. The appeal was dismissed for failure to prosecute on April 18, 2008.
{¶6} On February 15, 2008, Appellant entered into a Crim.R. 11 plea
agreement in Case No. 07TRD8037. He pleaded no contest to operating a motor
vehicle without a license, R.C. 4510.12, a first degree misdemeanor, and the other
two charges were dismissed. Sentencing was scheduled for April 23, 2008, but
Appellant filed an appeal and sentencing was postponed. On December 9, 2008, the
appeal was dismissed for failure to prosecute.
{¶7} On February 26, 2009, the court held a sentencing hearing on both
cases. The court modified the sentence in Case No. 07TRD4978 to 100 days in jail,
and in Case No. 07TRD8037 the court imposed a 60-day jail sentence, to be served
concurrently. The court ordered Appellant to report to the jail on March 6, 2009.
{¶8} On March 4, 2009, Appellant filed another appeal, designated as
Appeal No. 09 MA 46. Appellant filed a stay of execution with the trial court, but the
stay was denied. Appellant began serving his 100-day jail term in Case No.
07TRD4978 on March 6, 2009. On March 18, 2009, we granted a stay of execution
of the jail sentence in Case No. 07TRD4978. Appellant had served 12 days of his jail
sentence. We vacated the stay on May 29, 2009. -4-
{¶9} On June 8, 2009, the trial court held an execution of sentence hearing
in Case No. 07TRD4978. The court ordered Appellant to serve 180 days in jail to be
executed concurrently with the sentence in Case No. 07TRD8037. Appellant did not
appeal this judgment entry.
{¶10} On July 14, 2009, Appellant filed a motion to modify his sentence. The
trial court denied the motion on August 5, 2009. Appellant filed this appeal on August
6, 2009.
{¶11} On September 8, 2009, this Court issued a judgment entry ordering the
parties to file jurisdictional memos. It was evident from the record that Appellant had
not filed a timely appeal of the June 8, 2009, execution of sentence judgment entry.
The question arose as to whether the order denying the motion to modify sentence
was a final appealable order.
{¶12} On September 23, 2009, we issued a judgment entry holding that
Appellant’s motion to modify sentence would be treated as a petition for
postconviction relief, and that the trial court’s judgment of August 5, 2009, was a final
appealable order. We also granted a stay of execution of the final 80 days of the
180-day sentence imposed in Case No. 07TRD4978.
{¶13} Appellant asserts one assignment of error on appeal. Appellee has not
filed a responsive brief.
ASSIGNMENT OF ERROR
{¶14} “THE TRIAL COURT ERRED BY DENYING APPELLANT’S MOTION
TO MODIFY SENTENCE, AS THE TRIAL COURT LACKED THE AUTHORITY TO -5-
INCREASE APPELLANT’S SENTENCE AFTER THE SENTENCE WAS
EXECUTED.”
{¶15} We previously determined that we would treat Appellant’s motion to
correct sentence as a petition for postconviction relief. “Courts may recast irregular
motions into whatever category necessary to identify and establish the criteria by
which the motion should be judged.” State v. Schlee, 117 Ohio St.3d 153, 2008-
Ohio-545, ¶12.
{¶16} Petitions for post-conviction relief are governed by R.C. 2953.21 and
R.C. 2953.23. Under R.C. 2953.21, relief from a judgment or sentence is available
for a person convicted of a criminal offense who shows that, “there was such a denial
or infringement of the person's rights as to render the judgment void or voidable
under the Ohio Constitution or the Constitution of the United States.” Postconviction
relief petitions are reviewed for abuse of discretion: “Absent a showing of an abuse
of discretion, a reviewing court will not overrule a trial court's findings on a petition for
postconviction relief that are supported by competent and credible evidence.” State
v. Davis (1999), 133 Ohio App.3d 511, 515, 728 N.E.2d 1111. An abuse of discretion
connotes more than an error of law or judgment; it implies that the court's attitude is
unreasonable, arbitrary, or unconscionable. State v. Adams (1980), 62 Ohio St.2d
151, 157, 404 N.E.2d 144.
{¶17} When execution of the sentence has not begun, the trial court
possesses authority to modify the sentence. State v. Evans, 161 Ohio App.3d 24,
2005-Ohio-2337, ¶15-17. Due primarily to the constitutional right prohibiting double
jeopardy, the trial court loses jurisdiction to amend or modify the sentence once the -6-
sentence has begun to be executed. State v. Carr, 167 Ohio App.3d 223, 2006-
Ohio-3073, ¶3, citing State v. Garretson (2000), 140 Ohio App.3d 554, 748 N.E.2d
560; see also, State v. Addison (1987), 40 Ohio App.3d 7, 530 N.E.2d 1335; State v.
Ballard (1991), 77 Ohio App.3d 595, 602 N.E.2d 1234; see also, Ex parte Lange
(1873), 85 U.S. 163, 21 L.Ed. 872; United States v. Benz (1931), 282 U.S. 304, 51
S.Ct. 113, 75 L.Ed. 354.
{¶18} “Where the full sentence involves imprisonment, the execution of the
sentence is commenced when the defendant is delivered from the temporary
detention facility of the judicial branch to the penal institution of the executive
branch.” Columbus v. Messer (1982), 7 Ohio App.3d 266, 268, 7 OBR 347, 455
N.E.2d 519. If a trial court could retain jurisdiction to modify an otherwise valid
sentence, “the defendant would have no assurance about the punishment's finality.”
Brook Park v. Necak (1986), 30 Ohio App.3d 118, 120, 30 OBR 218, 506 N.E.2d
936.
{¶19} Appellee has not opposed the arguments in this appeal, and thus, there
are no questions raised about the propriety of raising this particular sentencing issue
by means of a petition for postconviction relief rather than on direct appeal of the
sentence. There are also no challenges to the procedural aspects of the filing of the
motion to modify sentence, or to our interpretation that the motion was in effect a
petition for postconviction relief. App.R. 18(C) states: “If an appellee fails to file the
appellee's brief within the time provided by this rule, or within the time as extended, *
* * the court may accept the appellant's statement of the facts and issues as correct -7-
and reverse the judgment if appellant's brief reasonably appears to sustain such
action.”
{¶20} The record reflects that the trial court imposed a 180-day jail term on
November 9, 2007, that the trial court modified the sentence to 100 days on February
6, 2009, and that Appellant subsequently served 12 days of the sentence. Then, on
June 8, 2009, the trial court apparently attempted to reimpose the original 180-day
jail sentence. Since Appellant’s sentence had already been executed because he
had served part of the jail sentence, the 100-day jail term became final and the court
had no authority to modify the sentence by adding 80 extra days. Appellant’s
argument reasonably sustains the conclusion that the trial court should have granted
his motion and should have reduced the 180-day jail sentence to 100 days.
Appellant’s assignment of error is sustained and the decision of the trial court to
increase the sentence from 100 days to 180 days is reversed. The sentence is
hereby modified to reflect that, in Youngstown Municipal Court Case No.
07TRD4978, the trial court imposed a jail term of 100 days in jail to be served
concurrently with the sentence imposed in Youngstown Municipal Court Case No.
Donofrio, J., concurs.
Vukovich, P.J., concurs.