[Cite as State v. Pierce, 2012-Ohio-4716.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 97728
STATE OF OHIO PLAINTIFF-APPELLANT
vs.
ROSUE PIERCE DEFENDANT-APPELLEE
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-505095
BEFORE: Kilbane, J., Celebrezze, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: October 11, 2012 ATTORNEYS FOR APPELLANT
Timothy J. McGinty Cuyahoga County Prosecutor Daniel T. Van Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy Young State of Ohio Public Defender Katherine A. Szudy Assistant State Public Defender 250 East Broad Street Suite 1400 Columbus, Ohio 43215 MARY EILEEN KILBANE, J.:
{¶1} In this appeal, the state of Ohio (“State”) contends that the trial court erred in
conducting a de novo sentencing for defendant Rosue Pierce and imposing community
control sanctions. The State maintains that the defendant is bound to the sentence
announced on February 11, 2009, and that he should be imprisoned for violating
community control sanctions. For the reasons set forth below, we conclude that the
sentence announced on February 11, 2009, was interlocutory. Therefore, we affirm the
trial court’s sentence imposed at the de novo sentencing hearing on November 17, 2011.
{¶2} On December 27, 2007, the defendant was indicted for felonious assault
with a firearm specification, improperly discharging a firearm at or into a habitation, and
having a weapon while under disability. He subsequently pled guilty to the lesser charge of
attempted felonious assault, without a firearm specification, and having a weapon while
under disability.
{¶3} On August 21, 2008, the trial court sentenced him to two years of
community control sanctions and ordered that he could be sentenced to a six-month term
of imprisonment for violations of community control.
{¶4} The State subsequently charged defendant with violating community control
sanctions. Following a hearing on November 12, 2008, the trial court found him in violation, but continued the community control sanctions with a warning to defendant that
if he violated again, he may be sentenced to ten years of incarceration.
{¶5} On November 20, 2008, a capias was issued for defendant and he was
charged with a second round of community control violations. At a hearing on February
11, 2009, defendant admitted to testing positive for marijuana and that he was a probation
violator. The court terminated the community control sanctions and sentenced defendant
to a total of seven years of imprisonment.
{¶6} Defendant appealed to this court on March 5, 2009. On July 20, 2010, the
matter was remanded for correction of the journal entry, in order to meet the requirements
set forth in State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163.
{¶7} On August 5, 2010, acting pursuant to this court’s limited Baker remand, the
trial court issued a corrected journal entry. On August 9, 2010, defendant filed a motion in
the trial court requesting a de novo sentencing hearing.
{¶8} On September 20, 2010, defendant moved to dismiss the March 5, 2009
appeal for lack of a final appealable order. Defendant argued that the original sentence
imposed on August 21, 2008, contained an improper “package” sentence of two years of
community control sanctions that did not separately set forth the individual sentences for
felonious assault and having a weapon while under disability. Id.
{¶9} This court dismissed defendant’s appeal on November 10, 2010, for lack of a
final appealable order. State v. Pierce, 8th Dist. No. 92922, 2010-Ohio-5467 (“Pierce I”).
Thereafter, on November 17, 2011, the trial court held a de novo sentencing hearing. The court noted that defendant had served 40 months of imprisonment on the offenses,
and that terminating his imprisonment would not demean the seriousness of the offenses or
present a danger to the public. The court ordered defendant to serve two years of
community control sanctions for attempted felonious assault, with an 18-month term in the
event of violations of community control, and two years of community control sanctions
for having a weapon under disability, with a three-year term in the event of violations.
The State now appeals, assigning the following error for our review:
The trial court’s modification of defendant’s sentence was contrary to law because the prison sentence was a final judgment.
{¶10} In this assignment of error, the State argues that the trial court erred in
conducting a de novo sentencing hearing.
{¶11} The State insists that the sentence announced on February 11, 2009, is a final
order, under which defendant must serve seven years of imprisonment. According to the
State, any defect in connection with the trial court’s journal entries was corrected in the
August 5, 2010 orders on remand. The State also notes that in State v. Dumas, 8th Dist.
No. 95760, 2011-Ohio-2926, this court distinguished Pierce I. The State additionally
notes that in State v. South, 120 Ohio St.3d 358, 2008-Ohio-6693, 899 N.E.2d 146, the
Ohio Supreme Court held that the lower court was not divested of jurisdiction from
considering an appeal where the journal entry set forth a “lump sum of three years of
community control” and a term of 84 months for violations thereof, on convictions for
seven offenses, once the court revoked that community control and imposed the 84-month
term. {¶12} We note that a criminal sentence is final upon issuance of a final order.
Rocky River v. Garnek, 8th Dist. No. 97540, 2012-Ohio-3079, ¶ 6. At that point, a party’s
options for legal recourse become significantly limited because the court has no authority
to reconsider and modify a final sentence. Id. at ¶ 7.
{¶13} In this matter, however, the November 10, 2010 decision set forth in Pierce I,
dismissed the case and concluded that there was no final appealable order. That decision
remains the law of the case and is not subject to further review. State v. Wilson, 129 Ohio
St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381. As such, the State may not challenge the
correctness of Pierce I in this appeal. Moreover, the August 5, 2010 entries were issued
in connection with our remand for compliance with Baker, 119 Ohio St.3d 197,
2008-Ohio-3330, 893 N.E.2d 163. and did not correct the finality issue later identified in
the November 10, 2010 Pierce I decision.
{¶14} Furthermore, a judgment that leaves issues unresolved and contemplates that
further action must be taken is not a final appealable order. State v. Phillips, 8th Dist. No.
90124, 2008-Ohio-5101, citing State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843
N.E.2d 164, ¶ 5. As noted in Pierce I, “the trial court failed to impose community control
sanctions on each count of defendant’s multi-count indictment.” Following the
determination that there was no final appealable order, it necessarily follows that the
sentencing entry containing the “packaged” sentence was “non-final in regard to all of the
charges[.]” State v. Goodwin, 9th Dist. No. 23337, 2007-Ohio-2343 (setting forth a
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[Cite as State v. Pierce, 2012-Ohio-4716.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 97728
STATE OF OHIO PLAINTIFF-APPELLANT
vs.
ROSUE PIERCE DEFENDANT-APPELLEE
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-505095
BEFORE: Kilbane, J., Celebrezze, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: October 11, 2012 ATTORNEYS FOR APPELLANT
Timothy J. McGinty Cuyahoga County Prosecutor Daniel T. Van Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy Young State of Ohio Public Defender Katherine A. Szudy Assistant State Public Defender 250 East Broad Street Suite 1400 Columbus, Ohio 43215 MARY EILEEN KILBANE, J.:
{¶1} In this appeal, the state of Ohio (“State”) contends that the trial court erred in
conducting a de novo sentencing for defendant Rosue Pierce and imposing community
control sanctions. The State maintains that the defendant is bound to the sentence
announced on February 11, 2009, and that he should be imprisoned for violating
community control sanctions. For the reasons set forth below, we conclude that the
sentence announced on February 11, 2009, was interlocutory. Therefore, we affirm the
trial court’s sentence imposed at the de novo sentencing hearing on November 17, 2011.
{¶2} On December 27, 2007, the defendant was indicted for felonious assault
with a firearm specification, improperly discharging a firearm at or into a habitation, and
having a weapon while under disability. He subsequently pled guilty to the lesser charge of
attempted felonious assault, without a firearm specification, and having a weapon while
under disability.
{¶3} On August 21, 2008, the trial court sentenced him to two years of
community control sanctions and ordered that he could be sentenced to a six-month term
of imprisonment for violations of community control.
{¶4} The State subsequently charged defendant with violating community control
sanctions. Following a hearing on November 12, 2008, the trial court found him in violation, but continued the community control sanctions with a warning to defendant that
if he violated again, he may be sentenced to ten years of incarceration.
{¶5} On November 20, 2008, a capias was issued for defendant and he was
charged with a second round of community control violations. At a hearing on February
11, 2009, defendant admitted to testing positive for marijuana and that he was a probation
violator. The court terminated the community control sanctions and sentenced defendant
to a total of seven years of imprisonment.
{¶6} Defendant appealed to this court on March 5, 2009. On July 20, 2010, the
matter was remanded for correction of the journal entry, in order to meet the requirements
set forth in State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163.
{¶7} On August 5, 2010, acting pursuant to this court’s limited Baker remand, the
trial court issued a corrected journal entry. On August 9, 2010, defendant filed a motion in
the trial court requesting a de novo sentencing hearing.
{¶8} On September 20, 2010, defendant moved to dismiss the March 5, 2009
appeal for lack of a final appealable order. Defendant argued that the original sentence
imposed on August 21, 2008, contained an improper “package” sentence of two years of
community control sanctions that did not separately set forth the individual sentences for
felonious assault and having a weapon while under disability. Id.
{¶9} This court dismissed defendant’s appeal on November 10, 2010, for lack of a
final appealable order. State v. Pierce, 8th Dist. No. 92922, 2010-Ohio-5467 (“Pierce I”).
Thereafter, on November 17, 2011, the trial court held a de novo sentencing hearing. The court noted that defendant had served 40 months of imprisonment on the offenses,
and that terminating his imprisonment would not demean the seriousness of the offenses or
present a danger to the public. The court ordered defendant to serve two years of
community control sanctions for attempted felonious assault, with an 18-month term in the
event of violations of community control, and two years of community control sanctions
for having a weapon under disability, with a three-year term in the event of violations.
The State now appeals, assigning the following error for our review:
The trial court’s modification of defendant’s sentence was contrary to law because the prison sentence was a final judgment.
{¶10} In this assignment of error, the State argues that the trial court erred in
conducting a de novo sentencing hearing.
{¶11} The State insists that the sentence announced on February 11, 2009, is a final
order, under which defendant must serve seven years of imprisonment. According to the
State, any defect in connection with the trial court’s journal entries was corrected in the
August 5, 2010 orders on remand. The State also notes that in State v. Dumas, 8th Dist.
No. 95760, 2011-Ohio-2926, this court distinguished Pierce I. The State additionally
notes that in State v. South, 120 Ohio St.3d 358, 2008-Ohio-6693, 899 N.E.2d 146, the
Ohio Supreme Court held that the lower court was not divested of jurisdiction from
considering an appeal where the journal entry set forth a “lump sum of three years of
community control” and a term of 84 months for violations thereof, on convictions for
seven offenses, once the court revoked that community control and imposed the 84-month
term. {¶12} We note that a criminal sentence is final upon issuance of a final order.
Rocky River v. Garnek, 8th Dist. No. 97540, 2012-Ohio-3079, ¶ 6. At that point, a party’s
options for legal recourse become significantly limited because the court has no authority
to reconsider and modify a final sentence. Id. at ¶ 7.
{¶13} In this matter, however, the November 10, 2010 decision set forth in Pierce I,
dismissed the case and concluded that there was no final appealable order. That decision
remains the law of the case and is not subject to further review. State v. Wilson, 129 Ohio
St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381. As such, the State may not challenge the
correctness of Pierce I in this appeal. Moreover, the August 5, 2010 entries were issued
in connection with our remand for compliance with Baker, 119 Ohio St.3d 197,
2008-Ohio-3330, 893 N.E.2d 163. and did not correct the finality issue later identified in
the November 10, 2010 Pierce I decision.
{¶14} Furthermore, a judgment that leaves issues unresolved and contemplates that
further action must be taken is not a final appealable order. State v. Phillips, 8th Dist. No.
90124, 2008-Ohio-5101, citing State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843
N.E.2d 164, ¶ 5. As noted in Pierce I, “the trial court failed to impose community control
sanctions on each count of defendant’s multi-count indictment.” Following the
determination that there was no final appealable order, it necessarily follows that the
sentencing entry containing the “packaged” sentence was “non-final in regard to all of the
charges[.]” State v. Goodwin, 9th Dist. No. 23337, 2007-Ohio-2343 (setting forth a
comprehensive analysis of finality issue); Phillips; State v. Allman, 2d Dist. No. 24693, 2012-Ohio-413, ¶ 9; State v. Hayes, 9th Dist. No. 99CA007416, 2000 Ohio App. LEXIS
2198 (May 24, 2000).
{¶15} In light of all of the foregoing, and in light of Pierce I, the sentence
announced on February 11, 2009, that “failed to impose community control sanctions on
each count of defendant’s multi-count indictment” and contained a “packaged sentence”
was not a final order. Therefore, it was proper for the November 17, 2011 de novo
sentence to be issued, and there was no improper reconsideration of a final sentence on
that date. State v. Ford, 9th Dist. No. 23269, 2006-Ohio-6961, ¶ 6.
{¶16} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and SEAN C. GALLAGHER, J., CONCUR