State v. Rorie

2011 Ohio 2556

• Court: Ohio Court of Appeals
• Decided: May 23, 2011
• Docket: 2010CA00154
• Status: Published

Opinion

[Cite as State v. Rorie, 2011-Ohio-2556.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

: JUDGES: STATE OF OHIO : W. Scott Gwin, P.J. : Sheila G. Farmer, J. Plaintiff-Appellee : Julie A. Edwards, J. : -vs- : Case No. 2010CA00154 : : DESMOND RORIE : OPINION

Defendant-Appellant

CHARACTER OF PROCEEDING: Criminal Appeal from Stark County Court of Common Pleas Case No. 2002CR0407

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: May 23, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO STEPHEN P. HARDWICK Prosecuting Attorney Office of the Ohio Public Defender Stark County, Ohio 250 E. Broad Street – Ste. 1400 Columbus, Ohio 43215 BY: RONALD MARK CALDWELL Assistant Prosecuting Attorney Appellate Section 110 Central Plaza, South – Ste. 510 Canton, Ohio 44702-1413 [Cite as State v. Rorie, 2011-Ohio-2556.]

Edwards, J.

{¶1} Appellant, Desmond Alexander Rorie, appeals a judgment of the Stark

County Common Pleas Court resentencing him for one count of felonious assault (R.C.

2903.11(A)(1)). Appellee is the State of Ohio.

STATEMENT OF FACTS AND CASE

{¶2} In 2002, appellant was indicted by the Stark County Grand Jury with one

count of felonious assault. He was convicted after jury trial, and sentenced to eight

years incarceration. The judgment was affirmed by this Court. State v. Rorie, Stark

App. No. 2002-CA-00187, 2005-Ohio-1726. The Ohio Supreme Court reversed the

portion of this Court’s opinion regarding the imposition of the maximum sentence

pursuant to State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470, 2006-Ohio-856. The

case was remanded to the trial court for resentencing.

{¶3} On remand, the court again sentenced appellant to eight years

incarceration. One day later, the court held a hearing at which time the court imposed a

term of postrelease control of up to five years. Appellant filed an appeal from this

judgment.

{¶4} This Court reversed, finding that the correct period of postrelease control

was three years, not five years. State v. Rorie, Stark App. No. 2006-Ohio-00181, 2007-

Ohio-741. We vacated the postrelease control portion of the sentence and remanded

for further proceedings.

{¶5} On remand, the trial court issued a judgment on March 27, 2007, which

stated in pertinent part: Stark County App. Case No. 2010CA00154 3

{¶6} “The Court has further notified the defendant that post release control is

mandatory in this case and a maximum of three (3) years, as well as the consequences

for violating conditions of post release control imposed by the Parole Board under

Revised Code Section 2967.28. The defendant is ordered to serve as part of this

sentence any term of post release control imposed by the Parole Board, and any prison

term for violation of that post release control.” Appellant did not appeal this entry.

{¶7} For reasons not apparent on the record, the trial court conducted another

resentencing hearing on March 8, 2010, while appellant was still incarcerated, to

address postrelease control. On March 18, 2010, the court filed a resentencing entry,

which states in pertinent part:

{¶8} “On March 8, 2010, Defendant came before the Court for re-sentencing

pursuant to the decision of the Fifth District Court of Appeals for Stark County in St. v.

Rorie, Stark App. No. 2006-CA-00181. The Defendant having previously been found

guilty by jury to the crime of Felonious Assault, 1 Ct. [R.C.2903.11(A)(1)](F2) as

charged in the indictment . . . .

{¶9} “The Court has further notified the defendant that upon release from

prison, the Defendant is ordered to serve a mandatory period of three years of post

release control pursuant to R.C. 2967.28(B).”

{¶10} Appellant did not appeal the March 18, 2010, judgment entry.

{¶11} For reasons again not apparent on the record, the court filed a corrected

re-sentencing entry on May 12, 2010, after appellant was released from prison. This

entry provides in pertinent part: Stark County App. Case No. 2010CA00154 4

{¶12} “On March 8, 2010, Defendant came before the Court for re-sentencing

pursuant to the decision of the Fifth District Court of Appeals for Stark County in St. v.

Rorie, Stark App. No. 2006-CA-00181. The Defendant having previously been found

guilty by jury to the crime of Felonious Assault, 1 Ct. [R.C.2903.11(A)(1)](F2) as

charged in the Indictment and being duly convicted thereon…

{¶13} “The Court has further notified the defendant that upon release from

prison, the Defendant is ordered to serve a mandatory period of three years of post

release control pursuant to R.C. 2967.28(B).” (Emphasis added).

{¶14} Appellant filed a notice of appeal from the May 12, 2010 entry, assigning

the following errors:

{¶15} “I. THE TRIAL COURT ERRED BY ADDING POSTRELEASE CONTROL

TO MR. RORIE’S SENTENCE AFTER HIS SENTENCE HAD EXPIRED.

{¶16} “II. THE TRIAL COURT EXCEEDED THIS COURT’S MANDATE WHEN

IT IMPOSED A MAXIMUM OF THREE YEARS OF POSTRELEASE CONTROL

INSTEAD OF SIMPLY IMPOSING THREE YEARS.

{¶17} “III. THE TRIAL COURT VIOLATED MR. RORIE’S RIGHT TO BE FREE

FROM MULTIPLE PUNISHMENTS WHEN IT MERELY TACKED POSTRELEASE

CONTROL ONTO HIS PREVIOUS PRISON TERM.

{¶18} “IV. TO THE EXTENT THE TRIAL COUNSEL WAIVED ANY OF THESE

ISSUES PRESENTED IN THIS BRIEF, COUNSEL WAS INEFFECTIVE.”

{¶19} We first address the issue of whether the instant appeal is timely.

{¶20} The record does not indicate why the court issued a corrected re-

sentencing entry on May 12, 2010, but because the only addition to this entry from the Stark County App. Case No. 2010CA00154 5

March 18, 2010, entry is the phrase “and being duly convicted thereon” in the first

paragraph, it appears the trial court believed the addition of that phrase was necessary

to make the order final and appealable pursuant to Crim. R. 32(C).

{¶21} The Ohio Supreme Court has held that a judgment of conviction is a final,

appealable order when it sets forth (1) the guilty plea, the jury verdict, or the finding of

the court upon which the conviction is based, (2) the sentence, (3) the signature of the

judge, and (4) entry on the journal by the clerk of courts. State v. Baker, 119 Ohio St.3d

197, 893 N.E.2d 163, 2008-Ohio-3330, ¶18. Stark County App. Case No. 2010CA00154 6

{¶22} In the instant case, we find the addition of the words “and being duly

convicted thereon” was superfluous. The March 18, 2010, resentencing entry set forth

that appellant had been found guilty by a jury, the sentence, the judge’s signature and

entry on the journal by the clerk of courts. Because the March 18, 2010, order was a

final, appealable order of resentencing following appellant’s March 8, 2010, sentencing

hearing, and appellant did not file his notice of appeal until June 11, 2010, the instant

appeal is untimely pursuant to App. R. 4(A). The appeal is dismissed.

By: Edwards, J.

Gwin, P.J. and

Farmer, J. concur

______________________________

JUDGES

JAE/r0208 [Cite as State v. Rorie, 2011-Ohio-2556.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : DESMOND RORIE : : Defendant-Appellant : CASE NO. 2010CA00154

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

appeal of the Stark County Court of Common Pleas is dismissed. Costs assessed to

appellant.

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