State v. Dunning
2014 Ohio 253
Ohio Ct. App.2014Background
- Jeffrey Dunning was indicted on multiple counts, including third-degree illegal possession/assembly of chemicals for drug manufacture and fifth-degree aggravated possession of drugs.
- Dunning pleaded guilty to both named charges and was originally sentenced to an aggregate five-year prison term on April 26, 2013; the trial court waived fines, costs, and appointed counsel fees due to indigence.
- Dunning filed a timely appeal (Case No. CA2013-05-048). While that appeal was pending, the trial court held a resentencing hearing and reduced the prison term to three years but then ordered Dunning to pay court costs. A resentencing entry was filed June 10, 2013, and Dunning filed a second appeal (CA2013-06-058); the appeals were consolidated.
- Dunning challenged the imposition of court costs at resentencing and the legality of the original five-year sentence.
- The appellate court held the trial court lacked jurisdiction to resentence while the first appeal was pending, vacated the resentencing entry, reversed the original five-year sentence as exceeding the statutory maximum for a third-degree felony, and remanded for resentencing according to law. Convictions otherwise affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court could resentence Dunning while his appeal was pending | Court attempted to correct sentencing error and thus acted within its interest to fix sentence | Dunning argued the trial court lacked jurisdiction after appeal was filed | Trial court lacked jurisdiction to resentence during pending appeal; resentencing entry vacated |
| Whether court costs could be imposed at the improper resentencing | State sought to impose court costs at resentencing | Dunning argued costs had been waived at original sentencing and could not be imposed on resentencing conducted while appeal pending | Appellate court vacated the invalid resentencing but declined to decide whether costs may be imposed on proper resentencing; left issue open for trial court on remand |
| Whether original five-year aggregate sentence exceeded statutory maximum for third-degree felony | State maintained original aggregate sentence was proper under plea/sentencing | Dunning argued five-year term exceeded statutory maximum for third-degree felony | Appellate court found original five-year sentence unlawful (max for third-degree felony was three years) and reversed that part of the sentence; remanded for lawful resentencing |
| Scope of remedy on appeal | State implicitly argued affirmance of convictions and lawful parts of sentence | Dunning sought reversal/remand limited to correcting unlawful sentence and costs | Convictions affirmed; resentencing reversed in part and remanded solely to impose lawful sentence (and to address costs consistent with law) |
Key Cases Cited
- State ex rel. Sullivan v. Ramsey, 124 Ohio St.3d 355 (2010) (once appeal is filed, trial court is divested of jurisdiction over matters inconsistent with appellate review)
- Yee v. Erie Cty. Sheriff's Dept., 51 Ohio St.3d 43 (1990) (trial court loses jurisdiction over matters that conflict with appellate court's power to affirm, reverse, or modify)
- In re S.J., 106 Ohio St.3d 11 (2005) (only the appellate court may determine the validity or merit of an appeal)