2022 Ohio 2178
Ohio Ct. App.2022Background
- Trent McCullough was charged by two indictments: initial indictment for reckless homicide and misdemeanor marijuana cultivation; a later indictment added two involuntary manslaughter counts, two protection-order violations, and firearm specifications. The first indictment was dismissed after the second was filed.
- A jury convicted McCullough of reckless homicide (with a firearm specification), illegal cultivation of marijuana, most additional counts, and acquitted him on one involuntary manslaughter count. The trial court sentenced him to a total of 66 months.
- On direct appeal this court held McCullough’s speedy-trial rights were violated as to the additional charges in the second indictment (the two protection-order counts, the two involuntary manslaughter counts, and some firearm specifications) and vacated those convictions, remanding for resentencing limited to the remaining convictions.
- After a motion for reconsideration by the state, this court preserved the firearm specification attached to the original reckless-homicide charge. The trial court then issued an amended judgment entry removing the vacated convictions but leaving the original 66‑month sentence intact.
- McCullough moved (pro se) for resentencing or correction of the record so the vacated convictions would not block ODRC programs. He appealed the trial court’s amended entry, arguing the court should have held a resentencing hearing at which he could be present and be heard under Crim.R. 43.
- The trial court affirmed the amended entry; the court of appeals affirmed, holding no resentencing occurred and McCullough’s presence was not required. The court also applied the invited-error doctrine because McCullough had asked the court to correct the record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by failing to hold a resentencing hearing and by resentencing McCullough in absentia after this court vacated certain convictions on appeal | The State: no new sentence was imposed; the court simply corrected the journal to remove vacated convictions, so Crim.R. 43 did not require McCullough’s presence | McCullough: this court’s mandate changed the sentencing calculus and he was entitled to a resentencing hearing and to be present under Crim.R. 43 to address R.C. 2929.12 factors | Court affirmed: no resentencing occurred, only a journal correction removing vacated counts, so Crim.R. 43 presence requirement did not apply; invited‑error doctrine also bars relief since McCullough requested the record correction |
Key Cases Cited
- State v. Waffle, 163 Ohio App.3d 645 (5th Dist. 2005) (vacating a conviction on appeal may require only a correction of the journal, not a new sentencing hearing, when no new sentence is imposed)
- Lester v. Leuck, 142 Ohio St. 91 (1943) (articulating the invited‑error doctrine: a party may not complain of an error it induced)