State v. Rose
2017 Ohio 4235
| Ohio Ct. App. | 2017Background
- Joseph W. Rose was indicted on multiple counts including aggravated robbery and several counts of receiving stolen property; one misdemeanor count was dismissed before trial.
- A jury convicted Rose of three counts of receiving stolen property and one count of robbery; he was sentenced to consecutive terms totaling 84 months.
- On direct appeal this court reversed the Count 1 conviction (receiving a stolen license plate) due to trial counsel's failure to object to inadmissible hearsay that violated the Confrontation Clause, affirmed the other convictions, and remanded for proceedings on Count 1.
- The trial court later entered an agreed amended judgment deleting Count 1 and recalculated the total sentence to 72 months (36 + 18 + 18) without holding a new sentencing hearing.
- The state subsequently formally nolled Count 1; Rose appealed the amended entry raising Crim.R. 32, proportionality/excessiveness, and maximum-sentence arguments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Crim.R. 32 required a new sentencing hearing on remand | State: remand addressed only Count 1; no resentencing required on affirmed counts | Rose: remand required the court to afford opportunity to speak and hold a Crim.R. 32 hearing before amending sentence | Court: No. Remand corrected trial error on Count 1; remaining sentences had been affirmed, so no resentencing required and Crim.R. 32 did not apply |
| Whether the amended entry was final/appealable absent formal disposition of Count 1 | State: amended judgment properly deleted Count 1 and reflected parties’ agreement | Rose: entry was not final because Count 1 remained on docket; appellate review appropriate | Court: Initially nonfinal; trial court later accepted state’s nolle prosequi on Count 1 and the dismissal made the amended entry proper and appealable |
| Whether sentence was excessive or excessive in length (R.C. 2929.11/2929.12) | State: sentencing on affirmed counts was lawful | Rose: total 72-month sentence is excessive and unnecessary to protect the public | Court: Claims barred by res judicata because sentencing issues should have been raised on direct appeal; not considered on remand |
| Whether imposition of maximum terms was improper | State: sentencing discretion within statutory bounds | Rose: factors favored a lesser sentence; maximums were unwarranted | Court: Waived by failure to raise at direct appeal; assignments of error overruled |
Key Cases Cited
- Saxon v. State, 109 Ohio St.3d 176 (Ohio 2006) (explaining the sentencing-package doctrine and its limited application in Ohio)
- Nolan v. Nolan, 11 Ohio St.3d 1 (Ohio 1984) (describing the law-of-the-case doctrine)
- Perry v. State, 10 Ohio St.2d 175 (Ohio 1967) (establishing res judicata for issues that could have been raised on direct appeal)
- Brook Park v. Necak, 30 Ohio App.3d 118 (Ohio App. 1986) (trial courts must follow mandates of reviewing courts)