2016 Ohio 5910
Ohio Ct. App.2016Background
- In 2009 Harry R. Smith was convicted by jury of multiple drug offenses, including three third-degree felonies and one fifth-degree felony, and was sentenced to an aggregate 16 years imprisonment.
- On direct appeal this court affirmed most convictions but vacated the Aggravated Trafficking (Count Three); the Ohio Supreme Court declined review.
- The State moved to dismiss Count Three; the trial court granted dismissal and issued an entry vacating the sentence as to Count Three, later correcting a clerical aggregation error by nunc pro tunc entry.
- In 2016 Smith filed a motion to vacate his sentence(s) as void, arguing the vacatur of Count Three required resentencing in open court and entitles him to be resentenced under H.B. 86’s reduced felony-3 maximums.
- The trial court denied the motion; Smith appealed, claiming due process and Crim.R. 43(A) violations and that his remaining sentences were void.
- The appellate court affirmed, holding the vacatur of one count did not affect the validity of undisturbed convictions or sentences and no de novo resentencing was required.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Smith) | Held |
|---|---|---|---|
| Whether vacating one conviction on appeal voids or requires resentencing of remaining sentences | The State argued that vacating one count does not disturb final sentences on other counts; ministerial docket entries suffice | Smith argued the appellate vacatur “changed and modified” his aggregate sentence, so he must be resentenced in open court and is entitled to H.B. 86 reductions | Court held vacating Count Three did not affect validity of undisturbed convictions or sentences; no de novo resentencing required |
| Whether Crim.R. 43(A) required Smith’s personal presence for the trial court’s nunc pro tunc/ministerial correction | State: Crim.R. 43(A) and due process do not require presence for clerical, ministerial entries | Smith: Trial court should have brought him into open court to resentence per Crim.R. 43(A) | Court held the entries were ministerial/corrective and did not require defendant’s presence |
| Whether the trial court’s nunc pro tunc entry improperly increased Smith’s sentence or made it void | State: Nunc pro tunc corrected a clerical error to reflect the court’s actual sentence | Smith: The nunc pro tunc produced a sentence six months longer than law allowed and thus void | Court held the nunc pro tunc correctly reflected the original sentencing and did not void the sentence |
| Whether Smith is entitled to resentencing under H.B. 86 because his sentence was never lawfully imposed after remand | State: R.C. 1.58(B) and H.B. 86 do not apply because remaining sentences were final and already imposed | Smith: Because his sentence was (allegedly) void post-remand, he should get the benefit of reduced F3 maximums under H.B. 86 | Court held H.B. 86 does not apply because the remaining F3 sentences were final and unaffected by the vacatur of Count Three |
Key Cases Cited
- State v. Saxon, 846 N.E.2d 824 (Ohio 2006) (Ohio treats each offense’s sentence individually; sentence is sanction for each separate offense)
- State v. Wilson, 951 N.E.2d 381 (Ohio 2011) (discusses differences between Ohio and federal approaches to multiple-offense sentencing)
- State v. Carlisle, 961 N.E.2d 671 (Ohio 2011) (trial court lacks authority to modify a final sentence)