2005 Ohio 477 | Ohio Ct. App. | 2005
Lead Opinion
{¶ 2} Appellee begins by pointing out an inadvertent clerical error in our Opinion. We appear to have reduced Appellant Chad Barnette's prison term from ten years to two years for the aggravated robbery of William Sovak. Opinion at ¶ 109. Appellee asserts that a two-year prison term is less than the minimum allowable prison term that could have been imposed. Appellee notes that aggravated robbery is a first degree felony. R.C. §
{¶ 3} It was our intent to impose on Appellant the minimum concurrent prison sentence for the aggravated robbery charge; three years. The sentence to which Appellee refers mistakenly states that we reduced the prison term to two years. Obviously, Appellee was not prejudiced by this error, because the sentence will be served concurrently with the remaining prison terms. Thus, whether Appellant receives a two- or three-year prison term neither increases nor decreases the aggregate 74-year prison sentence. See, e.g., State v. Avery (1998),
{¶ 4} More troubling to this Court, the remainder of Appellee's motion amounts to a diatribe against this Court. While at the same time acknowledging that the trial court's sentencing errors discussed in our Opinion did, in fact, occur, and agreeing that this Court has the authority to modify a felony prison sentence pursuant to R.C. §
{¶ 5} Appellee also questions whether two aspects of our Opinion were consistent with each other. First, we are directed to that portion of the Opinion in which we concluded that the trial court made the appropriate findings in support of imposing maximum sentences, but was not required to separately list its supporting reasons for each individual count on which Appellant was convicted. Id. at ¶ 88. Next, Appellee examines our conclusion that the trial court could not impose the maximum sentence on one count of aggravated robbery because the court specifically failed to include that charge in its discussion relevant to finding that Appellant's actions constituted the worst form of the offense. Appellee asserts that these two holdings contradict each other, and that our first holding is the correct one. Appellee concludes that the trial court simply left the aggravated robbery charge out of the list by mistake, and that we should not have required the trial court to specifically mention each count when discussing behaviors constituting the worst form of the offense.
{¶ 6} Appellee's interpretation of our Opinion is incorrect. Our holding was not meant to alter the requirement, pursuant to R.C. §
{¶ 7} Finally, Appellee finds it "incomprehensible" that we would modify Appellant's sentence ourselves rather than remand the case to the trial court. Appellee cites many examples in which various courts of appeals, including this Court, have remanded cases for resentencing after uncovering errors in maximum and consecutive prison sentences. If Appellee had been so inclined, it could also have found many examples in which an appellate court, including this Court, found a sentencing error and modified the sentence accordingly, rather than remanding the case for resentencing. See, e.g., State v. Singh,
{¶ 8} In conclusion, we overrule Appellee's motion for reconsideration, except for the following nunc pro tunc clerical correction. We hereby correct ¶ 109 of our Opinion so that it now reads, in pertinent part: "we reduce Appellant's prison sentence on the charge of aggravated robbery (count three in the indictment) to three years in prison, to run concurrently with the sentences on the remaining counts." This correction is effective, nunc pro tunc, as of the date of the original Opinion, December 28, 2004.
{¶ 9} Copy to all counsel of record.
Waite, J., concurs.
Donofrio, P.J., concurs.
DeGenaro, J., concurs; see concurring opinion.
Concurrence Opinion
Although I disagree with the majority's merit decision in this case and believe the case should be remanded for a variety of reasons, I agree that Appellee's motion for reconsideration should be denied. The original majority's reference to a two year sentence for aggravated robbery was clearly a clerical error which can be fixed by a nunc pro tunc entry. Appellee's other arguments do not merit reconsideration; they merely express a disagreement with the original majority's decision.
Accordingly, although I agree with Appellee and would have remanded this case rather than modifying Barnette's sentence, Appellee's motion for reconsideration must be denied.