State of Ohio, Plaintiff-Appellee, v. Kendrick Bonner, Defendant-Appellant.
No. 14AP-611 (C.P.C. No. 92CR-5290)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
March 19, 2015
[Cite as State v. Bonner, 2015-Ohio-1010.]
HORTON, J.
(ACCELERATED CALENDAR)
Rendered on March 19, 2015
Ron O‘Brien, Prosecuting Attorney, and Laura R. Swisher, for appellee.
Andrea L. Reino, for appellant.
APPEAL from the Franklin County Court of Common Pleas
HORTON, J.
{¶ 1} Defendant-appellant, Kendrick Bonner, appeals from a judgment of the Franklin County Court of Common Pleas denying his motion for a final appealable order. Defendant presents the following sole assignment of error for our review:
The trial court erred to the prejudice of Defendant-Appellant by denying him a final appealable order in compliance with
Crim.R. 32(C) .
{¶ 2} For the reasons which follow, we dismiss the appeal for lack of a final appealable order.
{¶ 3} The state indicted defendant on October 15, 1992 for one count of aggravated murder with a firearm specification, one count of felonious assault with a firearm specification, and one count of having a weapon while under disability. The charges arose out of an incident which occurred when defendant went to an illegal gambling business owned by the deceased. The individuals present at the gambling business got into an argument, and defendant “pulled out a gun and shot the deceased three times and also shot another witness who worked for the deceased.” State v. Bonner, 10th Dist. No. 93APA07-951 (Apr. 12, 1994). Following a jury trial, defendant was convicted of all the charges and specifications charged in the indictment.
{¶ 4} On June 18, 1993, the trial court issued a judgment entry reflecting the jury‘s verdicts and imposing sentence. The court sentenced defendant to “not less than twenty (20) years to life on” the aggravated murder charge, “with an additional three (3) years actual incarceration for use of firearm; a sentence of not less than eight (8) years nor more than fifteen (15) years on” the felonious assault charge, “with an additional three (3) years actual incarceration for use of firearm; and a one and one-half (1-1/2) year Determinate sentence on” the having a weapon while under disability charge. (1993 Sentencing Entry, 2.) The court ordered that the sentences were “to run consecutive to each other.” (1993 Sentencing Entry, 2.)
{¶ 5} Defendant appealed his convictions to this court, assigning three errors. On April 12, 1994, we issued a decision affirming in part, reversing in part, and remanding the case to the trial court. See Bonner. In Bonner, this court sustained defendant‘s first assignment of error upon finding that the trial court had wrongly rejected defendant‘s jury trial waiver on the having a weapon while under disability charge. We also sustained defendant‘s second assignment of error, concluding that defendant could “be sentenced to only a single three-year term of incarceration” on the two firearm specifications. Id. Finally, we sustained defendant‘s third assignment of error, as the record evidence was insufficient to establish that defendant acted with prior calculation and design when he murdered the decedent. Accordingly, we held that the trial court‘s judgment was “affirmed upon the felonious assault conviction, but is
{¶ 6} On April 13, 1995, the trial court ordered that a warrant be issued to the Sheriff of Franklin County, directing the sheriff to take defendant into custody “for RE-SENTENCING,” and to hold him in the Franklin County Corrections Center “to await RE-SENTENCING.” (Entry Granting Application for Warrant.) The record indicates that the warrant to convey defendant was returned as having been served on May 2, 1995. On May 3, 1995, the court issued a modified judgment entry of conviction, which was signed by the trial judge and entered on the journal by the clerk. The modified judgment entry indicates that, in accordance with Bonner, the 1993 judgment entry of conviction was modified as follows:
- Due to insufficient evidence on the element of prior calculation and design, the conviction and sentence on count one of the indictment is hereby modified to reflect a conviction of the lesser offense of murder in violation of
R.C. 2903.02 , and a sentence of fifteen (15) years to life is imposed. - The conviction and sentence of eight (8) to fifteen (15) years imposed on count two of the indictment, are affirmed. However, the conviction and sentence on the firearm specification are vacated and held for naught pursuant to the judgment of the Court of Appeals.
- The conviction and sentence on count three of the indictment for having a weapon while under disability in violation of
R.C. 2923.13 are hereby vacated and the charge is dismissed at the request of the state.
(Modified Judgment Entry, 1-2.)
{¶ 7} On June 5, 2014, defendant filed a motion for final appealable order pursuant to
{¶ 8} On June 17, 2014, the state filed a memorandum contra defendant‘s motion for a final appealable order. The state noted that pursuant to State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, the manner of conviction was not an essential element of the final judgment of conviction. The state concluded that the modified judgment entry was a final appealable order.
{¶ 9} On July 10, 2014, the trial court denied defendant‘s motion for a final appealable order. The court concluded that the modified judgment entry “was a final appealable order,” and further held that defendant‘s “delay in raising any issue as to the modified order bar[red] the Defendant‘s Motion.” (Entry Denying Motion for a Final Appealable Order.) Defendant filed a timely notice of appeal from the trial court‘s order.
II. MODIFIED JUDGMENT ENTRY, CRIM.R. 32(C), AND LACK OF A FINAL APPEALABLE ORDER
{¶ 10} Defendant asserts that the modified judgment entry is not a final appealable order, as it does not set forth the manner of conviction or his sentence. Defendant contends that he “has been denied the opportunity to see the Parole Board at the proper time, because he lacks a final appealable order setting forth the sentence on each count.” (Appellant‘s brief, 6.) Defendant also notes that the modified judgment entry is silent on whether the “counts are to be served consecutively or concurrently.” (Appellant‘s brief, 2.) See Hamilton v. Adkins, 10 Ohio App.3d 217 (12th Dist.1983), syllabus; State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 16. Although we agree that the modified judgment entry is not a final appealable order, because defendant has
{¶ 11} Ohio appellate courts have jurisdiction to review only final appealable orders of lower courts within their districts.
{¶ 12}
A judgment of conviction shall set forth the fact of conviction and the sentence. Multiple judgments of conviction may be addressed in one judgment entry. If the defendant is found not guilty or for any other reason is entitled to be discharged, the court shall render judgment accordingly. The judge shall sign the judgment and the clerk shall enter it on the journal. A judgment is effective only when entered on the journal by the clerk.
{¶ 13} In Baker, the Supreme Court of Ohio held that a judgment of conviction is a final appealable order when it sets forth: (1) the guilty plea, the jury verdict, or the finding of the court upon which the conviction is based; (2) the sentence; (3) the signature of the judge; and (4) entry on the journal by the clerk of court. Id. at syllabus. At the time of Baker, and at the time the court issued the modified judgment entry,
{¶ 14} In State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, the court modified Baker, holding that “[a] judgment of conviction is a final order subject to appeal under
{¶ 15} The modified judgment entry states that “the judgment entry of conviction entered herein on June 21, [sic] 1993,” was modified pursuant to Bonner. (Modified Judgment Entry, 1.) This statement is sufficient to satisfy the first
{¶ 16} As noted above, defendant was indicted on one count of aggravated murder with a firearm specification, one count of felonious assault with a firearm specification, and one count of having a weapon while under disability. Defendant was
{¶ 17} Following Bonner, defendant was brought before the trial court for resentencing, and the lower court issued the modified judgment entry of conviction. The modified judgment entry reflects that the conviction on Count one of the indictment was reduced from aggravated murder to murder, and reflects that the sentence on that count was reduced from 20 years to life to 15 years to life. The entry then indicates that the sentence on the felonious assault conviction remained 8 to 15 years, but specified that the sentence on the firearm specification attached to the felonious assault charge was “vacated and held for naught.” (Modified Judgment Entry, 1.) The court also vacated the conviction and sentence on the having a weapon while under disability charge. Thus, the modified judgment entry failed to include the three-year mandatory sentence for the firearm specification attached to the murder charge. As such, the modified judgment entry does not set forth all of defendant‘s sentences, and thus does not comply with
{¶ 18} Defendant notes that, in order for ODRC to understand defendant‘s full sentence, it would have to “read the original sentence and then read the Modified Judgment Entry,” which is “improper because a judgment of conviction must be a single document.” (Appellant‘s brief, 6.) Indeed, in Baker, the court held “that the judgment of conviction is a single document.” Id. at ¶ 1. Thus, multiple documents may not constitute a final appealable order, as “[o]nly one document can constitute a final appealable order.” Id. at ¶ 17. See also State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, ¶ 39, quoting Baker at ¶ 17 (noting that, “[a]s a general matter, ‘[o]nly one document can constitute a final appealable order,’ meaning that a single entry must satisfy the requirements of
{¶ 19} The state contends that, although an “original judgment of conviction must certainly comply with Baker, Lester, and
{¶ 20} In two separate trials in 1978, Newell was found guilty of multiple counts of rape, kidnapping, aggravated robbery, and felonious assault. Newell appealed his convictions, and the court of appeals concluded that the kidnapping and rape convictions were allied offenses of similar import, as “there existed no separate animus to sustain the kidnapping convictions.” State v. Newell, 8th Dist. No. 40334 (Feb. 14, 1980). As such, the court held that “all counts of kidnapping of which defendant was convicted and the sentences relating to these counts * * * are hereby reversed. The remaining convictions and the accompanying sentences shall remain undisturbed. Accordingly, the judgment is so modified.” Id.
{¶ 21} Following the 1980 Newell decision, Newell filed a litany of actions in state and federal courts throughout the region. Newell commenced a mandamus action on April 10, 1995, seeking to compel the trial court judge to follow the appellate court‘s mandate and correct his sentence. See State ex rel. Newell v. Gaul, 8th Dist. No. 98326,
{¶ 22} Thereafter, on March 19, 2012, Newell filed a motion requesting the trial court to issue a final appealable order pursuant to
{¶ 23} In State ex rel. Newell, the Supreme Court of Ohio affirmed the court of appeals’ judgment denying Newell‘s May 7, 2012 request for a writ of mandamus. The court noted that, “in State v. Newell, 8th Dist. Nos. 40334 and 40335, * * * the court of appeals reversed several of Newell‘s convictions and sentences but left Newell‘s remaining convictions and sentences undisturbed.” Id. at ¶ 1. The court observed that, “[a]lthough the court of appeals directed the common pleas court to execute its judgment, * * * it did not remand the cause to the common pleas court for resentencing.” Id., citing
{¶ 24} The case before us does not present the peculiar procedural posture present in Newell. Here, the trial court issued the modified judgment entry shortly after, and in response to, this court‘s decision in Bonner. In State ex rel. Newell, the trial court issued the modified sentencing entry 15 years after the court of appeals issued its decision, and issued the modified entry in response to Newell‘s request for a writ of mandamus. Unlike the instant action, the 1996 judgment entry in State ex rel. Newell also properly contained all of Newell‘s sentences; it omitted only the fact and means of conviction. Furthermore, the Supreme Court‘s conclusion that
{¶ 25} We find that State ex rel. Newell stands on its own facts, and is not applicable in the instant action. As defendant was resentenced herein, the modified judgment entry must comply with
{¶ 26} Thus, pursuant to Baker and Lester, the modified judgment entry was not a final appealable order under
{¶ 27} In Clutter, the lower court denied the defendant‘s
{¶ 28} Notably, the Supreme Court of Ohio favorably applied Clutter‘s holding in State ex rel. Carnail v. McCormick, 126 Ohio St.3d 124, 2010-Ohio-2671. There, Carnail requested a writ of mandamus to compel the trial court judge to issue a final appealable order, which properly included post-release control in Carnail‘s sentence. The court concluded that Carnail was entitled to the requested writ. The court observed that,
{¶ 29} Thus, pursuant to Clutter and State ex rel. Carnail, we conclude that the appropriate remedy in the instant case is an action in mandamus or procedendo to compel the trial court to issue a sentencing entry which complies with
Appeal dismissed.
TYACK and LUPER SCHUSTER, JJ., concur.