THE STATE OF OHIO, APPELLEE, v. CARLISLE, APPELLANT.
No. 2010-2158
Supreme Court of Ohio
Submitted October 18, 2011—Decided December 22, 2011.
131 Ohio St.3d 127, 2011-Ohio-6553
O‘CONNOR, C.J.
{¶ 1} This аppeal involves the question of whether the trial court had authority to modify Carlisle‘s criminal sentence. Absent statutory authority, a trial court is generally not empowered to modify a criminal sentence by rеconsidering its own final judgment. For the reasons explained below, the trial court lacked the requisite authority to modify Carlisle‘s sentence. Accordingly, we affirm the judgment of the court of appeals.
RELEVANT BACKGROUND
{¶ 2} On June 8, 2007, a jury fоund Jack Carlisle guilty of kidnapping and gross sexual imposition (“GSI“) in connection with the sexual assault of his 6-year-old foster daughter. On July 11, 2007, the trial court sentenced Carlisle to three years’ imprisonment for kidnapping and оne year of imprisonment for GSI, to be served concurrently, followed by five years of mandatory postrelease control. The trial court also classified Carlisle as a sexually oriented offender, granted him 278 days of jail-time credit, and suspended execution of his sentence and continued his bond pending appeal. On July 13, 2007, the clerk journalized the final, appealable order that reflected his sentenсe.
{¶ 3} On appeal, Carlisle challenged his convictions but did not raise any issues regarding his sentence. State v. Carlisle, Cuyahoga App. No. 90223, 2008-Ohio-3818, 2008 WL 2932138 (”Carlisle I“), ¶ 1. On July 31, 2008, the Eighth District Court of Appeals affirmed Carlisle‘s convictions, issued a special mandate to the trial court to carry the judgment into execution, revoked his bail, and remanded the case to the trial court for execution of sentence. Id. at ¶ 63. Carlisle unsuccessfully moved the court of appeals to reconsider its merit opinion based on the appellate court‘s alleged misapplication of the rape-shield law, and the
{¶ 4} Having exhausted his appeals and facing revocation of his bond and imprisonment, on February 19, 2009, Carlisle moved the trial court to reconsider and modify his sentence. Asserting that he suffers from chronic, life-threatening conditions, Carlisle argued that the trial court had authority to modify his sentence because the sentence had not been “executed,” i.e., Carlisle had not yet been delivered to the state penal institution. The motion posited, “[T]his Court must ask itself whether Mr. Carlisle‘s punishment is worth the cost” in light of his “expensive” medical treatment, including kidney dialysis three times a week.
{¶ 5} In opposing the motion, the state acknowledged the significant medical expenses associated with Carlisle‘s incarceration but represented, essentially, that it was willing to bеar those costs in light of the seriousness of the offenses. It further argued that Carlisle‘s medical conditions did not prevent him from committing the offenses and, therefore, incarceration was necessary for the рrotection of the community. The court granted the defense motion and set a resentencing date. The state then filed an amended response asserting that the trial court lacked authority to modify its final judgmеnt.
{¶ 6} On April 2, 2009, the trial court vacated Carlisle‘s sentence “due to change of circumstances” and conducted a resentencing hearing, where Carlisle‘s attorneys noted that his dialysis alone costs Medicare and his private insurer nearly $100,000 a year. At the hearing, the court mentioned that the state is “cutting budgets everywhere” and that “the costs in this situation are going to be astronomical.” It then found that Carlisle did not pose a threat to the community and imposed a sentence of five years of community control.
{¶ 7} The court of appeals reversed. State v. Carlisle, Cuyahoga App. No. 93266, 2010-Ohio-3407, 2010 WL 2857806 (”Carlisle II“), ¶ 49. In so doing, the court of appeals agreed with Carlisle that a trial court has authority tо modify a criminal sentence until the defendant is delivered to the prison to begin serving the sentence, holding, “[I]n criminal cases, a judgment is not considered final until the sentence has been ordered into execution.” Id. at ¶ 10, citing State v. Garretson (2000), 140 Ohio App.3d 554, 558–559, 748 N.E.2d 560. It concluded, however, that the trial court lacked authority to modify Carlisle‘s sentence because his convictions had been affirmed on appeal. Id. at ¶ 13. It held that State ex rel. Special Prosecutors v. Judges, Court of Common Pleas (1978), 55 Ohio St.2d 94, 97, 9 O.O.3d 88, 378 N.E.2d 162, dictates that a judgment of a reviewing court is “controlling upon the lower court as to all matters within the compass of the judgment.” Id. Even though Carlisle‘s appeal addressed only the detеrminations of his guilt, and not his sentence, the court of appeals
{¶ 8} We accepted Carlisle‘s discretionary appeal from that judgment. State v. Carlisle, 128 Ohio St.3d 1411, 2011-Ohio-828, 942 N.E.2d 384. He set forth one proposition of law: “This court‘s holding in Special Prosecutors does not divest the trial court of its jurisdiction to modify a sentence that has not yet been executed even if the sentence modification occurs following the direct appeal.”
{¶ 9} At the threshold, we note that Carlisle‘s proposition presupposes that absent a mandate from the court of appeals, a trial court necessarily has authority to modify a sentence that has not been executed. Nоt so. Consequently, Special Prosecutors, which discusses the mandate rule, does not control our analysis. Instead, application of State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, which explained the general rule that a trial court lacks authority to modify a final criminal judgment, is disрositive.
ANALYSIS
{¶ 10} Carlisle concedes that a trial court lacks statutory authority to modify a final sentence. But Carlisle claims that the trial court had unfettered authority to resentence him because his sentencе had not yet been executed and, therefore, was not yet final. We disagree.
{¶ 11} A criminal sentence is final upon issuance of a final order. See, e.g., State ex rel. White v. Junkin (1997), 80 Ohio St.3d 335, 337, 686 N.E.2d 267 (a trial court had authority to vacate a finding of guilt аnd imposition of sentence and order the defendant to face trial on a more serious charge because the judgment had never been journalized by the clerk pursuant to
{¶ 12} In this case, a valid judgment of conviction was journalized on July 13, 2007, yеt the trial court purported to modify Carlisle‘s sentence nearly two years later. The trial court‘s attempt to do so was improper. See Johnson v. Sacks (1962), 173 Ohio St. 452, 454, 20 O.O.2d 76, 184 N.E.2d 96; Walker v. Maxwell (1965), 1 Ohio St.2d 136, 138, 30 O.O.2d 487, 205 N.E.2d 394; Majoros v. Collins (1992), 64 Ohio St.3d 442, 443, 596 N.E.2d 1038; State ex rel. Massie v. Rogers (1997), 77 Ohio St.3d 449, 450, 674 N.E.2d 1383 (all recognizing that sentencing errors are an improper exercise of jurisdiction).
{¶ 13} Carlisle‘s argument that a sentence is not final until it is executed evolved from trial courts’ now defunct authority to modify a criminal sentence at any time before it is executed. Seе State v. Addison (1987), 40 Ohio App.3d 7, 530 N.E.2d 1335, syllabus. As a consequence, the case law that appears to support Carlisle‘s position suffers from a fundamental flaw: it relies on now-repealed statutes.
{¶ 14} In Addison, the defendant sought a sentence mоdification from the trial court under the now-repealed “shock probation” statute, former
{¶ 15} Some courts of appeals have continued to cite the conclusion reached in Addison and Lambert as a stand-alone proposition, even though Addison and Lambert were premised on a statute that has since been repealed. See, e.g., State v. Plunkett, 186 Ohio App.3d 408, 2009-Ohio-5307, 928 N.E.2d 760, ¶ 10 (citing Addison for authority that “[a]s a general rule, once a defendant has commenced serving his sentencе, the trial court no longer has the authority to modify or amend that sentence, except as specifically provided by the General Assembly“). In turn, that logic has been extended to conclude that a criminаl sentence is not final until it is executed, thereby creating the illusion of compliance with our rule in Cruzado. Carlisle II, 2010-Ohio-3407, 2010 WL 2857806,
{¶ 16} Notwithstanding the repeal of
CONCLUSION
{¶ 17} For the reasons explained, the judgment of the court of appeals is affirmed, albeit on different grounds from those relied on by that court, and this cause is remanded to the common pleas court to execute the original sentence.
Judgment affirmed and cause remanded.
PFEIFER, LUNDBERG STRATTON, O‘DONNELL, LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
William D. Mason, Cuyahoga County Prosecuting Attorney, and T. Allan Regas, Assistant Prosecuting Attorney, for appellee.
Robert L. Tobik, Cuyahoga County Public Defender, and Erika B. Cunliffe, Assistant Public Defender, for appellant.
Alexandra T. Schimmer, Solicitor General, and David M. Lieberman, Deputy Solicitor, urging affirmance for amicus curiae, Ohio Attorney General Michael DeWine.