STATE OF OHIO, Plaintiff-Appellee, v. JODY ERVIN, Defendant-Appellant.
CASE NO. CA2017-06-084
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
4/9/2018
[Cite as State v. Ervin, 2018-Ohio-1359.]
HENDRICKSON, J.
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2009-12-2008
Neal D. Schuett, 121 West High Street, Oxford, Ohio 45056, for defendant-appellant
HENDRICKSON, J.
{1} Defendant-appellant, Jody Ervin, appeals from the decision of the Butler County Court of Common Pleas resentencing her on two counts of complicity to felonious assault upon remand from this court‘s decision in State v. Ervin, 12th Dist. Butler No. CA2016-04-079, 2017-Ohio-1491 (hereafter, ”Ervin I“). For the reasons set forth below, we affirm Ervin‘s sentence.
{2} In December 2009, Ervin was indicted on two counts of complicity to
{3} In February 2010, following plea negotiations, Ervin entered a guilty plea to two counts of complicity to felonious assault (counts eleven and twelve). She also pled guilty to the firearm specification attached to count eleven. The firearm specification attached to count twelve was dismissed, as were counts eight, nine, and ten. Ervin was sentenced to a three-year prison term for the firearm specification accompanying count eleven and to five years on community control on the complicity to felonious assault charges. The community control sanction was ordered to be served consecutively to the three-year prison term on the firearm specification. Ervin did not directly appeal her conviction or sentence.
{4} In December 2012, Ervin completed her prison sentence on the firearm specification, was released from prison, and began to serve her five-year community control sanction. Ervin violated her community control in July 2015, but the trial court continued her community control. In February 2016, Ervin again violated her community control. In an entry dated March 24, 2016, the trial court found Ervin was no longer amenable to community control and imposed 36 months in prison on each count of complicity to felonious assault. The 36-month prison terms were ordered to be served consecutively to one another, for an aggregate prison term of 72 months.
{5} Ervin appealed her sentence, and this court reversed after concluding that Ervin‘s 2010 community control sentence was void as the trial court lacked the statutory authority to order Ervin to serve community control sanctions consecutive to the completion of her prison sentence. See Ervin I, 2017-Ohio-1491 at ¶¶ 12-23. We stated, in relevant part,
because there is no statutory authority for the imposition of community control sanctions to be served consecutive to, or following the completion of, a prison term or jail term or other sentence of imprisonment, the trial court was without authority to impose the same. The community control sanctions are therefore void and must be vacated.
In light of the foregoing, Ervin‘s community control sanctions on the complicity charges and the trial court‘s sentencing decision on violation of community control are vacated, and the case is remanded for resentencing on those counts alone. Ervin‘s guilt on those counts is otherwise undisturbed. Furthermore, our decision does not disturb the conviction and sentence related to the gun specification for which Ervin has already served three years.
(Emphasis added.) Id. at ¶¶ 23-24.
{6} After the case was remanded, Ervin filed a motion to dismiss counts eleven and twelve on the basis that the trial court lacked jurisdiction to impose a sentence on the convictions as she had already served her prison term on the firearm specification. She further argued resentencing on the complicity to felonious assault charges violated her right against double jeopardy. On May 22, 2017, Ervin appeared before the trial court for resentencing. At this time, she argued the merits of her motion to dismiss. The trial court denied her motion and resentenced her to four years in prison on count eleven and four years in prison on count twelve.1 The court ordered that the sentence on count twelve be served concurrently with the sentence on count eleven, for a total of four years.
{7} Ervin timely appealed her sentence, raising two assignments of error.
{8} Assignment of Error No. 1:
{9} THE TRIAL COURT ERRED TO APPELLANT‘S PREJUDICE BY IMPOSING A
{10} In her first assignment of error, Ervin challenges her sentence. She argues that she had a legitimate expectation of finality in her original prison sentence and that resentencing her to prison after the consecutive community control sanction was found to be void was “contrary to Ohio law and United States law.”
{11} Felony sentences are reviewed under
{12} The Ohio Supreme Court has recognized that “[i]f a judge imposes a sentence that is unauthorized by law, the sentence is unlawful * * * [and] [i]f an act is unlawful, * * * it is wholly unauthorized and void.” (Emphasis sic.) State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, ¶ 21. See also State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, ¶ 20
{13} In Ervin‘s prior appeal, we determined that the community control sanctions imposed on counts eleven and twelve were void as no sentencing statute authorized the trial court to impose community control sanctions consecutive to a prison sentence. Ervin I, 2017-Ohio-1491 at ¶ 23.2 When we vacated Ervin‘s void sentences, Ervin was placed in the same position she would have been in had no sentence been imposed on the complicity convictions set forth in counts eleven and twelve. See Simpkins at ¶ 22. The trial court retained jurisdiction to resentence her on those counts, and pursuant to our remand instructions, sentenced her accordingly on May 22, 2017.
{14} Citing the Ohio Supreme Court‘s decision in State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, Ervin argues that once her valid prison sanction for the firearm specification was served, the trial court lost jurisdiction to modify her sentence. She
{15} In Holdcroft, a defendant was sentenced to a ten-year prison term for aggravated arson and a five-year prison term for arson. Id. at ¶ 2. The trial court ordered that the prison terms be served consecutively. Id. The court notified the defendant that a postrelease control sanction would be imposed, but failed to state whether it was part of the sentence for aggravated arson, arson, or both, and the sentencing entry reflected the same defects. Id. After the defendant completed his ten-year prison term for aggravated arson, but before he completed the five-year prison term for arson, the trial court held a new sentencing hearing to correct errors relating to postrelease control. Id. at ¶ 3. The trial court imposed a mandatory term of five years of postrelease control for the aggravated-arson offense and a discretionary postrelease-control term of up to three years for the arson offense. Id.
{16} The defendant appealed from his resentencing, arguing that the trial court lacked jurisdiction to impose postrelease control for his aggravated-arson offense as he had already completed the prison sentence for that offense. Id. at ¶ 4. The Third District Court of Appeals disagreed with the defendant‘s argument and upheld the defendant‘s sentence. Id. On appeal, the supreme court reversed, finding that once the defendant completed his prison term for aggravated arson, the trial court lost the authority to resentence him for that offense. Id. at ¶ 10. The court held that “[a] trial court does not have the authority to resentence a defendant for the purpose of adding a term of postrelease control as a sanction for a particular offense after the defendant has already served the prison term for that offense.” Id. at paragraph three of the syllabus.
{17} Holdcroft, therefore, involved a sentence comprised of two sanctions – a valid prison term and an unlawful sanction of postrelease control. Pursuant to statute, postrelease
{18} Rather, Ervin‘s sentence involved a valid, three-year prison sentence on a firearm specification that was served prior to the void sentences imposed on the underlying felony convictions for complicity to felonious assault. Unlike a postrelease-control term, a firearm specification requires a separate finding of guilt and the imposition of its own three-year prison sentence, which must be served “consecutively to and prior to any prison term imposed for the underlying felony” offense.
{19} Ervin has not, however, served a lawful sentence on her convictions for complicity for felonious assault. Contrary to Ervin‘s arguments, there was no reasonable expectation of finality in her sentence after she completed her three-year prison term for the firearm specification. As the Ohio Supreme Court has recognized, “[w]here * * * the sentence
{20} When the trial court resentenced Ervin for complicity to felonious assault on May 22, 2017, it did not violate principles of double jeopardy. The effect of finding Ervin‘s original sentence on counts eleven and twelve void was that Ervin was placed back in the position she would have been in if no sentence had been imposed. See Simpkins at ¶ 22. The trial court retained jurisdiction to correct her sentence, and when it sentenced Ervin to concurrent four-year prison terms for her felony offenses, it was as if it was imposing punishment for those offenses for the first time. See id. The court‘s imposition of concurrent four-year prison terms was not clearly and convincingly contrary to law and is supported by the record. In imposing the four-year prison sentence, the trial court properly considered our remand instructions, the principles and purposes of
{21} Assignment of Error No. 2:
{22} THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES.
{23} In her second assignment of error, Ervin argues the trial court erred in
{24} As an initial matter, we note that the trial court imposed concurrent four-year prison terms on counts eleven and twelve. As such, the trial court was not required to make the consecutive sentencing findings set forth in
{25} Further, to the extent that Ervin is arguing that the trial court needed to make consecutive sentencing findings as the four-year prison term on count eleven was run consecutively to the three-year prison term imposed on the firearm specification, we find her argument to be without merit.
{26} Judgment affirmed.
S. POWELL, P.J., concurs.
M. POWELL, J., concurs in part and dissents in part.
M. POWELL, J., concurring in part and dissenting in part.
{27} I concur in part and dissent in part. I concur with the majority in affirming the trial court‘s imposition of the prison term for count twelve. However, pursuant to the Ohio Supreme Court‘s opinion in Holdcroft, I dissent from the majority‘s opinion affirming the trial court‘s imposition of a four-year prison term for count eleven.
{28} Holdcroft involved a defendant who was sentenced to consecutive ten-year and five-year prison terms for aggravated arson and arson, respectively. The postrelease control portion of the sentences was improperly imposed. After Holdcroft completed the ten-year aggravated arson prison term, but before he completed the five-year arson prison term, he was brought back before the trial court and the postrelease control portion of the sentences was reimposed. Holdcroft argued he could not be resentenced to postrelease control on the aggravated arson conviction because he had completed the prison term for that offense.
{29} The supreme court held that Holdcroft could not be resentenced to postrelease control upon the aggravated arson conviction because he had completed the prison term for that offense. State v. Holdcroft, 137 Ohio St.3d 26, 2013-Ohio-5014, ¶ 10 (“We conclude that once Holdcroft completed his prison term for aggravated arson, the trial court lost the authority to resentence him for that offense“). In so holding, the supreme court recognized three principles applicable to a sentencing court‘s authority to review an original sentence
First, when a sentence is subject to direct review, it may be modified; second, when the prison-sanction portion of a sentence that also includes a void sanction has not been completely served, the void sanction may be modified; and third, when the entirety of a prison sanction has been served, the defendant‘s interest in finality in his sentence becomes paramount, and his sentence for that crime may no longer be modified.
{30} Focusing upon the sentence imposed for a particular crime, Holdcroft constrains a sentencing court from modifying the sentence if a prison term sanction for that offense has been completed. Holdcroft emphasized that the constraint upon the modification of such a sentence arises from a lack of jurisdiction. Id. at ¶ 14 (“[O]nce a valid prison sanction has been served * * * the court has lost jurisdiction to modify the sentence“).
{31} In determining if Holdcroft applies to prohibit the imposition of an additional prison term upon Ervin for count eleven, the first issue is whether the three-year prison term Ervin completed was for the underlying complicity to felonious assault offense or for the firearm specification. If the original, completed three-year prison term was imposed for the underlying complicity to felonious assault offense, Holdcroft prohibits any additional punishment for that offense.
{32}
{33} Pursuant to the Ohio Revised Code, an “offense” must include a “prohibition.”
Read together, the language in [R.C. 2929.14(D)(1)(a) and 2941.145] indicates that the firearm specification is contingent upon an underlying felony conviction. Thus, R.C. 2941.145 and 2929.14(D) do not contain a positive prohibition of conduct, as required by R.C. 2901.03(B). Instead, these provisions indicate that if a defendant is convicted of a felony offense and, during the commission of that offense, if the defendant displays, indicates possession of, or uses a firearm to facilitate the offense, the defendant‘s underlying felony sentence will be increased by three years. In other words, the statutes do not state that a defendant shall not use a firearm during the commission of a crime: they state that when a firearm is used, an additional penalty will be imposed.
(Emphasis sic.) State v. Ford, 128 Ohio St.3d 398, 2011-Ohio-765, ¶ 16.6
{34} Noting that the firearm specification statues were not included within the chapters of the Ohio Revised Code which define the various offenses, the supreme court went on to state, “Moreover, the placement of R.C. 2941.145 and 2929.14 within the Revised Code confirms that the firearm specification is merely a sentence enhancement, not a separate criminal offense.” Id. at ¶ 17.
{35} Some years ago, this court held that a firearm specification is not an “offense.”
R.C. 2941.25 does not apply, inasmuch as only enhanced punishment is involved, not conviction of a separate crime involving identical conduct. A firearm specification is not a separate offense and thus cannot be an allied offense of similar import for purposes of R.C. 2941.25.
State v. Blankenship, 102 Ohio App.3d 534, 547 (12th Dist.1995). Since Blankenship, it has been clear in this district that a firearm specification is not a separate criminal offense, but merely “enhanced punishment.” See, e.g., State v. Stephenson, 12th Dist. Warren No. CA2014-05-072, 2015-Ohio-233.
{36} In Ford, the Ohio Supreme Court not only addressed that a firearm specification under
{37} Ford makes clear that the effect of a conviction of a firearm specification is to increase the sentence for the “underlying felony.” Thus, although a conviction for the firearm specification increases the penalty, that penalty is imposed for the commission of an underlying felony which includes the conduct described by the firearm specification.
{38} In this sense, this case differs from Holdcroft only in the details. Just as postrelease control and a prison term for the underlying felony are separate components of a felony sentence, a sanction for an underlying felony and a prison term for a firearm specification are also separate components of a felony sentence. Just as the firearm specification prison term is served separately from any sanction for the underlying felony,
{39} Because a firearm specification is not an “offense” for which there may be a “sentence” or a “sanction,” the original three-year prison term imposed upon Ervin necessarily was a sentence for the complicity to felonious assault offense to which the firearm specification attached. Ervin completed the entirety of the prison term that was imposed for the count eleven firearm specification. After we vacated the consecutive community control sanction imposed on count eleven as void and remanded for resentencing, the trial court imposed an additional four-year prison term upon Ervin for count eleven. Pursuant to Holdcroft, once “the entirety of a prison sanction has been served, the defendant‘s interest in finality in his sentence becomes paramount, and his sentence for that crime may no longer be modified.” Thus, the additional four-year prison term imposed upon Ervin for count eleven should be vacated.
{40} With regard and respect for my colleagues in the majority, I dissent and would order that the four-year prison term imposed for the count eleven complicity to felonious assault offense be vacated.