STATE OF OHIO v. JEREMY J. GUM
No. 101496
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
RELEASED AND JOURNALIZED: April 23, 2015
[Cite as State v. Gum, 2015-Ohio-1539.]
Stewart, J., E.T. Gallagher, P.J., and Boyle, J.
JOURNAL ENTRY AND OPINION
STATE OF OHIO, PLAINTIFF-APPELLEE vs. JEREMY J. GUM, DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED AND REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-09-528313-A
Thomas A. Rein
Leader Building, Suite 940
528 Superior Avenue
Cleveland, OH 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Gregory Mussman
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
{¶1} In this sentencing appeal, defendant-appellant Jeremy Gum, complains that the court failed to conduct a de nоvo resentencing after we vacated his original sentence because the sentencing judge failed to apprise him of his appellate rights. He also complains, among other things, that the court failed to merge certain offenses and did not make the statutory findings required before ordering him to serve consecutive sentences.
{¶2} In November 2009, Gum pleaded guilty to multiple counts in two separate cases: in Cuyahoga C.P. No. CR-09-527195-A, he pleaded guilty tо two counts of receiving stolen property and one count of obstructing justice; in Cuyahoga C.P. No. CR-09-528313-A, he pleaded guilty to breaking and entering, tampering with evidence, attempted felonious assault on a peace officer, assault on a peace officer, obstructing official business, and vandalism. Some of the counts in CR-09-528313-A carried firearm and forfeiture specifications. The court sentenced Gum to a total of nine years in the two cases, running some of the sentences consecutively.
{¶3} Gum did not immediately appeal. In October 2010, he filed a notice of appeal and a motion for a delayed appeal. We denied leave and dismissed the appeal. See State v. Gum, 8th Dist. Cuyahoga No. 95898 (Oct. 25, 2010), Motion Nos. 438606 and 438644. In 2013, Gum filed a motion for “resentencing” on grounds that the court failed to apprise him of his appellate rights consistent with
{¶4} On remand, Gum sought to reopen sentencing to argue that some of the offenses he pleaded guilty to were allied offenses of similar import that should merge for sentencing. The court denied that motion, stating that the remand ordered by this court was not fоr a complete resentencing, but to “reenter the judgment of conviction.” The court told Gum that:
[W]e are reinstating the terms that were given at that time. Which are specifically, in case number 528313, a prison term of 8 years total. As tо case number 527195, a prison term of 1 year, for a total time of 9 years in prison.
Tr. 184.
{¶5} Consistent with what it told Gum during sentencing, the court issued a sentencing entry that imposed an aggregate prison sentence of eight years in CR-09-528313-A, to run consecutivеly to the one-year sentence imposed in CR-09-527195-A.
{¶6} Gum first argues that the court erred by denying him the right to a de novo resentencing hearing. He maintains his right to a de novo resentencing because the
{¶7} In the first appeal, Gum argued only that “the trial court abused its discretion in denying his motion for resentencing because the court failed to advise him of his appellate rights, including his right to appeal his sentence and his right to counsel for appeal.” Id. at ¶ 4. In light of the state‘s concession on this point, this court made it clear that the “the appropriate relief” for failing to advise a defendant of his appellate rights “is not for a complete resentencing hearing.” Id. at fn. 1. This court‘s mandate on remand was to “vacate the original judgment entry and reenter the judgment of conviction in order to reinstate the time for a timely apрeal.” Id.
{¶8} The trial court had no authority to disregard or enlarge the scope of the remand, Nolan v. Nolan, 11 Ohio St.3d 1, 462 N.E.2d 410 (1984), syllabus, so the court properly reentered Gum‘s sentence and advised him of his appellate rights. The court was not obligated to do more. And it bears noting that Gum did not argue in the first appeal that his sentence was void, nor would that have been a viable argument on appeal — a court‘s failure to advise a defendant of his appellate rights only renders a sentence voidable, not void.1
{¶10} Gum‘s argument rests on the assumption that he was “resentenced.” As stated in our discussion of Gum‘s first assignment of error, we did not order a “resentencing” when remanding to the trial court in the prior appeal. We made it clear that Gum was not entitled to a complete resentencing and that the court was to “reenter” the judgment of conviction for the sole purpose of affording Gum his right to appeal. The remand was essentially ministerial in nature, so there was no “resentencing” as that term is normally understood.
{¶11} In his third assignment of error, Gum complains that the court violated the sentencing package doctrine by imposing a collective prison sentence of eight years without stating a tеrm for each individual count.
{¶12} Prior to appeal, we recognized that the court‘s sentencing did not state a prison term for each offense. This failure did not comport with the requirements set forth in State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, paragraph one of thе syllabus, stating that a judgment of conviction must set forth “(1) the fact of the conviction, (2) the sentence, (3) the judge‘s signature, and (4) the time stamp indicating
{¶13} The court ordered Gum to serve his eight-year sentence in this case consecutive to the onе-year sentence imposed in CR-09-527195-A. Gum complains that the court failed to make the findings required by
{¶14} Under
{¶16} The transcript of Gum‘s sentencing shows that the court voiced its concern over “a certain pattern here in your criminal history,” detailing Gum‘s criminal history and finding that “the fact that you have not been satisfactorily rehabilitated in thе past after sanctions imposed indicates a likelihood of reoffending * * *.” Tr. 162. The court also considered the seriousness of Gum‘s conduct, noting that he led the police on a high-speed chase, caused financial harm to the victim, and “pose[d] a direct threat to the safety of our streets.” Finally, the court found that Gum committed his offenses in violation of community control sanctions. These findings were sufficient under
{¶17} The court did not, however, state these findings in its sentencing entry consistent with
{¶18} Finally, Gum argues that the court erred by failing to undertake any analysis as to whеther some of the counts were allied offenses of similar import that should merge for sentencing.
{¶20} In his merit brief, Gum notes that the court imposed sentence on “numerous counts,” but offers nothing more than the generic argument that “the trial court never undertook any analysis as to whether those counts werе allied offenses of similar import.” Appellant‘s brief at 18. By failing to identify which of the “numerous” counts to which he pleaded guilty were allied offenses of similar import, Gum has failed to comply with the
{¶21} Judgment affirmed and remanded.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandatе issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MELODY J. STEWART, JUDGE
EILEEN T. GALLAGHER, P.J., and
MARY J. BOYLE, J., CONCUR
KEYWORDS:
Remand; scope; consecutive sentences; allied offenses; facial inquiry. When court of appeals remanded with instructions for court to reenter judgment of conviction in light of error relating to court‘s failure to advise defendant of his appellate rights, the defendant was not entitled to a de novo resentencing because that would have exceeded the appellate court‘s mandate on remand.