State v. JuneState v. June
Rendered on June 28, 2013
Ron O‘Brien, Prosecuting Attorney, and Michael P. Walton, for appellаnt.
Toki Clark, for appellee.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Plaintiff-appellant, State of Ohio (“the state“), appeals from a judgment of the Franklin County Court of Common Pleas imposing a prison sentence on defendant-appellee, Michael E. June (“appellee“), pursuant to his guilty plea. Because we conclude that the triаl court erred by imposing a concurrent prison sentence for appellee‘s failure-to-comply conviction, when it was required by statute to impose a consecutive sentence, we reverse and remand for re-sentencing.
{¶ 2} Appellee was indicted on five chаrges stemming from an incident in which he stole a gun and then fled from police in a car. Ultimately, appellee pled guilty to two charges: having a weapon under disability, a felony of the third degree, and failure to comply with an order of a police officer, a felony of the fourth degree. The trial court sentenced appellee to one year of imprisonment on the conviction for having a weapоn under disability and six months of imprisonment on the failure-to-comply conviction. The
{¶ 3} The state appeals from thе trial court‘s judgment, assigning one error for this court‘s review:
THE TRIAL COURT ERRED IN IMPOSING CONCURRENT SENTENCES, WHERE
R.C. 2921.331(D) ANDR.C. 2929.14(C)(3) REQUIRED CONSECUTIVE SENTENCES.
{¶ 4} In its sole assignment of error, the state argues that the trial court erred by ordering that apрellee‘s sentence for failure to comply with an order of a police officer be served concurrently with his sentence for having a weapon under disability. The state asserts that the trial court was required by statute to impose a consecutive sentence for the failure-to-comply conviction.
{¶ 5} Appellant argues that the sentence imposed on appellee is contrary to law. In relevant part,
{¶ 6} Appellee was indicted for violating
{¶ 8} Appellee argues that the trial court acted within its discretion by imposing concurrent sentences. Appelleе does not claim that the relevant statutes permit concurrent sentences; rather, appellee argues that modifying appellee‘s sentence on remand would violate the constitutional protections against double jeopardy. Appellee also asserts that
{¶ 9} Ohio courts have rejected the assertion that correcting a statutorily deficient sentence on remand violates the constitutiоnal protections against double jeopardy. “Any attempt by a court to disregard statutory requirements when imposing a sentence renders the attempted sentence a nullity or void.” State v. Beasley, 14 Ohio St.3d 74, 75 (1984). “Because jeopardy does not attach to a void sentence, the subsequent imposition of the statutorily required sentence cannot constitute double jeopardy.” State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, ¶ 27. In this case, the trial court was statutorily required to impose a consecutive sentence for appellee‘s conviction for failure to comply but failed to do so. Therefore, appellee‘s original sentence was void. Jeopardy did not attach to the void sentence, and an order from the trial court correcting thе sentence would not constitute double jeopardy. See, e.g., State v. Jackson, 10th Dist. No. 06AP-631, 2007-Ohio-1474, ¶ 16 (defendant was not subjected to double jeopardy when trial court re-sentenced him and imposed a statutorily required three-year period of post-
{¶ 10} While we note that the vagueness doctrine may be implicated with respect to a sentencing statute, appellee has failed to demonstrate thаt
{¶ 11} For the foregoing reasons, we sustain the state‘s sole assignment of error. We reverse the judgment of the Franklin County Court of Common Pleas and remand this matter to that court for re-sentencing in accordance with law and consistent with this decision.
Judgment reversed; cause remanded for re-sentencing.
BROWN and O‘GRADY, JJ., concur.
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