2004 Ohio 6303 | Ohio Ct. App. | 2004
Lead Opinion
{¶ 2} The state asserts the trial court exceeded the scope of this court's remand by imposing a completely different sentence since Moore's original sentence on the underlying offenses had been affirmed. This court agrees with the state's assertion. Consequently, Moore's new sentence is vacated, and this case is remanded once again for a resentencing hearing.
{¶ 3} The facts resulting in Moore's convictions were reviewed and his convictions were affirmed in Moore, supra. Succinctly stated, Moore and two of his friends, Dallas King and Eugene Barrow, along with a woman accomplice, invaded a home on Paxton Avenue on March 23, 2001. The men tied up the victim, a woman nine months pregnant, and stole jewelry and money before they fled.
{¶ 4} Moore subsequently was indicted with Barrow and was found guilty by the jury of aggravated burglary, aggravated robbery, and kidnapping. The trial court further found Moore guilty of the repeat violent offender specifications attached to those counts. The trial court ultimately sentenced Moore to a total term of twenty years: concurrent terms of ten years for each of his convictions, to be served consecutively with a term of ten years for the specification.
{¶ 5} On appeal, Moore raised sixteen assignments of error that challenged both his convictions and his sentence; only one was sustained. This court held in relevant part as follows:
{¶ 6} "In his seventh assignment of error, Moore contends that the trial court failed to make the requisite findings
pursuant to R.C.
{¶ 7} "Although Moore contends that R.C.
{¶ 8} "R.C.
{¶ 9} "* * * The findings made by the trial court fall short of what is required pursuant to R.C.
{¶ 10} Upon making the foregoing pronouncement, this court went on to address Moore's additional challenge to the maximum sentence of ten years total on the underlying convictions for aggravated burglary, aggravated robbery, and kidnapping. Moore's challenge was rejected; this court specifically stated that the trial court's imposition of the maximum sentence was "supported" in the record.
{¶ 11} The opinion, in retrospect perhaps too imprecisely, simply concluded Moore's "sentence [was] vacated and the case remanded for a new sentencing hearing."
{¶ 12} Moore subsequently sought further review of his convictions and sentences by the Ohio Supreme Court, but his attempt was rebuffed; the supreme court declined to accept his case.
{¶ 13} The record reflects the trial court eventually issued a journal entry setting Moore's resentencing hearing for September 29, 2003. The hearing took place as scheduled, but for reasons unexplained, the state had no representative present; only Moore and his new defense counsel appeared.
{¶ 14} After reviewing the mandate from this court and listening to Moore and his counsel, the trial court decided that although incarceration was "warranted" under the circumstances of this case, upon resentencing, it now could not "justify the maximum term" because the terms it this time decided to imposewere sufficient "to protect the public." Thus, "[a]s to Counts 1, 2, and 3, Mr. Moore, this court sentences you to concurrent five year terms * * *."
{¶ 15} The court went on to elaborate that "the maximum term for this offense (sic) is not warranted in this instance, noris a term of incarceration for the repeat violent offenderspecifications." (Emphasis added.) In explanation, the court advised Moore that "[i]n real simple terms, Mr. Moore, this court just knocked off 15 years from the original sentence that was imposed."
{¶ 16} Upon receiving notice of Moore's new sentence, the state filed an appeal pursuant to R.C.
{¶ 17} The state argues the trial court's new sentence is contrary to law because it exceeds the scope of the remand inMoore. On the facts of this case, the state's argument is persuasive.
{¶ 18} An analogous situation recently was presented inState v. Gates, Cuyahoga App. No. 82385, 2004-Ohio-1453. Gates argued the trial court was required to treat the hearing on remand as a "sentencing de novo" and thus to reconsider theentire original sentence it imposed; however, this court noted that on the contrary, under the circumstances, "the law of the case doctrine and res judicata" demonstrated the trial court "was not free to disregard a mandate of this Court." Id., *P.9. This court went on to remind Gates that "identical arguments * * * made to and rejected by" the appellate court thereafter constrain the trial court to follow the law of the case. Id., *P.12.
{¶ 19} The law of the case doctrine as applied to resentencing hearings earlier was discussed in State v. Gauntt
(Dec. 29, 1994), Cuyahoga App. No. 66791. Quoting Nolan v.Nolan (1984),
{¶ 20} The same result was reached in Gates. Gates already had appealed his sentence; thus, the trial court was authorized only to correct the portion of his sentence that this court determined to be inadequately justified.
{¶ 21} Appellate courts have recognized that resentencing hearings may be conducted by the trial court for the purpose of stating the required findings, if applicable, on the record.State v. Gopp,
{¶ 22} In Moore, this court gave the trial court the same directive. Moore's underlying sentence of concurrent maximum terms of incarceration was in every respect affirmed. The trial court, however, had "fallen short" of stating the R.C.
{¶ 23} The case, therefore, was remanded only for the purpose of making those findings, if the trial court deemed them appropriate. Subsequently, the Ohio Supreme Court declined to review this court's mandate.
{¶ 24} The trial court, on remand, thus was not free to vary the terms of incarceration on the underlying offenses that ultimately had been ruled proper in the original appeal. It reasonably could have concluded it could not make the required findings for the imposition of an additional term for the repeat violent offender specifications; nevertheless, because Moore's other challenge to his sentence had been rejected on appeal, for Moore's underlying convictions the trial court could only re-impose the sentence that had been deemed "supported" in the record.
{¶ 25} If this were not so, the disposition of that assignment of error in Moore's original appeal would have been purely "advisory." More importantly, the directive to this court set forth in App.R. 12(A)(1)(c) would have no meaning. Pursuant to the rule, this court is mandated to "decide each assignment of error" that is not made moot by a ruling on another.
{¶ 26} The fact that the trial court ignored the law of the case as stated by this court in Moore's original appeal, therefore, renders its decision to alter the terms of incarceration on the underlying offenses in order to "knock off 15 years from" Moore's sentence "contrary to law" pursuant to R.C.
{¶ 27} For the foregoing reasons, the state's assignment of error is sustained.
{¶ 28} The trial court's order that purported to impose an entirely new sentence upon Moore is vacated. This case is remanded for further proceedings consistent with this opinion.
{¶ 29} Appellee's sentence is vacated and this cause is remanded to the lower court for further proceedings consistent with this opinion.
It is, therefore, considered that appellant recover of appellee its costs herein.
It is ordered that a special mandate be sent to the Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
McMonagle, J. concurs. Karpinski, P.J. dissents (see separate dissenting opinion).
Dissenting Opinion
{¶ 30} I respectfully dissent.
{¶ 31} The majority determined that because this court, in the prior appeal of this case, ruled that the trial court had not erred in the manner in which it sentenced defendant to the maximum term, the maximum sentence is the law of the case. When this court affirmed the maximum sentence, however, this court was not ruling on the appropriateness of the sentence. More precisely, it was ruling on the discrete question of whether there was evidence to support sentencing Moore to the maximum.1 State v. Moore, Cuyahoga App. No. 80416, 2003-Ohio-1154 at ¶ 70.
{¶ 32} This court ruled that the trial court had indeed made the necessary findings to allow it to impose that sentence and gave a reason in support. This court did not state that the sentence imposed was the only correct sentence; it merely stated that it was not error to impose it.
{¶ 33} The issue before this court is how to view the appellate court's response to those assignments of error in which the appellant's argument was overruled. When this court rules that it finds no error in a particular action of the lower court, this court is not saying that only that action was possible. Indeed, in many cases the trial court has a range of permissible options.
{¶ 34} We understand, moreover, that trial judges customarily view the sentence as a package in which the trial judge balances various parts to arrive at the desired end. On remand they should have the opportunity to move within the prescribed range of possible sentences. Trial judges should continue to have the power to fashion such a package.
{¶ 35} The Tenth District has stated this principle most forcefully:
{¶ 36} The sentence package doctrine provides that, when a defendant is sentenced under a multi-count indictment and the sentences imposed on those counts are interdependent, the trial court has the authority to reevaluate the entire aggregate sentence, including those on the unchallenged counts, on remand from a decision vacating one or more of the original counts. Inthe Matter of Fabiaen L. Mitchell (June 28, 2001), Franklin App. No. 01AP-74, 2001 Ohio App. LEXIS 2856. The underlying theory is that, in imposing a sentence in a multi-count conviction, the trial court typically looks to the bottom line, or the total number of years. Id. Thus, when part of a sentence is vacated, the entire sentencing package doctrine becomes "unbundled," and the trial judge is, therefore, entitled to resentence a defendant on all counts to effectuate its previous intent. Id.
{¶ 37} State v. Jackson, (Franklin App. No. 03AP-698) 2004-Ohio-1005.
{¶ 38} Moreover, because we vacated the lower court sentence in the case at bar, the trial court was implicitly authorized to begin sentencing anew. R.C.
The court of appeals does not have the power to vacate just a portion of sentence. State v. Bolton (2001),
{¶ 39} State v. Gray, Cuyahoga App. No. 81474, 2003-Ohio-436 ¶ 12.
{¶ 40} The majority complains that to allow a total resentencing that changes terms in which this court found no error would render the court's ruling advisory. That is true. To rule otherwise, however, is to turn language upside down. The majority would agree with the Hatter from Alice's Adventures inWonderland:
{¶ 41} "Take some more tea," the March Hare said to Alice, very earnestly.
{¶ 42} "I've had nothing yet," Alice replied in an offended tone: "so I can't take more."
{¶ 43} "You mean you can't take less," said the Hatter: "it's very easy to take more than nothing."
{¶ 44} This court's earlier ruling on the maximum is of no consequence to this case, because this court then proceeded to vacate that sentence. Black's Law Dictionary defines "vacate" as "to annul; to set aside; to cancel or rescind. To render an act void; as to vacate an entry of record or a judgment." In the prior appeal of this case, this court vacated defendant's sentence. It no longer exists; it is a nullity. As a nullity, that sentence is treated as though it had not taken place. It cannot be "more than nothing."
{¶ 45} As a result of this court's vacating the sentence, the trial court was required to have a de novo hearing. Such a hearing allows the trial court to consider new evidence, and the defendant is to be judged on what is available at that moment of sentencing. Thus, for example, if a defendant has shown a remarkable record in prison since the earlier sentencing, that record is admissible. To proceed otherwise, would reduce a re-sentencing to a mere rerun of an old movie. Indeed, if the lower court had failed to revisit each and every part of the sentence, we would have found error.
{¶ 46} A decision finding no error in a judgment that this court subsequently vacated and, therefore, is now a nullity, cannot be transmuted into the law of the case serving to forbid any other alternative.
{¶ 47} Finally, I would, sua sponte, find plain error2 in the sentencing for the RVO under R.C.
{¶ 48} Therefore, I would remand the case for proceedings consistent with Blakely. Accordingly, I dissent.
