State v. RobinsonState v. Robinson
KATHLEEN ANN KEOUGH, P.J.:
{¶1} Pursuant to
{¶2} Under
{¶3} We grant Robinson‘s motion for reconsideration because on January 8, 2016, before this court announced it decision, Robinson filed a motion to supplement his appellate brief to assert a fourth assignment of error. This court granted Robinson‘s motion to supplement, but failed to address his fourth assignment of error in our decision. Accordingly, we vacate our earlier decision and issue this decision, which includes an analysis of Robinson‘s fourth assignment of error, in its place. Although we grant Robinson‘s motion for reconsideration, upon reconsideration, our decision to affirm the
{¶4} This appeal is before the court on the accelerated docket pursuant to
{¶5} On July 20, 2006, Robinson was charged with attempted murder in violation of
{¶6} The trial court sentenced Robinson to an aggregate prison term of 15 years. Robinson subsequently filed a direct appeal, claiming that the trial court abused its discretion by accepting his plea, failing to grant his motion to withdraw his plea, and failing to order a competency examination before accepting his plea. He did not challenge his sentence. This court affirmed the trial court‘s judgment. State v. Robinson, 8th Dist. Cuyahoga No. 89136, 2007-Ohio-6831.
{¶7} The Ohio Supreme Court later denied Robinson‘s motion for leave to appeal. State v. Robinson, 118 Ohio St.3d 1409, 2008-Ohio-2340, 886 N.E.2d 872.
{¶8} Thereafter, Robinson filed an application with this court to reopen his appeal, asserting that he was denied the effective аssistance of appellate counsel. This
{¶9} In 2014, Robinson filed a motion for resentencing, arguing that his convictions should have merged as allied offenses, and that the trial court committed plain error in failing to consider the issue of mergеr at the time of sentencing. This court affirmed the trial court‘s denial of the motion, finding that the allied offenses argument was barred by the doctrine of res judicata. State v. Robinson, 8th Dist. Cuyahoga No. 101426, 2014-Ohio-5435, ¶ 15.
{¶10} Robinson then filed a “motion for correction of sentence and terminatiоn order,” asserting that there is no such crime as attempted felony murder and challenging the imposition of postrelease control. Robinson now appeals from the trial court‘s denial of his motion.
{¶11} In his first assignment of error, Robinson contends that the journal entry of sentencing is ambiguous because it does not specify the order in which the sentences are to be served. As this court has previously determined, any challenge to Robinson‘s sentence is barred by the doctrine of res judicata because he could have raised the argument on direct appeal. And even if we were to review the merits of Robinson‘s argument, we would find no support for his assertion that a sentencing court commits reversiblе error by not expressly providing the order for service of consecutive sentences. There are statutes and rules that refer to the order of how sentences are to be served. State v. Jackson, 7th Dist. Mahoning No. 13 MA 121, 2014-Ohio-2249, ¶ 44, citing
{¶12} In his second assignment of error, Robinson contends that he should be resentenced because the trial court did not proрerly impose postrelease control at sentencing. He asserts that although he was told that he would be subject to five years postrelease control, the trial court did not advise him of the consequences of a violаtion and did not include those consequences in the journal entry of sentencing.
{¶13} A trial court must provide statutorily compliant notification regarding postrelease control to a defendant at sentencing, including notifying the defendant of the details of postrelease control and the consequences of violating postrelease control. State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718; State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, paragraph one of the syllabus. The trial court must also incorporate notification of postrelease control in the sentencing entry. Id. If the trial court properly notifies the defendant about postrelease control at sentencing, but the notification is inadvertently omitted from the sentencing entry, the omission can be corrected with a nunc pro tunc entry if the defendant has not yet completed his prison term on the charges underlying the postrelease control sanction. State v. Lawson, 8th Dist. Cuyahoga No. 100626, 2014-Ohio-3498, ¶ 13-16. In such circumstances, the defendant is not entitled to a new sentencing hearing. Id.
{¶15} In his third assignment of error, Robinson contends that his conviction for attempted felony murder is void because attempted felony murder is not a cognizable crime in Ohio. See State v. Nolan, 141 Ohio St.3d 454, 2014-Ohio-4800, 25 N.E.3d 1016, ¶ 10 (“[a]ttempted felony murder is not a cognizable crime in Ohio.“). But Robinson was not convicted of felony murder in violation of
{¶16} Robinson also asserts in this assignment of error that he should have been convicted of second instead of first-degree kidnapping because the evidence demonstrated
{¶17} In his fourth assignment of error, Robinson asserts that the trial court erred in imposing consecutive sentences because it did not make the findings required by
{¶18} Under
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction * * *, or was under postrelease control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term * * * аdequately reflects the seriousness of the offender‘s conduct
(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necesssary to protect the pubic from future crime by the offender.
{¶19} Robinson argues that the trial court erred in imposing consecutive sentences because it failed to make the necessary findings. Robinson‘s argument fails. First, Robinson did not challenge his sentence on direct appeal to this court and, therefore, any
{¶20} Moreover, Robinson‘s argument fails because he was sentenced to concurrent, not consecutive, sentences. The journal entry of sentencing states:
The court imposes a prison sentence at the Lorain Correctional Institution of 15 years, 5 years on the R.V.O.S. to run prior to and consecutive to 10 years on base charge as to Count 1; 7 years on the R.V.O.S. to run prior to and consecutive with 8 years on base charge as to Count 2; 5 years on R.V.O.S. to run prior to and consecutive with 10 years on the base charge as to Count 3 and 18 months as to Count 4; all time to run concurrent (for a total of 15 years.) (Emphasis added.)
{¶21} The reference to “R.V.O.S.” in the journаl entry is to the repeat violent offender specifications associated with Counts 1, 2, and 3. The court‘s order that the R.V.O.S. be served consecutively to the sentence on the base charge for each of these counts does not implicated the requirements of
{¶22} Accordingly, because Robinson was sentenced to сoncurrent sentences, the trial court was not required to make the statutory findings required by
{¶24} Judgment affirmed and remanded.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and
PATRICIA ANN BLACKMON, J., CONCUR