State v. TasteState v. Taste
Rendered on the 6th day of November, 2009.
. . . . . . . . . .
JOHNNA M. SHIA, Atty. Reg. No. 0067685, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
BEN SWIFT, Atty. Reg. No. 0065745, 333 West First Street, Suite 445, Dayton, Ohio 45402
Attorney for Defendant-Appellant
. . . . . . . . . .
FROELICH, J.
{¶ 1} In 1997, Damrick Taste pled guilty in the Montgomery County Court of Common Pleas to one count of carrying a concealed weapon, one count of failure to comply with an order or signal of a police officer, one count of grand theft, six counts of aggravated robbery, each with a firearm specification, and one count of involuntary manslaughter, with
{¶ 2} Taste appeals from his sentence. For the following reasons, the trial court‘s judgment will be vacated to the extent that it imposed a three-year term of actual incarceration for the firearm specification set forth in Counts 1 and 2 of the December 1996 indictment. In all other respects, the judgment will be affirmed.
I
{¶ 3} Taste‘s convictions were based on two indictments. The first indictment, dated November 19, 1996, alleged four counts of aggravated robbery (Counts 4, 5, 8, and 9), each with a firearm specification; involuntary manslaughter (Count 6), with a firearm specification; grand theft (Count 7); and carrying a concealed weapon (Count 15).1 The second indictment (a “B” indictment with the same case number), dated December 19, 1996, charged two additional counts of aggravated robbery (Counts 1 and 2), each with a firearm specification, and failure to comply with an order or signal of a police officer (Count 3).
{¶ 4} Taste entered a negotiated plea of guilty to all of the pending charges and to
{¶ 5} At the June 27, 1997, sentencing hearing, the original trial judge imposed sentence as follows:
{¶ 6} “*** [W]ith respect to the aggravated robbery of the decedent and of the passenger, that Counts 1 and 2, that the sentences be ten years in Ohio Rehabilitation Corrections Receptions Center. On each count there was a gun specification. With respect to each count, however it merges and it shall be three years, so with respect to Counts 1 and 2, it will be 23 years. With respect to failure to comply with an order or signal of a police officer, Count 3, the sentence is eighteen months. Having considered all the factors and recidivism matters and the like under the
{¶ 7} The court‘s June 27, 1997, judgment reflected an aggregate 26-year prison term, with Counts 4 through 9 from the November indictment running concurrently for a total of ten years, plus an additional three years for the merged firearm specifications, and Counts 1 through 3 from the December indictment running concurrently for a total of ten years, plus three years for the merged firearm specifications, to be served consecutively to the offenses set forth in the November indictment. The entry ordered payment of costs, and stated that “[i]f applicable in this, the defendant is hereby ORDERED to make complete restitution.” The judgment entry further stated that, following Taste‘s release from prison, he “will/may serve a period of post-release control under the supervision of the parole board[.]”
{¶ 8} On September 11, 2008, the trial court held a new sentencing hearing due to the original trial judge‘s failure to inform Taste that he would be required to serve mandatory post-release control after the completion of his prison term. The court imposed
{¶ 9} With the exception of the paragraph concerning post-release control, which was modified to reflect that Taste would be supervised by the Parole Board for five years after his release from prison, the trial court‘s September 15, 2008, judgment entry was identical to the June 27, 1997, entry.2 It reflected the prison sentences as stated at the September 11, 2008, sentencing hearing and further ordered, in part:
{¶ 10} “The defendant is to pay the costs of this prosecution taxed at $________, upon which execution is hereby awarded through the Montgomery County Clerk‘s Office.
{¶ 11} “***
{¶ 12} “If applicable in this, the defendant is hereby ORDERED to make complete restitution.”
{¶ 13} Taste appeals from his sentence, raising one assignment of error.
II
{¶ 14} Taste‘s sole assignment of error states:
{¶ 16} Taste claims that the trial court erred when it failed to merge the seven firearm specifications into a single specification and failed to specify the amount of restitution.
{¶ 17} As an initial matter, the State argues that Taste cannot challenge either the court‘s failure to merge all of the firearm specifications or the restitution order, because those arguments could have, and should have, been raised in an appeal from his 1997 sentence and are barred by res judicata. The State contends that the original sentencing entry was not a void judgment, because the trial court did not exceed its authority when it sentenced Taste in 1997. We disagree.
{¶ 18} “If a trial court has decided to impose a prison term upon a felony offender, it is duty-bound to notify that offender at the sentencing hearing about postrelease control and to incorporate postrelease control into its sentencing entry.” State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, at ¶22. For example,
{¶ 19} “***
{¶ 20} “(c) Notify the offender that the offender will be supervised under section
{¶ 22} The Supreme Court of Ohio has held that, “[i]n cases in which a defendant is convicted of, or pleads guilty to, an offense for which postrelease control is required but not properly included in the sentence, the sentence is void, and the state is entitled to a new sentencing hearing to have postrelease control imposed on the defendant unless the defendant has completed his sentence.” State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, syllabus. See, also, State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250. The Court recently reiterated that a sentence that fails to include post-release control is void, and “[t]he effect of vacating the sentence places the parties in the same position they would have been in had there been no sentence.” State v. Boswell, 121 Ohio St.3d 575, 2009-Ohio-1577, at ¶8.
{¶ 23} Following this supreme court authority, we have likewise held that, “[w]here a sentence fails to contain a statutorily mandated term, such as post-release control, it is unlawful and void, not merely voidable, *** [and] [r]es judicata does not bar resentencing because a trial court retains jurisdiction to correct a void sentence.” State v. Davis, Montgomery App. No. 22403, 2008-Ohio-6722, at ¶14, citing Simpkins at ¶15, ¶30. See, also, State v. Winston, Montgomery App. No. 22506, 2009-Ohio-2171.
{¶ 25} As a court inferior to the Supreme Court of Ohio, we lack jurisdiction to review whether the Supreme Court has properly determined that a sentence which fails to include post-release control is void, rather than voidable. See State v. Aitken, Clark App. No. 2008 CA 75, 2009-Ohio-3757, at ¶8. Rather, we are obliged to follow and apply the rules of law that the Supreme Court announces in its decisions. In re Estate of Werts, Montgomery App. No. 22824, 2009-Ohio-3120, at ¶23. “We may not vary from them, much less overrule them ***.” Id.
{¶ 26} Based on the Supreme Court‘s authority, Taste‘s original sentence was void for failure to include mandatory post-release control, and Taste‘s arguments concerning his sentence are not barred by res judicata.
{¶ 27} First, Taste asserts that his firearm specifications should have been merged into a single three-year mandatory sentence.
{¶ 28} If a defendant is convicted of a firearm specification pursuant to
{¶ 29} According to the December 19, 1996, indictment, Taste committed an aggravated robbery on October 1, 1996 (Count 2), and, again, on October 24, 1996 (Count 1). Both of the aggravated robbery offenses in the December 1996 indictment included a firearm specification. The November 1996 indictment alleged that Taste committed two additional aggravated robberies on October 24, 1996 (Counts 4 and 5). On October 30, 1996, he also committed two aggravated robberies (Counts 8 and 9), shot and killed Forrest McKinney during the commission of a felony (Count 6), and stole an Oldsmobile automobile belonging to Fred Favor (Count 7). Taste allegedly had a firearm when he committed each of the aggravated robberies and the involuntary manslaughter.
{¶ 30} In its appellate brief, the State provides further details regarding these
{¶ 31} As stated above, the trial court chose to merge the firearm specifications in the two indictments, respectively, resulting in two three-year mandatory prison terms. We agree with Taste that this was error, although not for the reason he assigns. The record reflects that the firearm specifications for Counts 1 and 2 in the December 1996 indictment were dismissed as part of Taste‘s negotiated plea in January 1997. Accordingly, at the time of Taste‘s sentencing, the trial court could not merge those specifications and impose a three-year term of actual incarceration. Rather, the court was left with only the five specifications from the November 1996 indictment, which the court merged into a single specification. The court‘s imposition of a second three-year term for the specifications set forth in December 1996 indictment must be vacated.
{¶ 32} Second, Taste claims that the trial court erred in failing to specify the amount of restitution that he was required to pay.
{¶ 33} Under
{¶ 34} “If the court imposes restitution, at sentencing, the court shall determine the
{¶ 35} “There must be sufficient clarity in the court‘s restitution order. State of Ohio v. Brown, 54 Ohio App.3d 160, 561 N.E.2d 995. Although it may not be necessary to identify each victim by name, particularly in cases with ‘multiple victims,’ at a minimum, the total amount must be journalized and a cogent record must exist as to whom said amount shall be distributed. Failure to do so constitutes plain error.” State v. DeLong, Montgomery App. No. 20656, 2005-Ohio-1905, at ¶19.
{¶ 36} At the September 2008 sentencing hearing, the court informed Taste that he was required to pay any restitution “previously imposed.” The original trial judge made no mention of restitution at the June 24, 1997, sentencing hearing and, like the September 15, 2008, judgment entry, the original June 27, 1997, judgment entry merely stated that Taste was ordered to make complete restitution “if applicable.” There is nothing in the record to suggest that Taste, in fact, was ever ordered to pay restitution. In our view, the language in the judgment entries that Taste was ordered to make restitution “if applicable” is insufficient to constitute an order of restitution. At best, this language vaguely suggests that Taste
{¶ 37} Because the trial court‘s judgment did not, in fact, order Taste to pay restitution, the trial court did not err in failing to specify an amount of restitution in its entry, which it would have been required to do had restitution been ordered.
{¶ 38} The assignment of error is overruled.
{¶ 39} Parenthetically, we note that, had the language in the judgment entries constituted an order of restitution, it is questionable whether the trial court‘s judgment would have constituted a final, appealable order. Historically, if the trial court did not determine the amount of restitution at the sentencing hearing and failed to specify an amount in the judgment entry, we would have reversed the judgment and remanded for a determination of the amount of damages to be paid by the defendant. See, e.g., State v. Howard, Montgomery App. No. 20326, 2004-Ohio-6227, at ¶5 (“[W]e agree with Howard that the trial court committed plain error by failing to order restitution in a specific amount. *** We also agree with the State that the proper remedy is to remand the matter to the trial court for a hearing to determine the amount of restitution.“); DeLong, supra; State v. Collins, Montgomery App. No. 21182, 2006-Ohio-3036, at ¶4. See, also, State v. Davis, Butler App. No. CA2005-01-008, 2005-Ohio-5292, at ¶3 (“In the absence of an order specifying the particular amount that is to be paid as restitution, the case should be remanded for further proceedings on the issue of restitution.“). This approach continues to be used in several other districts. See In re Boss B., Lucas App. No. L-07-1343, 2008-Ohio-2995; State v. Downie, Mahoning App. No. 07 MA 214, 2009-Ohio-4643, at ¶41-42.
{¶ 41} Other districts have likewise held that a judgment entry remains interlocutory when it fails to specify the amount of restitution or the method of payment. See, e.g., State v. Baker, Butler App. No. CA2007-06-152, 2008-Ohio-4426, at ¶43 (sentencing entry not final where restitution was ordered in an amount “to be determined on June 19, 2007“). For example, the Third District held that a sentencing entry that included an award of restitution to the victim‘s family for funeral and burial expenses of the decedent was not a final, appealable order when the judgment failed to specify the amount of restitution. State v. Kuhn, Defiance App. No. 4-05-23, 2006-Ohio-1145, at ¶8.
{¶ 42} Because Taste was not ordered to pay restitution, Plassenthal is not applicable to the situation before us, and we need not determine whether a sentencing entry that is silent as to the amount of ordered restitution is a final, appealable order.
III
{¶ 43} The judgment of the trial court will be vacated to the extent that it imposed a three-year term of actual incarceration for the firearm specification set forth in Counts 1 and 2 of the December 1996 indictment. In all other respects, the judgment will be affirmed.
. . . . . . . . . .
DONOVAN, P.J. and WOLFF, J., concur.
(Hon. William H. Wolff, Jr., retired from the Second District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).
Copies mailed to:
Johnna M. Shia
Ben Swift
Hon. Mary Katherine Huffman