State v. Edmead , 2022 Ohio 2608 ( 2022 )

[Cite as State v. Edmead, 2022-Ohio-2608.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals No. WD-21-074
Appellee Trial Court No. 2015CR0317
v.
Heath Edmead DECISION AND JUDGMENT
Appellant Decided: July 29, 2022
*****
Paul A. Dobson, Wood County Prosecuting Attorney, and
David T. Harold, Assistant Prosecuting Attorney, for appellee.
W. Alex Smith, for appellant.
*****
ZMUDA, J.
{¶ 1} Appellant, Heath Edmead, appeals the judgment of the Wood County Court
of Common Pleas, sentencing him to ten months in prison after he pled guilty to one
count of theft. Because the state concedes error under 6th Dist.Loc.App.R. 10(H), and
we agree with the parties in this case that the trial court acted without jurisdiction when it
sentenced appellant to prison after an “unnecessary delay” under Crim.R. 32(A), we
reverse.
{¶ 2} On August 6, 2015, appellant was indicted on one count of grand theft of a
motor vehicle in violation of R.C. 2913.02(A)(3) and (B)(5), a felony of the fourth
degree. According to the indictment, appellant stole a 2005 Volvo semi-truck from its
owner on April 5, 2015.
{¶ 3} After the indictment was filed, a warrant was issued for appellant’s arrest.
However, because appellant was already incarcerated in New Jersey, the arrest warrant
was not served until June 14, 2018. Five days later, appellant appeared before the trial
court for arraignment and entered a plea of not guilty to the sole charge contained in the
indictment. The trial court found appellant indigent, appointed him counsel, and
continued the matter for a pretrial hearing at a later date.
{¶ 4} Following several continuances, appellant appeared before the trial court
again on September 17, 2018, for a change of plea hearing. Pursuant to a plea agreement,
appellant entered a guilty plea to the amended charge of theft in violation of R.C.
2913.02(A)(1) and (B)(1), a felony of the fifth degree. Following a Crim.R. 11 colloquy,
the trial court accepted appellant’s plea and found him guilty of the amended offense.
The trial court then ordered the preparation of a presentence investigation report and
continued the matter for sentencing.
{¶ 5} On November 27, 2018, the trial court attempted to hold a sentencing
hearing. However, appellant did not appear for sentencing, prompting the trial court to
issue a nationwide warrant for appellant’s arrest. In its order issuing the warrant, the trial
court noted that appellant was “housed in Cayuga City Jail, New York” and indicated:
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“This case is removed from the active docket until such time as the Defendant is in
custody.”
{¶ 6} Thereafter, on May 24, 2019, the trial court received a letter from appellant,
informing the court that appellant was being held in the Gowanda Correctional Facility
located in Gowanda, New York. In his letter, appellant asked the trial court to hold his
sentencing hearing via video teleconferencing in this matter, and expressly agreed to
waive his right to be physically present at such hearing.
{¶ 7} Receiving no response from the trial court, appellant sent several follow-up
letters to the court reiterating his request to be sentenced remotely and asking for a status
update. Eventually, on September 22, 2021, the trial court finally granted appellant’s
request and set the matter for a sentencing hearing.
{¶ 8} On October 7, 2021, appellant appeared before the trial court via telephone
for his remote sentencing hearing. At the hearing, the trial court ordered appellant to
serve ten months in prison, and directed that the sentence be served concurrently with a
prison term appellant was already serving in New York.
{¶ 9} Thereafter, on November 1, 2021, appellant filed his timely notice of appeal.
On February 17, 2022, appellant filed his merit brief, in which he assigns the following
error for our review: “The trial court was divested of jurisdiction after an over 2 year
delay between plea and sentencing under Crim.R. 32(A).”
{¶ 10} On April 13, 2022, while the appeal was pending and before the state filed
its appellee brief, appellant filed a motion to dismiss, in which he indicated that the state
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agreed with his contention that his sentence was improperly imposed by the trial court
and thus void. On May 16, 2022, we issued our decision denying appellant’s motion to
dismiss and directing the parties to file a notice of conceded error under 6th
Dist.Loc.App.R. 10(H) within 14 days. The following day, the state filed a notice of
conceded error, acknowledging that “the trial court erred when it sentenced Edmead to a
prison term after an ‘unnecessary delay’ pursuant to Crim.R. 32(A).” The matter is now
decisional.
{¶ 11} “It is well established that the time of pronouncing sentence is within the
discretion of the trial court, and a delay for a reasonable time does not invalidate the
sentence.” Neal v. Maxwell, 175 Ohio St. 201, 202, 192 N.E.2d 782 (1963). However,
under Crim.R. 32(A), a criminal sentence must be imposed without unnecessary delay,
and “any delay in sentencing must be reasonable in order to be valid.” State v. Brown,
152 Ohio App.3d 8, 2003-Ohio-1218, ¶ 20 (7th Dist.).
{¶ 12} In Brown, one of the two cases relied upon by appellant in this case, the
Seventh District reversed the defendant’s sentence and held that a 20-month delay in
sentencing was unreasonable, thereby divesting the trial court of jurisdiction to impose
the sentence. Brown at ¶ 31. The defendant in Brown pleaded guilty to charges in
Columbiana County. However, the defendant was arrested and detained in Jefferson
County prior to his sentencing based upon a request for extradition to Colorado. The
defendant was eventually extradited to Colorado and thus failed to appear in Columbiana
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County for his scheduled sentencing, at which point the trial court issued a warrant for his
arrest.
{¶ 13} The defendant was not returned to Ohio and neither the state nor the trial
court took any steps to sentence the defendant for a period of 20 months. Finally, over
three years after he entered his guilty plea, the defendant was sentenced via video
conference. On appeal, the Seventh District reversed the defendant’s sentence and held
that the 20-month delay in sentencing was unreasonable, thereby divesting the trial court
of jurisdiction to impose the sentence. Brown at ¶ 31.
{¶ 14} In addition to relying upon Brown to support his argument, appellant also
cites to a decision of the Twelfth District, State v. Johnson, 12th Dist. Madison No.
CA2002-07-016, 2003-Ohio-6261. There, the defendant pled guilty to several felony
charges, but failed to appear at his sentencing hearing. Id. at ¶ 2. The defendant was then
arrested, charged, and convicted of unrelated offenses in Kentucky. Id. The defendant
and his attorney wrote letters to the Ohio court notifying it of the defendant’s
whereabouts and requesting disposition of the case. Id. at ¶ 4-9. Notwithstanding such
notice, the court failed to sentence the defendant until he was released from prison in
Kentucky six years later. Id. at ¶ 9. On appeal, the Twelfth District relied upon Brown
and held that the trial court’s six-year delay was unreasonable. Id. at ¶ 17. As such, the
court found that the trial court was divested of jurisdiction to sentence the defendant and
reversed the sentence based upon that finding. Id. at ¶ 17-18.
5.
{¶ 15} In his brief, appellant argues that the facts of this case are analogous to the
facts articulated by the courts in Brown and Johnson. The state agrees, and concedes that
the trial court’s delay in sentencing appellant in this case was unreasonable.
{¶ 16} Having reviewed the record before us in light of Brown and Johnson, we
agree that the delay of nearly three years between finding appellant guilty of theft on
September 17, 2018, and sentencing him for the offense on October 7, 2021, was
unreasonable. Like the defendant in Johnson, appellant notified the state and the trial
court of his out-of-state incarceration several times during the aforementioned period, and
requested final disposition in each of his letters to the trial court. As in Brown and
Johnson, neither the state nor the trial court took any action on appellant’s requests, and
no explanation was provided for the delay.
{¶ 17} In State v. Martinez, 6th Dist. Wood. No. WD-09-068, 2010-Ohio-2007,
we reviewed Brown and Johnson and noted that, in both cases, “the state and or the trial
court were shown to have relevant, specific information of the defendants’ whereabouts
yet they simply failed to act on said information in a timely manner. Furthermore, the
records in those cases showed the state and or the trial court had no valid excuse for their
inaction.” Id. at ¶ 16. Such is precisely the case here. Consequently, we reach the same
conclusion reached in Brown and Johnson, namely that the trial court’s delay in
sentencing appellant was unreasonable and therefore the trial court was divested of
jurisdiction to sentence appellant.
6.
{¶ 18} Accordingly, appellant’s sole assignment of error is well-taken. “[T]he
remedy for an unreasonable delay is for ‘the sentence [to] be reversed, rather than a full
dismissal of the charges.’” State v. Owens, 181 Ohio App.3d 725, 2009-Ohio-1508, 910
N.E.2d 1059, ¶ 35 (7th Dist.), citing Brown at ¶ 30 and Johnson at ¶ 18. Thus, the
judgment of the Wood County Court of Common Pleas is reversed, and appellant’s
sentence is vacated. The state is ordered to pay the costs of this appeal pursuant to
App.R. 24.
Judgment reversed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. ____________________________
JUDGE
Gene A. Zmuda, J.
____________________________
Myron C. Duhart, P.J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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