State v. Future , 2012 Ohio 2300 ( 2012 )

[Cite as State v. Future, 2012-Ohio-2300.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96997
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DARWIN FUTURE
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-505815
BEFORE: Celebrezze, P.J., Cooney, J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: May 24, 2012
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Cuyahoga County Public Defender
BY: John T. Martin
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Katherine Mullin
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.:
{¶1} Appellant, Darwin Future, alleges that
the trial court’s plea colloquy was constitutionally inadequate when it failed
to advise appellant that his right against self-incrimination included a
constitutional protection against any adverse comment being made about, or
adverse inference drawn from, the exercise of his right not to testify at trial.
However, because the trial court lacked jurisdiction to grant appellant’s motion for
resentencing, we reverse the trial court’s entry filed June 8, 2011, remand this cause to the
trial court with instructions to vacate this entry, and reinstate the April 30, 2008
sentencing entry.
{¶2} Appellant pled guilty to two counts of felonious assault with three-year
firearm specifications and having a weapon under disability on April 7, 2008. He was
originally sentenced on April 30, 2008 to an aggregate prison term of 15 years. At
sentencing, the trial court failed to advise appellant of his appellate rights. As a result of
this lapse, three years later, appellant filed a motion for resentencing on April 18, 2011.
The state did not oppose the motion, and a resentencing hearing was conducted to restart
the period appellant had to perfect an original appeal.
{¶3} Appellant did just that, claiming the above-cited error. However, he did not
seek leave to file a delayed appeal with this court and did not file a motion for
postconviction relief based on the failure of the trial court to advise him of his appellate
rights under Crim.R. 32.
{¶4} Last year, this court addressed a very similar case with a slightly different
procedural posture, State v. Barr, 8th Dist. No. 96907, 2011-Ohio-6651. In that case, the
trial court denied Barr’s motion for resentencing filed four years after his original
sentence was imposed, claiming the trial court failed to advise him of his appellate rights.
This court affirmed the denial and further held that because the original sentence was a
final order, “the trial court lack[ed] jurisdiction to resentence Barr pursuant to a ‘motion
for resentencing.’” Id. at ¶ 9.
{¶5} As set forth in State v. Gover, 71 Ohio St.3d 577, 645 N.E.2d 1246 (1995),
the appropriate remedy is first to seek leave to file a delayed appeal with this court and, if
unsuccessful, to then file a motion for postconviction relief through R.C. 2953.21 with the
trial court.
{¶6} Appellant cites State v. Hunter, 8th Dist. No. 92626, 2010-Ohio-657, as
controlling precedent. That case is similar to the present situation with one important
distinction. At the time his appeal was decided, Hunter’s sentence was considered void
for lack of proper imposition of postrelease control. Id. at ¶ 9, 16. The sentence was not
a final order and could be modified by the trial court. In the case before us, we have a
sentence that constitutes a final order that cannot be modified absent some jurisdictional
basis. State v. Carlisle, 131 Ohio St.3d 127, 2011-Ohio-6553, 961 N.E.2d 671.
{¶7} The trial court lacked jurisdiction to vacate a final order of sentence without a
postconviction relief petition. Its attempt to reinstate the time period to perfect an appeal
was void.
{¶8} Judgment reversed, and the cause is remanded to the trial court with
instructions to vacate its June 8, 2011 entry and reinstate its April 30, 2008 entry.
It is ordered that appellant recover of said appellee 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 Rule 27 of
the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
COLLEEN CONWAY COONEY, J., and
EILEEN A. GALLAGHER, J., CONCUR