State v. Rorie ( 2011 )

[Cite as State v. Rorie, 2011-Ohio-2556.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
STATE OF OHIO : W. Scott Gwin, P.J.
: Sheila G. Farmer, J.
Plaintiff-Appellee : Julie A. Edwards, J.
:
-vs- : Case No. 2010CA00154
:
:
DESMOND RORIE : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Stark County
Court of Common Pleas Case No.
2002CR0407
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: May 23, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO STEPHEN P. HARDWICK
Prosecuting Attorney Office of the Ohio Public Defender
Stark County, Ohio 250 E. Broad Street – Ste. 1400
Columbus, Ohio 43215
BY: RONALD MARK CALDWELL
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Ste. 510
Canton, Ohio 44702-1413
[Cite as State v. Rorie, 2011-Ohio-2556.]
Edwards, J.
{¶1} Appellant, Desmond Alexander Rorie, appeals a judgment of the Stark
County Common Pleas Court resentencing him for one count of felonious assault (R.C.
2903.11(A)(1)). Appellee is the State of Ohio.
STATEMENT OF FACTS AND CASE
{¶2} In 2002, appellant was indicted by the Stark County Grand Jury with one
count of felonious assault. He was convicted after jury trial, and sentenced to eight
years incarceration. The judgment was affirmed by this Court. State v. Rorie, Stark
App. No. 2002-CA-00187, 2005-Ohio-1726. The Ohio Supreme Court reversed the
portion of this Court’s opinion regarding the imposition of the maximum sentence
pursuant to State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470, 2006-Ohio-856. The
case was remanded to the trial court for resentencing.
{¶3} On remand, the court again sentenced appellant to eight years
incarceration. One day later, the court held a hearing at which time the court imposed a
term of postrelease control of up to five years. Appellant filed an appeal from this
judgment.
{¶4} This Court reversed, finding that the correct period of postrelease control
was three years, not five years. State v. Rorie, Stark App. No. 2006-Ohio-00181, 2007-
Ohio-741. We vacated the postrelease control portion of the sentence and remanded
for further proceedings.
{¶5} On remand, the trial court issued a judgment on March 27, 2007, which
stated in pertinent part:
Stark County App. Case No. 2010CA00154 3
{¶6} “The Court has further notified the defendant that post release control is
mandatory in this case and a maximum of three (3) years, as well as the consequences
for violating conditions of post release control imposed by the Parole Board under
Revised Code Section 2967.28. The defendant is ordered to serve as part of this
sentence any term of post release control imposed by the Parole Board, and any prison
term for violation of that post release control.” Appellant did not appeal this entry.
{¶7} For reasons not apparent on the record, the trial court conducted another
resentencing hearing on March 8, 2010, while appellant was still incarcerated, to
address postrelease control. On March 18, 2010, the court filed a resentencing entry,
which states in pertinent part:
{¶8} “On March 8, 2010, Defendant came before the Court for re-sentencing
pursuant to the decision of the Fifth District Court of Appeals for Stark County in St. v.
Rorie, Stark App. No. 2006-CA-00181. The Defendant having previously been found
guilty by jury to the crime of Felonious Assault, 1 Ct. [R.C.2903.11(A)(1)](F2) as
charged in the indictment . . . .
{¶9} “The Court has further notified the defendant that upon release from
prison, the Defendant is ordered to serve a mandatory period of three years of post
release control pursuant to R.C. 2967.28(B).”
{¶10} Appellant did not appeal the March 18, 2010, judgment entry.
{¶11} For reasons again not apparent on the record, the court filed a corrected
re-sentencing entry on May 12, 2010, after appellant was released from prison. This
entry provides in pertinent part:
Stark County App. Case No. 2010CA00154 4
{¶12} “On March 8, 2010, Defendant came before the Court for re-sentencing
pursuant to the decision of the Fifth District Court of Appeals for Stark County in St. v.
Rorie, Stark App. No. 2006-CA-00181. The Defendant having previously been found
guilty by jury to the crime of Felonious Assault, 1 Ct. [R.C.2903.11(A)(1)](F2) as
charged in the Indictment and being duly convicted thereon…
{¶13} “The Court has further notified the defendant that upon release from
prison, the Defendant is ordered to serve a mandatory period of three years of post
release control pursuant to R.C. 2967.28(B).” (Emphasis added).
{¶14} Appellant filed a notice of appeal from the May 12, 2010 entry, assigning
the following errors:
{¶15} “I. THE TRIAL COURT ERRED BY ADDING POSTRELEASE CONTROL
TO MR. RORIE’S SENTENCE AFTER HIS SENTENCE HAD EXPIRED.
{¶16} “II. THE TRIAL COURT EXCEEDED THIS COURT’S MANDATE WHEN
IT IMPOSED A MAXIMUM OF THREE YEARS OF POSTRELEASE CONTROL
INSTEAD OF SIMPLY IMPOSING THREE YEARS.
{¶17} “III. THE TRIAL COURT VIOLATED MR. RORIE’S RIGHT TO BE FREE
FROM MULTIPLE PUNISHMENTS WHEN IT MERELY TACKED POSTRELEASE
CONTROL ONTO HIS PREVIOUS PRISON TERM.
{¶18} “IV. TO THE EXTENT THE TRIAL COUNSEL WAIVED ANY OF THESE
ISSUES PRESENTED IN THIS BRIEF, COUNSEL WAS INEFFECTIVE.”
{¶19} We first address the issue of whether the instant appeal is timely.
{¶20} The record does not indicate why the court issued a corrected re-
sentencing entry on May 12, 2010, but because the only addition to this entry from the
Stark County App. Case No. 2010CA00154 5
March 18, 2010, entry is the phrase “and being duly convicted thereon” in the first
paragraph, it appears the trial court believed the addition of that phrase was necessary
to make the order final and appealable pursuant to Crim. R. 32(C).
{¶21} The Ohio Supreme Court has held that a judgment of conviction is a final,
appealable order when it sets forth (1) the guilty plea, the jury verdict, or the finding of
the court upon which the conviction is based, (2) the sentence, (3) the signature of the
judge, and (4) entry on the journal by the clerk of courts. State v. Baker, 119 Ohio St.3d
197, 893 N.E.2d 163, 2008-Ohio-3330, ¶18.
Stark County App. Case No. 2010CA00154 6
{¶22} In the instant case, we find the addition of the words “and being duly
convicted thereon” was superfluous. The March 18, 2010, resentencing entry set forth
that appellant had been found guilty by a jury, the sentence, the judge’s signature and
entry on the journal by the clerk of courts. Because the March 18, 2010, order was a
final, appealable order of resentencing following appellant’s March 8, 2010, sentencing
hearing, and appellant did not file his notice of appeal until June 11, 2010, the instant
appeal is untimely pursuant to App. R. 4(A). The appeal is dismissed.
By: Edwards, J.
Gwin, P.J. and
Farmer, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/r0208
[Cite as State v. Rorie, 2011-Ohio-2556.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
DESMOND RORIE :
:
Defendant-Appellant : CASE NO. 2010CA00154
For the reasons stated in our accompanying Memorandum-Opinion on file, the
appeal of the Stark County Court of Common Pleas is dismissed. Costs assessed to
appellant.
_________________________________
_________________________________
_________________________________
JUDGES