State v. Carver ( 2013 )

[Cite as State v. Carver, 2013-Ohio-4815.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 25280
v. : T.C. NO. 03CR3323
KYLE CARVER SR. : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 1st day of November , 2013.
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ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
KYLE CARVER SR., #507-248, Marion Correctional Institute, 940 Marion-Williamsport
Road, P. O. Box 57, Marion, Ohio 43301
Defendant-Appellant
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FROELICH, J.
{¶ 1} Kyle Carver appeals from a judgment of the Montgomery County
Court of Common Pleas, which overruled his “Motion for Re-Sentencing Pursuant to O.R.C.
Sec. 2945.75 and State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256.” For the following
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reasons, the trial court’s judgment will be affirmed.
I.
{¶ 2} In 2005, Carver was convicted by a jury of unauthorized use of a motor
vehicle, kidnapping, and felonious assault; he was acquitted of other charges. The trial
court imposed maximum, consecutive sentences, for an aggregate term of 19 years in prison.
The termination entry ordered Carver to pay extradition costs in the amount of $382.82 to
the county prosecutor’s office and court costs. We affirmed Carver’s conviction. State v.
Carver, 2d Dist. Montgomery No. 21328, 2006-Ohio-5798.
{¶ 3} In 2006, Carver filed an application to reopen his appeal, which we granted
in part. Among his new assignments of error, Carver claimed that the trial court erred,
pursuant to State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d 735, in
sentencing him for a fifth-degree felony unauthorized use of a vehicle and for a first-degree
felony kidnapping. We rejected his arguments and again affirmed his conviction. State v.
Carver, 2d Dist. Montgomery No. 21328, 2008-Ohio-4631.
{¶ 4} Carver also filed a petition for post-conviction relief. The trial court denied
the petition because it was untimely and because Carver had failed to establish a basis for
extending the time. We affirmed the trial court’s judgment concerning the petition for
post-conviction relief. State v. Carver, 2d Dist. Montgomery No. 22407, 2008-Ohio-5516.
{¶ 5} In 2010, Carver filed a motion in the trial court for resentencing under State
v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, which required a de
novo resentencing if postrelease control had not been properly imposed. In another motion,
he sought dismissal of the charges based on double jeopardy. On December 1, 2010, Carver
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filed an additional motion for resentencing pursuant to R.C. 2945.75 and Pelfrey.
{¶ 6} On December 3, 2010, the trial court conducted a de novo resentencing
hearing. 1 At the hearing, Carver informed the court that he had filed a motion for
resentencing under Pelfrey. The trial court indicated that it would resentence him “based
upon * * * [the court’s] reading of the statutes and having reviewed the facts of the case, et
cetera.” When the court asked Carver if he had anything to say, Carver argued that he
should receive the shortest prison term for the lowest degree of the offense because “the jury
verdict forms were empty of the degrees to which I should be sentenced * * *.” He also
argued that his kidnapping charge violated double jeopardy. Carver asked to receive time
served for his remaining offenses. The trial court imposed the same sentence as had been
imposed at his 2005 sentencing. We affirmed the trial court’s judgment. State v. Carver,
2d Dist. Montgomery No. 24400, 2011-Ohio-5955.
{¶ 7} On December 6, 2010, three days after the resentencing, the trial court filed
an entry denying Carver’s motion to dismiss on double jeopardy grounds and it dismissed
the motion for resentencing under Singleton, on the ground that Carver had been
resentenced. The trial court’s entry did not address Carver’s December 1, 2010 motion for
resentencing pursuant to R.C. 2945.75 and Pelfrey.
{¶ 8} A year later, on December 1, 2011, Carver filed a Motion to Vacate Court
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Carver’s original sentence predated July 11, 2006, the effective date of R.C. 2929.191. Consequently, although the
problem with Carver’s sentence was limited to the imposition of postrelease control, he was resentenced de novo in accordance
with Singleton, which was the controlling law at that time. State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d
332, which overruled Singleton and provided for resentencing only on the issue of postrelease control under these circumstances,
was decided three weeks after Carver’s December 3, 2010 sentencing hearing.
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Costs. The trial court denied the motion, concluding that it lacked jurisdiction to suspend or
waive the payment of the court costs it had previously imposed. We affirmed the trial
court’s decision. State v. Carver, 2d Dist. Montgomery No. 25197, 2012-Ohio-5789.
{¶ 9} On June 6, 2012, the trial court filed an entry denying Carver’s December 1,
2010 motion for resentencing pursuant to R.C. 2945.75 and Pelfrey. The court stated:
Defendant argues that the verdict forms in his case did not specify the degree
of the charges and thus he should be sentenced to the least degree of such
offenses. The verdict forms stated that the respective offenses were “as
charged in the indictment.” On the authority of State v. Eafford, 2002 Ohio
2224, the Court finds that the form of the jury verdict was adequate in this
case at bar. Accordingly, Defendant’s Motion for Re-Sentencing Pursuant to
O.R.C. Sec. 2945.75 and State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256is hereby OVERRULED.
{¶ 10} Carver appeals from the trial court’s denial of his motion for resentencing
pursuant to R.C. 2945.75 and Pelfrey.
II.
{¶ 11} Carver raises three assignments of error:
Assignment of Error #1: APPELLANT’S RIGHT TO TRIAL BY
JURY, FAST AND SPEEDY TRIAL RIGHTS, AND HIS DUE PROCESS
RIGHTS WERE VIOLATED WHEN THE TWELVE JURORS FAILED TO
SIGN HIS JURY VERDICT FORMS PURSUANT TO STATE V.
KIMBROUGH, 2009-OHIO-6875; STATE V. CANADY, 1991 OHIO
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APP.LEXIS. 581; AND FIFTH, SIXTH, & FOURTEENTH AMENDMENT
OF THE OHIO AND UNITED STATES CONSTITUTIONS, RENDERING
HIS SENTENCE INCOMPLETE WITH NO FINAL APPEALABLE
ORDER (CRIM.R. 32(C)[)] & BECAUSE OF THE DELAY IN
SENTENCING PURSUANT TO CRIM.R. 32(A) FOR WHICH THERE IS
NO CURE, APPELLANT’S REMEDY SHOULD BE IMMEDIATELY [sic]
DISCHARGE FROM CUSTODY. [Emphasis in original.]
Assignment of Error #2: APPELLANT’S INDICTMENT IS
INVALID AND MUST BE DISMISSED DUE TO FRAUDULENT CASE
NUMBER.
Assignment of Error #3: PURSUANT TO OHIO CRIMINAL RULE
32(C) APPELLANT LACKS A FINAL APPEALABLE ORDER AND THE
TRIAL COURT LACKED THE AUTHORITY OR JURISDICTION TO
SENTENCE APPELLANT KYLE CARVER SR ENTITLING HIM TO
IMMEDIATE DISCHARGE.
{¶ 12} As an initial matter, Carver claims in his first and third assignments of error
that the trial court has not entered a final appealable order in his case. Carver cites to
Crim.R. 32(C), but his argument focuses on his claim that the jury did not sign the verdict
forms, rendering the court “powerless” to enter a judgment against him.
{¶ 13} A judgment of conviction is a final order subject to appeal under R.C.
2505.02 when the judgment entry sets forth “(1) the fact of the conviction, (2) the sentence,
(3) the judge’s signature, and (4) the time stamp indicating the entry upon the journal by the
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clerk.” State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, ¶ 14. “If a
judgment of conviction does not comply with Crim.R. 32(C) due to a failure to indicate how
a defendant's conviction was effected, a party may obtain a correction to the judgment entry
by a motion filed with the trial court to correct the judgment of conviction. The remedy for
failing to comply with Crim.R. 32(C) is a revised sentencing entry rather than a new
hearing.” (Citations omitted.) State v. Shingleton, 2d Dist. Montgomery No. 25679,
2013-Ohio-3943, ¶ 12.
{¶ 14} Carver claims that the trial court’s judgment entry is not final because it
states that he was found guilty by a jury, when the copies of the jury’s verdicts in his
possession do not contain the jurors’ signatures. Even assuming, arguendo, that the lack of
signatures would affect the finality of the court’s judgment (which we do not hold), the
original verdict forms that are contained in the court’s records are signed by all twelve
jurors. Carver’s argument lacks merit.
{¶ 15} Carver’s first assignment of error also appears to claim that he should have
been sentenced to the shortest prison term for the lowest degree of the offense because the
verdict forms did not specify the degree of the offense. We previously rejected this same
argument in our 2008 opinion affirming Carver’s conviction after reopening his direct
appeal. We stated:
* * * Carver claims that the trial court erred in sentencing him for a
fifth-degree felony Unauthorized Use of a Vehicle and for a first-degree
Felony Kidnapping. Carver claims that the court was required to sentence
him to the least degree of the offense charged, because the verdict forms did
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not indicate the degree of the offense. Carver relies upon State v. Pelfrey,
112 Ohio St.3d 422, 860 N.E.2d 735, 2007-Ohio-256, in which the Supreme
Court of Ohio held: “Pursuant to the clear language of R.C. 2945.75, a verdict
form signed by a jury must include either the degree of the offense of which
the defendant is convicted or a statement that an aggravating element has
been found to justify convicting a defendant of a greater degree of a criminal
offense.” Id. at syllabus.
Of relevance to this assignment of error, Carver was charged with
Unauthorized Use of a Vehicle, in violation of R.C. 2913.03(B), and
Kidnapping, in violation of R.C. 2905.01(A)(4). R.C. 2913.03(D) sets forth
the penalties for violations of R.C. 2913.03. R.C. 2913.03(D) states, in
relevant part:
“(3) Except as otherwise provided in division (D)(4) of this section, a
violation of division (B) of this section is a felony of the fifth degree.
“(4) If the victim of the offense is an elderly person or disabled adult
and if the victim incurs a loss as a result of the violation, a violation of
division (A) or (B) of this section is whichever of the following is applicable:
“(a) Except as otherwise provided in division (D)(4)(b), (c), (d), or
(e) of this section, a felony of the fifth degree;
“(b) If the loss to the victim is five hundred dollars or more and is less
than five thousand dollars, a felony of the fourth degree;
“(c) If the loss to the victim is five thousand dollars or more and is
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less than twenty-five thousand dollars, a felony of the third degree;
“(d) If the loss to the victim is twenty-five thousand dollars or more,
a felony of the second degree.”
As noted by the State, the jury’s verdict on the Unauthorized Use
charge was a finding of guilty on the least degree of the charged offense.
Accordingly, the trial court did not did not err in sentencing him for a
fifth-degree felony.
The same is true for the Kidnapping charge. R.C. 2905.01(C), which
sets forth the penalties for violation of R.C. 2905.01(A)(4), states: “Whoever
violates this section is guilty of kidnapping, a felony of the first degree. If
the offender releases the victim in a safe place unharmed, kidnapping is a
felony of the second degree.” Whether the victim is released in a safe place
unharmed is not an element of the offense. State v. Sanders, 92 Ohio St.3d
245, 265, 750 N.E.2d 90, 2001-Ohio-189. Rather, it is in the nature of an
affirmative defense, and the defendant bears the burden of proof on this issue.
Id.; State v. Jennings (Jan. 24, 1996), Clark App. No. 94-CA-611. Because
Carver failed to assert and prove that he released [the victim] in a safe place
unharmed, the trial court properly sentenced him for Kidnapping as a
first-degree felony.
Carver, 2d Dist. Montgomery No. 21328, 2008-Ohio-4631, ¶ 78-87.
{¶ 16} Although Carver arguably may raise his Pelfrey claim again due to the trial
court’s December 2010 de novo resentencing, we agree with our prior analysis. Carver’s
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challenge to his conviction based on Pelfrey is without merit.
{¶ 17} Carver’s second assignment of error claims that his trial court case number
(2003-CR-3323) is fraudulent and his indictment is invalid. Carver did not raise this issue
in the trial court. We will not address the merits of his argument for the first time on
appeal. And, even if Carver had raised it below, his claim could have been raised on direct
appeal. Consequently, it is barred by res judicata.
{¶ 18} Carver’s assignments of error are overruled in their entirety.
III.
{¶ 19} The trial court’s judgment will be affirmed.
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WELBAUM, J., concurs.
HALL, J., concurring:
{¶ 20} I agree with the analysis and conclusions in the lead opinion. I write
separately to express my view that after Carver was resentenced on December 3, 2010, the
trial court no longer had authority to rule on his “Motion for Re-Sentencing Pursuant to
O.R.C. Sec. 2945.75 and State v. Pelfrey * * *” filed December 1, 2010. Moreover, the
issues in this appeal already have been decided, and we need not decide them again.
{¶ 21} On December 3, 2010, the trial court conducted a de novo resentencing
hearing, consistent with then-applicable case law, to correct the imposition of post-release
control. Carver’s December 1, 2010 motion for resentencing was not addressed at the
resentencing. When a trial court does not address a pending motion and journalizes the
sentence imposed, we presume the motion was overruled. See, e.g., State v. Caudill, 2d Dist.
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Montgomery No. 24881, 2012-Ohio-2230, ¶ 2. Therefore, the trial court did not have
authority to consider the merits of the December 1, 2010 motion when it overruled that
motion by entry filed June 6, 2012.
{¶ 22} Moreover, this is Carver’s seventh appeal. The prior appeals have been
docketed as appellate case numbers 21328, 22407, 23946, 24400, 24413, 25197 and this
case, 25280, although one appeal was dismissed as untimely (23946), and one was dismissed
(24413) because it duplicated another (24400). In his direct appeal from the December 3,
2010 resentencing, in case number 24400, Carver did not challenge the trial court’s failure to
rule on, and therefore its overruling of, his December 1, 2010 motion. Res judicata bars him
from challenging it now, regardless of whether the trial court subsequently issued a ruling on
the motion. Finally, we already have dealt with the precise issue Carver now raises during
the reopening of a prior appeal. In State v. Carver, 2d Dist. Montgomery No. 21328,
2008-Ohio-4631, with regard to the fourth assignment of error, we noted:
Carver relies upon State v. Pelfrey, 112 Ohio St.3d 422, 860 N.E.2d 735,
2007-Ohio-256, in which the Supreme Court of Ohio held: “Pursuant to the
clear language of R.C. 2945.75, * * * a verdict form signed by a jury must
include either the degree of the offense of which the defendant is convicted or
a statement that an aggravating element has been found to justify convicting a
defendant of a greater degree of a criminal offense.” Id. at syllabus.
Id. at ¶ 78. Having already decided the issue Carver now raises, we should not do so again.
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Copies mailed to:
Andrew T. French
Kyle Carver Sr.
Hon. Barbara P. Gorman