State v. Burton ( 2012 )

[Cite as State v. Burton, 2012-Ohio-2412.]
IN THE COURT OF APPEALS OF CLARK COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellant : C.A. CASE NO. 11CA0031
vs. : T.C. CASE NO. 07CR0870
JUAN BURTON : (Criminal Appeal from
Common Pleas Court)
Defendant-Appellee :
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DECISION AND ENTRY
Rendered on the 1st day of June, 2012.
.........
Andrew Wilson, Pros. Attorney; Andrew R. Picek, Asst. Pros. Attorney, Atty. Reg. No.
0082121, 50 E. Columbia Street, 4th Floor, P.O. Box 1608, Springfield, OH 45501
Attorneys for Plaintiff-Appellant
Stephen P. Hardwick, Atty. Reg. No. 0059927, Asst. Public Defender, 250 E. Broad
Street, Suite 1400, Columbus, OH 43215
Attorney for Defendant-Appellee
.........
PER CURIAM:
{¶ 1} This matter is before the court on the State’s notice of appeal and Defendant
Juan L. Burton’s notice of cross-appeal from an April 21, 2011 judgment of conviction
resulting from Defendant’s admitted violation of his community control sanctions. We find
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that the judgment is not a final order because it fails to state the fact of Defendant’s conviction
for violation of his community control sanctions. Therefore, the appeal and cross-appeal will
be dismissed.
{¶ 2} In 2007, Defendant was indicted for two felony offenses: robbery, R.C.
2911.02(A)(2), and failure to comply with the order or signal of a police officer, R.C.
2921.331(B), commonly called “fleeing and eluding.” A specification attached to the fleeing
and eluding charge alleged that in fleeing from a police officer after having been directed to
stop his vehicle, Defendant “caused substantial risk of physical harm to persons or property.”
The specification raised the fleeing and eluding offense from a fourth degree felony to a third
degree felony. R.C. 2921.331(C)(5)(a).
{¶ 3} The State dismissed the robbery charge and Defendant entered a plea of guilty
to the fleeing and eluding charge in the indictment. On January 9, 2008, the court journalized
its judgment of conviction. Notwithstanding the specification attached to the fleeing and
eluding charge that raised it to a third degree felony, the judgment of conviction states that
Defendant’s fleeing and eluding offense was “a felony of the fourth degree.” The court
sentenced Defendant to serve a five year term of community control, reserving a prison term
of up to four years for a violation of Defendant’s community control.
{¶ 4} In 2010, Defendant was charged with violations of his community control
sanctions. Defendant appeared in open court and admitted his violations. On November 18,
2010, the court journalized its judgment of conviction for those violations. The judgment
orders Defendant’s “community control revoked and a prison term imposed forthwith. For
the offense of Fleeing and Eluding, a fourth degree felony, defendant shall serve a prison term
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of four (4) years in the Ohio State Penitentiary . . .”
{¶ 5} Defendant moved for a de novo sentencing, based on the court’s statement in
its January 9, 2008 and November 18, 2010 judgments of conviction that Defendant’s fleeing
and eluding offense was a fourth degree felony, for which the maximum available prison term
is eighteen months. R.C. 2929.14(A)(4). The court granted the motion and held a hearing.
A judgment of conviction for Defendant’s community control violations was journalized on
April 21, 2011. The judgment states that “the Court finds that defendant entered a plea of
guilty to the charge of Fleeing and Eluding, . . . a felony of the third degree . . .,” and “that the
defendant be sentenced to four (4) years of community control . . .”
{¶ 6} The State filed a notice of appeal from the April 21, 2011 judgment of
conviction. Defendant filed a notice of cross-appeal. The case is submitted on the
respective errors the parties assign.
{¶ 7} The State argues that the court’s mistaken statement in the January 9, 2008 and
November 18, 2010 judgments that Defendant’s underlying fleeing and eluding offense was a
fourth degree felony instead of a third degree felony was a clerical error and subject to
correction. State v. Miller, 127 Ohio St.3d 407, 2010-Ohio-5705, 940 N.E.2d 924.
However, instead of correcting the error by an entry nunc pro tunc, the court erred when it
conducted de novo resentencing, imposing in its April 21, 2011 judgment a new term of
community control instead of the four-year prison term the court had imposed in its prior
November 21, 2010 judgment. The State contends that the court lacked jurisdiction to thus
modify its prior order, relying on State v. Carlisle, 131 Ohio St.3d 127, 2011-Ohio-6553, 961
N.E.2d 671.
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{¶ 8} Defendant takes the opposite view. He contends that by stating in his January
9, 2008 judgment of conviction that his fleeing and eluding offense was a fourth degree
felony, the court could impose no term of imprisonment or more community control in excess
of the maximum eighteen month sentence for a fourth degree felony. R.C. 2929.14(A)(4).
That limitation for violation of community control is imposed by R.C. 2929.15(B)(2).
Defendant argues that, having served more than that time for the five-year term of community
control the court originally imposed, the court could take no action other than to discharge
him. Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301.
{¶ 9} Defendant’s contention lacks merit. All criminal offenses are statutory, R.C.
2901.03, as are the classification of felony offenses according to their degree of seriousness
and the punishments the court may impose for them. R.C. 2929.14(A). A court is powerless
to alter those classifications, notwithstanding the fact that the court speaks through its journal.
{¶ 10} Crim.R. 32(C) provides: “A judgment of conviction shall set forth the plea, the
verdict, or findings, upon which each conviction is based, and the sentence.” Because the
degree of an offense of which a defendant is convicted is not an element of a judgment of
conviction required by Crim.R. 32(C), the court’s mistaken pronouncement in its judgments
of January 9, 2008 and November 18, 2010 that Defendant’s underlying fleeing and eluding
offense was a fourth degree felony was mere surplusage that had no effect on the degree of the
offense of which Defendant was convicted on his guilty plea to the charge as indicted, which
is instead a third degree felony.
{¶ 11} The specification attached to the fleeing and eluding charge to which
Defendant pled guilty made the offense a third degree felony. R.C. 2921.331(C) (5)(a)(ii).
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“A defendant who has entered a guilty plea without asserting actual innocence is presumed to
understand that he has completely admitted his guilt.” State v. Griggs, 103 Ohio St.3d 85,
2004-Ohio-4415, 814 N.E.2d 51, Syllabus of the Court. Defendant’s guilty plea was
conclusive of the proposition that his fleeing and eluding offense was a third degree felony.
{¶ 12} The foregoing conclusion would ordinarily cause us to reverse and vacate the
April 21, 2011 judgment of conviction the court entered following Defendant’s resentencing
per Carlisle. However, we find that we lack jurisdiction to order that relief because the
judgment of April 21, 2011, as well as the prior judgment of November 18, 2010, are not final
orders.
{¶ 13} Prior to the enactment of S.B.2, which became effective on July 1, 1996, courts
were authorized to suspend execution of sentences of incarceration the court had imposed and
place offenders on probation. Upon a finding that the probation had been violated, the court
could vacate the suspension order, permitting execution of the sentence that had been
imposed.
{¶ 14} Following enactment of S.B. 2, courts may not longer suspend sentences for
felony offenses. That practice was replaced with a system of directly sentencing a defendant
to a term of community control sanctions for felony offenses committed on or after July 1,
1996. Further, unlike the former system, S.B. 2 contemplates a conviction of a violation of
community control sanctions, not execution of the sentence imposed for the underlying
felony. State v. Lawrence, 3rd Dist. Seneca No. 13-01-01, 2001 WL 504245. R.C.
2929.15(B)(1) sets out the punishments for violations of community control sanctions that
may be imposed. A prison term may be imposed, but it may not exceed the maximum for the
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underlying offense or the term of which the defendant was notified when the court imposed
community control. Id.{¶ 15} As with any conviction, convictions for violations of community control
sanctions must be memorialized by a judgment of conviction that satisfies Crim.R. 32(C).
The judgment of conviction is not a final order for purposes of R.C. 2505.02 unless it sets
forth “the fact of the conviction.” State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958
N.E.2d 142.
{¶ 16} The April 11, 2011 judgment of conviction from which this appeal was taken
imposed a new, four-year term of community control on the court’s finding “that the
defendant entered a plea of guilty to the charge of Fleeing and Eluding, a violation of Revised
Code Section 2921.331, a felony of the third degree as set forth in Count II of the Indictment.”
The reference to the underlying offense is misplaced. More importantly, no mention is made
at all of the community control violation of which Defendant was therein convicted. That
failure to state the fact of that conviction renders the April 11, 2011 judgment non-final. Not
being a final order, we lack jurisdiction to review it.
{¶ 17} The prior November 18, 2010 judgment of conviction had imposed a four-year
term of incarceration on Defendant’s conviction for his admitted community control violation.
The judgment states that “defendant appeared in Court with counsel and admitted he violated
community control.” However, the face of the judgment entry fails to state the fact of the
conviction for Defendant’s community control violations. The judgment of November 11,
2010 is likewise non-final for that failure, per Lester. Also, like the April 21, 2011 judgment
of conviction, the November 18, 2010 judgment erroneously imposes a sentence “[f]or the
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offense of Fleeing and Eluding,” not for the community control violation.
{¶ 18} We necessarily dismiss the appeal and cross-appeal on the notices that were
filed for lack of a final order. Because the November 18, 2010 and April 21, 2011 judgments
are interlocutory, they remain subject to being vacated or modified by the court, in order to
impose a valid final judgment of conviction for Defendant’s violation of his community
control sanctions pursuant to R.C. 2929.15(B).
{¶ 19} The appeal and cross-appeal are dismissed. So Ordered.
{¶ 20} Costs to be paid as stated in App.R. 24.
{¶ 21} Pursuant to Ohio App.R. 30(A), it is ordered that the Clerk of the Clark County
Court of Appeals shall immediately serve notice of this judgment upon all parties and make
note in the docket of the mailing.
______________________________________
THOMAS J. GRADY, PRESIDING JUDGE
______________________________________
MARY E. DONOVAN, JUDGE
______________________________________
MICHAEL T. HALL, JUDGE
Copies mailed to:
Andrew R. Picek
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Asst. Pros. Attorney
P.O. Box 1608
Springfield, OH 45501
Stephen P. Hardwick
Asst. Public Defender
250 E. Broad Street, Suite 1400
Columbus, OH 43215
Hon. Richard J. O’Neill
101 N. Limestone Street
Springfield, OH 45502