State v. Grose , 2014 Ohio 4499 ( 2014 )

[Cite as State v. Grose, 2014-Ohio-4499.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. Patricia A. Delaney, J.
Plaintiff-Appellant : Hon. Craig R. Baldwin, J.
-vs- :
:
ALLANDO BAKARI GROSE : Case No. 14CA30
:
Defendant-Appellee :
: OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Richland County
Court of Common Pleas, Case No. 2012-
CR-0049H
JUDGMENT: Reversed and Vacated
DATE OF JUDGMENT ENTRY: October 9, 2014
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
JOHN NIEFT ROELIFF HARPER
Assistant Prosecuting Attorney 3 N. Main Street, Ste. 606
38 South Park Street Mansfield, OH 44902
Mansfield, OH 44902
[Cite as State v. Grose, 2014-Ohio-4499.]
Gwin, P.J.
{¶1} Plaintiff-appellant the State of Ohio appeals the March 26, 2014 Judgment
Entry of the Richland County Court of Common Pleas re-sentencing defendant-appellee
Allando Bakari Grose upon remand from this Court.1
Facts and Procedural History
{¶2} The facts of this case were thoroughly discussed in State v. Grose, 5th
Dist. Richland No. 12CA109, 2013-Ohio-4387 [“Grose I”]; however, we provide the
following brief summation.
{¶3} On October 8, 2012, Grose entered pleas of no contest to Count I,
kidnapping, Count III, extortion, Count IV, aggravated robbery, and Count VI, tampering
with evidence. The state dismissed Count II, abduction, and Count V, robbery. The trial
court sentenced Grose to an aggregate prison term of 12 years. On direct appeal,
Grose argued, in relevant part to the instant appeal, the offenses of kidnapping and
aggravated robbery should have merged for purposes of sentencing, or, alternatively,
the extortion and aggravated robbery offenses should have merged, and the trial court
should have held an allied-offenses hearing. Grose I, ¶44. We found there were
insufficient facts in the record for this court to make an allied-offense determination in
the instant case. Grose I, ¶49. We therefore,
[Sustained] appellant’s third assignment of error and remand the
case to the trial court for an allied-offense hearing and, if appropriate,
allow appellee to elect which allied offenses to pursue at resentencing.
State v. Whitfield, 124 Ohio St.3d 319, 2010–Ohio–2, 922 N.E.2d 182,
paragraph one of the syllabus. In light of our decision on this assignment
1
We note appellee did not file a brief in this case.
Richland County, Case No. 14CA30 3
of error, appellant’s argument regarding merger of the offense of extortion
and aggravated robbery, and his fourth assignment of error regarding an
allied-offenses hearing, are moot.
Grose I, ¶ 50. On remand, the state filed a brief arguing that none of these offenses
were allied. Grose responded that most of the crimes were allied and therefore his
sentence should be less. The court viewed a cell phone video of the incident. The trial
court noted that it had not viewed this video prior to Gorse’s initial sentencing in light of
Gorse’s decision to plead. The trial court then issued a judgment entry on January 28,
2014, stating that the kidnapping, extortion and aggravated robbery were committed
with a separate animus and were not therefore subject to merger as allied offenses. The
trial court was “less convinced” that there was a separate animus for the tampering with
evidence conviction. The trial court then scheduled a re-sentencing hearing for February
5, 2014.
{¶4} The trial court held a resentencing hearing on March 26, 2014. At the
hearing, the court gave each party the chance to argue for allied offenses. The trial
court reiterated that the offenses were not allied finding that each act had a separate
animus. However, the trial court then altered its previously imposed sentence, running
each prison term concurrently rather than consecutively. The state objected, arguing
that the remand was for the limited purpose of determining whether any of the offenses
were allied. Because the trial court had found none of the offenses to be allied, it could
not alter its previously valid sentencing entry.
Richland County, Case No. 14CA30 4
Assignment of Error
{¶5} It is from the trial court’s March 26, 2014 Re-Sentencing entry that the
state has appealed, raising the following assignment of error,
{¶6} “I. THE TRIAL COURT ERRED WHEN IT RESENTENCED ALLANDO
GROSE AFTER IT HAD DETERMINED THAT THE COUNTS WERE NOT ALLIED
OFFENSES OF SIMILAR IMPORT.”
Analysis
{¶7} The state argues that we remanded this case for the limited purpose of
holding an allied-offense hearing. The trial court held that hearing made that
determination and found none of the offenses to be allied. Therefore, the state contends
the original sentencing entry remained valid and therefore, the trial court erred when it
altered its previously valid sentence and resentenced Grose. We agree.
{¶8} The scope of the sentencing hearing the trial court must conduct after
remand for an allied offenses sentencing error was addressed by the Supreme Court,
In a remand based only on an allied-offenses sentencing error, the
guilty verdicts underlying a defendant’s sentences remain the law of the
case and are not subject to review. Whitfield, 124 Ohio St.3d 319, 2010–
Ohio–2, 922 N.E.2d 182, at ¶ 26–27. Further, only the sentences for the
offenses that were affected by the appealed error are reviewed de novo;
the sentences for any offenses that were not affected by the appealed
error are not vacated and are not subject to review. [State v.] Saxon, [109
Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824] at paragraph three of
the syllabus.
Richland County, Case No. 14CA30 5
{¶9} State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶
15. The Court in Wilson further held,
[O]nce the cause is remanded and the offenses to be merged are
selected by the state, the trial court is required to hold a new sentencing
hearing and impose sentences for the remaining offenses. Res judicata
does not preclude a defendant from objecting to issues that arise at the
new sentencing hearing.
Wilson, ¶ 34.
{¶10} In the case at bar, we did not find an allied offense sentencing error,
vacate Grose’s sentences and remand the case for the trial court to conduct a de novo
sentencing hearing. See, State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951
N.E.2d 381, ¶14. Rather we remanded the matter to the trial court for the limited
purpose of establishing the facts underlying the charges. State v. Biondo, 11th Dist.,
Portage No. 2012-P-0043, 2013-Ohio-876, ¶12. Once the facts were established, the
trial court was to analyze Gorse’s conduct under State v. Johnson, 128 Ohio St.3d 153,
2010-Ohio-6314, 942 N.E.2d 1061 and rule whether the crimes at issue should be
merged for sentencing. Once the trial court determined that the offenses were not allied
offenses a de novo resentencing hearing was not warranted. State v. Bolton, 8th Dist.
Cuyahoga No. 99137, 2013-Ohio-2467, ¶¶6-7. The trial court’s original sentencing entry
filed October 8, 2012 found the offenses were not allied offenses and were therefore not
merged. Therefore, there was no allied offenses’ sentencing error to correct.
{¶11} The state’s sole assignment of error is sustained. Section 3(B) (2), Article
IV of the Ohio Constitution and R.C. 2953.07, give an appellate court the power to
Richland County, Case No. 14CA30 6
affirm, reverse, or modify the judgment of an inferior court. Accordingly, the March 26,
2014 Re-Sentencing entry is vacated and the trial court’s original sentencing entry filed
October 8, 2012 is reinstated.
{¶12} The judgment of the Richland County Court of Common Pleas is reversed.
Pursuant to Section 3(B) (2), Article IV of the Ohio Constitution and R.C. 2953.07, the
March 26, 2014 Re-Sentencing entry is vacated and the trial court’s original sentencing
entry filed October 8, 2012 is reinstated.
By Gwin, P.J.,
Delaney, J., and
Baldwin, J., concur