State v. Allmon ( 2023 )

[Cite as State v Allmon, 2023-Ohio-3878.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellant, : No. 112357
v. :
MALCOLM ALLMON, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED AND REMANDED
RELEASED AND JOURNALIZED: October 26, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-20-649767-B
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Daniel Van, Assistant Prosecuting Attorney,
for appellant.
Cullen Sweeney, Cuyahoga County Public Defender, and
Aaron T. Baker, Assistant Public Defender, for appellee.
EILEEN T. GALLAGHER, J.:
Plaintiff-appellant, the state of Ohio, appeals the sentence imposed on
defendant Malcolm Allmon (“Allmon”) in Cuyahoga C.P. No. CR-20-649767-B
and claims the following error:
The trial court erred in failing to journalize the maximum term in
accordance with R.C. 2929.14 and R.C. 2929.144.
We affirm Allmon’s sentence but remand the case to the trial court to
issue a nunc pro tunc judgment entry separately setting forth the minimum and
maximum prison terms on each of Allmon’s convictions.
I. Facts and Procedural History
In Cuyahoga C.P. No. CR-20-649767-B, Allmon pleaded guilty to one
count of aggravated burglary in violation of R.C. 2911.11(A)(2), a Reagan Tokes
qualifying first-degree felony; one count of aggravated burglary in violation of
R.C. 2911.11(A)(1), a Reagan Tokes qualifying first-degree felony; and one count
of aggravated robbery in violation of R.C. 2911.01(A)(1), a Reagan Tokes
qualifying first-degree felony. The trial court set forth a three-year prison term
on each count, and, pursuant to the Reagan Tokes Law, sentenced Allmon to “a
minimum prison term of sentence of 3 year(s) and a maximum prison term of 4.5
year(s) on the underlying offense(s).” The court indicated that the sentences
would run concurrent to each other. This appeal followed.
II. Law and Analysis
In its sole assignment of error, the state argues the trial court erred in
failing to properly journalize the maximum prison term in accordance with R.C.
2929.14 and 2929.144. The state does not argue that the trial court failed to
impose the appropriate maximum term; it contends the journalization of the
sentence was not in accordance with R.C. 2929.14 and 2929.144.
R.C. 2929.14 governs prison terms and states, in relevant part:
(1)(a) For a felony of the first degree committed on or after March 22,
2019, the prison term shall be an indefinite prison term with a stated
minimum term selected by the court of three, four, five, six, seven,
eight, nine, ten, or eleven years and a maximum term that is
determined pursuant to section 2929.144 of the Revised Code, except
that if the section that criminalizes the conduct constituting the felony
specifies a different minimum term or penalty for the offense, the
specific language of that section shall control in determining the
minimum term or otherwise sentencing the offender but the minimum
term or sentence imposed under that specific language shall be
considered for purposes of the Revised Code as if it had been imposed
under this division.
* * *
(2)(a) For a felony of the second degree committed on or after March
22, 2019, the prison term shall be an indefinite prison term with a
stated minimum term selected by the court of two, three, four, five, six,
seven, or eight years and a maximum term that is determined pursuant
to section 2929.144 of the Revised Code, except that if the section that
criminalizes the conduct constituting the felony specifies a different
minimum term or penalty for the offense, the specific language of that
section shall control in determining the minimum term or otherwise
sentencing the offender but the minimum term or sentence imposed
under that specific language shall be considered for purposes of the
Revised Code as if it had been imposed under this division.
(Emphasis added.) Thus, under R.C. 2929.13(A)(1)(a) and (A)(2)(a), the trial court
must impose an indefinite prison term for each qualifying first- or second-degree
felony, and the maximum term must be calculated in accordance with R.C.
2929.144. As relevant here, R.C. 2929.144(B)(3) provides:
If the offender is being sentenced for more than one felony, if one or
more of the felonies is a qualifying felony of the first or second degree,
and if the court orders that all of the prison terms imposed are to run
concurrently, the maximum term shall be equal to the longest of the
minimum terms imposed on the offender under division (A)(1)(a) or
(2)(a) of section 2929.14 of the Revised Code for a qualifying felony of
the first or second degree for which the sentence is being imposed plus
fifty per cent of the longest minimum term for the most serious
qualifying felony being sentenced.
The state argues the trial court failed to comply with R.C.
2929.14(A)(1)(a) and (A)(2)(a) because the court imposed “a definite sentence as
to each count with an overall maximum term.” (State’s appellant brief p. 4.) The
sentencing entry states, in relevant part:
The court imposes a minimum prison term of 3 year(s) and a maximum
prison term of 4.5 years on the underlying offense(s).
The sentencing entry imposes an indefinite prison sentence on all
counts collectively rather than imposing a minimum and maximum prison term
on each count individually as required by R.C. 2929.14(A)(1)(a) and (A)(2)(a).
The sentence is, therefore, contrary to law.
Judgment affirmed but case remanded to the trial court to issue a nunc
pro tunc judgment entry setting forth the minimum and maximum prison terms
on each of Allmon’s convictions.
It is ordered that appellee and appellant share the 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. The defendant’s
convictions having been affirmed, any bail pending appeal is terminated.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
MARY EILEEN KILBANE, P.J., and
MARY J. BOYLE, J., CONCUR