State v. Carr , 2012 Ohio 1850 ( 2012 )

[Cite as State v. Carr, 2012-Ohio-1850.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 24438
Plaintiff-Appellee :
: Trial Court Case No. 2005-CR-3133
v. :
:
JAMES C. CARR, JR. : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 27th day of April, 2012.
...........
MATHIAS H. HECK, JR., by CARLEY J. INGRAM, Atty. Reg. #0020084, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
SCOTT N. BLAUVELT, Atty. Reg. #0068177, 246 High Street, Hamilton, Ohio 45011
Attorney for Defendant-Appellant
.............
FAIN, J.
{¶ 1} Defendant-appellant James C. Carr, Jr., appeals from a re-sentencing
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entry filed on January 13, 2011, which specified the manner of his conviction in one entry, and
which imposed terms of post-release control with respect to various offenses of which he was
convicted.
{¶ 2} Carr contends that the trial court erred by not affording him a right of
allocution at his re-sentencing hearing. We conclude that any error in this regard was
necessarily harmless, since the trial court had no discretion in the matter, but was mandated by
R.C. 2967.28 to impose the terms of post-release control that it imposed. Accordingly, the
judgment of the trial court is Affirmed.
I. Course of Proceedings
{¶ 3} After a jury trial, Carr was convicted of two counts of Kidnapping, in
violation of R.C. 2905.01(A)(2), felonies of the first degree; one count of Aggravated
Robbery, in violation of R.C. 2911.01(A)(1), a felony of the first degree; two counts of
Aggravated Murder, in violation of R.C. 2903.01(B), unclassified felonies; two counts of
Attempted Aggravated Murder, in violation of R.C. 2903.01(B) and 2923.02, felonies of the
first degree; and one count of Having Weapons While Under a Disability, in violation of R.C.
2923.13(A)(2), a felony of the third degree. All of the counts of which Carr was convicted,
except for Having Weapons While Under a Disability, also included three-year firearm
specifications.
{¶ 4} In January, 2008, Carr was sentenced to life imprisonment with parole
eligibility after 25 years for each of the Aggravated Murders, ten years imprisonment for each
of the Attempted Aggravated Murders, five years imprisonment for each of the other felony
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convictions, and three years imprisonment for the firearm specifications. The two five-year
sentences for Kidnapping were to be served consecutively to each other and consecutively to
the other sentences; the two ten-year sentences for Attempted Aggravated Murder were to be
served concurrently to each other, and consecutively to the other sentences; the remaining four
felony sentences, for Aggravated Murder, Aggravated Robbery, and Having Weapons While
Under a Disability, were to be served concurrently to each other, and consecutively to the
other sentences; the three-year sentences for the firearm specifications were merged into a
single three-year sentence, to be served consecutively to, and prior to, the definite term of
imprisonment. The aggregate sentence was stated to be for 48 years to life, with parole
eligibility after 48 years.
{¶ 5} Carr appealed from his conviction and sentence. We affirmed. State
v. Carr, 2d Dist. Montgomery No. 22603, 2009-Ohio-1942. Carr’s attempt to appeal that
decision to the Supreme Court of Ohio was not successful.
{¶ 6} In December, 2010, Carr moved for re-sentencing, based upon his claim
that the original sentencing entry did not specify the manner of his conviction, as required by
Crim. R. 32(C). The trial court held a re-sentencing hearing on January 11, 2011. The trial
court, sua sponte, found that it had failed to provide for post-release control in the original
judgment entry.
{¶ 7} As to the specification of the manner of conviction, the trial court
concluded that multiple entries adequately indicated the manner of conviction, but agreed to
specify the manner of conviction in a single re-sentencing entry that it would issue following
the hearing. The trial court then addressed the post-release control issue:
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[THE COURT:] The second issue is on the post-release control. Mr. Lachman, did you
wish to be heard on that issue?
MR. LACHMAN [representing Carr]: Nothing further, Your Honor. I think the case
law is pretty clear, that is given the date of the rec- -- of the sentence here and recent Supreme
Court decisions, that this Court, on that issue alone without waiving the issue of whether or
not the initial sentencing entry was proper or not, I would agree that the state of the case lies
that this Court can re-sentence him on the PRC issue alone.
THE COURT: And I believe that that is State v. Fisher, which the Supreme Court just
decided December the 23rd, 2010, just several weeks ago. That the Court only needs to
address the PRC advice either in court or in the sentencing entry.
Mr. Carr, this will not affect your out-of-prison date. You are still getting credit for
all the time that you served. All of the sentences that the Court issued are going to be the
same because I do not get to address them as my understanding under State v. Fischer.
Any additional information I need to be aware of before that re-sentencing on PRC?
MR. LACHMAN: No, Your Honor.
THE COURT: On behalf of the State?
MR. FRENCH: No, Your Honor.
{¶ 8} The Court then imposed the same sentences as before, but included the
imposition of mandatory five-year terms of post-release control for the first-degree felonies,
and for the third-degree felony, told Carr that “you may be on post-release control for up to
three years, depending upon the determination of the Parole Board.”
{¶ 9} From his re-sentencing, Carr appeals.
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II. If the Trial Court Erred by Failing to Afford Carr the Right of Allocution,
the Error Was Necessarily Harmless
{¶ 10} Carr’s sole assignment of error is as follows:
{¶ 11} “THE TRIAL COURT COMMITTED PLAIN ERROR TO THE PREJUDICE
OF APPELLANT WHEN IT FAILED TO COMPLY WITH CRIM. R. 32(A) BEFORE
IMPOSING POST-RELEASE CONTROL.”
{¶ 12} In support of this assignment of error, Carr argues that: “At a hearing to
properly impose post-release control, pursuant to R.C. 2929.191, as a part of a defendant’s
sentence, a trial court must afford the defendant an opportunity for allocution as guaranteed by
Crim. R. 32(A).” That rule provides, in pertinent part, as follows:
Sentence shall be imposed without unnecessary delay. Pending sentence, the
court may commit the defendant or continue or alter the bail. At the time of imposing
sentence, the court shall do all of the following:
(1) Afford counsel an opportunity to speak on behalf of the defendant and
address the defendant personally and ask if he or she wishes to make a statement in his
or her own behalf or present any information in mitigation of punishment.
{¶ 13} It is not clear from the record whether the trial court afforded Carr the right to
make a statement personally at the re-sentencing hearing. The court inquired generally
whether there was any additional information it needed to be aware of before re-sentencing on
the post-release control issue, and defense counsel responded. If we assume that the trial
court failed to address Carr personally and ask him if he wished to make a statement, we
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conclude that its failure to do so was necessarily harmless in this case.
{¶ 14} The scope of a re-sentencing hearing to provide for post-release control that
was omitted from the original sentence is limited to the imposition of post-release control.
State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 29. Therefore,
nothing Carr might have said could have affected the balance of his sentence, which the trial
court had no power to modify.
{¶ 15} Furthermore, the trial court had no discretion to exercise with respect to the
imposition of post-release control. For each of the first-degree felonies, the trial court was
required, by R.C. 2967.28(B)(1) to impose a term of post-release control of five years. For
the third-degree felony, the trial court was required by R.C. 2967.28(B)(3) to impose a term of
post-release control of three years.
{¶ 16} The trial court or the parole board does have discretion to determine the nature
of the post-release control sanctions to be imposed, but that discretion is exercised prior to the
prisoner’s release, not at the time of sentencing. R.C. 2967.28(D)(1).
{¶ 17} Because the trial court had no choice but to impose the terms of post-release
control that it did, in fact, impose, there is no possibility that Carr, no matter how eloquently
he might have exercised his right to address the trial court, could have influenced the trial
court to have taken any other action besides the action that it took. Therefore, even if we
assume that the trial court failed to have afforded Carr his right to address the trial court before
the imposition of the terms of post-release control, that error was necessarily harmless.
{¶ 18} Carr’s sole assignment of error is overruled.
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III. Conclusion
{¶ 19} Carr’s sole assignment of error having been overruled, the judgment of the
trial court is Affirmed.
{¶ 20} .............
GRADY, P.J., and DONOVAN, J., concur.
Copies mailed to:
Mathias H. Heck
Carley J. Ingram
Scott N. Blauvelt
Hon. Dennis J. Adkins