State v. Whetstone , 2011 Ohio 1957 ( 2011 )

[Cite as State v. Whetstone, 2011-Ohio-1957.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 2010 CA 00132
MICHAEL E. WHETSTONE :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Case No. 08 CR 691
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: April 19, 2011
APPEARANCES:
For Appellant: For Appellee:
JUSTIN T. RADIC KENNETH W. OSWALT
57 E. Main St. LICKING COUNTY PROSECUTOR
Newark, OH 43055
EARL L. FROST
20 S. Second St., 4th Floor
Newark, OH 43055
[Cite as State v. Whetstone, 2011-Ohio-1957.]
Delaney, J.
{¶1} Defendant-Appellant Michael E. Whetstone appeals the May 25, 2010
resentencing entry of the Licking County Court of Common Pleas. Plaintiff-Appellee is
the State of Ohio.
{¶2} This case comes to us on the accelerated calendar. App. R. 11.1, which
governs accelerated calendar cases, provides in pertinent part:
{¶3} “(E) Determination and judgment on appeal.
{¶4} “The appeal will be determined as provided by App.R. 11.1. It shall be
sufficient compliance with App.R. 12(A) for the statement of the reason for the court's
decision as to each error to be in brief and conclusionary form.
{¶5} “The decision may be by judgment entry in which case it will not be
published in any form.”
{¶6} This appeal shall be considered in accordance with the aforementioned
rule.
STATEMENT OF THE CASE1
{¶7} On October 16, 2008, Appellant was indicted by the Licking County Grand
Jury on one count of aggravated trafficking in drugs in violation of R.C.
2925.03(A)(1)(C)(1)(c) and/or R.C. 2925.03(A)(2)(C)(1)(c); one count of aggravated
possession of drugs in violation of R.C. 2925.11(A)(C)(1)(b); one count of aggravated
possession of drugs in violation of R.C. 2925.11(A)(C)(1)(a); and one count of
possession of drug paraphernalia in violation of R.C. 2925.14(C)(1).
1
A statement of the facts is unnecessary for the disposition of this appeal.
Licking County, Case No. 2010 CA 00132 3
{¶8} Appellant pled no contest to all four counts of the indictment. The trial
court found Appellant guilty and sentenced Appellant to three years on count one, three
years on count two, and eight months on count three, to run consecutively with each
other and consecutively to a sentence imposed in another case. The court also
sentenced Appellant to three years of postrelease control, and granted the forfeiture
specification carried by the first three counts. The court did not sentence Appellant on
count four, a misdemeanor count.
{¶9} Appellant appealed the sentencing entry to this Court in State v.
Whetstone, Licking App. No. 2009 CA 00111, 2010-Ohio-1835. This Court determined
that the sentencing entry was not a final, appealable order because the trial court
convicted Appellant on count four, but did not sentence Appellant on count four. We
dismissed the appeal for lack of a final, appealable order and remanded the matter to
the trial court for resentencing. In our opinion, we stated:
{¶10} “We find the order appealed from is not a final appealable order.
Accordingly, we must dismiss the appeal and return the matter to the trial court. The trial
court should conduct a new plea and sentencing hearing and should clarify the plea and
sentence in count one, which presently is expressed as “and/or” and, as appellant
argues, is problematic.” Id. at ¶ 8.
{¶11} The trial court held a resentencing hearing on May 24, 2010. During the
opening remarks of Appellant’s counsel, he stated to the trial court that the sentencing
hearing was a de novo proceeding; therefore, counsel argued that State v. Cabrales,
118 Ohio St.3d 54, 2008-Ohio-1625, was applicable to the trial court’s determination of
Licking County, Case No. 2010 CA 00132 4
sentence as to counts one and two. Counsel argued that Appellant’s sentences on
counts one and two should be merged as allied offenses of similar import.
{¶12} Appellant was given an opportunity to address the court and he exercised
his allocution rights.
{¶13} The trial court stated that it had considered Appellant’s presentence
investigation report prepared for the case and the purposes and principles of sentencing
set out under R.C. 2929.11, as well as the seriousness and recidivism factors under
R.C. 2929.12. The trial court noted Appellant’s lengthy criminal history, particularity with
drug abuse. The trial court stated:
{¶14} “ I will find those two counts should merge and, on that basis, I’ll impose a
term of five years in the state penitentiary on the first count pursuant to a violation of (A)
(1)(C)(1)(c) merging them with the ag (sic) possession – rather with the aggravated
possession of drugs, methamphetamine, same meth, Count No. 2. On Count No. 3,
aggravated possession of MDMA, I’ll impose a term of eight months in the state
penitentiary. On Count 4 I’ll impose a term of 30 days at the Licking County Justice
Center. Also grant the forfeiture specification as set out in the original sentencing entry.
I’ll order those sentences run consecutive with each other and consecutive with
sentence on 07 CR 381. * * *” Re-sentencing transcript, p. 9.
{¶15} Thus, a total prison term of five years and eight months was imposed.
{¶16} The trial court did not inform Appellant of his right to appeal under Crim.R.
32(B)(2) and (3).
{¶17} The trial court issued the sentencing entry on May 25, 2010. It is from this
sentencing entry that Appellant now appeals.
Licking County, Case No. 2010 CA 00132 5
ASSIGNMENT OF ERROR
{¶18} Appellant raises one Assignment of Error:
{¶19} “I. THE TRIAL COURT ERRED BY NOT PROVIDING APPELLANT WITH
A DE NOVO REVIEW AT HIS RESENTENCING HEARING.”
I.
{¶20} Appellant argues that the trial court failed to conduct a de novo sentencing
hearing when it resentenced Appellant. We disagree.
{¶21} R.C. 2929.19 states:
{¶22} “(A) The court shall hold a sentencing hearing before imposing a
sentence under this chapter upon an offender who was convicted of or pleaded guilty to
a felony and before resentencing an offender who was convicted of or pleaded guilty to
a felony and whose case was remanded pursuant to section 2953.07 or 2953.08 of the
Revised Code. At the hearing, the offender, the prosecuting attorney, the victim or the
victim’s representative in accordance with section 2930.14 of the Revised Code, and
with the approval of the court, any other person may present information relevent to the
imposition of the sentence in the case. The court shall inform the offender of the verdict
of the jury or finding of the court and ask the offender whether the offender has anything
to say as to why sentence should not be imposed upon the offender.
{¶23} “(B)(1) At the sentencing hearing, the court, before imposing sentence,
shall consider the record, any information presented at the hearing by any person
pursuant to division (A) of this section, and if one was prepared, the presentence
investigation report made pursuant to section 2951.03 of the Revised Code or Criminal
Licking County, Case No. 2010 CA 00132 6
Rule 32.2, and any victim impact statement made pursuant to section 2947.051
[2947.05.1] of the Revised Code.”
{¶24} In State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, at
¶37, the Ohio Supreme Court stated, “any case that is remanded for a ‘resentencing’
anticipates a sentencing hearing de novo, yet the parties may stipulate to the existing
record and waive the taking of additional evidence.”
{¶25} “When a case is remanded for resentencing, the trial court must conduct a
complete sentencing hearing and must approach resentencing as an independent
proceeding complete with all applicable procedures.” State v. Riley, 184 Ohio App.3d
211, 2009-Ohio-3227, ¶ 15 (citations omitted).
{¶26} Appellant argues that he was not given a de novo sentencing hearing
based solely on this statement from the trial court at the conclusion of Appellant’s
resentencing:
{¶27} “So, it’s one year less than you had before only because I couldn’t give
you that much. Otherwise, I would have given you more.” (T. 11).
{¶28} Appellant likens the trial court’s statement to the resentencing
proceedings conducted in State v. Cook, Cuyahoga App. No. 90487, 2008-Ohio-4246and State v. Gaston, Portage App. Nos. 2006-P-0071, 2006-P-0072, 2007-Ohio-6251.
In those cases, the appellate courts found that the defendants were not given de novo
sentencing hearings upon remand.
{¶29} In Cook, the resentencing proceeding was held before a different judge
rather than the original sentencing judge. The trial court in Cook stated that although it
appeared that the defendant was attempting to turn his life around, the judge did not
Licking County, Case No. 2010 CA 00132 7
know anything about the case and was reluctant to change the defendant’s original
sentence. The trial court resentenced the defendant to his original sentence. Cook at
¶4. The Eighth District Court of Appeals found error because the trial court merely
referred to the original judge’s decision and indicated that no change in Cook’s original
sentence would be made regardless of what was presented at the hearing. Id. at ¶10.
{¶30} The defendant in Gaston was before the trial court for resentencing
pursuant to a Foster remand. The trial court expressly stated that in all cases on
remand under Foster, he was consistent in not increasing or decreasing the penalty; he
was stating that no matter what was presented in mitigation, he would still impose the
original sentence. Gaston at ¶23. The case was remanded for resentencing because
the trial court, in effect was relying on prior, now void proceeding in imposing “the same”
sentence, and did not afford the defendant a de novo sentencing hearing. Id. at ¶25.
{¶31} Upon a review of the entire record in this case, we find Cook and Gaston
to be inapplicable to these facts. The trial court in the case sub judice conducted a de
novo sentencing hearing. The trial court considered the presentence investigation
report that was prepared in the case, the Appellant’s criminal history, and other pending
warrants. The trial court found merger was appropriate as to counts one and two and
sentenced Appellant accordingly. While the trial court expressed a desire to impose a
longer sentence on Appellant, he did not impose the original sentence regardless of
anything presented at the resentencing.
{¶32} Appellant’s sole Assignment of Error is overruled.
Licking County, Case No. 2010 CA 00132 8
{¶33} While Appellant does not delineate this as a separate Assignment of
Error, Appellant also argues the trial court erred in not informing Appellant of his right to
appeal under Crim.R. 32(B)(2) and (3).
{¶34} The record shows that the trial court did not inform Appellant of his right to
appeal under Crim.R. 32(B)(2) and (3); however, we find that Appellant has failed to
show prejudice. Appellant filed an appeal in this matter and is represented by counsel.
Accordingly, we find no reversible error. See State v. Middleton, Preble App. No.
CA2004-01-003, 2005-Ohio-681, ¶25.
{¶35} Appellant finally requests this Court to order the trial court to correct a de
minimis error in the May 25, 2010 sentencing entry. The sentencing entry states that
Appellant “previously entered pleas of guilty to the charges.” Appellant entered pleas of
no contest and was found guilty by the trial court. We find this matter is more properly
raised before the trial court.
Licking County, Case No. 2010 CA 00132 9
{¶36} Accordingly, the judgment of the Licking County Court of Common Pleas
is affirmed.
By: Delaney, J.
Gwin, P.J. and
Hoffman, J. concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN
[Cite as State v. Whetstone, 2011-Ohio-1957.]
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
:
MICHAEL E. WHETSTONE :
: Case No. 2010 CA 00132
:
Defendant-Appellant
For the reasons stated in our accompanying Opinion on file, the judgment of the
Licking County Court of Common Pleas is affirmed. Costs assessed to Appellant.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN