State v. Gum , 2014 Ohio 401 ( 2014 )

[Cite as State v. Gum, 2014-Ohio-401.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100156
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JEREMY J. GUM
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-528313
BEFORE: S. Gallagher, J., Jones, P.J., and Keough, J.
RELEASED AND JOURNALIZED: February 6, 2014
ATTORNEY FOR APPELLANT
John F. Corrigan
19885 Detroit Road, #335
Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Adam M. Chaloupka
Assistant Prosecuting Attorney
Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:
{¶1} This cause came to be heard upon the accelerated calendar pursuant to
App.R. 11.1 and Loc.R. 11.1. Appellant Jeremy J. Gum appeals from the decision of the
trial court that denied his motion for resentencing. For the reasons stated herein, we
reverse and remand with instructions for the trial court to vacate the judgment imposed on
November 10, 2009, and journalized on November 13, 2009, and to reenter the judgment
of conviction against Gum, thereby reinstating the time within which Gum may timely file
a notice of appeal.
{¶2} On November 10, 2009, Gum was sentenced in Cuyahoga C.P. No.
CR-528313 on eight counts, which included two one-year firearm specifications, to a total
aggregate prison term of eight years. The sentence was run consecutive to a one-year
sentence imposed on the same date in Cuyahoga C.P. No. CR-527195. He filed untimely
notices of appeal, and he was denied leave to file a delayed appeal.
{¶3} On April 11, 2013, Gum filed a pro se motion for resentencing pursuant to
Crim.R. 32(B), in which he argued that the trial court failed to notify him of his appellate
rights. To his motion, he attached the sentencing transcript, which contains no mention
of an advisement of appellate rights. However, as indicated by the state, “the state
mistakenly argued that Gum failed to provide any evidence that he was not advised of his
appellate rights at sentencing when it responded to Gum’s motion * * *.” As a result of
this oversight, the trial court denied the motion. Gum timely appealed.
{¶4} In his sole assignment of error, Gum argues that the trial court abused its
discretion in denying his motion for resentencing because the court failed to advise him of
his appellate rights, including his right to appeal his sentence and his right to counsel for
appeal. A review of the sentencing transcript supports his argument, and the state
concedes the error. Gum also demonstrates that he suffered prejudice because he was
not made aware of his right to challenge his sentence, which he asserts contains an
allied-offenses error, and he was denied leave to file a delayed appeal.
{¶5} Gum’s motion for resentencing, which was filed after being denied leave to
file a delayed appeal, effectively constituted a petition for postconviction relief. See
State v. Reynolds, 79 Ohio St.3d 158, 160, 679 N.E.2d 1131 (1997).1 The trial court
erred in denying this motion. See State v. Gover, 71 Ohio St.3d 577, 645 N.E.2d 1246(1995). The appropriate avenue of relief is for the trial court to reenter the judgment of
conviction against Gum, thereby reinstating the time within which he may timely file a
notice of appeal pursuant to App.R. 4(A). See Gover at 581; State v. Lynch, 8th Dist.
Cuyahoga No. 88899, 2007-Ohio-4678, ¶ 12.2
{¶6} Judgment reversed. Case remanded with instructions.
1
“[W]here a criminal defendant, subsequent to his or her direct appeal, files a motion
seeking vacation or correction of his or her sentence on the basis that his or her constitutional rights
have been violated, such a motion is a petition for postconviction relief as defined in R.C. 2953.21.”
Id.2
We note that the appropriate relief is not for a complete resentencing hearing. Rather,
consistent with Gover, the trial court shall vacate the original judgment entry and reenter the judgment
of conviction in order to reinstate the time for a timely appeal.
It is ordered that appellant recover from appellee 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
LARRY A. JONES, SR., P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR