State v. Barr , 2011 Ohio 6651 ( 2011 )

[Cite as State v. Barr, 2011-Ohio-6651.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96907
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
HARRY BARR
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-477447
BEFORE: Boyle, J., Stewart, P.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: December 22, 2011
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FOR APPELLANT
Harry M. Barr, pro se
Inmate No. 522-149
1150 North Main Street
P.O. Box 788
Mansfield, Ohio 44901
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Mary McGrath
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, J.:
{¶ 1} Defendant-appellant, Harry Barr, appeals the trial court’s denial of his
motion for resentencing filed on May 16, 2011 — four years after the trial court sentenced
him to prison after he pleaded guilty for a single count of failure to verify current address.
Barr contends that the trial court should have granted his motion for resentencing because
he was never informed of his right to appeal under Crim.R. 32. But the trial court has no
jurisdiction to grant a motion for resentencing after a defendant’s sentence becomes final.
Accordingly, we affirm.
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Procedural History and Facts
{¶ 2} In February 2006, Barr was indicted on one count of failure to verify
address, in violation of R.C. 2950.06, a third degree felony. On December 4, 2006, Barr
pleaded guilty to the single charge. The trial court subsequently held a sentencing
hearing where it sentenced Barr in connection with two cases — this case and Case No.
CR-480727. Specifically, the trial court imposed a four-year prison term for the failure to
verify current address to run consecutively to the 11-year prison term imposed in Case No.
CR-480727 for Barr’s conviction of robbery, which carried a notice of prior conviction
and repeat violent offender specifications, for a total term of 15 years in prison.
{¶ 3} On May 12, 2011, Barr filed a motion for resentencing, arguing that the trial
court failed to comply with Crim.R. 32(B)(2) and tell him that he had the right to appeal
the sentence imposed in the underlying case.
{¶ 4} The trial court denied Barr’s motion. Barr now appeals the trial court’s
denial, raising the following two assignments of error:
{¶ 5} “[I.] Due process is violated when the trial court fails to advise the defendant
pursuant to Crim.R. 32(B)(2) of his right to appeal or to seek leave to appeal the sentence
imposed.
{¶ 6} “[II.] The trial court abuses it discretion in denying defendant’s motion for
resentencing when the trial court failed to advise defendant of his right to appeal or to seek
leave to appeal pursuant to mandatory provisions found in Criminal Rule 32(B)(2).”
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{¶ 7} Because these are related, we will address these assignments of error
together.
Trial Court’s Jurisdiction and Crim.R. 32
{¶ 8} In his two assignments of error, Barr argues that the trial court erred in
denying his motion for resentencing because it never advised him of his appellate rights
under Crim.R. 32. Although the trial court had discussed his appellate rights at the
sentencing hearing in connection with Case No. CR-480727, Barr argues that he was never
informed that he could appeal his sentence in the underlying case wherein he pleaded
guilty. As a result of this error, he contends that the trial court must hold another
sentencing hearing. We disagree.
{¶ 9} First, the trial court’s judgment of February 1, 2007, wherein it sentenced
Barr to a total of four years and imposed three years of postrelease control, was a final
order that was not appealed. Therefore, the trial court lacks jurisdiction to resentence
Barr pursuant to a “motion for resentencing.” See State v. Fletcher, 2d Dist. No. 21172,
2006-Ohio-3194 (recognizing that a trial court lacks jurisdiction to resentence a defendant
once the judgment of sentence becomes a final order).
{¶ 10} Second, while we recognize that the trial court did not comply with Crim.R.
32(B)(2) and (3) with respect to the underlying case, we find that Barr has failed to
demonstrate, let alone allege, any prejudice. Under such circumstances, we find no
reversible error. See, e.g., State v. Finch, 11th Dist. No. 11CA6, 2011-Ohio-4273 (trial
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court’s failure to inform defendant of his right to appeal under Crim.R. 32 was not
reversible error). Indeed, the trial court’s failure to comply with Crim.R. 32(B)(2) and
(3) has no bearing on whether Barr’s plea was knowingly, intelligently, or voluntarily
made.
{¶ 11} Accordingly, we overrule Barr’s two assignments of error.
Judgment affirmed.
It is ordered that appellee recover of appellant 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 conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
MARY J. BOYLE, JUDGE
MELODY J. STEWART, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR