State v. Roscoe , 2015 Ohio 3876 ( 2015 )

[Cite as State v. Roscoe, 2015-Ohio-3876.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 102191
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ANTHONY ROSCOE, JR.
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-12-563953-A and CR-12-563166-A
BEFORE: E.A. Gallagher, P.J., McCormack, J., and Stewart, J.
RELEASED AND JOURNALIZED: September 24, 2015
ATTORNEY FOR APPELLANT
Stephanie L. Lingle
Lingle Legal Services, L.L.C.
850 Euclid Avenue, Suite 1122
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Brent Kirvel
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, P.J.:
{¶1} Defendant-appellant Anthony Roscoe, Jr. appeals from the judgment of
conviction entered by the Cuyahoga County Court of Common Pleas
resentencing him on various offenses in accordance with this court’s mandate
in State v. Roscoe, 8th Dist. Cuyahoga No. 99113, 2013-Ohio-3617. Roscoe
contends that the trial court erred in resentencing him on a count of having a
weapon while under disability — a count that this court, in Roscoe’s prior
appeal, had vacated his conviction — and that his sentence on that count
should, therefore, be reversed.
Factual and Procedural Background
{¶2} Following a bench trial, Roscoe was found guilty of one count of
kidnapping with firearm and sexual motivation specifications (Count 1), three
counts of rape with firearm specifications (Counts 2-4), two counts of
aggravated robbery with firearm specifications (Counts 5-6) and one count of
having a weapon while under disability (Count 7). Roscoe was sentenced to a
total prison term of 19 years, which included consecutive sentences. Roscoe
appealed his convictions and sentences. On appeal, this court (1) vacated his
convictions for aggravated robbery and having a weapon while under disability
and all of the firearm specifications, concluding that the convictions were not
supported by sufficient evidence, and (2) entered judgment against Roscoe on
the lesser-included offense of robbery. Roscoe at ¶ 37, 43. The case was
remanded to the trial court with instructions to resentence Roscoe pursuant to
R.C. 2911.02(A)(2). Id. at ¶ 43.
{¶3} The convictions that remained after the disposition of Roscoe’s
appeal were one count of kidnapping with sexual motivation specifications
(Count 1), three counts of rape (Counts 2-4) and two counts of robbery (Counts
5-6). At the resentencing hearing on March 5, 2014, the trial court indicated
that Counts 1, 2 and 5 would be merged. The trial court indicated that Roscoe
would receive eight-year prison sentences on Counts 2, 3 and 4, to run
concurrently with each other, five-year prison sentences on Counts 5 and 6, to
run concurrently with each other but consecutive to the eight years imposed
on Counts 2, 3 and 4, and a 12-month prison term on Count 7 to be served
concurrently with the sentences imposed on the other counts, for a total prison
term of 13 years. Although Roscoe’s conviction on Count 7 had been vacated
in his prior appeal, no one raised the issue at the resentencing hearing.
{¶4} Consistent with its oral pronouncements at Roscoe’s resentencing
hearing, in its March 14, 2014 journal entry (the “resentencing journal entry”),
the trial court stated that Count 1 merged with Counts 2 and 5 and imposed
the sentences on Counts 2 through 6 that it indicated it would impose at the
resentencing hearing. No sentence was imposed in the resentencing journal
entry as to Count 7. With respect to Count 7, the resentencing journal entry
stated: “On a former day of court, the court found the defendant not guilty of
having weapons while under disability 2923.13 A(2) F3 as charged in Count(s)
7 of the indictment.”
{¶5} Roscoe appeals from the March 14, 2014 resentencing journal entry,
raising the following assignment of error for review:
The trial court erred by resentencing appellant on Count Seven because this court
vacated the conviction for Count Seven in the first appeal.
Law and Analysis
{¶6} In his sole assignment of error, Roscoe contends that the trial court
erred in resentencing him to 12 months in prison on Count 7, having a weapon
while under disability, because this court vacated his conviction on sufficiency
grounds in his prior appeal. Roscoe’s argument is meritless.
{¶7} It is well-established that “‘[a] court of record speaks only though
its journal and not by oral pronouncement or mere written minute or
memorandum.’” State v. Hampton, 134 Ohio St.3d 447, 2012-Ohio-5688, 983
N.E.2d 324, ¶ 15, quoting Schenley v. Kauth, 160 Ohio St. 109, 113 N.E.2d 625(1953), paragraph one of the syllabus. Crim.R.32(C) reflects this rule,
providing, in relevant part: “A judgment of conviction shall set forth the fact of
conviction and the sentence. * * * A judgment is effective only when entered on
the journal by the clerk.” Thus, “‘[a]n oral pronouncement of sentence in open
court does not meet this rule.’” State v. Draughon, 10th Dist. Franklin Nos.
11AP-703 and 11AP-995, 2012-Ohio-1917, ¶ 30, quoting State v. Teets, 9th
Dist. Medina No. C.A. 3022-M, 2000 Ohio App. LEXIS 4228, *4 (Sept. 20, 2000).
Accordingly, it is the trial court’s judgment entry and not the oral
pronouncement of a sentence at a sentencing hearing (or a resentencing
hearing) that is “the effective instrument for sentencing a defendant.” State
v. Rodriguez-Baron, 7th Dist. Mahoning No. 10-MA-176, 2012-Ohio-1473, ¶ 13
(Because a court of record speaks only through its journal entries, “the
judgment entry, not the open court pronouncement of sentence, is the effective
instrument for sentencing a defendant.”).
{¶8} In Draughon, supra, the Tenth District considered an argument
very similar to that raised by Roscoe here. In Draughon, the trial court
granted appellant’s Crim.R. 29 motion for acquittal on an aggravated robbery
count. Draughon, at ¶ 2, 30. At the sentencing hearing, the trial court,
nevertheless, orally imposed a sentence of ten years on that count. Id. at ¶
30. The trial court’s sentencing entry, however, did not impose a sentence on
the dismissed aggravated robbery count. Id. The defendant filed a motion to
vacate his sentence, asserting, in relevant part, that his sentence was void, was
not a final, appealable order and failed to comply with Crim.R. 32(C) because
the sentencing entry failed to properly address the dismissal of the aggravated
robbery charge. Id. at ¶ 5. The trial court denied the motion, and the Tenth
District affirmed the trial court’s decision. The Tenth District concluded that
because the sentencing judgment entry did not impose a sentence on the
aggravated robbery count and the trial court “speaks only through its journal,”
the trial court did not err in denying the defendant’s motion to vacate on that
issue. Id. at ¶ 2, 30. A similar conclusion is warranted in this case.
{¶9} Here, as in Draughon, although the trial court orally pronounced a
12-month sentence on Count 7 during the resentencing hearing, it did not
impose that sentence (or any other sentence) on Count 7 in its resentencing
journal entry, i.e., its judgment of conviction under Crim.R. 32(C). Rather,
the trial court correctly indicated in its resentencing journal entry that Roscoe
had not been convicted of having a weapon while under disability as charged
in Count 7. Because the trial court speaks only through its journal and there
is no journal entry resentencing Roscoe on Count 7, Roscoe has not been
resentenced on that count. Draughon at ¶ 30; see also State v. Smith, 1st Dist.
Hamilton Nos. C-080712 and C-090505, 2009-Ohio-6932, ¶ 38 (rejecting
argument that trial court erred in imposing sentence for murder that included
postrelease control where although sentencing transcript showed that trial
court improperly advised defendant that he would be subject to postrelease
control during sentencing hearing, the trial court correctly stated in its journal
entry that defendant was not subject to postrelease control); State v. Mercer,
9th Dist. Summit No. 26361, 2013-Ohio-1527, ¶ 28-30 (overruling assignment
of error based on trial court’s purported improper sentencing of defendant on
allied offenses of similar import where although the trial court, when orally
pronouncing defendant’s sentence at the sentencing hearing, imposed a
sentence on both rape and gross sexual imposition counts, the sentence “was
not ultimately reflected in the [trial] court’s sentencing entry” in which the
trial court ordered the merger of the gross sexual imposition count into the
rape count and imposed a sentence only on the rape count); State v. Stevens,
2d Dist. Montgomery No. 23817, 2010-Ohio-4766, ¶ 4 (where defendant
claimed that the trial court erred in orally pronouncing that defendant serve
seven years for both aggravated robbery and kidnapping, appellate court “need
not address any misstatement that may have been made during the sentencing
hearing” because even assuming the trial court failed to merge the convictions
as allied offenses of similar import during the sentencing hearing, the trial
court specifically stated in its judgment of conviction that the two counts
merged); State v. Swiergosz, 197 Ohio App.3d 40, 2012-Ohio-830, 965 N.E.2d
1070, ¶ 49 (6th Dist.) (“[A] sentencing court speaks only through its judgment
entry of sentence, not its oral pronouncements. * * * [V]erbal miscues or
misstatements in open court during sentencing are harmless.”).
{¶10} Roscoe’s assignment of error is overruled.
{¶11} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were not 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.
______________________________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE
TIM McCORMACK, J., and
MELODY J. STEWART, J., CONCUR