State v. Blair , 2015 Ohio 5416 ( 2015 )

[Cite as State v. Blair, 2015-Ohio-5416.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 102548
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
EDWARD BLAIR, III
DEFENDANT-APPELLANT
JUDGMENT:
VACATED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-575294-A
BEFORE: E.T. Gallagher, P.J., Stewart, J., and Blackmon, J.
RELEASED AND JOURNALIZED: December 24, 2015
ATTORNEY FOR APPELLANT
John F. Corrigan
405 Lake Forest Drive
Bay Village, Ohio 44140
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Melissa Riley
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, P.J.:
{¶1} Defendant-appellant, Edward Blair III (“Blair”), appeals his conviction. He
raises one assignment of error for our review:
1. The trial court committed prejudicial error by involving itself in the plea
bargain process and threatening appellant with the maximum sentence if he
exercised his right to trial by jury.
{¶2} However, an error in the trial court’s procedure compels us to vacate the
trial court’s judgment and remand the case to the trial court for a new sentence.
I. Facts and Procedural History
{¶3} Blair was charged with breaking and entering, felonious assault, aggravated
menacing, carrying a concealed weapon, improper handling of a firearm, and two counts
of having weapons while under disability. The charges included firearm and repeat
violent offender specifications. Pursuant to a plea agreement, Blair pleaded guilty to
attempted felonious assault, aggravated menacing, and having weapons while under
disability, each with forfeiture specifications. The remaining charges and specifications
were nolled. The court sentenced Blair to two years of community control sanctions on
all counts, collectively, with a six-year suspended sentence.
{¶4} A few months later, the trial court found Blair in violation of his community
control sanctions. Consequently, the court revoked his community control and imposed
36-month prison terms on each count. Blair subsequently filed this delayed appeal, in
which he challenges the validity of his plea.
{¶5} Pursuant to State v. Tate, 140 Ohio St.3d 442, 2014-Ohio-3667, 19 N.E.3d
888, ¶ 20, we sua sponte asked the parties to brief an issue not raised in the parties’ briefs:
whether the journal entry dated February 4, 2014 that sentenced Blair to community
control sanctions was a valid judgment. We find this issue dispositive of this appeal.
II. Void Sentence
{¶6} Blair appealed from a judgment finding him in violation of his community
control sanctions and sending him to prison. On its face, this judgment would be a final,
appealable order. However, we find the journal entry that sentenced Blair to community
control sanctions is not a valid judgment because it violates Crim.R. 32(C) and Ohio’s
felony sentencing provisions.
{¶7} Crim.R. 32(C) provides that “[a] judgment entry of conviction shall set forth
the fact of conviction and the sentence.” “A sentence is a sanction or combination of
sanctions imposed for an individual offense.” State v. Holdcroft, 137 Ohio St.3d 526,
2013-Ohio-5014, 1 N.E.3d 382, paragraph one of the syllabus, citing State v. Saxon, 109
Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d
824. Thus, a criminal “conviction” consists of both a finding of guilt and the imposition
of a sentence. See State v. Henderson, 58 Ohio St.2d 171, 389 N.E. 2d 494 (1979).
{¶8} Ohio’s felony sentencing scheme does not allow sentences to be grouped
together in a “sentencing package.” Rather, it requires a judge to impose a separate
sentence for each offense, individually. State v. Saxon, 109 Ohio St.3d 176,
2006-Ohio-1245, 846 N.E.2d 824, ¶ 8-9, citing R.C. 2929.11 through 2929.19. The
statutory mandate that sentences must be imposed on offenses individually applies to
community control sanctions. State v. Williams, 3d Dist. Hancock No. 5-10-02,
2011-Ohio-995, ¶ 19-27. Indeed, community control sanctions are criminal penalties
subject to the sentencing provisions set forth in R.C. Chapter 2929.
{¶9} Thus, in State v. Jones, 8th Dist. Cuyahoga No. 102314, 2015-Ohio-2409, we
held that “it is error for a trial court to sentence a defendant to a single term of community
control sanctions for multiple convictions.” The state acknowledges Jones, but argues our
decision “is incorrect,” and that we should follow State v. South, 120 Ohio Ohio St.3d
358, 2008-Ohio-6693, 899 N.E.2d 146, instead.
{¶10} In South, the Ohio Supreme Court reversed a judgment of the Third
Appellate District that held that a journal entry imposing a single term of community
control sanctions on multiple counts was not a final, appealable order. However, the
Ohio Supreme Court did not provide any opinion or reasoning for its reversal. And
despite South, the Third Appellate District continues to hold that a blanket sentence of
community control sanctions on multiple counts is not a valid sentence, and is therefore
not a final, appealable order. State v. Williams, 3d Dist. Hancock No. 5-10-02,
2011-Ohio-995, ¶ 24.
{¶11} Blair was convicted of three charges, and the trial court imposed community
control sanctions on all the charges in a blanket sentence. Because Crim.R. 32(C)
requires the court to impose a separate sentence on each count individually, the court’s
original sentencing entry is contrary to law. A sentence that does not comply with
statutorily mandated terms is void. State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238,
942 N.E.2d 332, citing State v. Beasley, 14 Ohio St.3d 74, 471 N.E.2d 774 (1984).
Therefore, the February 4, 2014 journal entry that sentenced Blair to community control
sanctions is void.
{¶12} The state argues that because Blair never appealed any error arising from the
February 4, 2014 journal entry, he is barred by res judicata from doing so now.
However, a nonfinal order cannot become res judicata because it was never ripe for
appeal. Id. at ¶ 25.
{¶13} Having determined that the court’s original sentencing entry is a nullity,
the trial court could not find Blair in violation of it. Accordingly, we vacate both the the
trial court’s original sentence and the judgment revoking community control. We further
remand this case to the trial court to resentence Blair on each count to which he pleaded
guilty.
{¶14} Two judgments vacated and cause remanded to trial court for de novo
resentencing on each count individually.
It is ordered that appellant recover of said 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. 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.
EILEEN T. GALLAGHER, PRESIDING JUDGE
MELODY J. STEWART, J., and
PATRICIA ANN BLACKMON, J., CONCUR