Brook Park v. Necak , 30 Ohio App. 3d 118 ( 1986 )

The defendant, Stevan Necak, appeals from an order which increased his sentence after he had partially satisfied the court's original sentence. We agree that the court lacked authority to make that modification, so we reverse and reinstate the court's original sentence.

On January 28, 1985, defendant pled guilty to violating a municipal ordinance against driving under the influence of alcohol. The court found him guilty and requested a presentence investigation. Eighteen days later, after receiving the presentence report, the court sentenced him to thirty days in jail, a $225 fine, and costs. The court suspended twenty-seven days of the jail term, and placed defendant on active probation for one year on condition that he participate in the "counter attack" alcohol rehabilitation program.

Six weeks later, the court recalled the defendant to reconsider its previous sentence. Apparently, the presentence report at the original sentencing hearing recounted a 1979 conviction in a neighboring municipality. Defendant's counsel reportedly denied that this conviction involved an alcohol-related moving violation. The court later obtained records from that municipality which gave contrary information.

Despite defense counsel's protest that the defendant had already paid the fine and "started the sentence," the court vacated its previous sentence. It then sentenced the defendant to sixty days in jail, a fine of $225, and costs. The court suspended fifty days of the jail term and placed defendant on the same probation terms as in the original sentence. Thus, the new sentence increased the total jail term from thirty to sixty days, and the jail term, after suspension, from three to ten days. The court granted the defendant credit for the time served on the original sentence: "any jail time that's been served goes toward this."

The defendant's three assignments of error challenge the modified sentence on grounds that it (a) subjected him to double jeopardy, (b) resulted from independent investigations by the court, and (c) was procedurally improper.

The Double Jeopardy Clause protects the defendant's right to finality for an acquittal and prevents multiple punishments for the same conviction. Benton v. Maryland (1969), 395 U.S. 784,795-796. The courts can increase sentences when they do not purport to be final. Columbus v. Messer (1982), 7 Ohio App.3d 266, 7 OBR 347, 455 N.E.2d 519. "* * * [A] sentence does not have the qualities of constitutional finality that attend an acquittal." United States v. DiFrancesco (1980), 449 U.S. 117,134. Thus, the prosecution's appeal from a sentencing decision may not offend the Double Jeopardy Clause of the Fifth Amendment.Id. The defendant has no reasonable expectation that the sentence is final when the legislature expressly allows appellate review to correct inappropriate sentences. Id.

Additionally, the courts can correct legally improper sentences, even if they thereby impose greater penalties. Resentencing to impose an omitted mandatory penalty does not violate double jeopardy restraints. Bozza v. UnitedStates (1947), 330 U.S. 160; State v. Beasley (1984), 14 Ohio St.3d 74, 14 OBR 511, 471 N.E.2d 774. The legally authorized judge can resentence a defendant after an unauthorized judge purported to sentence him. Beatty v. Alston (1975), 43 Ohio St.2d 126, 72 O.O. 2d 70, 330 N.E.2d 921.

In this case, the trial court modified a legally proper sentence without statutory authority after defendant paid the fine and apparently served part of the jail term. The defendant's right to expect finality precluded such action. See Columbus v.Messer, supra, at 268, 7 OBR at 348-349, 455 N.E.2d at 521-522. Misinformation from defendant's counsel did not make the original sentence unlawful. If the court could reconsider its sentence whenever it acquired new derogatory information, the defendant would have no assurance about the punishment's finality.

We express no opinion whether the court had reason to punish defendant's counsel. However, it could not do so by increasing defendant's sentence. Hence, we sustain the first assigned error.

Contrary to the defendant's second assigned error, the court did not conduct an independent fact-finding investigation which denied him due process. Cf. State v. Longo (1982), 4 Ohio App.3d 136,140-141, 4 OBR 228, 233-234, 446 N.E.2d 1145, 1150-1151. It simply obtained another municipal court's public records about a conviction described in the presentence report and discussed at the sentencing hearing. The court's recollection of a prior hearing in which it participated does not constitute an improper investigation. We overrule the second claimed error.

The defendant's final assignment correctly asserts that the court lacked procedural authority to resentence him. The trial court had no statutory authority to increase a lawful sentence after the defendant had served part of that sentence. We find no authority for the proposition that the court had inherent authority to do so. Indeed, Ohio courts have no authority to reconsider their own valid final judgments in criminal cases.Cleveland Heights v. Richardson (1983), 9 Ohio App.3d 152, 9 OBR 218, 458 N.E.2d 901.

Therefore, we vacate the trial court's new sentence and reinstate its original sentence.

Judgment accordingly.

PATTON and CORRIGAN, JJ., concur.