State v. Rose ( 2017 )

[Cite as State v. Rose, 2017-Ohio-4235.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2016-L-067
- vs - :
JOSEPH W. ROSE, JR., :
Defendant-Appellant. :
Criminal Appeal from the Lake County Court of Common Pleas.
Case No. 14 CR 000031.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).
Anita B. Staley, Barthol & Staley, L.P.A., 7327 Center Street, Mentor, OH 44060 (For
Defendant-Appellant).
TIMOTHY P. CANNON, J.
{¶1} Appellant, Joseph W. Rose, Jr., appeals from the June 1, 2016 agreed
judgment entry of amended sentence, which was entered by the Lake County Court of
Common Pleas following this court’s remand order. For the following reasons, the
judgment of the trial court is affirmed.
{¶2} On January 21, 2014, appellant was indicted on seven counts: Count 1,
receiving stolen property (a license plate), a fifth-degree felony in violation of R.C.
2913.51(A); Count 2, aggravated robbery, a first-degree felony in violation of R.C.
2911.01(A)(1) with a repeat violent offender specification; Count 3, robbery, a second-
degree felony in violation of R.C. 2911.02(A)(2), with a repeat violent offender
specification; Count 4, robbery, a third-degree felony in violation of R.C. 2911.02(A)(3);
Count 5, receiving stolen property (a 1995 Plymouth Voyager minivan), a fourth-degree
felony in violation of R.C. 2913.51(A); Count 6, receiving stolen property (a 2000 Dodge
Durango), a fourth-degree felony in violation of R.C. 2913.51(A); and Count 7, illegal
use or possession of drug paraphernalia, a fourth-degree misdemeanor in violation of
R.C. 2925.14(C)(1).
{¶3} Appellant pled not guilty to all charges. Count 7 was dismissed at the
request of the state prior to trial. The remaining counts were tried before a jury.
{¶4} The jury found appellant guilty of three counts of receiving stolen property
and one count of robbery. Appellant was found not guilty of the remaining charges. He
was sentenced to 12 months in prison on Count 1 (receiving a stolen license plate); 36
months in prison on Count 4 (robbery); 18 months in prison on Count 5 (receiving a
stolen Plymouth minivan); and 18 months in prison on Count 6 (receiving a stolen
Dodge Durango). The trial court ordered the sentences to be served consecutive to
each other for a total of 84 months in prison.
{¶5} Appellant timely appealed the sentencing order. We reversed the finding
of guilt on Count 1, receiving stolen property (license plate), due to trial counsel’s failure
to object to inadmissible hearsay testimony that was presented in violation of his
constitutional right to confront the witnesses against him. State v. Rose, 11th Dist. Lake
No. 2014-L-086, 2015-Ohio-2607, ¶11-30. The matter was remanded for further
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proceedings with respect to Count 1. Id. at ¶44. In all other respects, the trial court’s
judgment was affirmed. Id.
{¶6} On June 1, 2016, the trial court entered an “Agreed Judgment Entry of
Amended Sentence.” The entry had been prepared by the prosecuting attorney, at the
direction of the trial court, on May 31, 2016. The entry, states, in pertinent part:
The Lake County Prosecuting Attorney, Charles E. Coulson, by and
through Karen A. Sheppert, Assistant Prosecuting Attorney, on
behalf of the State of Ohio, has represented that the State will not
be pursuing prosecution of the Defendant, Joseph W. Rose, Jr., on
Count 1. The State and the Defendant, represented by counsel,
Vanessa R. Clapp, Assistant Public Defender, agree that the
Defendant’s judgment entry of sentence, filed July 31, 2014, will be
amended as follows.
The entry deletes reference to the finding of guilt and sentence on Count 1. The entry
also provides, “[a]s to Counts 5 and 6, the Court further finds that the Defendant
committed the offenses as part of an organized criminal activity[.]” This provision had
previously included Count 1 as part of the organized criminal activity.
{¶7} The trial court recited the sentence on the remaining counts without any
other change from the court’s original sentencing entry. As a result, appellant remained
sentenced to 36 months in prison on Count 4, 18 months in prison on Count 5, and 18
months in prison on Count 6, for a total of 72 months.
{¶8} Appellant filed a timely notice of appeal from this entry and raised three
assignments of error for our review.
{¶9} A review of the docket revealed the state had not moved to nolle Count 1
of the indictment nor was Count 1 dismissed by the trial court. Thus, the trial court’s
June 1, 2016 entry was not a final, appealable order. We remanded the matter to the
trial court for the sole purpose of disposing of Count 1 of the indictment. On remand,
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the state entered a nolle prosequi on Count 1 of the indictment, which was accepted by
the trial court, and the case was refiled in this court.
{¶10} Appellant’s first assignment of error states:
{¶11} “The trial court failed to comply with Criminal Rule 32 when resentencing
the appellant after the Court of Appeals reversed and remanded for proceedings
consistent with its decision.”
{¶12} Appellant asserts the trial court did not comply with Crim.R. 32 because it
resentenced appellant without holding a hearing and giving appellant the opportunity to
speak.
{¶13} Crim.R. 32(A)(1) provides: “At the time of imposing sentence, the court
shall * * * [a]fford counsel an opportunity to speak on behalf of the defendant and
address the defendant personally and ask if he or she wishes to make a statement in
his or her own behalf or present any information in mitigation of punishment.” A trial
court is required to afford this same opportunity to the defendant when an appellate
court remands a case for resentencing. See, e.g., State v. Steimle, 8th Dist. Cuyahoga
Nos. 79154 & 79155, 2002-Ohio-2238, ¶14-16.
{¶14} In our opinion on appellant’s direct appeal, we held appellant was
prejudiced by trial counsel’s failure to object to inadmissible hearsay testimony in
violation of appellant’s constitutional right to confront witnesses against him. Rose,
supra, at ¶24. That hearsay testimony was the only evidence presented by the state in
support of Count 1. Id. at ¶28. This was a trial error, not a sentencing error. Thus,
appellant’s assertion that his appeal was remanded for resentencing is inaccurate; it
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was remanded for the trial court to cure the trial error that occurred with regard to the
finding of guilt on Count 1.
{¶15} “‘The law-of-the-case doctrine holds that the decision of the reviewing
court in a case remains the law of that case on the questions of law involved for all
subsequent proceedings at the trial and appellate levels.’” State v. Ulery, 2d Dist. Clark
No. 2010 CA 89, 2011-Ohio-4549, ¶12, quoting Nolan v. Nolan, 11 Ohio St. 3d 1, 3
(1984). “‘The doctrine functions to compel trial courts to follow the mandates of
reviewing courts.’” State v. Wolfe, 2d Dist. Montgomery Nos. 26681, 26729, & 26983,
2016-Ohio-4897, ¶16, quoting Blust v. Lamar Advertising of Mobile, Inc., 183 Ohio
App.3d 478, 2009-Ohio-3947, ¶10 (2d Dist.). See also Brook Park v. Necak, 30 Ohio
App.3d 118, 120 (8th Dist.1986) (“Ohio courts have no authority to reconsider their own
valid final judgments in criminal cases”).
{¶16} Our mandate to the trial court was to revisit the finding of guilt on Count 1.
The trial court had no authority to resentence appellant on remand from this court
unless further proceedings resulted in a finding of guilt on Count 1. The remainder of
appellant’s convictions had been affirmed by this court on direct appeal. Rose, supra,
at ¶44. Thus, a resentencing hearing was not held nor was it required to be held on the
remaining counts. See generally State v. Saxon, 109 Ohio St. 3d 176, 2006-Ohio-1245
(explaining why the “sentencing package doctrine” has no application in Ohio).
Because the state chose not to pursue a conviction on Count 1, the count was
dismissed and the sentencing entry was properly amended.
{¶17} The trial court was not required to afford appellant an opportunity to speak
at a hearing, pursuant to Crim.R. 32, because appellant was not resentenced.
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{¶18} Appellant’s first assignment of error is without merit.
{¶19} Appellant’s second and third assignments of error state:
[2.] The trial court abused its discretion and erred to the prejudice of
appellant by sentencing him to a total of 72-months imprisonment in
that the prison term is excessive for the purposes set forth in Ohio
Revised Code Section 2929.11(A) and (B), and is not necessary to
protect the public.
[3.] The trial court abused its discretion to the prejudice of appellant
by imposing a maximum prison term, when consideration of the
factors in 2929.12 tended to favor a lesser sentence.
{¶20} “[A]ny issues that were raised or could have been raised by a defendant at
the trial court level or on direct appeal are res judicata and not subject to review in
subsequent proceedings.” State v. Lintz, 11th Dist. Lake No. 2010-L-067, 2011-Ohio-
6511, ¶36, citing State v. Perry, 10 Ohio St. 2d 175 (1967), paragraph nine of the
syllabus.
{¶21} The proper time for appellant to raise these arguments was in his direct
appeal from the trial court’s judgment of conviction. He did not do so, and the trial court
did not resentence appellant following our remand. Appellant’s arguments are now
barred by the doctrine of res judicata.
{¶22} Appellant’s second and third assignments of error are without merit.
{¶23} The judgment of the Lake County Court of Common Pleas is hereby
affirmed.
CYNTHIA WESTCOTT RICE, P.J.,
DIANE V. GRENDELL, J.,
concur.
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