State v. Barton

[Cite as State v. Barton, 2011-Ohio-4971.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 10-CA-113
JEREMIAH BARTON :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of
Common Pleas Case No. 2002-CR-571
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: September 21, 2011
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
JAMES J. MAYER, JR 0021148 MELISSA PRENDERGAST 0075482
Richland County Prosecutor Assistant State Public Defender
38 S. Park St. 250 E. Broad St., Ste. 1400
Mansfield, Ohio 44902 Columbus, Ohio 43215
BENJAMIN ELDER 0069358
Assistant Prosecuting Attorney
(Counsel of Record)
[Cite as State v. Barton, 2011-Ohio-4971.]
Delaney, J.
{¶1} Defendant-Appellant Jeremiah Barton appeals from the amended
sentencing entry of the Richland County Court of Common Pleas, correcting an
omission pursuant to State v. Baker (2008), 119 Ohio St.3d 197, 893 N.E.2d 163. The
State of Ohio is Plaintiff-Appellee.
STATEMENT OF THE CASE1
{¶2} On September 20, 2002, Appellant was indicted by the Richland County
Grand Jury for one count of endangering children, a felony of the second degree, in
violation of R.C. 2919.22(B)(1) (count one). He was also charged with one count of
felonious assault, a felony of the second degree, in violation of R.C. 2903.11(A)(1)
(count two).
{¶3} The court ordered a presentence investigation and a forensic examination
to determine Appellant’s amenability to treatment. On November 15, 2002, Appellant
pled guilty to the charges. On February 28, 2003, the trial court sentenced Appellant to
five years in prison on the felonious assault to be served consecutively to a four year
sentence on the child endangering. The trial court, however, reserved the four year
sentence for future evaluation. Appellant was delivered to the Ohio Department of
Rehabilitation and Corrections (“ODRC”) on March 5, 2003, to begin serving his five
year sentence on the felonious assault. That sentence was set to expire on March 5,
2008. Appellant did not file a direct appeal of the trial court’s February 28, 2003
sentencing entry.
1
A Statement of Facts is not necessary for determining this appeal.
Richland County, Case No. 10-CA-113 3
{¶4} On July 26, 2007, the trial court ordered Appellant to be conveyed from
prison to the Richland County Jail. The court scheduled Appellant for pre-trial hearing
on July 30, 2007. On October 3, 2007, the court then ordered another forensic exam.
On October 30, 2007, the court held a sentencing hearing. By entry dated November 8,
2007, the trial sentenced Appellant to the four years on count one, consecutive to the
five years previously imposed on count two. Appellant likewise did not file an appeal of
the trial court’s November 8, 2007 sentencing entry.
{¶5} Appellant was then sent back to ODRC on November 9, 2007. The court
granted Defendant 103 days credit for jail time served between July 30 and November
9, 2007. Appellant was never released from custody and was still serving his original
five year portion of his sentence on count two when the sentence on count one was
imposed.
{¶6} On August 3, 2010, Appellant filed a Motion for Final Appealable Order,
pursuant to State v. Baker (2008), 119 Ohio St.3d 197, 893 N.E.2d 163. On August 27,
2010, the trial court filed an Amended Sentencing Entry. The trial court’s amended
sentencing entry stated that on October 30, 2007, Appellant was convicted by admitting
guilt and was sentenced to a four year term on count one and to a five year term on
count two, and that the sentences were to be served consecutively.
{¶7} Appellant raises two Assignments of Error:
{¶8} “I. THE TRIAL COURT ACTED WITHOUT AUTHORITY WHEN IT
SENTENCED MR. BARTON TO PRISON IN 2007. FIFTH AND FOURTEENTH
AMENDMENTS, UNITED STATES CONSTITUTION SECTION 10, ARTICLE I, OHIO
CONSTITUTION.
Richland County, Case No. 10-CA-113 4
{¶9} “II. TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF
COUNSEL, IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES
CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.”
I & II
{¶1} At this time, Appellant appears to raise two claims related to the
sentencing entry of November 8, 2007. First, Appellant argues the trial court lacked
jurisdiction to impose a sentence on count one because Appellant had already been
released from serving his sentence on count two. Second, Appellant argues his trial
counsel was ineffective for failing to object to the court exercising it authority to impose
a sentence on count one.
{¶2} At the outset, this appeal arises from the trial court’s amended sentencing
entry to include the language that he was convicted by admitting guilt and now appeals
this entry; however, he does not limit his arguments to the entry with respect to his
manner of conviction. We do not find this to be the intent of the Supreme Court in
Baker.
{¶3} The purpose of trial court’s October 27, 2010 amended sentencing entry
was to comply with Crim.R. 32 to identify the “means of conviction”. This Court has
previously rejected review of assignments of error which attempt to raise additional
issues that are not related to narrow function of including the manner of conviction.
State v. Harris, 5th Dist. No. 10-CA-49, 2011-Ohio-1626.
{¶4} Accordingly, Appellant’s assignments of error are overruled.
Richland County, Case No. 10-CA-113 5
{¶5} For the foregoing reasons, the judgment of the Richland County Court of
Common Pleas is affirmed.
By: Delaney, J. and
Wise, J. concur; and
Farmer, P.J., dissents
HON. PATRICIA A. DELANEY
HON. SHEILA G. FARMER
HON. JOHN W. WISE
Richland County, Case No. 10-CA-113 6
Farmer, P.J., dissents
{¶6} I respectfully dissent based upon the reasoning in my dissent in State v.
Harris, Richland App. No. 10-CA-49, 2011-Ohio-1626.
________________________________
HON. SHEILA G. FARMER
[Cite as State v. Barton, 2011-Ohio-4971.]
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
JEREMIAH BARTON :
:
Defendant-Appellant : Case No. 10-CA-113
:
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Richland County Court of Common Pleas is affirmed. Costs assessed
to Appellant.
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON. SHEILA G. FARMER
_________________________________
HON. JOHN W. WISE