State v. Henry

[Cite as State v. Henry, 2011-Ohio-3217.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
STATE OF OHIO : Sheila G. Farmer, P.J.
: Julie A. Edwards, J.
Plaintiff-Appellee : Patricia A. Delaney, J.
:
-vs- : Case No. 10CAA090075
:
:
JOHN GORDON HENRY, JR. : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Delaware
County Court of Common Pleas Case
No. 03-CR-I-05-203
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 27, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DAVID A. YOST JOHN R. CORNELY
Prosecuting Attorney 21 Middle Street
Delaware, Ohio P.O. Box 248
Galena, Ohio 43201-0248
BY: BRENDAN M. INSCHO
Assistant Prosecuting Attorney
140 N. Sandusky Street
Delaware, Ohio 43015
[Cite as State v. Henry, 2011-Ohio-3217.]
Edwards, J.
{¶1} Appellant, John Gordon Henry, Jr., appeals a judgment of the Delaware
County Common Pleas Court resentencing him to a term of five years incarceration for
one count of robbery (R.C. 2911.02(A)(3)) and adding a mandatory term of three years
postrelease control.
STATEMENT OF FACTS AND CASE
{¶2} On February 24, 2004, appellant entered a guilty plea to one count of
robbery. He was sentenced to five years incarceration, and the court ordered the
sentence to run consecutively to a sentence which he was serving from a Franklin
County conviction.
{¶3} On January 6, 2010, the trial court ordered a resentencing hearing
because the court had not properly advised appellant of postrelease control. The trial
court held a hearing on September 1, 2010. At the hearing the court advised appellant
that he was to serve a mandatory period of three years postrelease control. Appellant
argued at the hearing that the court should reduce the five year sentence originally
imposed in the case. Appellant argued that he had taken every class available to him in
the prison system, his grandfather had passed away, his sister was murdered and his
mother’s health had taken a turn for the worse. The court told appellant he intended to
impose the same sentence appellant received in 2004.
{¶4} Appellant assigns two errors on appeal:
{¶5} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN FILING A
JUDGMENT ENTRY OF RE-SENTENCING THAT DOES NOT CORRECTLY
JOURNALIZE THE SENTENCE IMPOSED.
Delaware County App. Case No. 10CAA090075 3
{¶6} “II. THE AMBIGUITY BETWEEN THE SENTENCE IMPOSED AT THE
RE-SENTENCING HEARING AND THE SENTENCE SET OUT IN THE JUDGMENT
ENTRY OF RE-SENTENCE MUST BE RESOLVED IN FAVOR OF APPELLANT AND
CONCURRENT SENTENCES ORDERED.”
I, II
{¶7} Appellant argues that the court did not correctly journalize the sentence he
imposed at the hearing. He argues that at the hearing, the court did not order the
sentence to run consecutively to the Franklin County sentence, but the judgment entry
orders the sentence to be served consecutively. Appellant argues that there is
therefore an ambiguity in the sentence and he is entitled to the lesser sentence, i.e. a
concurrent sentence.
{¶8} We find no ambiguity between the judgment entry and the sentence
imposed in the courtroom. While the trial court did not expressly state that the sentence
would run consecutively to the Franklin County sentence, the following colloquy
occurred during the resentencing hearing:
{¶9} “MR. CORNELY: Mr. Henry has been in prison now for over six years on
this case and some case out of Franklin County. He was sentenced to a total prison
term in both counties of fifteen years, your Honor. He’s got five years in this county.
{¶10} “THE COURT: Mr. Henry, the court reviewed the file last evening, I went
through the file, the court is of the opinion that the sentence I gave you back on the 28th
of May, 2004, was appropriate. The findings I made at that time were appropriate at
that time.” Tr. 6-7.
Delaware County App. Case No. 10CAA090075 4
{¶11} Counsel had brought to the court’s attention, in appellant’s presence, that
the original sentence was consecutive to the sentence imposed by Franklin County.
The court stated that having reviewed the file the night before, he intended to impose
the same sentence. Therefore, appellant was made aware by the court that the
sentence would not change, even though the court did not specifically state on the
record that he would again impose the sentence consecutively to the Franklin County
sentence.
{¶12} Further, the Ohio Supreme Court has held that if a defendant is under a
sentence in which postrelease control was not properly handled, only the offending
portion of the sentence dealing with postrelease control is subject to review and
correction. State v. Fischer, 128 Ohio St.3d 92, 942 N.E.2d 332, 2010-Ohio-6238, ¶27.
The new sentencing hearing to which the offender is entitled is limited to the issue of
postrelease control. Id. at ¶29. Therefore, the court could not reconsider appellant’s
original sentence; his resentencing hearing was limited solely to the issue of the proper
imposition of postrelease control.
Delaware County App. Case No. 10CAA090075 5
{¶13} The first and second assignments of error are overruled.
{¶14} The judgment of the Delaware County Common Pleas Court is affirmed.
By: Edwards, J.
Farmer, P.J. and
Delaney, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/r0401
[Cite as State v. Henry, 2011-Ohio-3217.]
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
JOHN GORDON HENRY, JR. :
:
Defendant-Appellant : CASE NO. 10CAA090075
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Delaware County Court of Common Pleas is affirmed. Costs assessed
to appellant.
_________________________________
_________________________________
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JUDGES