State v. Kish

[Cite as State v. Kish, 2014-Ohio-699.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99895
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ERIC KISH
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-431285
BEFORE: Keough, J., Celebrezze, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: February 27, 2014
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Cuyahoga County Public Defender
By: John T. Martin
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Adam M. Chaloupka
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:
{¶1} Defendant-appellant, Eric Kish, appeals the trial court’s imposition of
five-years mandatory postrelease control in CR-431285. For the reasons that follow, we
affirm.
{¶2} In 2003, Kish pleaded guilty to involuntary manslaughter in CR-431285 and
aggravated robbery in CR-432975. The trial court sentenced Kish to an agreed prison
sentence of ten years for involuntary manslaughter and five years for aggravated
robbery. According to the journal entry in CR-431285, the court ordered that the
ten-year sentence “run consecutive to CR-432975” (the five-year sentence for aggravated
robbery). The sentencing entry improperly notified Kish of postrelease control.
{¶3} Accordingly, Kish filed a motion to correct his sentence in 2012 arguing that
postrelease control was improperly imposed at sentencing. The trial court conducted a
limited sentencing hearing in April 2013 for the sole-purpose of imposing postrelease
control. At the hearing, Kish argued that postrelease control could not be imposed on
either case, (CR-431285 or CR- 432975) because when consecutive sentences are
imposed it is “treated as one big sentence of 15 years” under Ohio Administrative Code
section 5120-2-031(G). Therefore, according to Kish, it was unclear as to which of the
two sentences in the two different cases were already served, and as a result postrelease
control could not be imposed on either.
{¶4} The state argued that after telephonically conferring with an individual at the
Bureau of Sentence Computation, it was determined that Kish’s five-year sentence in
CR-432975 had been served and that he was currently serving his ten-year sentence in
CR-431285. 1 Accordingly, the state requested that the mandatory term of five-years
postrelease control be imposed on CR-431285.
{¶5} The trial court found, without explanation, that Kish had served his sentence
in CR-432975; therefore, postrelease control could not be imposed under that case. After
properly advising Kish regarding postrelease control, the court imposed a mandatory term
of five-years postrelease control in CR-431285
{¶6} Kish now appeals, raising three assignments of error, which will be addressed
out of order and together where appropriate.
{¶7} In his first assignment of error, Kish argues that “because there is no question
that the defendant has already served one of the two terms of imprisonment in full, the
trial court erred when it imposed postrelease control in both CR-431285 and
[CR-]432975.”
{¶8} Contrary to Kish’s statement, the trial court’s journal entry clearly provides
that postrelease control was only imposed in CR-431285. Accordingly, Kish’s first
assignment of error is overruled.
{¶9} In his third assignment of error, Kish contends “alternatively, the only
sentence upon which PRC can still be imposed is that for aggravated robbery in
The State concedes on appeal that the “individual” at the bureau may have misinformed the
1
state about this information.
CR-432975 because the sentence for involuntary manslaughter was imposed in a lower
numbered case and is presumed to have been served first.”
{¶10} This court recently considered a similar case in which the trial court entered
reciprocal sentencing entries on two different cases. State v. Cvijetinovic, 8th Dist.
Cuyahoga No. 99316, 2013-Ohio-5121. In Cvijetinovic, this court rejected the “lower
case number is served first” doctrine. Rather, “it is axiomatic that a trial court only
speaks through its journal entries; thus, the sentencing journal entries should dictate how
sentences are served.” Id. at ¶ 21. Accordingly, Kish’s third assignment of error is
overruled.
{¶11} In his second assignment of error, Kish contends “because, as a matter of
law, the terms of imprisonment have merged into a single period of imprisonment from
which it cannot be determined which term has been served in full, postrelease control
cannot be imposed on either case.” Specifically, Kish contends that although Ohio Adm.
Code 5120-2-03.1 dictates how his life in prison will be conducted, i.e. determining an
out-date and eligibility for particular programs, it is unhelpful to determine which
sentence is to be served first.
{¶12} While we summarily disagree with Kish’s reasoning why postrelease control
cannot be imposed on either case, we agree with Kish that no revised or administrative
code dictates how multiple case sentences are to be served. Rather, it is the court’s
sentencing journal entry dictates how a sentence is to be served. See, e.g., State v.
Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, ¶ 2-3, 10; State v. Holdcroft,
2012-Ohio-3066, 973 N.E.2d 334 (3d Dist.), ¶ 4; Cvijetinovic at ¶ 21. Therefore, it is
imperative that a trial court’s sentencing journal entry is unambiguous and clearly sets
forth the sequence in which consecutive sentences are to be served, especially when
sentencing on multiple cases or counts. Merely stating that the cases or counts are to run
consecutive to or with each other is insufficient because it does not indicate which
sentence is to be served first. See generally Cvijetinovic.
{¶13} In this case, the parties requested that this matter be remanded to the trial
court to reconsider the imposition of postrelease control. Accordingly, considering that
the state conceded at oral argument that the trial court may have received misinformation
about which sentence Kish served first, and in light of our recent decision in Cvijetinovic,
we reverse the imposition of postrelease control and remand the matter back to the trial
court to conduct a hearing to determine the sequence of Kish’s sentences and then impose
postrelease control on his remaining unserved sentence.
{¶14} Judgment reversed, case remanded.
It is ordered that the parties share equally the 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.
KATHLEEN ANN KEOUGH, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
KEY WORDS:
99895
postrelease control, consecutive sentences, reciprocal Hearing warranted to determine
the sequence of a defendant’s consecutive prison sentence on two separate cases. A trial
court’s sentencing journal entry dictates how a sentence is to be served. Postrelease
control can only be imposed on unserved prison sentences.