State v. Minifee

[Cite as State v. Minifee, 2013-Ohio-5132.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99780
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
BRANDON MINIFEE
DEFENDANT-APPELLANT
JUDGMENT:
DISMISSED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-498906
BEFORE: S. Gallagher, P.J., Kilbane, J., and Blackmon, J.
RELEASED AND JOURNALIZED: November 21, 2013
FOR APPELLANT
Brandon Minifee, pro se
542-048
Trumbull Correctional Institution
P.O. Box 901
Leavittsburg, OH 44430
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Kristen L. Sobieski
T. Allan Regas
Assistant Prosecuting Attorneys
Justice Center - 8th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, P.J.:
{¶1} Defendant Brandon Minifee appeals from the trial court’s denial of his
motion for resentencing filed on February 26, 2012. For the following reasons,
Minifee’s current appeal is dismissed for lack of a final, appealable order.
{¶2} In State v. Minifee, 8th Dist. Cuyahoga No. 91017, 2009-Ohio-3089(“Minifee I”), this court reversed Minifee’s sentence on his felony murder and felonious
assault convictions because those two offenses were allied and subject to merger.
Although the state elected which conviction to proceed to sentencing on, the trial court
never resentenced Minifee pursuant to the Minifee I decision. The state conceded and
our review of the docket confirmed this error. Accordingly, there is no final sentencing
entry upon which Minifee can now appeal. See State v. Wilson, 129 Ohio St.3d 214,
2011-Ohio-2669, 951 N.E.2d 381, ¶ 13, citing State v. Whitfield, 124 Ohio St.3d 319,
2010-Ohio-2, 922 N.E.2d 182, ¶ 24 (noting that “the appellate court’s remand requires the
trial court to conduct a new sentencing hearing[, at which, the trial court must] * * *
‘merge the crimes into a single conviction for sentencing, * * * and impose a sentence
that is appropriate for the merged offense’”).
{¶3} The appeal is dismissed for the lack of a final, appealable order, and the cause
is remanded to the trial court for the purposes of complying with this court’s Minifee I
mandate.
It is ordered that appellee recover from appellant costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
SEAN C. GALLAGHER, PRESIDING JUDGE
MARY EILEEN KILBANE, J., and
PATRICIA ANN BLACKMON, J., CONCUR