State v. Norris

[Cite as State v. Norris, 2021-Ohio-4177.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2021-02-008
: OPINION
- vs - 11/29/2021
:
SHAUN K. NORRIS, :
Appellant. :
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2018CR0961
Mark J. Tekulve, Clermont County Prosecuting Attorney, and Nicholas Horton, Assistant
Prosecuting Attorney, for appellee.
W. Stephen Haynes, Clermont County Public Defender, and Robert F. Benintendi, Assistant
Public Defender, for appellant.
BYRNE, J.
{¶1} Shaun K. Norris appeals from the judgment entry of the Clermont County
Court of Common Pleas, which, more than one year after Norris' release from prison,
"reimposed" a prison sentence that it concluded Norris had not served. Because the original
sentencing entry caused considerable uncertainty as to whether the sentence was intended
to be served concurrently or consecutively with other prison sentences, we find that Norris
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is entitled to have the benefit of any ambiguity in the sentencing entry construed in his favor.
Accordingly, we reverse the decision of the trial court and vacate the "reimposed" sentence.
I. Procedural History
{¶2} Norris faced criminal charges in three cases before two judges. In early March
2019, the Clermont County Court of Common Pleas sentenced Norris in all three cases. In
case 2018CR1102 ("Case 1"), involving a single fifth-degree felony count of forgery, the
first judge sentenced Norris to a nine-month prison term with credit for 62 days served. In
case 2018CR0941 ("Case 2"), involving two fifth-degree felony counts of drug possession,
the second judge imposed two nine-month prison terms, with credit for 62 days served. The
court ordered the two nine-month prison terms in Case 2 to be "served concurrently with
one another and concurrently with" the nine-month prison term in Case 1. In case
2018CR0961 ("Case 3"), involving a single fifth-degree felony count of forgery, the second
judge again imposed a nine-month prison term with credit for 62 days served. However,
critically to this appeal, the court stated that "This sentence shall be served consecutively
to a companion case [Case 2], but it shall be served concurrently with another companion
case, [Case 1]."
{¶3} No direct appeal was filed with respect to Case 3. In October 2019, after
Norris had served nine months in prison (including credit for time served), the Ohio
Department of Rehabilitation and Correction ("ODRC") released Norris from prison.
{¶4} In November 2020, over a year after Norris' release from prison, a Clermont
County grand jury, in a new criminal case ("Case 4"), indicted Norris on one fifth-degree
felony count of possession of drugs. Case 4 was assigned to the second judge. In
December 2020, Norris pleaded guilty to the single count in Case 4.
{¶5} In January 2021, Norris appeared before the court for sentencing in Case 4.
At the beginning of the hearing, the court announced that there was an "additional issue" to
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address. The court then summarized the sentences that had been imposed on Norris in
Cases 1, 2, and 3. The court indicated that it had ordered that Norris serve the sentence in
Case 3 consecutive with the sentence in Case 2 and concurrent with the sentence in Case
1. The court observed that Norris had been transported to the penitentiary but that "the
Department of Corrections did not have [Case 3]," that "there was a snafu somewhere,"
and that as a result Norris had been discharged from prison prematurely.
{¶6} The court further explained that warrants to convey and the return on those
warrants to convey were in the files for Cases 1 and 2, but there was no similar
documentation in the file for Case 3. The court additionally noted that the sheriff's office
claimed to have had a warrant to convey in Case 3 and that it provided the warrant to convey
to ODRC when it transferred Norris to prison in March 2019. Ultimately, having concluded
that Case 3's nine-month prison term was supposed to have been served consecutive to
the nine-month prison term in Case 1, and having concluded that Norris did not serve the
Case 3 nine-month prison term, the court indicated that its intention was to "reimpose" Case
3's nine-month prison term.
{¶7} Norris objected. Counsel argued that Case 3's nine-month prison term had
been ordered to run both concurrently and consecutively with the sentences in Case 1 and
Case 2, which was an impossibility. Counsel further argued that the state had not appealed
the sentence in a direct appeal, and that res judicata should apply.
{¶8} The court did not address these arguments but instead concluded that "the
sentencing entries are clear, quite frankly," that a mistake was made "somewhere between
here and the ODRC," and that the Case 3 sentence would still have to be served. Though
the court raised these issues at the sentencing hearing for Case 4, the court issued a
"Judgment Entry Reimposing a Prison Sentence" in Case 3. The entry reimposed a nine-
month prison sentence. The court, in a Final Judgment and Sentencing Entry filed in Case
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4, imposed yet another nine-month prison term in Case 4, which it ran consecutive with the
new, reimposed nine-month prison term in Case 3.
{¶9} Norris appeals from the judgment entry reimposing sentence in Case 3,
raising three assignments of error. We address the first two assignments of error together.
II. Law and Analysis
{¶10} Assignment of Error No. 1:
{¶11} THE TRIAL COURT COMMITTED PLAIN ERROR VIOLATING
APPELLANT'S DOUBLE JEOPARDY PROTECTIONS UNDER THE UNITED STATES
CONSTITUTIONS IN REIMPOSING A NINE MONTH PRISON SENTENCE THAT HAD
BEEN SERVED IN ITS ENTIRETY.
{¶12} Assignment of Error No. 2:
{¶13} THE TRIAL COURT ERRED IN REIMPOSING THE NINE MONTH PRISON
SENTENCE IN [CASE 3] AS THE COURT HAD NO JURISDICTION TO DO SO.
{¶14} In his first two assignments of error, Norris contends that the court violated
his constitutional rights and erred as a matter of law in "reimposing" his nine-month prison
sentence from Case 3. Norris further contends that this sentence was a legal impossibility
when initially imposed and that any ambiguity in terms of whether his sentence was
concurrent or consecutive should be resolved in his favor as a concurrent sentence.
{¶15} The state concedes that the trial court lacked jurisdiction in January 2021 to
reimpose Norris' sentence in Case 3. However, the state argues that no prejudice occurred
here because Norris was never conveyed to prison on Case 3 and therefore, he never
served his nine-month sentence on that case.
A. Standard of Review
{¶16} An appellate court reviews felony sentences pursuant to the standard of
review set forth in R.C. 2953.08(G)(2). State v. Julious, 12th Dist. Butler No. CA2015-12-
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224, 2016-Ohio-4822, ¶ 8. Pursuant to that statute, an appellate court may modify or vacate
a sentence only if the appellate court finds by clear and convincing evidence that the record
does not support the trial court's findings under relevant statutes or that the sentence is
otherwise contrary to law. State v. Singh, 12th Dist. Warren No. CA2020-09-056, 2021-
Ohio-2158, ¶ 43.
B. Ambiguity in Case 3's Sentencing Entry
{¶17} The language in Case 2's sentencing entry is clear: the trial court ordered
Case 2's nine-month sentences to be served concurrently with Case 1's nine-month
sentence. In Case 3's sentencing entry, the court ordered that case's nine-month sentence
to run concurrently with Case 1's nine-month sentence and consecutively to Case 2's nine-
month sentences. But it was not possible for Case 3's nine-month sentence to be served
concurrently with Case 1's nine-month sentence and consecutively to Case 2's nine-month
sentences because the nine-month sentences in Case 1 and Case 2 were run concurrently
with one another. Put more simply, if 1 and 2 are served at the same time, then 3 cannot
be served at the same time as 1 but after 2. But this is what the court stated in its Case 3
sentencing entry. The sentencing entry was therefore ambiguous. The trial court's
inclusion in Case 3's sentencing entry of R.C. 2929.14(C)(4) findings regarding consecutive
sentences does not resolve this ambiguity because the court also clearly stated that Case
3's sentence was to run concurrently with Case 2's sentence.
{¶18} We have previously considered a situation where a court's sentencing entry
was ambiguous as to whether a sentence should be served concurrently or consecutively
to another sentence and the court subsequently attempted to impose a consecutive
sentence. Hamilton v. Adkins, 10 Ohio App.3d 217 (12th Dist.1983). There, Adkins pled
no contest to three charges and the court imposed a sentence of "30 days in jail * * * in
each of the cases * * *." Id. The defendant filed his notice of appeal the following day.
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Following the notice of appeal, the defendant moved for bail pending appeal. The court
held a hearing on the bail motion. Id.{¶19} At the outset of the bail hearing, the court indicated it had not afforded Adkins
allocution at sentencing and gave him the opportunity to do so. After giving Adkins an
opportunity to speak, the court announced that he was to be sentenced to "30 days in jail
on each of the three charges with the jail time to run consecutively." Id.{¶20} In holding that the sentencing entry imposed concurrent jail terms, we
observed that R.C. 2929.41 provides that sentences are to be served concurrently unless
consecutive sentences are specified, and further held that "By its vague and indefinite
sentencing, the trial court provided considerable uncertainty as to the length of the sentence
to be served by the appellant." (Emphasis added.) Id. at 218. We also explained that
"Where there is an ambiguity in the language as to whether the sentences are to be served
concurrently or consecutively, a defendant is entitled to have the language construed in his
favor." (Emphasis added.) Id. at 218.
{¶21} This principle is not limited to cases where a trial court simply neglected to
indicate whether sentences were to be run consecutively or concurrently. In State v.
Quinones, 8th Dist. Cuyahoga No. 83720, 2004-Ohio-4485, a defendant was sentenced on
three cases and the court announced at the sentencing hearing that all three sentences
would be served consecutively. Id. at ¶ 25. Consistent with the court's remarks, two of the
sentencing entries reflected that all three cases would be served consecutively. Id.
However, the third sentencing entry indicated that the third case would be served
concurrently with the other two cases. Id. The Eighth District Court of Appeals determined
that the third sentencing entry controlled (not what the trial court stated at the sentencing
hearing), and, citing our opinion in Adkins, held that any ambiguity with respect to
consecutive or concurrent sentences between the three sentencing entries would be
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resolved in favor of Quinones, consistent with the principle that "sentencing ambiguities are
traditionally resolved in favor of the defendant." Id. at ¶ 26. Thus, the third case would be
served concurrently with the other two cases. Id.
{¶22} Upon review, we find Adkins controlling. As written, the sentencing entry on
Case 3 constituted a legal impossibility and was therefore ambiguous. Norris could either
serve Case 3 concurrently with Cases 1 and 2 or consecutively with Cases 1 and 2. He
could not do both without being forced to serve his sentence twice. The sentencing entry
created "considerable uncertainty" as to the length of sentence imposed. Norris is entitled
to the benefit of having any ambiguity as to his sentence resolved in his favor. Accordingly,
the sentence imposed in Case 3, as a matter of law, must be construed to have been
imposed concurrently. Adkins, 10 Ohio App.3d at 218.
C. Whether Norris Served his Sentence
{¶23} Next, we find the state's argument that Norris never commenced serving his
sentence on Case 3 meritless. The state points to the claim that ODRC never received a
warrant to convey on Case 3, even though the sheriff's office claimed to have provided it.
However, the "execution of a prison sentence commences 'when the defendant is delivered
from the temporary detention facility of the judicial branch to the penal institution of the
executive branch.'" State v. Keller, 12th Dist. Fayette No. CA98-07-011, 1999 WL 74575,
at *5-6 (Feb. 16, 1999), quoting State v. Ballard, 77 Ohio App.3d 595, 597 (12th Dist. 1991).
There is no dispute that the Clermont County Sheriff's office transported Norris to prison
following his sentencing in all three cases. The fact that ODRC may have misplaced
paperwork is not relevant to whether Norris in fact served his prison sentence. Accordingly,
we hold that Norris served his sentence on Case 3.
{¶24} The Ohio Supreme Court has held that,
when the entirety of a prison sanction has been served, the
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defendant's expectation in finality in his sentence becomes
paramount, and his sentence for that crime may no longer be
modified. Put another way, either the defendant or the state may
challenge any aspect of a sentence so long as a timely appeal
is filed. * * * But once the time for filing an appeal has run, Ohio
courts are limited to correcting a void sanction.
State v. Holdcroft, 137 Ohio St.3d 526 2013-Ohio-5014, ¶ 18.
{¶25} Here, neither the state nor Norris appealed the sentence imposed in Case 3.
Even assuming the trial court had subject matter jurisdiction to clarify or modify the
sentencing entry after the time for appeal had run—which the state concedes it did not—it
would have had to have done so prior to the completion of Norris' concurrent prison terms.
It did not.
{¶26} Assignment of Error No. 3:
{¶27} THE TRIAL COURT COMMITED PLAIN EROR IN FAILING TO CALCULATE
JAIL-TIME CREDIT.
{¶28} Norris argues that the court plainly erred due to language in the judgment
entry reimposing sentence that indicated that the ODRC should determine if Norris was
entitled to jail-time credit. Given our resolution of the preceding assignments of error, this
assignment of error is moot and need not be addressed. App.R. 12(A)(1)(c).
III. Conclusion
{¶29} Norris is entitled to the benefit of the ambiguity in the sentencing entry in Case
3. As conceded by the state, the trial court acted beyond its authority in "reimposing" Norris'
sentence and ordering him to serve an additional nine months on Case 3. We sustain
Norris' first and second assignments of error, overrule his third assignment of error as moot,
and vacate the judgment entry "reimposing" sentence in Case 3.
{¶30} Judgment reversed and sentence vacated.
M. POWELL, P.J., and S. POWELL, J., concur.
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