State v. Beverly

[Cite as State v. Beverly, 2018-Ohio-2116.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2015-CA-71
:
v. : Trial Court Case No. 11-CR-258
:
JORDAN BEVERLY : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 1st day of June, 2018.
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ANDREW P. PICKERING, Atty. Reg. No. 0068770, 50 E. Columbia Street, 4th Floor,
Springfield, Ohio 45501
Attorney for Plaintiff-Appellee
CHRISTOPHER J. PAGAN, Atty. Reg. No. 0062751, 1501 First Avenue, Middletown,
Ohio 45044
Attorney for Defendant-Appellant
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HALL, J.
{¶ 1} This matter comes before us on a reopened direct appeal by defendant
Jordan Beverly.
{¶ 2} On July 25, 2017, we sustained Beverly’s App.R. 26(B) application for
reopening, in part, and permitted him to reopen an appeal from his resentencing on
charges of engaging in a pattern of corrupt activity, burglary (eight counts), attempted
burglary (two counts), receiving stolen property (five counts), having weapons while under
disability, and fleeing and eluding.
{¶ 3} The record reflects that the trial court resentenced Beverly in June 2015
following a partially-successful appeal. On resentencing, the trial court merged two
convictions as allied offenses. It then made findings required for consecutive sentences
and imposed various prison terms resulting in an aggregate 50-year sentence. Beverly
appealed and challenged the length of his aggregate sentence. We overruled his
assignments of error and affirmed in State v. Beverly, 2016-Ohio-8078, 75 N.E.3d 847
(2d Dist.).
{¶ 4} Beverly then filed his application for reopening, alleging ineffective
assistance of appellate counsel for failing to raise four issues. We granted the application
as to one of those issues. Specifically, we reopened the appeal to permit Beverly to argue
ineffective assistance based on counsel’s failure to challenge his resentencing on counts
for which he already had completed his sentence. See State v. Beverly, 2017-Ohio-7093,
95 N.E.3d 652, ¶ 7 (2d Dist.).
{¶ 5} Beverly now advances two related assignments of error raising the foregoing
issue. In the first assignment of error, he contends the trial court erred in resentencing
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him on counts two, three, and five, as he already had completed his prison term on those
counts. In his second assignment of error, he alleges ineffective assistance of appellate
counsel for failing to raise this issue previously.
{¶ 6} Beverly contends he had completed two 18-month prison terms for receiving
stolen property (counts two and five) and a 12-month prison term for receiving stolen
property (count three) prior to the resentencing at which the trial court ordered these
sentences to be served consecutively to all others. Although the trial court originally had
made the sentences on counts two, three, and five consecutive to one another, they were
part of a multi-count, aggregate 8.5 year term that the trial court originally had made
concurrent to another set of sentences on numerous other counts. At resentencing,
however, the trial court imposed consecutive sentences on all counts.
{¶ 7} Relying primarily on State v. Mockbee, 4th Dist. Scioto No. 14CA3601, 2015-
Ohio-3469, Beverly claims the trial court lacked jurisdiction to resentence him on counts
two, three, and five because he already had completed his sentence on them. He had
served more than four years of his total sentence by the time of resentencing, and the
trial court made no determination as to the order in which his sentences were to be
served. That being so, he contends we should construe any ambiguity in his favor and
conclude that he already had completed his sentences on counts two, three, and five and
that the trial court lacked jurisdiction to resentence him on them. For its part, the State
concedes error. Based on Mockbee and a recent decision by this court in State v.
Christian, 2017-Ohio-8249, __ N.E.3d __ (2d Dist.), appeal accepted for review, 2018-
Ohio-1600, the State acknowledges that Beverly had completed his sentence on counts
two, three, and five and that the trial court erred in resentencing him on those counts.
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{¶ 8} The only dispute between the parties concerns the effect of reversing the trial
court’s resentencing on counts two, three, and five and reinstating the original sentences
on them. The State contends reversing the trial court’s resentencing on those counts
reduces Beverly’s new aggregate sentence by 3.5 years. Beverly disagrees. He argues
that undoing the resentencing on the disputed counts results in a four-year sentence
reduction.
{¶ 9} As a threshold matter, we agree with the parties that the trial court erred in
resentencing Beverly on counts two, three, and five. The trial court originally sentenced
him to an aggregate 66.5-year prison term that involved two sentencing tracks. One track
consisted of assorted concurrent and consecutive sentences. Specifically, the trial court
imposed consecutive terms totaling 66.5 years on 13 counts (counts 1, 9, 10, 12, 13, 14,
15, 18, 21, 22, 23, 24, and 25). In a second track, it then imposed prison terms on other
counts totaling 8.5 years (counts 2, 3, 5, 11, 16, and 17). It made those sentences
consecutive to each other but concurrent to the 66.5-year term imposed on the counts in
the other track. The practical result was an aggregate 66.5-year prison term.
{¶ 10} In June 2015, following a reversal and remand for resentencing, the trial
court dispensed with its two-track approach and imposed wholly consecutive prison terms
totaling 50 years. By the time of this resentencing, however, Beverly already had served
a little more than four years and four months of his total sentence. Under these
circumstances, we agree that the trial court lacked jurisdiction to alter his sentence and
resentence him for any counts on which he already had completed his prison term prior
to resentencing. This includes his prison terms for count two (18 months), count three (12
months), and count five (18 months). Although the trial court did not specify the order in
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which Beverly was to serve his sentences, we previously have looked to the order in
which a trial court imposed its sentences and also have construed any ambiguity
regarding the order of service in a defendant’s favor. State v. Powell, 2d Dist. Montgomery
No. 24433, 2014-Ohio-3842, ¶ 28.
{¶ 11} At Beverly’s original sentencing, the trial court began with counts two, three,
and five when addressing the sentences on that track. In light of this fact and our practice
of construing ambiguity in a defendant’s favor, we agree with the parties that Beverly had
completed his aggregate four-year term on counts two, three, and five prior to
resentencing. This court recently reached the same conclusion on similar facts in
Christian, supra, which discussed and relied on the Fourth District’s opinion in Mockbee.
After determining that the defendant had completed his sentence on certain counts prior
to resentencing, we held that the trial court lacked jurisdiction to modify the sentence on
those counts when it resentenced the defendant. Christian at ¶ 15, 28. We reach the
same conclusion here with regard to counts two, three, and five.
{¶ 12} The only remaining question concerns the effect of reversing the trial court’s
resentencing on counts two, three, and five. On this issue, we are persuaded by the
analysis in the State’s appellate brief. Beverly’s prison terms on resentencing for counts
1, 9, 10, 11, 12, 13, 14, 15, 16, 18, 21, 22, 23, 24, and 25 (as affirmed in State v. Beverly,
2016-Ohio-8078, 75 N.E.3d 847 (2d Dist.)) remain unchanged.1 They run consecutively
to each other for an aggregate prison term of 46.5 years. The sentences for counts two,
three, and five must remain as originally imposed—consecutive terms of 18 months
1 Although the trial court originally imposed a separate sentence on count 17, it merged
count 17 into count 18 on resentencing.
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(count two), 12 months (count three), and 18 months (count five) for a total of four years.
As originally imposed, those four years were part of an 8.5-year sentence that itself was
ordered to be served concurrently with the aggregate 66.5-year term on another group of
sentences. Those separate sentencing tracks no longer exist because the trial court now
has ordered all sentences to be served consecutively. But because the trial court
originally ordered the sentences for counts two, three, and five to be served concurrently
with the vast majority of Beverly’s other sentences, we believe he is entitled to serve the
sentences on counts two, three, and five concurrently with all of the other reconfigured
sentences. For its part, the State does not appear to disagree with this resolution. The
result is that Beverly’s new sentence properly consists of an aggregate term of 46.5 years
on counts 1, 9, 10, 11, 12, 13, 14, 15, 16, 18, 21, 22, 23, 24, and 25 and an additional
aggregate term of four years on counts two, three, and five to be served concurrently with
the 46.5-year term. The net effect of our ruling is a cumulative aggregate prison term of
46.5 years on all counts.
{¶ 13} For his part, Beverly acknowledges in his reply brief that the original
sentences on counts two, three, and five must be restored, resulting in an aggregate four-
year term on those counts. He argues that those four years simply should be subtracted
from the trial court’s aggregate 50-year term on resentencing, producing a new aggregate
prison term of 46 years. We disagree. Removing counts two, three, and five from the trial
court’s aggregate sentence on resentencing leaves a total term of 46.5 years, not 46
years. This is so because the trial court sentenced Beverly to a cumulative term of 3.5
years in prison on counts two, three, and five on resentencing. In its original sentencing,
however, the trial court had imposed a cumulative term of four years on those counts.
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Therefore, removing counts two, three, and five from the trial court’s resentencing leaves
an aggregate term of 46.5 years. Beverly’s original four-year term on counts two, three,
and five then must be reinstated but ordered to be served concurrently with the 46.5-year
sentence on the other counts. Once again, as explained above, the end result is that
Beverly’s total aggregate sentence on all counts now stands at 46.5 years rather than the
50 years the trial court imposed on resentencing.
{¶ 14} For the foregoing reasons, we sustain Beverly’s two assignments of error
insofar as he contends his appellate counsel provided ineffective assistance by not
objecting to his resentencing on counts two, three, and five. The trial court lacked authority
to resentence Beverly on those counts because he already had completed his sentence
on them.
{¶ 15} The trial court’s judgment entry resentencing Beverly to an aggregate 50-
year prison term is reversed, and the cause is remanded for the trial court to modify
Beverly’s sentence in accordance with the analysis set forth above and to impose an
aggregate 46.5-year prison term.
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TUCKER, J., concurs.
DONOVAN, J., concurring:
{¶ 16} I agree with the majority that Beverly was deprived of the effective
assistance of counsel by failure to challenge counts for which he had completed his
sentence. Hence, his sentence should be reduced by three and a half years. However, I
believe, consistent with my original dissent that counsel should have raised the error in
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criminal history in the PSI and its impact on a 50-year sentence, which I concluded by
clear and convincing evidence was not supported by the record. Thus, I would have
allowed reopening on this issue as well.
{¶ 17} Further, I would have permitted Beverly to reopen for briefing the “trial tax”
issue, as articulated in my original dissent, and as “questioned” by this court in Beverly I.
{¶ 18} In conclusion, I would have granted re-opening on the “trial tax” and “PSI”
issue as well.
Copies mailed to:
Andrew P. Pickering
Christopher J. Pagan
Hon. Douglas M. Rastatter