State v. Taylor

[Cite as State v. Taylor, 2020-Ohio-3806.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109053
v. :
EDWARD TAYLOR, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: DISMISSED
RELEASED AND JOURNALIZED: July 23, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-07-502904-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Daniel T. Van, Assistant Prosecuting
Attorney, for appellee.
Edward Taylor, pro se.
MARY J. BOYLE, P.J.:
Defendant-appellant, Edward Taylor, appeals the trial court’s
September 11, 2019 sentencing entry. This is Taylor’s fifth appeal from his 2009
aggravated murder and attempted murder convictions. He raises three assignments
of error for our review:
1. The trial court erred to the prejudice of appellant when it imposed
[postrelease] control on count one, aggravated murder.
2. The trial court erred to the prejudice of appellant when it vacated its
sentence on count three and imposed [postrelease] control on count
three attempted murder without first entering sentence on count three.
3. The trial court erred to the prejudice of appellant by imposing
multiple sentences in its numerous judgment entries of conviction
without vacating its prior judgment entries of conviction and sentence.
After review, we find that there is not a final appealable order in this
case and dismiss the appeal.
In 2009, Taylor pleaded guilty to aggravated murder in violation of
R.C. 2903.01(A) and attempted murder in violation of R.C. 2923.02 and
2903.02(A). The trial court sentenced Taylor to an agreed life sentence with the
possibility of parole after 30 years. This court upheld Taylor’s convictions on direct
appeal but found that the trial court erred when it imposed postrelease control for
aggravated murder. State v. Taylor, 8th Dist. Cuyahoga No. 94569, 2010-Ohio-
5607, ¶ 7 (“Taylor I”). We remanded to the trial court for the purpose of correcting
the sentencing entry to reflect that Taylor will not be subject to postrelease control
for aggravated murder. Id. at ¶ 8.
In September 2011, Taylor moved the trial court to “void his plea
contract,” arguing that the improper postrelease control term for the unclassified
felony of aggravated murder rendered his plea void. The trial court denied the
motion, and this court affirmed. State v. Taylor, 8th Dist. Cuyahoga No. 97690,
2012-Ohio-2070 (“Taylor II”).
Upon remand from Taylor I, the trial court issued a judgment stating:
“Sentencing entry of 5/26/09 is amended to delete reference to postrelease control.”
Taylor challenged the new sentence issued on remand, arguing that postrelease
control was not properly imposed. On appeal, this court clarified that “Taylor was
not subject to postrelease control for his aggravated murder conviction. However,
Taylor’s attempted murder conviction, a first-degree felony, carried a mandatory
five-year period of postrelease control. R.C. 2967.28(B)(1).” State v. Taylor, 8th
Dist. Cuyahoga No. 106598, 2018-Ohio-4861, ¶ 9 (“Taylor III”). We issued the
following limited remand in Taylor III:
[T]he new sentencing hearing to which Taylor is entitled to is limited
to the issue of postrelease control on his attempted murder conviction.
[State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d
332,] ¶ 29. Res judicata still applies to the other aspects of the merits
of the conviction, including the determination of guilt and the lawful
elements of the ensuing sentence.
Id. at ¶ 40.
The trial court held a resentencing hearing in February 2019. During
this resentencing hearing, the trial court correctly advised Taylor that although his
aggravated murder conviction did not carry a term of postrelease control, he was
subject to a mandatory five-year period of postrelease control on the attempted
murder conviction. However, the court’s February 28, 2019 sentencing entry stated
that for Count 3, attempted murder, “[p]ostrelease control is part of this prison
sentence for up to 5 years mandatory[.]” Taylor appealed from the February 28,
2019 sentencing entry, which was Taylor’s fourth appeal. See State v. Taylor, 8th
Dist. Cuyahoga No. 108320, 2019-Ohio-4357 (“Taylor IV”).
During the pendency of Taylor IV, this court remanded the case for
the issuance of a nunc pro tunc sentencing entry to comply with State v. Baker, 119
Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, and Crim.R. 32, which the court
did on September 11, 2019. After issuing the nunc pro tunc entry, the common pleas
court sent the case back to this court. Before we issued our decision in Taylor IV,
however, which we did on October 24, 2019, Taylor filed a notice of appeal of the
trial court’s September 11, 2019 nunc pro entry. It is this nunc pro tunc entry that is
the subject of the present appeal (Taylor’s fifth appeal). However, a sentencing entry
that is corrected by a nunc pro tunc entry to reflect what actually occurred at the
sentencing hearing “does not extend the time for filing an appeal from the original
judgment of conviction and does not create a new final, appealable order.” State v.
Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 31, citing State v.
Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142. We must therefore
dismiss this appeal.
Nonetheless, for the sake of a complete discussion, we note that we
went on to hold in Taylor IV:
Taylor argues that the trial court erred in imposing postrelease control
“up to” five years on his conviction for attempted murder.
The offense of attempted murder carries a mandatory five-year term of
postrelease control. See R.C. 2967.28(B)(1) (a period of postrelease
control for a felony of the first degree shall be five years). Here, the
journal entry for the resentencing on remand incorrectly states that
“post release control is part of this prison sentence for up to 5 years
mandatory[.]” However, the state advises this court, and the transcript
reflects that correct information was provided to Taylor during the
February 28, 2019 hearing on remand. The trial court stated:
[F]or your attempted murder conviction, which is a first degree felony,
there’s a mandatory five-year period of post-release control pursuant
to Revised Code 2967.28(B)(1).
Accordingly, the sentencing entry may be corrected by a nunc pro tunc
entry pursuant to R.C. 2929.191(C) without a new sentencing hearing.
State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶
15.
Upon remand, the trial court issued another nunc pro tunc entry on
February 21, 2020, properly notifying Taylor that he would be subject to a
mandatory period of postrelease control for his attempted murder conviction. We
note that this sentencing entry corrects the issue that Taylor raises in his first
assignment of error in the present appeal, which the state also concedes was an
error.
Appeal dismissed.
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.
MARY J. BOYLE, PRESIDING JUDGE
PATRICIA ANN BLACKMON, J., and
LARRY A. JONES, SR., J., CONCUR