State v. Hawkins , 2019 Ohio 562 ( 2019 )


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  • [Cite as State v. Hawkins, 
    2019-Ohio-562
    .]
    IN THE COURT OF APPEALS OF OHIO
    TENTH APPELLATE DISTRICT
    State of Ohio,                                     :
    Plaintiff-Appellee,               :
    No. 18AP-600
    v.                                                 :           (C.P.C. No. 96CR-2229)
    Leon Hawkins,                                      :       (ACCELERATED CALENDAR)
    Defendant-Appellant.              :
    D E C I S I O N
    Rendered on February 14, 2019
    On brief: Ron O'Brien, Prosecuting Attorney, and Sheryl L.
    Prichard, for appellee.
    On brief: Leon Hawkins, pro se.
    APPEAL from the Franklin County Court of Common Pleas
    DORRIAN, J.
    {¶ 1} Defendant-appellant, Leon Hawkins, appeals the July 17, 2018 judgment
    entry of the Franklin County Court of Common Pleas denying his motion for resentencing.
    For the following reasons, we affirm.
    I. Facts and Procedural History
    {¶ 2}     Appellant has been before the trial court and this court on numerous prior
    occasions. See State v. Hawkins, 10th Dist. No. 97APA06-740 (Mar. 27, 1998) (affirming
    appellant's convictions on direct appeal); State v. Hawkins, 10th Dist. No. 09AP-973
    (Dec. 2, 2009) (Journal Entry of Dismissal) (dismissing appellant's appeal as trial court had
    not yet ruled on appellant's motion for new trial); State v. Hawkins, 10th Dist. No. 12AP-
    164 (Sept. 27, 2012) (memorandum decision) (affirming trial court's denial of a
    No. 18AP-600                                                                               2
    postconviction motion); and State v. Hawkins, 10th Dist. No. 18AP-126, 
    2018-Ohio-5251
    (affirming trial court's denial of appellant's motion to resentence).
    {¶ 3} On May 21, 2018, appellant, pro se, filed another motion for resentencing.
    Plaintiff-appellee, State of Ohio, opposed the same. On July 17, 2018, the trial court denied
    appellant's motion noting that "[d]efendant did not receive a void or partially void
    judgment, and is not entitled to a resentencing hearing."
    II. Assignment of Error
    {¶ 4} Appellant appeals and assigns the following single assignment of error for our
    review:
    The Trial court erred by denying Appellant's motion to set aside
    his conviction and sentence because the sentencing journal
    entries were void and violated his constitutional rights to due
    process and protection against double jeopardy.
    III. Analysis
    {¶ 5} Appellant argues that, although, at the sentencing hearing, the trial court
    merged Count 1, aggravated murder, and Count 2, aggravated murder, the trial court did
    not merge the offenses in the judgment entry. Rather, according to appellant, the trial court
    sentenced appellant on both Counts 1 and 2 in its sentence entry. Appellant argues the
    sentence, therefore, is contrary to R.C. 2941.25(A), and should be remanded to the trial
    court in light of State v. Williams, 
    148 Ohio St.3d 403
    , 
    2016-Ohio-7658
    . Appellant points
    to the following holding from Williams:
    A court only has authority to impose a sentence that conforms
    to law, and R.C. 2941.25 prohibits the imposition of multiple
    sentences for allied offenses of similar import. Thus, when a
    sentencing court concludes that an offender has been found
    guilty of two or more offenses that are allied offenses of
    similar import, in conformity with State v. Whitfield, 
    124 Ohio St.3d 319
    , 
    2010-Ohio-2
    , 
    922 N.E.2d 182
    , it should permit the
    state to select the allied offense to proceed on for purposes of
    imposing sentence and it should impose sentence for only that
    offense. Accordingly, imposing separate sentences for allied
    offenses of similar import is contrary to law and such
    sentences are void. Therefore, res judicata does not preclude
    a court from correcting those sentences after a direct appeal.
    Id. at ¶ 2.
    No. 18AP-600                                                                             3
    {¶ 6} The state argues a complete reading of the sentencing entry indicates
    appellant was only sentenced on Counts 1, 3, 4, and 5. In the alternative, the state argues
    even if this court were to determine the trial court erred, the remedy would not be to
    resentence appellant. Rather, the state suggests, pursuant to Williams, the remedy would
    be to modify the judgment to vacate the sentence on Count 2 and leave the remaining
    counts undisturbed. The state points to Williams:
    The judgment of conviction in this case states the trial court's
    finding that the two counts of aggravated murder and one
    count of murder of which Williams was convicted are allied
    offenses of similar import, and the concurrent sentences it
    imposed for those offenses are therefore contrary to law. But
    there is no need to remand for resentencing, because at the
    sentencing hearing, the state elected to have Williams
    sentenced for aggravated murder as charged in Count three,
    and the trial court had no discretion to impose separate
    sentences for Counts one and two.
    Accordingly, we modify the judgment of the court of appeals
    to vacate the sentences imposed for murder in Count one and
    aggravated murder in Count two, which the trial court found
    subject to merger. The remaining convictions and sentences,
    including the sentence of life with the possibility of parole
    after 30 years imposed for aggravated murder in Count three,
    are not affected by our ruling today.
    Id. at ¶ 32-33.
    {¶ 7} The judgment entry in this case, filed May 9, 1997, states:
    The Court has considered all matters required by section
    2929.12 and 2951.02 of the Ohio Revised Code, and it is the
    sentence of the Court that the Defendant pay the costs of this
    prosecution and serve LIFE WITH THIRTY (30) FULL
    YEARS BEFORE PAROLE ELIBIGILITY plus THREE
    (3) ACTUAL INCARCERATION for the firearm
    specification as to Count One: LIFE WITH THIRTY
    (30) FULL YEARS BEFORE PAROLE ELIGIBILITY
    plus THREE (3) ACTUAL INCARCERATION for the
    firearm specification as to Count Two; Counts One
    and Two to merge for purposes of sentencing; the
    State elects to have the Defendant sentenced as to
    Count One; SEVEN (7) to TWENTY FIVE (25) YEARS
    plus THREE (3) YEARS ACTUAL INCARCERATION
    for the gun specification as to Count Three; TEN (10)
    No. 18AP-600                                                                               4
    to TWENTY FIVE (25) YEARS plus THREE (3) YEARS
    ACTUAL INCARCERATION for the gun specification
    as to Counts Four and Five at the Ohio Department of
    Rehabilitation and Correction. The three (3) years actual
    incarceration for the gun specification on Counts One, Three,
    Four and Five are to merge into one three year actual
    incarceration for purposes of the sentence in this case. Counts
    One, Three and Four are to run CONSECUTIVE with each
    other. Count Five is to run CONCURRENT with all other
    counts.
    (Emphasis added.) (Judgment Entry at 2.)
    {¶ 8} The state points out that this entry is inartfully stated. However, a complete
    reading of the entry reveals the trial court only sentenced appellant on Count 1 and not on
    Count 2. This conclusion is based on: (1) the statement in the entry that "Counts One and
    Two to merge for purposes of sentencing; the State elects to have the Defendant sentenced
    as to Count One"; and (2) the latter references in the entry to the merger of the three years
    of actual incarceration for the gun specifications only as to Counts 1, 3, 4, and 5.
    {¶ 9} Therefore, we overrule appellant's assignment of error.
    IV. Conclusion
    {¶ 10} Having overruled appellant's single assignment of error, we affirm the
    judgment of the Franklin County Court of Common Pleas denying appellant's motion for
    resentencing.
    Judgment affirmed.
    LUPER SCHUSTER and BRUNNER, JJ., concur.
    

Document Info

Docket Number: 18AP-600

Citation Numbers: 2019 Ohio 562

Judges: Dorrian

Filed Date: 2/14/2019

Precedential Status: Precedential

Modified Date: 2/15/2019