State v. Smith , 2012 Ohio 926 ( 2012 )

[Cite as State v. Smith, 2012-Ohio-926.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97038
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ERIC SMITH
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-521598
BEFORE: Stewart, P.J., Cooney, J., and Kilbane, J.
RELEASED AND JOURNALIZED: March 8, 2012
ATTORNEY FOR APPELLANT
Susan J. Moran
55 Public Square, Suite 1616
Cleveland, OH 44113-1901
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Marc D. Bullard
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 9th Floor
Cleveland, OH 44113
MELODY J. STEWART, P.J.:
{¶1} Defendant-appellant, Eric Smith, appeals from an eight-year term of
incarceration that was imposed at a resentencing hearing. He complains that the trial
court ordered the same sentence that it had previously given him, did not weigh
seriousness and recidivism factors when considering the felony sentencing guidelines,
and did not state that it considered the requisite sentencing factors. Smith requests this
court to vacate his sentence and remand for another sentencing hearing. We reverse and
remand this case to the trial court, but for reasons different from those asserted by
appellant.
{¶2} Smith, while being arrested for his participation in a buy bust operation,
became involved in a skirmish with a law enforcement officer after he attempted to
wrestle away the officer’s service weapon. In response, the officer kicked Smith in the
chest and never lost control of his weapon. Smith was charged with aggravated robbery
in violation of R.C. 2911.01(B)(1) with both a one-year and a three-year firearm
specification, and drug possession pursuant to R.C. 2925.11. After a jury trial, he was
found guilty of aggravated robbery with a one-year firearm specification and drug
possession. He was sentenced to eight years for the aggravated robbery, one year for the
firearm specification, and one year for drug possession, to be served consecutively for a
total of ten years.
{¶3} Smith appealed, challenging the weight and sufficiency of the evidence
used to convict him. This court affirmed in part and reversed in part after finding that
the evidence was insufficient to sustain his conviction on the one-year firearm
specification. We remanded the case with instructions to vacate the firearm
specification. State v. Smith, 8th Dist. No. 93593, 2010-Ohio-4006, 2010 WL 3353606(“Smith I”).
{¶4} A resentencing hearing was held, but was continued by the trial court when
it realized that no presentence investigation had been conducted, that Smith’s institutional
records had not been obtained by defense counsel, and that counsel had not spoken to
Smith prior to the hearing.
{¶5} When the resentencing hearing was reconvened three weeks later, defense
counsel informed the trial court that in spite of his involvement in several minor
infractions while incarcerated, Smith had signed up for several rehabilitative programs.
Smith addressed the court and stated that he was attending Bible studies and was also
attempting to gain admission into college. The trial court noted that it had considered the
institutional reports, and also encouraged Smith to continue his pursuit of higher
education. Then, the court reinstated the eight-year term for the charge of aggravated
robbery, and the one-year term for drug possession. However, the sentences were
ordered to be served concurrently, as opposed to the previously imposed consecutive
term, for a total of eight years. The trial court informed Smith that “you got a year off
because of your good behavior and things you’re doing.”
{¶6} In his sole assignment of error, Smith complains that the trial court abused
its discretion when sentencing him to an eight-year term of incarceration. He claims that
the trial court failed to reconsider his sentence in its entirety, and relies upon language
from this court’s decision to reverse his firearm specification conviction to bolster his
argument for a sentence reduction for the aggravated robbery count. However, the fact
that the trial court reconsidered his sentence at all was error.
{¶7} In Smith I, this court sustained Smith’s first assignment of error, and the
matter was “[r]emanded with instructions to the trial court to vacate the conviction on the
one-year firearm specification.” Therefore, the trial court on remand was authorized
only to follow these instructions, and erred in resentencing Smith because it lacked
jurisdiction to do so. “Absent statutory authority, a trial court is generally not
empowered to modify a criminal sentence by reconsidering its own final judgment.”
State v. Carlisle, __ Ohio St.3d __, 2011-Ohio-6553, __ N.E.2d __, ¶ 1.
{¶8} Because the trial court lacked authority to resentence Smith, we need not
address his assigned error. We reverse and remand to the trial court with instructions to
reinstate Smith’s original sentence, minus the conviction on the one-year firearm
specification.
{¶9} This case is reversed and remanded for proceedings consistent with this
opinion.
It is ordered that the parties bear their own costs herein taxed.
It is ordered that a special mandate issue out of this court directing the Cuyahoga
County Court of Common Pleas to carry this judgment into execution. Case remanded
to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MELODY J. STEWART, PRESIDING JUDGE
COLLEEN CONWAY COONEY, J., and
MARY EILEEN KILBANE, J., CONCUR