State v. Larkins , 2019 Ohio 4495 ( 2019 )

[Cite as State v. Larkins, 2019-Ohio-4495.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 19CA85
DAWANE M. LARKINS
Defendant-Appellant O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Richland County Court of
Common Pleas, Case No. 2007-CR-0209
Affirmed
JUDGMENT:
DATE OF JUDGMENT ENTRY: October 31, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GARY BISHOP DAWANE M. LARKINS
Richland County Prosecutor Inmate No. A523421
Lebanon Correctional Institution
JOSEPH C. SNYDER P.O. Box 56
Assistant Prosecuting Attorney Lebanon, Ohio 45036
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 19CA85 2
Hoffman, P.J.
{¶1} Defendant-appellant Dawane Larkins appeals the July 31, 2019 Judgment
Entry on Defendant’s Motion to Vacated [sic] Void Conviction and Sentence, and the July
31, 2019 Amended Re-Sentencing Entry entered by the Richland County Court of
Common Pleas, which found Counts One and Two of the indictment were allied offenses,
vacated his sentence on Count Two, merged Count Two with Count One, and re-
sentenced him accordingly. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE CASE
{¶2} On September 12, 2007, following a five day jury trial, Appellant was
convicted on one count of aiding and abetting aggravated burglary with a firearm
specification; one count of aiding and abetting aggravated robbery with a firearm
specification; two counts of burglary; one count of receiving stolen property; one count of
improperly handling firearms in a motor vehicle; one count of having a weapon while
under a disability; one count of possession of criminal tools; one count of possession of
a controlled substance, crack cocaine; one count of possession of a controlled substance,
Oxycodone; and one count of possession of drug paraphernalia.
{¶3} The trial court sentenced Appellant to an eight year term of incarceration for
the burglary conviction involving the home of Evelyn Yahney. The trial court also
sentenced Appellant to concurrent ten year terms of incarceration for the aggravated
burglary and aggravated robbery of Joseph Poland (Counts One and Two), as well as a
mandatory three years for the gun specification attached to those convictions. In addition,
the trial court sentenced Appellant to four years for the burglary of the home of Sam
Ramirez; five years for having a weapon while under a disability; nine months for receiving
stolen property; twelve months for improperly handling a firearm in a motor vehicle; nine
Richland County, Case No. 19CA85 3
months for possession of criminal tools; twelve months for possession of crack cocaine;
nine months for possession of Oxycodone; and ten days for possession of drug
paraphernalia. The court ordered the sentences for the convictions of aggravated robbery
of the Poland home, burglary of the Ramirez home, burglary of the Yahney home, and
having weapons while under disability to be served consecutively. Appellant was
sentenced to an aggregate prison term of thirty years.
{¶4} Appellant appealed his convictions to this Court, challenging the jury
instructions relative to the Yahney and Poland robberies, and the admission of the photo
array shown to Evelyn Yahney by police in an attempt to identify the home intruder. This
Court affirmed Appellant’s convictions in State v. Larkins, 5th Dist. Richland Nos. 2007–
CA–0092, 2007–CA–0093, 2008–Ohio–5982. On April 22, 2010, the trial court
resentenced Appellant to correct an issue with post release control.
{¶5} On June 28, 2019, Appellant filed an Emergency Motion to Vacate Void
Conviction and Sentence. Therein, Appellant asserted his conviction and sentence on
Count Two were void and should be vacated pursuant to State v. Williams, 148 Ohio St.3d
403, 2016-Ohio-7658, 71 N.E.3d 234, because the trial court imposed multiple sentences
for allied offenses. The state agreed and elected to go forward on Count One.
{¶6} Via Judgment Entry on Defendant’s Motion to Vacated [sic] Void Conviction
and Sentence filed July 31, 2019, the trial court found Appellant was erroneously
sentenced to allied offenses; therefore, because the state elected to go forward on Count
One, the sentence for Count Two was void. The trial court vacated the sentence on Count
Two. Contemporaneously with this judgment entry, the trial court filed an Amended Re-
Sentencing Entry. The trial court reimposed the ten year sentence on Count One and
Richland County, Case No. 19CA85 4
ordered the sentence to run consecutively to Count Three, Count Six, the three year
mandatory sentence on the firearm specification, and the eight year sentence on the
convictions for aggravated burglary and burglary involving Evelyn Yahney. The
sentences imposed on Count Three, Count Six, the three year mandatory sentence on
the firearm specification, and the eight year sentence on the convictions for aggravated
burglary and burglary involving Evelyn Yahney were the same as the sentences which
were originally imposed.
{¶7} It is from the July 31, 2019 Judgment Entry and the July 31, 2019 Amended
Re-Sentencing Entry Appellant appeals, raising the following assignment of error:
TRIAL COURT ERRED BY IMPOSING CONSECUTIVE
SENTENCES BECAUSE IT FAILED TO MAKE THE FINDINGS
REQUIRED BY R.C. 2929.14(C)(4).
{¶8} This case comes to us on the accelerated calendar. App.R. 11.1 governs
accelerated calendar cases, stating in pertinent part: “* * * It shall be sufficient compliance
with App.R. 12(A) for the statement of the reason for the court's decision as to each error
to be in brief and conclusionary form.” See, e.g., State v. Wertman, 5th Dist. Ashland No.
18 COA 026, 2019-Ohio-7, ¶ 3.
I.
{¶9} In his sole assignment of error, Appellant challenges the trial court’s
imposition of consecutive sentences. Appellant contends, because the sentence
originally imposed by the trial court was void, he was “in the same position as if there had
Richland County, Case No. 19CA85 5
been no judgment”; therefore, the trial court could not impose consecutive sentences
without making the requisite findings.1 Brief of Appellant at 3. We disagree.
{¶10} In State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234,
¶ 2, the Ohio Supreme Court held the imposition of separate sentences for allied offenses
of similar import is contrary to law and such sentences are void. As such, res judicata
does not preclude a court from correcting those sentences after a direct appeal. Id. When
a sentence imposed by a trial court is in part void, only the portion which is void may be
vacated or otherwise amended. Further, only the portion which is void, not the entirety of
the sentence, is subject to review and correction. State v. Fischer, 128 Ohio St.3d 92,
2010-Ohio-6238, 942 N.E.2d 332 at ¶ 28. The doctrine of res judicata still applies to other
aspects of the merits of a conviction, including the determination of guilt and the lawful
elements of the ensuing sentence. State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238,
942 N.E.2d 332 at ¶ 40. Because Appellant failed to raise as error in his original appeal
the trial court’s imposition of consecutive sentences, we find he is barred by res judicata
from arguing the trial court had no authority to impose consecutive sentences upon
resentencing when it failed to make the requisite statutory findings.
{¶11} The Amended Re-Sentencing Entry did not change Appellant's aggregate
sentence, but merely vacated Count Two of the Indictment as the trial court was required
to do upon finding Counts One and Two were allied offenses and merger applied. We
1 Appellant relies upon State v. Billiter, No. 2011–1501, 2012–Ohio–5144, and State v. Teagarden, 5th Dist.
Licking No. 14-CA-56, 2015-Ohio-2563, in support of his position a void judgment places the parties in the
same position as if there had been no judgment. These cases rely upon State v. Bezak, 114 Ohio St.3d
94, 2007–Ohio–3250, 868 N.E.2d 961, ¶ 13, which was overruled by State v. Fischer, infra.
Richland County, Case No. 19CA85 6
find the trial court was well within its authority to issue the entry to cure the error herein.
See, State v. Cruz-Altunar, 10th Dist. App. No. 18AP–951, 2019 -Ohio- 2298.
{¶12} Appellant’s sole assignment of error is overruled.
{¶13} The judgment of the Richland County Court of Common Pleas is affirmed.
By: Hoffman, P.J.
Wise, John, J. and
Delaney, J. concur