State v. Thomas , 2012 Ohio 2626 ( 2012 )

[Cite as State v. Thomas, 2012-Ohio-2626.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97185
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
THOMAS L. THOMAS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-523899
BEFORE: Stewart, P.J., Rocco, J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: June 14, 2012
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Cuyahoga County Public Defender
BY: John T. Martin
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Katherine Mullin
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
MELODY J. STEWART, P.J.:
{¶1} In State v. Thomas, 8th Dist. No. 94492, 2011-Ohio-705, we vacated
defendant-appellant Thomas Thomas’s convictions on six of thirteen convictions for want
of sufficient evidence. The court issued a new sentencing entry “in accordance with the
mandate set forth in State v. Thomas” and reimposed the same prison terms on the
remaining counts. Thomas argues in this appeal that the court violated his constitutional
rights by failing to conduct a new sentencing hearing at which he could have argued that
he was entitled to a shorter sentence because there were fewer extant counts than there
were at the first sentencing.
{¶2} We agree with the state that Thomas’s requested relief is foreclosed because a
sentencing court has no authority to modify a final sentence. State v. Carlisle, 131 Ohio
St.3d 127, 2011-Ohio-6553, 961 N.E.2d 671, ¶ 11. This court’s vacation of some of
Thomas’s offenses did not affect the validity of either the conviction or sentence ordered
on those offenses that remained undisturbed in the first appeal. Thomas makes no
argument that the remaining sentences were contrary to law, so the court had no authority
to modify that which was final and that remained so even after the partial vacation of
some of his convictions.
{¶3} Thomas provides no authority for his argument that a reversal of one
conviction requires per se that a defendant be resentenced on the remaining conviction or
convictions. In any event, to prevail with his argument that vacating one or more, but
not all convictions, requires a resentencing for the court to redetermine the sentence on
remaining counts, Thomas must necessarily presume that the court imposed sentence
according to an illegal sentencing package. But Ohio does not permit sentencing
according to a sentencing package in which the court fashions a single, comprehensive
sentence based on multiple offenses. Instead, Ohio law recognizes that “[a] sentence is
the sanction or combination of sanctions imposed for each separate, individual offense.”
State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, paragraph one of
the syllabus.
{¶4} Thomas argues that Saxon is distinguishable because it did not involve a
situation where a defendant had been convicted of multiple counts and had one or more of
those counts vacated on appeal, but instead involved a case where the defendant had been
convicted of multiple counts and had the sentence for one of those convictions vacated on
appeal. This is a distinction without meaning. Regardless of whether Saxon involved a
vacated sentence and this case involved a vacated count, the result remains the same
because Saxon made it clear that a sentence is based on a separate, individual offense. It
does not matter that this court vacated a sentence as opposed to a count — the end result
is the same. We decline to hold that whenever one or more counts of multiple,
jointly-tried offenses are reversed, every other remaining count of those jointly-tried
offenses must also be reversed for resentencing.
{¶5} Both parties reference State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669,
951 N.E.2d 381, in support of their respective positions. Wilson involved a remand for
resentencing on allied offenses in which the Supreme Court held: (1) “When a cause is
remanded to a trial court to correct an allied-offenses sentencing error, the trial court must
hold a new sentencing hearing for the offenses that remain after the state selects which
allied offense or offenses to pursue” and (2) “[a] defendant is not barred by res judicata
from raising objections to issues that arise in a resentencing hearing, even if similar issues
arose and were not objected to at the original sentencing hearing.” Id. at paragraphs one
and two of the syllabus.
{¶6} An indictment may contain counts for conduct that could be construed to
constitute allied offenses of similar import, but the defendant may be convicted of only
one. R.C. 2941.25(A). When a defendant is sentenced on one or more allied offenses
of similar import, the protections of the Double Jeopardy Clause of the United States
Constitution are invoked because the defendant is receiving multiple punishments for the
same offense. United States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 104 L.Ed.2d
487 (1989). For this reason, allied offenses errors require a remand at which the state is
entitled to elect which offense it will pursue against the defendant. State v. Whitfield,
124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, paragraph two of the syllabus.
{¶7} Unlike an error involving allied offenses that requires a remand for a de novo
resentencing, this case required no new sentencing hearing. The remand in Thomas’s
first appeal was for the sole purpose of having the court vacate counts from the judgment
of conviction. Each of those counts and sentences existed independently. Vacating
individual counts necessarily vacated the sentences for those counts, but had no impact on
the sentences for counts that remained. Thomas was not sentenced twice for the same
conduct, so Wilson has no applicability.
{¶8} Judgment affirmed.
It is ordered that appellee recover of appellant his costs herein taxed.
The court finds there were reasonable grounds for this appeal.
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. The
defendant’s conviction having been affirmed, any bail pending appeal is terminated.
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
KENNETH A. ROCCO, J., and
EILEEN A. GALLAGHER, J., CONCUR