State v. Singfield , 2012 Ohio 1331 ( 2012 )

[Cite as State v. Singfield, 2012-Ohio-1331.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 25670
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
PHILLIP A. SINGFIELD COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 08 09 3117
DECISION AND JOURNAL ENTRY
Dated: March 28, 2012
MOORE, Presiding Judge.
{¶1} Appellant, Phillip Singfield, appeals from the judgment of the Summit County
Court of Common Pleas. This Court affirms.
I.
{¶2} In a prior appeal, State v. Singfield, 9th Dist. No. 24576, 2009-Ohio-5945, this
Court set forth the underlying factual and procedural history as follows:
At approximately 1:30 a.m. on July 26, 2008, Staci Smith and her cousin, Natea
Proctor, drove to a bar on Newton Street. Smith parked her vehicle in the bar’s
lot, and she and Proctor remained in the vehicle to eat some food that they had
just purchased. While they were eating, a man approached the vehicle and asked
the women for a light. Subsequently, the man produced a handgun and threatened
to shoot the women while he demanded their purses. Smith and Proctor handed
over their purses, and the man walked away, entered a nearby car, and drove off.
Smith and Proctor went to the bar and called 911 to report the incident. Both
Smith and Proctor provided the police with descriptions of their assailant.
Smith later saw the man whom she believed had robbed her while riding the bus
and again while walking down a street near her home. On the second occasion,
Smith telephoned Proctor. Proctor, who was at Smith’s house, was able to look
outside and see the man. Proctor also identified him as the person who had
robbed her. Smith began to follow the man and called 911. Upon their arrival,
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the police arrested Singfield, the man whom both Smith and Proctor had
identified as their assailant.
On October 3, 2008, a grand jury indicted Singfield on the following counts: (1)
two counts of aggravated robbery, in violation of R.C. 2911.01(A)(1), both with
firearm specifications, in violation of R.C. 2941.145; (2) two counts of robbery, in
violation of R.C. 2911.01(A)(1)/(2), both with firearm specifications, in violation
of R.C. 2941.145; (3) having a weapon while under disability, in violation of R.C.
2923.13(A)(2)/(3); (4) theft, in violation of R.C. 2913.02(A)(1)/(4); and (5) petty
theft, in violation of R.C. 2913.02(A)(1)/(4). The matter proceeded to a jury trial
and, on December 15, 2008, the jury found Singfield guilty on all counts and the
specifications linked to those counts. On December 16, 2008, the trial court
orally sentenced Singfield, including a prison term for each specification, to a
total sentence of fourteen years.
On December 22, 2008, Singfield filed a motion to modify his sentence, arguing
that his firearms specifications were allied offenses for which the trial court
should not have imposed separate sentences upon him. The trial court held a
hearing on the motion and issued another oral sentence. The trial court: (1)
merged Singfield’s sentences for his two counts of robbery with firearm
specifications with his counts for theft and petty theft; (2) increased his two
aggravated robbery sentences by one year each and ordered them to run
consecutively for a total period of ten years; (3) issued three year sentences on
each of the two firearm specifications attached to Singfield’s two aggravated
robbery convictions, ordering them to run concurrently with one another but
consecutively with the sentence for aggravated robbery; and (4) ordered a one
year consecutive sentence for having a weapon while under disability.
Accordingly, Singfield still received a total sentence of fourteen years. The court
journalized Singfield’s sentence on December 29, 2008.
Singfield appealed, and this Court affirmed the judgment of the trial court in part
and reversed it in part. State v. Singfield, 9th Dist. No. 24576, 2009-Ohio-4172.
In reversing in part, this Court reversed Singfield’s convictions for aggravated
robbery and their attendant specifications because his indictment did not include
the mens rea of recklessness with regard to aggravated robbery’s deadly weapon
element. Id. at ¶ 17-18. On August 27, 2009, the State filed an application for
reconsideration. On October 7, 2009 we granted the State’s application, vacated
our decision, and reinstated Singfield’s appeal.
Id. at ¶ 2-6. On reconsideration, this Court affirmed Singfield’s convictions.
{¶3} On April 15, 2010, Singfield filed a “Criminal Rule 47 Motion for Correction of
Judgment” contending that his judgment of conviction was not a final order because it failed to
properly address postrelease control and failed to state the manner of conviction. On May 28,
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2010, Singfield filed a motion to dismiss the indictment because it did not contain the elements
of mental culpability. The trial court held a hearing on the motions on September 30, 2010. The
trial court denied the motion to dismiss the indictment on October 5, 2010. The trial court issued
a judgment entry on October 19, 2010 purporting to reimpose Singfield’s original sentence,
properly notify Singfield of postrelease control, and state the manner of conviction.
{¶4} Singfield timely filed a notice of appeal from the October 19, 2010 judgment
entry. He raises one assignment of error for our review.
II.
ASSIGNMENT OF ERROR
[] SINGFIELD’S INDICTMENT WAS DEFECTIVE UNDER THE OHIO
CONSTITUTION, ARTICLE I, SECTION 10, AS THE STATE FAILED TO
INCLUDE A MENTAL CULPABILITY ELEMENT TO THE THEFT
ELEMENT OF AGGRAVATED ROBBERY, EITHER IN THE INDICTMENT,
OR AT TRIAL.
{¶5} In his sole assignment of error, Singfield argues that his indictment was defective
under the Ohio Constitution because it failed to state the element of mental culpability.
{¶6} Before we address Singfield’s assignment of error, we must first address the
scope of the resentencing hearing. Singfield is appealing the October 19, 2010 entry correcting
the original sentencing entry that failed to comport with Crim.R. 32(C) and also failed to
properly notify him of postrelease control. We will address each deficiency separately.
Postrelease Control
{¶7} “The scope of an appeal from a resentencing hearing in which a mandatory term
of postrelease control is imposed is limited to issues arising at the resentencing hearing.” State v.
Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, paragraph four of the syllabus. Res judicata still
applies to other aspects of the merits of the conviction. Id. at paragraph three of the syllabus.
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Thus, according to Fischer, the only issues subject to review are those arising at the
resentencing, specifically those involving the postrelease-control notification. Id. at paragraph
two of the syllabus. Because the trial court exceeded its authority when it attempted to
resentence Singfield on aspects of his sentence that did not relate to postrelease control and were
not void, we vacate those parts of the resentencing entry that addressed anything other than
postrelease control. Singfield’s original sentence remains in effect, as does the portion of the
appealed resentencing judgment that addresses postrelease control.
{¶8} Because Singfield has already had the benefit of one direct appeal, res judicata
precludes him from re-appealing the merits of his conviction following the trial court’s
correction of the postrelease control error. Id. at ¶ 33-36. Accordingly, we decline to address the
merits of his arguments in this assignment of error as they pertain to the merits of the underlying
conviction.
Crim.R. 32(C)/Baker
{¶9} With respect to the trial court’s correction of the Crim.R. 32(C) defect, the Ohio
Supreme Court has held that a trial court’s failure to include the manner of a defendant’s
conviction in a sentencing entry constitutes a technical failure to comply with Crim.R. 32(C) and
amounts to a clerical error. State ex rel. DeWine v. Burge, 128 Ohio St. 3d 236, 2011-Ohio-235,
¶ 19. The remedy for a clerical error in a sentencing entry is not a new sentencing hearing. Id. at
¶ 18. Rather, the appropriate remedy for such an error is a nunc pro tunc sentencing entry
reflecting the correction. Id. at ¶ 17-23. Because the trial court failed to issue a nunc pro tunc
entry to correct the original sentencing entry’s omission of the manner of conviction, we remand
the matter to the trial court to issue a nunc pro tunc entry as contemplated in Baker and Burge.
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State v. Pettyjohn, 9th Dist. No. 10CA009777, 2011-Ohio-4461, ¶ 7, citing State v. Baker, 119
Ohio St. 3d 197, 2008-Ohio-3330, ¶ 19; Burge at ¶ 16-23.
{¶10} Accordingly, we do not reach the merits of Singfield’s assignment of error.
III.
{¶11} Because the trial court exceeded its authority when it attempted to resentence
Singfield on aspects of his sentence that were not void, we vacate those parts of the resentencing
entry that addressed anything other than postrelease control. Singfield’s original concurrent
sentences remain intact, as does the portion of the appealed resentencing judgment that addresses
postrelease control. Further, we remand the matter to the trial court to issue a nunc pro tunc
entry.
Judgment affirmed in part,
vacated in part,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
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Costs taxed to Appellant.
CARLA MOORE
FOR THE COURT
DICKINSON, J.
BELFANCE, J.
CONCUR.
APPEARANCES:
EDWIN C. PIERCE, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.