State v. Eltringham , 2014 Ohio 4149 ( 2014 )

[Cite as State v. Eltringham, 2014-Ohio-4149.]
STATE OF OHIO, COLUMBIANA COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 13 CO 7)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
JOSEPH ELTRINGHAM )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Columbiana County,
Ohio
Case No. 11 CR 222
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Robert Herron
Columbiana County Prosecutor
Atty. Ryan P. Weikart
Assistant Prosecuting Attorney
105 South Market Street
Lisbon, Ohio 44432
For Defendant-Appellant: Atty. Richard J. Hura
9 E. Park Avenue
Columbiana, Ohio 44408
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Dated: September 18, 2014
[Cite as State v. Eltringham, 2014-Ohio-4149.]
WAITE, J.
{¶1} Appellant Joseph Eltringham appeals the decision of the Columbiana
County Court of Common Pleas to deny a motion for resentencing in a felony criminal
case. Appellant had beaten and robbed a World War II veteran and eventually
pleaded guilty to three felonies, including aggravated robbery and felonious assault.
Appellant is also a veteran. He was sentenced to eight years in prison. Five months
after the court filed the conviction and sentencing judgment entry, Appellant filed a
motion seeking to be resentenced under a new section of the sentencing statute that
would require a sentencing judge to take into consideration a defendant's military
service. The statute, R.C. 2929.12(F), was not yet effective at the time Appellant
filed his motion, much less at the time of sentencing. The court overruled the motion
on the grounds that a trial judge has no authority to vacate or modify a sentence
once it becomes final.
{¶2} On appeal, Appellant urges us to use our equitable powers to allow him
to be resentenced under the new law because he believes it could reduce his
sentence. We have no authority, equitable or otherwise, to do as Appellant asks.
There is no question that a sentencing judge cannot rescind or modify a sentence
after it is final and has been journalized. Appellant is also mistaken that the trial court
failed to take into account his military service, because that service is mentioned
throughout the sentencing transcript and the court's judgment entry. Newly enacted
R.C. 2929.12(F) does not require any particular outcome. It simply directs the trial
court to consider a defendant's military service. The record clearly indicates that the
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trial court did take into account Appellant's military service at sentencing. Appellant's
assignment of error is without merit and the judgment of the trial court is affirmed.
History of the Case
{¶3} On August 17, 2011, Appellant's daughter called 911 in East
Rochester, Ohio, to report that Appellant came home drunk and covered with blood,
and that she thought he had injured a friend of his named Robert Kastelic, an 86-year
old veteran of World War II. At the time of the crime, Appellant was an active
member of the Ohio National Guard and had served in the military more than two
decades in places such as Iraq and Afghanistan. Kastelic and Appellant were
neighbors in East Rochester, and knew each other through social organizations.
Kastelic also had provided some financial assistance to Appellant's family through
the American Legion.
{¶4} Two officers responded to the 911 call and looked for Kastelic at his
home. When they arrived, they saw signs of a violent struggle but did not find
Kastelic. He was soon discovered laying in a neighbor's yard across the street, the
victim of a vicious assault. Appellant had beaten Kastelic for 30-45 minutes in
Kastelic's home, administering blows to the head, face, and midsection. Kastelic
suffered multiple injuries and bled profusely.
{¶5} Blood was found through Kastelic's house, including in the kitchen,
dining room, and bedroom. Although Kastelic was legally blind and his eyes were
swollen shut from the assault, he escaped the attack by climbing through a bedroom
window and crawling across a road to a neighbor's house, where he collapsed from
exhaustion. Officers found him lying in a field next to an electric fence and covered in
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his own blood, with numerous contusions, lacerations, abrasions, swelling to his face,
and a broken rib.
{¶6} While the attack was going on, Appellant stole $400 from Kastelic's
wallet and took tools and golf clubs from the garage. He also demanded that
Kastelic hand over the title to his car and the deed to his house, and took a strong
box full of Kastelic's personal documents. Appellant threatened to come back and kill
Kastelic if he told anyone about the attack and robbery. Kastelic spent nearly a week
in the hospital recovering, then two more weeks in a rehabilitation center, before
being permitted to return home. Thereafter, he required frequent visits from nurses
at his home during his recovery, and it took months before he fully regained his
independence.
{¶7} On the day of the attack Officers questioned Appellant at his home
about the assault. They saw he was covered with blood. He told them that he had
been at home at the time of the attack and that the blood was from a cut on his knee.
He became belligerent with the officers and was arrested for disorderly conduct. The
next morning he continued to insist that the blood was from a knee injury. When
confronted with the police statement made by Kastelic, he changed his story and
claimed that he had blacked out during the crime.
{¶8} Appellant was indicted on September 29, 2011, for aggravated robbery,
R.C. 2911.01(A)(3) (first degree felony); felonious assault, R.C. 2903.11.(A)(1)
(second degree felony); and intimidation, R.C. 2921.04(B) (third degree felony). The
crimes warranted a possible maximum punishment of 21 years in prison. He entered
a plea of not guilty by reason of insanity (NGRI). A forensic analysis was completed,
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and Appellant requested an expert to evaluate him for post-traumatic stress disorder
(PTSD). Based on the results of the forensic analysis, which indicated that Appellant
knew the wrongfulness of his actions, he withdrew his request for a PTSD expert and
asked for a second medical analysis to be completed. When it became clear that
Appellant was not actually seeking a second forensic opinion on his sanity, but
rather, an opinion about PTSD and sundry other medical issues, the court denied
Appellant's motion for additional funds. On August 23, 2012, Appellant withdrew his
NGRI plea and entered guilty pleas on all three counts. In a written Crim.R. 11 plea
agreement, the state agreed to recommend a sentence of ten years in prison.
{¶9} Sentencing took place on November 1, 2012. The court received a
number of documents into evidence at sentencing, including a doctor's letter stating
that he diagnosed Appellant with PTSD, panic disorder and anxiety state disorder.
Both the prosecutor and Appellant's counsel spoke about the military service record
of Kastelic and Appellant. The prosecutor recommended a ten-year prison term.
The court noted Appellant's military service record and stated that “I don't believe that
the offenses that you've now pleaded guilty to define you. I don't believe that the
outcome of this hearing will erase your life's honorable accomplishments.” (11/1/12
Tr., p. 121.) The court sentenced Appellant to 8 years in prison for aggravated
robbery, 8 years for felonious assault, and 36 months for intimidation, to be served
concurrently, for a total prison term of 8 years. The court filed its judgment entry of
conviction and sentence on November 1, 2012. No appeal was taken of that
judgment.
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{¶10} On January 7, 2013, Appellant filed a motion seeking to be resentenced
pursuant to 2012 HB 197, which would become effective on March 22, 2013.
Appellant believed he would receive more lenient sentencing under the new bill
because of revisions made to R.C. 2929.12(F) that specifically included military
service as a factor at sentencing. On January 23, 2013, the state filed a brief in
opposition. The court denied the motion in a judgment entry filed February 4, 2013.
The court noted that HB 197 was not yet effective at the time sentence was imposed,
that it was not a retroactive statute, and that a trial court is not empowered to modify
a final order of sentence, citing State v. Carlisle, 131 Ohio St.3d 127, 2011-Ohio-
6553, 961 N.E.2d 671. Appellant filed an appeal of the February 4, 2013, judgment
entry denying his motion for resentencing.
ASSIGNMENT OF ERROR
Equity beckons this Honorable Court remand Sgt. Joseph Eltringham's
case for re-sentencing.
{¶11} Appellant appeals to the equitable powers of this Court to reverse the
trial court judgment and allow him to be resentenced under a sentencing statute that
was not in existence when he was sentenced. Appellant claims that 2012 HB 197,
particularly the revisions to R.C. 2929.12 contained in that bill, would allow a more
appropriate sentence for him as a veteran allegedly suffering from PTSD. 2012 HB
197 added section (F) to R.C. 2929.12, which states: “The sentencing court shall
consider the offender's military service record and whether the offender has an
emotional, mental, or physical condition that is traceable to the offender's service in
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the armed forces of the United States and that was a contributing factor in the
offender's commission of the offense or offenses.” Appellant believes that the
revised law is more favorable to veterans such as himself and that he might receive a
reduced sentence under the revised statute. Appellant is mistaken for two reasons.
{¶12} First, a trial court has no authority to vacate or modify a sentence after it
has become final and appealable. A criminal sentence becomes a final judgment
upon issuance of the sentencing entry and the journalization of the sentence. State
v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, syllabus. “Absent
statutory authority, a trial court is generally not empowered to modify a criminal
sentence by reconsidering its own final judgment.” Carlisle, supra, 131 Ohio St.3d
127, at ¶1, applying State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-
5795, 856 N.E.2d 263. In Carlisle, the defendant was sentenced in July of 2007. A
year and one-half later, he filed a motion to reconsider and modify his sentence due
to severe health problems he was having. The trial court determined that it had the
authority to modify the sentence because the defendant had not yet been admitted to
prison. The Ohio Supreme Court reversed on the grounds that a trial court has no
authority to modify a sentence after a valid final judgment of conviction is journalized,
regardless whether the defendant had begun serving the prison term or not. Carlisle
at ¶11.
{¶13} In this case, final judgment of conviction and sentence was journalized
on November 1, 2012. Appellant concedes that the trial court committed no error in
sentencing under the law in existence at the time he was sentenced. Appellant
simply believes he would have received a more favorable sentence under R.C.
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2929.12 as revised by 2012 HB 197 because it would require the trial court to take
into consideration his military service and possible mental health problems
associated with his military service. The trial court correctly concluded that it did not
have authority to modify or vacate the final order of sentencing simply because the
sentencing laws had been amended after judgment was entered. Assuming
arguendo, that such a thing was possible, it appears clear from this record, however,
that the newly enacted R.C. 2929.12(F) would not change Appellant's sentence. The
trial court did take into account Appellant's military service and was thoroughly aware
of the allegations that Appellant suffered from PTSD. The court mentioned
Appellant's military service several times in the judgment entry as a factor in
Appellant's favor. The court was in possession of a physician’s diagnosis of PTSD.
This record is unique in that both the victim and the perpetrator were veterans. The
trial court also took into account the military service of the victim, Robert Kastelic, an
86-year old veteran of World War II. That said, the trial court had no authority to
revise the final judgment of sentence and properly dismissed Appellant's motion to be
resentenced. Appellant's assignment of error is overruled and the judgment of the
trial court is affirmed.
Donofrio, J., concurs.
Vukovich, J., concurs.