COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61318 ACCELERATED DOCKET : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : HORACE COLLIER : : PER CURIAM Defendant-Appellant : : DATE OF ANNOUNCEMENT OCTOBER 24, 1991 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-243894 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: STEPHANIE TUBBS-JONES PAUL MANCINO, JR. Cuyahoga County Prosecutor 75 Public Square Building 8th Floor, Justice Center Suite 1016 1200 Ontario Street Cleveland, Ohio 4411 Cleveland, Ohio 44113 -2- PER CURIAM: This appeal was filed and briefed as an accelerated appeal pursuant to Local R. 25 of this court. On October 27, 1989, appellant Horace Collier was indicted for two counts of uttering, or selling of false or forged prescriptions and the possession of the prescription, and possession of criminal tools in violation of R.C. 2925.23. Appellant entered a plea to one count and was sentenced to an indefinite term of two to fifteen years. Appellant appealed the conviction and sentencing; this court affirmed the conviction, but vacated the sentence, and ordered appellant resentenced. State v. Collier (Oct. 11, 1990), Cuyahoga App. No. 59216, unreported. This is appellant's second appeal challenging the trial court's sentencing. Although the second appeal was untimely, this court on October 2, 1991 in a separate order granted appellant a delayed appeal pursuant to App. R. 5(A), in order to resolve the sentencing errors. In compliance with App. R. 11.1, it is the decision of this court that the resentencing imposed by the trial court is erroneous and is vacated. The decision of the trial court is reversed and remanded. The essential facts of this case were not in dispute. Appellant was indicted on three counts of illegal processing of drugs and possession of criminal tools with each count containing a violence specification. On December 20, 1989, Appellant pled -3- guilty to the first count of illegal processing of drug documents for a Schedule II drug, in violation of R.C. 2925.23, without a violence specification. The specification was deleted along with the two remaining counts of the indictment as a part of the plea agreement. On January 25, 1990, appellant made a request to vacate his plea, which was denied. He was sentenced to an indefinite term of two to fifteen years of incarceration, and the conviction was appealed. This court reversed and remanded the case for resentencing because appellant was sentenced as if guilty of a felony of the second degree, where the offense he plead guilty to was a felony of the third degree. State v. Collier (Oct. 11, l990), Cuyahoga App. No. 59216, unreported. On November 1, 1990, upon learning of this court's reversal and remand, the trial court resentenced appellant reducing the sentence from an indefinite term of two to fifteen years to two to ten years of incarceration. The trial court further ordered that notice of the sentencing journal entry be sent to the appellant in the institution in which he was incarcerated. On January 22, 1991, appellant filed a pro se "motion to demand presence of defendant at re-sentencing pursuant to Criminal Rule 43(A)." Thereafter, on February 13, l991, appellant filed a notice of appeal for a "February 7, 1991" judgment. It is this appeal that is presently before this court for the second time. -4- Appellant's brief and assignments of error clearly address the resentencing, which occurred on November 1, 1990 from which this court has granted leave to appeal pursuant to App. R. 5(A). Appellant's first assignment of error is as follows: DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHTS WHEN HE WAS RESENTENCED BY THE COURT WITHOUT HIS PRESENCE. "Crim. R. 43(A) specifically requires that the defendant be present at every stage of the proceedings, including the imposition of sentence, and this applies where one sentence is vacated and a new sentence imposed." Columbus v. Rowland (1981), 2 Ohio App. 3d 144, syllabus. "The fact that a defendant is not present at sentencing nullifies the judgment entry." State v. Gabriel (Dec. 31, 1987), Cuyahoga App. No. 53141, unreported at 21. In the instant case, there is no dispute that the trial court sentenced appellant while he was not present in court. Therefore, the sentence must be vacated and remanded to the trial court for resentencing with appellant present. Appellant's first assignment of error is well taken. Appellant's second assignment of error is as follows: DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THERE WAS AN INORDINATE DELAY BETWEEN THE VACATION OF HIS SENTENCE AND THE RESENTENCING. -5- Crim. R. 32(A)(1) requires that a sentence be imposed "without unnecessary delay." While C.P. Sup. R. 8(c) "provides that the court shall impose sentence within 15 days of a finding of guilty or within 15 days of receipt of a presentence report," it does not impose a clear legal duty on the trial court to sentence an appellate within 15 days. State, Ex Rel. Corrigan v. Griffin (Apr. 27,1989), Cuyahoga App. No. 57476, unreported. The trial court's determination of "without unnecessary delay" is a matter within the sound discretion of the trial court. Id. In the instant case, there was no evidence that the trial court abused its discretion in sentencing appellant on November 1, 1990, where the remand was announced on October 11, 1990. Appellant's second assignment of error is not well taken. Appellant's third assignment of error is as follows: DEFENDANT WAS DENIED DUE PROCESS OF LAW IN BEING SENTENCED TO AN INDEFINITE THIRD DEGREE FELONY SENTENCE. R.C. 2929.11(G) provides that no person sentenced for a third or fourth degree felony under R.C. 2929.11(B)(6) and (7) shall receive an indefinite term of imprisonment unless the offense contains a violence specification under R.C. 2941.143. See also, State v. Howiler (1985), 26 Ohio App. 3d 181; State v. Tyson (1984), 19 Ohio App. 3d 90. In the instant case, the appellant's violence specification was dismissed as a part of the plea agreement and, therefore, no -6- longer exists for the purposes of sentencing. Therefore, appellant was not properly sentenced to an indefinite term of incarceration and such a sentence must be vacated. Appellant's third assignment of error is well taken. Judgment reversed and remanded for sentencing consistent with this opinion. -7- This cause is reversed and remanded. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOHN F. CORRIGAN, PRESIDING J. LEO SPELLACY, JUDGE PATRICIA A. BLACKMON, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .