COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67575 STATE OF OHIO : : PLAINTIFF-APPELLEE : : JOURNAL ENTRY : v. : AND : JOHN GILMORE : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: APRIL 6, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-300840. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Karen L. Johnson, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Donald Green, Esq. Assistant Public Defender 307 Marion Building 1276 West Third Street Cleveland, OH 44113 -2- DAVID T. MATIA, J.: John Gilmore, defendant-appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas which imposed a sentence of two consecutive terms of three to five years incarceration. Defendant-appellant assigns two errors for this court's review. Defendant-appellant's appeal is not well taken. I. THE FACTS On September 28, 1993 John Gilmore, defendant-appellant, was indicted by the Cuyahoga County Grand Jury for two counts of theft in violation of R.C. 2913.02. Each theft count contained two furthermore clauses representing prior theft convictions and a violence specification. Defendant-appellant was also indicted for two counts of burglary in violation of R.C. 2911.12. Each burglary count contained a prior aggravated felony specification. Defendant-appellant was arraigned on October 5, 1993 whereupon a plea of not guilty was entered as to all counts contained in the indictment. On November 4, 1993 defendant-appellant withdrew his formerly entered plea of not guilty and entered a plea of guilty to counts one and two of the indictment as amended to delete one of the prior furthermore clauses. Counts three and four of the indictment were nolled. Defendant-appellant was sentenced to two consecutive terms of three to five years incarceration at the Lorain Correctional Institution. Defendant-appellant's sentence was suspended and he was placed on five years probation. -3- On May 19, 1994 defendant-appellant was found to be in violation of the terms and conditions of his probation. During the probation violation hearing, the trial court reduced defendant-appellant's original sentence to two consecutive terms of two to five years incarceration. That sentence was journalized on May 27, 1994. On June 2, 1994 the trial court conducted a hearing with defendant-appellant and defense counsel present in order to investigate allegations that defendant-appellant had threatened to kill several individuals including the trial judge, a psychiatric nurse and his probation officer since the probation violation hearing on May 19, 1994. Due to the nature of these threats the trial court was considering reimposing defendant-appellant's original sentence of two consecutive three to five year terms of incarceration. Defendant-appellant's counsel argued that the trial court's reimposition of the original sentence was in error and that the defense did not have an opportunity to confront the alleged hearsay statements upon which the trial court might base its decision. On June 13, 1994 the trial court reimposed defendant-appellant's original sentence of two consecutive three to five year terms of incarceration. On July 13, 1994, defendant-appellant filed a timely notice of appeal of the judgment of the trial court. -4- II. FIRST ASSIGNMENT OF ERROR Defendant-appellant's first assignment of error states: JOHN GILMORE'S SENTENCE WAS INCREASED IN VIOLATION OF THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION BECAUSE THE TRIAL JUDGE LACKED BOTH THE CONSTITUTIONAL AND STATUTORY AUTHORITY TO INCREASE JOHN GILMORE'S SENTENCE AFTER THE SENTENCE WAS JOURNALIZED AND THE EXECUTION OF THE SENTENCE WAS COMMENCED. A. THE ISSUE RAISED: JURISDICTION Defendant-appellant argues through his first assignment of error that the trial court did not have authority to increase defendant-appellant's sentence after the sentence was journalized and the sentence was commenced. It is defendant-appellant's position that, after May 27, 1994, the trial court no longer had jurisdiction to act. Defendant-appellant's first assignment of error is not well taken. B. STANDARD OF REVIEW In Ohio, a trial court may resentence a criminal defendant who has not begun to serve the sentence to a more severe sentence without violating the multiple sentences protections of the Double Jeopardy Clause. Before its execution, a sentence lacks the constitutional finality of a verdict of acquittal. United States v. DiFrancesco (1980), 449 U.S. 117; State v. Vaughn (1983), 10 Ohio App.3d 314; State v. Meister (1991), 76 Ohio App.3d 15, 17. Ohio courts have held that the execution of a sentence commences in a situation where a criminal defendant has -5- been sentenced to a term of imprisonment when that defendant is delivered from the temporary detention facility of the judicial branch to the penal institution of the executive branch. State v. Addison (1987), 40 Ohio App.3d 7. Once the defendant has been delivered into the custody of the institution in which he is to serve his sentence, the trial court's authority to suspend the sentence is limited to those instances specifically provided by the General Assembly. Id. at 8. C. THE TRIAL COURT HAD JURISDICTION In the instant case, defendant-appellant was found to be a probation violator on May 19, 1994 and sentenced to two consecutive two to five year terms of imprisonment. The trial court's order was journalized on May 27, 1994. At the time of the resentencing hearing on June 2, 1994, defendant-appellant's sentence had not yet been executed since defendant-appellant had not been delivered to the state penal authority. State v. Addison supra. Accordingly, the trial court retained jurisdiction to resentence defendant-appellant to the original term of imprisonment. Defendant-appellant's first assignment of error is not well taken. III. SECOND ASSIGNMENT OF ERROR Defendant-appellant's second assignment of error states: THE TRIAL COURT ERRED BY ADMITTING INADMISSABLE HEARSAY OVER DEFENSE COUNSEL'S OBJECTION AND THEREBY DEPRIVED JOHN GILMORE -6- OF HIS RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION XVI OF THE CONSTITUTION OF THE STATE OF OHIO. A. THE ISSUE RAISED: SENTENCING Defendant-appellant contends that the trial court erred by allowing into evidence and relying upon inadmissible hearsay evidence and statements as justification for his resentencing. Defendant-appellant argues further that the trial court denied him due process of law and the right to confront and cross- examine witnesses as guaranteed by the United States and Ohio Constitutions. Defendant-appellant's second assignment of error is not well taken. B. STANDARD OF REVIEW The Rules of Evidence do not apply to sentencing proceedings in Ohio. Evid.R. 101(C)(3) states: (C) Exceptions. These rules (other than with respect to privileges) do not apply in the following situations: (3) Miscellaneous Criminal Proceedings. Proceedings for extradition or rendition of fugitives; sentencing; granting or revoking probation ***. (Emphasis added.) As correctly indicated by plaintiff-appellee, the entire presentence report compiled by the probation department specifically for sentencing is, in fact, hearsay. A trial court is not restricted by the rules of evidence with respect to those -7- matters it may choose to consider in determining what sentence to impose. State v. Fuller (1990), 64 Ohio App.3d 349. -8- C. RESENTENCING WAS PROPER A review of the record from the trial court demonstrates that defendant-appellant was not deprived of his constitutional rights during the resentencing hearing on June 2, 1994. The transcript of that hearing reveals that the trial court clearly delineated the reason for the hearing, provided defendant-appellant with the identity of the individuals who had heard defendant-appellant make the death threats and provided defendant-appellant with an adequate opportunity to respond to the allegations. Defendant- appellant failed to challenge the fact that he had made the death threats, did not request a continuance of the hearing in order to subpoena witnesses nor did he question the judge's bailiff who had relayed the death threats to the trial court and was available in the courtroom. While it is true that the trial court did rely on hearsay statements as a basis for resentencing defendant-appellant, there is nothing improper about such action given a trial court's wide latitude in determining an appropriate sentence on a case-by- case basis. State v. Williams (1982), 7 ohio App.3d 160. Defendant-appellant's second assignment of error is not well taken. Judgment of the trial court is affirmed. -9- It is ordered that appellee recover of appellant its 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 Common Pleas Court 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. SPELLACY, P.J. and DYKE, J, CONCUR. DAVID T. MATIA JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement 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. .