COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : RODNEY STEVENSON : : Defendant-Appellant : : DATE OF ANNOUNCEMENT AUGUST 24, 1995 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-250665 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: STEPHANIE TUBBS JONES, ESQ. RODNEY STEVENSON, Pro Se Cuyahoga County Prosecutor Grafton Correctional Institution CHRISTOPHER L. FREY, ESQ. 2500 South Avon - Belden Road Assistant County Prosecutor Grafton, Ohio 44044 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -2- -3- PATRICIA ANN BLACKMON, J: Rodney Stevenson, defendant-appellant, appeals his conviction for corruption of a minor and assigns the following error for our review: THE TRIAL COURT ERRED WHEN IT DISMISSED THE PETITIONERS MOTION TO CORRECT SENTENCE, PER THE RECORD THE PETITIONER ALLEGED THAT HE WAS BEING HELD BY THE STATE OF OHIO WITHOUT JURISDICTION, SINCE HIS LAWFULLY IMPOSED SENTENCE OF TWO YEARS HAS EXPIRED, AND PER THE SENTENCING TRAN- SCRIPTS THE PETITIONER WAS SENTENCED TO A LEGAL, CORRECT TERM OF INCARCERATION OF TWO YEARS, AND THE PETITIONER SHOULD BE AFFORDED HIS IMMEDIATE RELEASE IN VIOLATION OF THE DUE PROCESS CLAUSE, EQUAL PROTECTION CLAUSE OF THE 14TH AMENDMENT, U.S. CONSTITUTION & DOUBLE JEOPARDY CLAUSE OF SAME, AND/OR REMANDED TO IMPOSE CORRECT SENTENCE OF TWO YEARS. [sic] Having reviewed the record of the proceedings and the legal arguments presented by the parties, we reverse the decision of the trial court and remand this case for resentencing. The apposite facts follow. Rodney Stevenson was indicted for one count of corruption of a minor and one count of rape. Each count of the indictment contained a violence specification, which indicated Stevenson was previously convicted of carrying a concealed weapon. Counsel for Stevenson stipulated to the violence specifications and the case proceeded to a trial by jury. The jury returned a verdict of guilty for corruption of a minor and not guilty for rape. The trial court entered judgment against Stevenson for corruption of a minor with a violence specification. The case was continued for a pre-sentence investigation report and sentencing. -4- At the sentencing hearing, the trial court pronounced a sentence consisting of a term of two years incarceration, a fine of $5,000, and costs. The trial judge concluded the hearing by stating as follows: "I give to you, sir, the maximum sentence that I could impose. Take him away." The trial court's journal entry, however, states "***defendant, Rodney G. Stevenson, is sentenced to Lorain Correctional Institution for a term of two to ten years and fined $5,000 and costs." After the passage of two years time, Stevenson filed a pro se motion to correct the sentence believing that the original sentence imposed by the trial court was a definite term of two years. The trial judge denied the motion and indicated the journal entry reflects the correct sentence of an indefinite term of two to ten years. Stevenson now appeals from the denial of his motion. The primary issue on appeal is whether a trial court may pronounce one sentence in open court and journalize another after the sentencing hearing is concluded. Crim.R. 43(A) provides as follows: "The defendant shall be present at the arraignment and every stage of the trial, including the impaneling of the jury, the return of the verdict, and the imposition of sentence ***." Crim.R. 43(A) clearly requires the presence of the defendant when one sentence is vacated and a new sentence is imposed. State v. Bell (1990), 70 Ohio App.3d 765, 773, citing Columbus v. Rowland (1981), 2 Ohio App.3d 144, 145. "Moreover, in order to modify a sentence pronounced in open court, it is necessary for the modification to be formalized in a journal -5- entry, even though the original sentence was not journalized. State v. Sweeney (Apr. 1, 1982), Cuyahoga App. No. 43810, unreported; State v. Butler (1974), 44 Ohio App.2d 177. The trial court does not possess statutory authority to increase a lawful sentence after the defendant has served part of that sentence. Brookpark v. Necak (1986), 30 Ohio App.3d 118." Bell at 773. In the present case, the sentencing journal entry failed to indicate a different sentence had previously been imposed in open court and was subsequently vacated. The record reveals Stevenson was clearly present for the open court pronouncement of a two-year sentence, but does not demonstrate that he was present during the imposition of the modified sentence. Thus, the modified sentence of two to ten years is invalid and unlawful. In State v. Thomas (Dec. 31, 1990), Logan App.No. 8-88-20, unreported, the court addressed the same issues and provided as follows: In sum, it is uncontroverted that the sentence imposed by the trial court in open court and that formalized in its journal entry are inconsistent. Numerous reasonable theories can be offered as to the cause of this inconsistency and thus the trial court's actual intent. As well reasoned as these theories may be they remain, in the end, the product of speculation. Accordingly, we conclude that justice will be best served by remanding the cause for resentencing. This will result in a lawful sentence arising not from our speculation but rather from the trial court's statutory discretion. In the present case, the trial court expressed an intention to impose the maximum sentence in open court, but only imposed a -6- definite sentence of two years. Having carefully reviewed the record, this court can only speculate as to the trial court's actual intention. Accordingly, justice will be best served by remanding this case for resentencing. Judgment reversed and remanded. -7- This cause is reversed and remanded. It is, therefore, considered that said appellant recover of said appellee his costs herein taxed. 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. Exceptions. PATTON, C.J., and KARPINSKI, J., CONCUR. PATRICIA ANN 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 announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which .