COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68351 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION JOHN SMITH : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 2, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-290240. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Karen L. Johnson Assistant County Prosecutor The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Charles H. Bragg, Esq. 303 East Bagley Road P.O. Box 309 Berea, Ohio 44017 SWEENEY, JAMES D., J.: Defendant-appellant John Smith appeals the sentence imposed on him by the trial court. The appellant was convicted of two counts of kidnapping in violation of R.C. 2905.01; two counts of aggravated robbery in violation of R.C. 2911.01; and having a weapon while under a disability in violation of R.C. 2923.13. Counts one through four contained a firearm specification and an aggravated felony specification; and count five contained a firearm specification and a violence specification. On March 24, 1993, the appellant was found guilty by the jury and he was sentenced by the court the next day. At the sentencing hearing, the court informed the appellant and both of his attorneys that they were free to address the court (First Sentencing T. 1). The court first heard argument from each of the appellant's attorneys and then from appellant on his own behalf (First Sentencing T. 3). The appellant was sentenced to a term of imprisonment of five to twenty-five years on count one, to be served concurrently with counts two, three, four and five. On count two the appellant was sentenced to three years incarceration to be served prior to and consecutive with a term of incarceration of five to twenty-five years. On count three the appellant was sentenced to a term of incarceration of ten to twenty-five years to be served concurrently with counts one, two, four and five; on count four he was sentenced to ten to twenty-five years incarceration to be served - 3 - consecutively with his sentence in count two and concurrent with his sentences on counts one, three and five; on count five he was sentenced to a term of incarceration of three to five years, to be served concurrently with the other counts. The appellant appealed his conviction. In State v. Smith (Sept. 29, 1994), Cuyahoga App. No. 65636, unreported, this court held that the trial court's sentence was improper and remanded for resentencing on counts one and two. Upon remand, the appellant appeared before the trial court with counsel. He was sentenced to a term of incarceration of eight to fifteen years on each count. It is from this sentence that he is currently appealing. The appellant sets forth two assignments of error. The first assignment of error: THE COURT COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO ALLOW THE APPELLANT TO SPEAK DURING HIS SENTENCING. The appellant argues that Crim.R. 32(A)(1) and R.C. 2947.05 require that the trial court provide a criminal defendant the right to speak prior to sentencing. The appellant contends that he was denied his right of allocution when no opportunity was provided for him to address the court. Compliance with Crim.R. 32 and R.C. 2947.05 is mandatory. Silsby v. State (1928), 119 Ohio St. 314; State v. Hays (1982), 2 Ohio App.3d 376; State v. Taylor (Feb. 25, 1993), Cuyahoga App. No. 61994, unreported. The requirement of allocution will be fulfilled - 4 - where counsel and the defendant know that each has a right to make a statement prior to the imposition of sentence. Taylor, supra. Where the court fails to inquire of both counsel and the defendant, the cause is to be remanded for the sole purpose of resentencing. Silsby, supra. The standard of appellate review is one of substantial compliance. State v. Davis (1983), 13 Ohio App.3d 265; State v. Hurayt (July 23, 1992), Cuyahoga App. No. 60676, unreported. Where the offense is non-probationable and the discretion of the trial court is limited by statute with respect to sentencing, no statement made by a defendant could possibly affect the sentence, and the error is harmless beyond a reasonable doubt. State v. Charles Johnson and Robert Johnson (April 20, 1989), Cuyahoga App. Nos. 55295, 55811, 55812, unreported. In the case sub judice, the appellant was not afforded his right of allocution at the second sentencing hearing. However, since the court properly permitted the attorneys and the appellant to speak freely at the first sentencing hearing, and because the offenses are non-probationable pursuant to R.C. 2951.02(F), the trial court substantially complied with Crim.R. 32(A)(1) and R.C. 2947.05. Any error was harmless beyond a reasonable doubt. The appellant's first assignment of error is overruled. The second assignment of error: THE COURT'S RESENTENCING OF THE APPELLANT ON THE KIDNAPPING CHARGES VIOLATED THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT OF THE - 5 - UNITED STATES CONSTITUTION AND ARTICLE ONE, SECTION TEN OF THE OHIO CONSTITUTION. The appellant argues that because he had already begun to serve the sentence originally imposed by the trial court, the resentencing by the trial court constituted double jeopardy in violation of the Fifth Amendment to the United States Constitution. In State v. Beasly (1984), 14 Ohio St.3d 74, the Supreme Court addressed the question of whether the trial court's erroneous imposition of a sentence less severe than the statutory minimum, and later correction of that sentence, violated a defendant's constitutional guarantee against double jeopardy. The Court held that double jeopardy does not attach because society's interest in enforcing the law, and in meting out the punishment the legislature has deemed just, must be served. The Supreme Court concluded that any attempt by a court to disregard statutory requirements when imposing a sentence renders the attempted sentence a nullity or void and that jeopardy does not attach to a void sentence. Here, the trial court resentenced the appellant in accordance with the statutes as set by the state legislature and in accordance with the mandate from this court. The appellant was not subject to double jeopardy since his original sentence was void. The second assignment of error is overruled. Judgment affirmed. - 6 - 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. JOHN T. PATTON, C.J., and PATRICIA A. BLACKMON, J., CONCURS. JAMES D. SWEENEY 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 .