COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69347, 69348 & 69349 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION PATRICK WILSON : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MAY 2, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case Nos. CR-266534, CR-281468 and CR-284307. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Louis Brodnik Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Thomas M. Horwitz, Esq. 1365 Ethel Avenue Lakewood, Ohio 44107 SWEENEY, JAMES D., P.J.: Defendant-appellant Patrick Wilson ("Wilson"), d.o.b. March 1, 1963, appeals from the trial court's order which modified the imposed sentence after the defendant had begun serving his time in prison on the original sentence. For the reasons adduced below, we affirm. A review of the record on appeal indicates that on November 5, 1992, as a result of a plea bargain, Wilson pled guilty in three separate cases to the following: a. In CR-266534 (case "a"), Aggravated Assault with a violence specification, an aggravated felony of the fourth degree with a possible indefinite sentence of 1 1/2, 2, 2 1/2 or 3 years to 5 years incarceration. See R.C. 2903.12 and 2929.11(B)(7); b. In CR-281468 (case "b"), Attempted Robbery, an aggravated felony of the third degree with a possible actual sentence of 2, 3, 4 or 5 years to 10 years incarceration. See R.C. 2911.02, 2923.02 and 2929.11(B)(3)(a); and, c. In CR-284307, Robbery (case "c"), an aggravated felony of the second degree with a possible sentence of 3, 4, 5, 6, 7 or 8 years to 15 years incarceration. See R.C. 2911.02 and 2929.11(B)(2)(a). Thereafter, by April 1993, the trial court sentenced the defendant to the following: a. In CR-266534, 1 year incarceration; b. In CR-281468, 1 year incarceration; c. In CR-284307, 3 to 15 years incarceration; - 3 - d. sentences in cases "a" and "c" to run consecutively, and the sentence in case "b" to run consecutive to the sentences in cases "a" and "c". By comparing the possible sentences to the sentences actually given, it is readily apparent that the original sentences for cases "a" and "b" are less than the minimum periods of incarceration mandated by their respective statutes. On May 13, 1993, over one month after the defendant had been delivered to the Marion Correctional Institution, the trial court, after apparently recognizing the sentencing mistake it had made and without notice to, or the presence of, the defendant or his counsel, entered a nunc pro tunc order increasing the sentence in case "b" from 1 year to a corrected sentence of 2 to 10 years 1 incarceration. On November 14, 1994, the defendant filed a petition for post- conviction relief in all three cases attacking the resentencing by the trial court. In March of 1995, the defendant filed a mandamus action against the trial judge in an attempt to force the trial court to rule on his pending petitions for post-conviction relief. See State ex rel. Wilson v. Judge Fuerst (October 10, 1995), Cuyahoga App. No. 68754, unreported (writ of mandamus granted; noting that only one of the petitions for post-conviction relief 1 The sentence for case "a" was not ultimately changed due to mootness at the time the defendant appeared in open court for resentencing in 1995. At any rate, the correct sentence for case "a" is not on appeal before this court and is not argued by the parties. - 4 - had been incompletely dealt with by the reimposition of sentence, infra, the trial court was ordered to resolve the pending petitions for post-conviction relief, complete with findings of fact and conclusions of law, by December 1, 1995). On June 8, 1995, the trial court ordered the defendant to be returned to the county jail for further proceedings. On June 20, 1995, the trial court brought the defendant into court and re- imposed the corrected sentence, 2 to 10 years incarceration, in case "b" and gave credit for time served. These appeals, based on the granting of an amended notice of appeal from the modification of his sentence in May of 1993 (the nunc pro tunc order) and June of 1995 (the correction of the sentence in open court with defense present), which have been consolidated for review and determination, followed. Three assignments of error are presented for review. I THE TRIAL COURT ERRED WHEN IT MODIFIED DEFENDANT'S SENTENCE WITHOUT HIS PRESENCE IN VIOLATION OF CRIM.R. 43. In this assignment, appellant argues that the trial court erred in May of 1993, when it modified his original sentence nunc pro tunc without affording him the right, pursuant to Crim.R. 43(A), to be present at the time of such modification. Crim.R. 43(A) provides in pertinent part: (A) Defendant's presence. The defendant shall be present at...every stage of the trial, including...the imposition of sentence... . (Emphasis added.) - 5 - This mandate under Crim.R. 43(A), requiring the defendant's presence at the imposition of sentence, has been applied to situations where an original sentence is subsequently amended or modified. State v. Ranieri (Cuyahoga, 1992), 84 Ohio App.3d 432, 616 N.E.2d 1191; State v. Calvillo (Cuyahoga, 1991), 76 Ohio App.3d 714, 603 N.E.2d 325; State v. Bell (Cuyahoga, 1990), 70 Ohio App.3d 765. Accordingly, this assignment has merit based on the fact that the defendant-appellant was not present in 1993 when the trial court amended the original sentence for case "b," which original sentence for case "b" was obviously in error and therefore a void order ab initio, State v. Calvillo, supra, because the original sentence did not fall within the statutory punishment parameters. However, due to the later reimposition of a sentence in 1995 which corrected sentence was within the punishment parameters as set forth in the Revised Code, and at which time the defendant and his counsel were present, the error claimed by appellant is harmless. II THE TRIAL COURT ERRED WHEN IT MODIFIED DEFENDANT'S SENTENCE AND THEREBY VIOLATED THE PROHIBITIONS AGAINST DOUBLE JEOPARDY CONTAINED IN THE UNITED STATES AND OHIO CONSTITUTIONS. Appellant argues that the trial court's imposition of the correct sentence, in place of the void original sentence, in case "b" constituted double jeopardy. We disagree. By virtue of the original invalid sentence being void, double jeopardy did not attach so as to preclude resentencing under correct punishment parameters. State v. McColloch (Logan, 1991), - 6 - 2 78 Ohio App.3d 42, 603 N.E.2d 1106 ; State v. Christopher (Geauga, 1991), 77 Ohio App.3d 578, 602 N.E.2d 1195; State v. Calvillo, supra; State v. Newell (September 2, 1993), Cuyahoga App. No. 63362, unreported, 1993 Ohio App. LEXIS 4275; State v. Alanize (March 5, 1993), Lucas App. No. L-91-273, unreported, 1993 Ohio App. LEXIS 1301. The second assignment of error is overruled. III THE TRIAL COURT ERRED WHEN IT MODIFIED DEFENDANT'S SENTENCE AFTER DEFENDANT EXECUTED HIS SENTENCE. In this assignment, appellant argues that the trial court lacked jurisdiction to correct the void sentence after the defendant-appellant had served the void one-year sentence. Appellant's arguments misapply the pertinent case law. Relying on State v. Addison (Franklin, 1987), 40 Ohio App.3d 7 and Columbus v. Messer (Franklin, 1982), 7 Ohio App.3d 266, appellant states that a trial court may not amend a sentence once the sentence has been executed. Appellant neglects to mention that Addison and Messer apply to cases in which the original sentences were valid, not invalid as in the present case. Accordingly, the original sentence herein being invalid, the trial court retained 2 Appellant's reliance on footnote 1 of McColloch is readily distinguished from the present case. In that footnote, the court noted that double jeopardy regularly attaches in cases involving valid original sentences so as to preclude the subsequent modification of the valid sentence. In the present case, we are faced with an invalid sentence being corrected to a valid sentence. - 7 - jurisdiction to subsequently modify or amend the invalid sentence. State v. McColloch, supra; State v. Calvillo, supra; and State v. Bell (Cuyahoga, 1990), 70 Ohio App.3d 765, 773, citing Brookpark v. Necak (1986), 30 Ohio App.3d 118. The third assignment of error is overruled. Judgment affirmed. - 8 - 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. TERRENCE O'DONNELL, J., and DIANE KARPINSKI, J., CONCUR. JAMES D. SWEENEY PRESIDING 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 .