COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70832 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and v. : : OPINION WARNER WILCOX : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: JULY 3, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-252985 JUDGMENT: Affirmed in Part and Vacated in Part. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. WARNER WILCOX, pro se Cuyahoga County Prosecutor No. A-224-576 G.C.I. 2500 S. Avon-Belden Road DIANE SMILANICK, ESQ. Grafton, Ohio 44044 Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - KARPINSKI, J.: This appeal is the most recent in a long series of proceedings concerning defendant's convictions in this case. The record shows that on June 21, 1990, defendant was indicted on the following three counts: (1) drug abuse by possession of less than the bulk amount of heroin in violation of R.C. 2925.11, with a furthermore clause arising from a prior cocaine drug abuse conviction, as well as a firearm and three 1 violence specifications ; (2) carrying a loaded concealed weapon in violation of R.C. 2923.12, with the same three violence specifications; and (3) having a weapon while under disability in violation of R.C. 2923.13, with the same three violence specifications. Neither the concealed weapon nor the weapon under disability charge had an accompanying firearm specification. Following a jury trial, defendant was convicted and sentenced to serve concurrent maximum indeterminate sentences on each count. This court affirmed defendant's convictions on direct appeal and remanded for resentencing on the drug abuse conviction in State v. Wilcox (June 11, 1992), Cuyahoga App. Nos. 60851 and 60886, unreported. This court noted that defendant's prior cocaine drug abuse conviction, which elevated the degree of his heroin drug abuse conviction in this case, had been reversed on 1 The violence specifications were based on defendant's prior convictions for robbery, aggravated robbery, and carrying a concealed weapon. - 3 - appeal because of the absence of a strict chain of custody. As a result, this court remanded the matter to the trial court for resentencing, at a reduced degree, the first count of heroin drug abuse. The Ohio Supreme Court decline further review. State v. Wilcox (1988), 37 Ohio St.3d 711. Defendant thereafter initiated a series of proceedings in federal and state courts which delayed his resentencing. Defendant filed a petition for a writ of habeas corpus, which was denied by the Federal District Court. The denial of this writ of habeas corpus was affirmed by the Federal Court of Appeals for the Sixth Circuit. See Wilcox v. Littlefield (6th Cir. 1995), 48 F.3d 1220. Defendant also filed a petition for post- conviction relief in the trial court and an original action in this court of appeals for a writ of mandamus to compel the trial court to resentence him. This court affirmed the denial of his petition for post-conviction relief in State v. Wilcox (Apr. 18, 1996), Cuyahoga App. No. 69492, unreported. This court thereafter denied as moot defendant's request for a writ of mandamus once the trial court resentenced him. State ex rel. Wilcox v. Cleary (July 10, 1996), Cuyahoga App. No. 70610, 2 unreported. 2 The sentences imposed originally and on resentencing for each count follows: Count Sentence in Years Original Resentence 1 Drug Abuse w/ 4-10 + 3 3-5 +3 1 firearm & 3 violence specs. on firearm on firearm 2 Concealed Weapon w/ 4-10 4-10 +3 3 violence but no firearm specs. (continued...) - 4 - Defendant now appeals, in this appeal, from the sentence imposed against him by the trial court on resentencing. Defendant raises the following two related assignments of error: THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT, WHEN THE COURT SENTENCED THE APPELLANT TO 3 YEARS ON GUN SPECIFICATIONS THAT THE JURY DID NOT RETURN A VERDICT ON, AND WHEN THE COURT SENTENCED THE DEFENDANT TO INDEFINITE TERMS OF IMPRISONMENT, WHEN THIS COURT ORDERED THE APPELLANT'S SENTENCE MODIFIED TO A FOURTH DEGREE FELONY, BECAUSE OF THE ERRONEOUS SPECIFICATION. THE TRIAL COURT, IN VINDICTIVELY INCREASING THE APPELLANT'S SENTENCE, AFTER A SUCCESSFUL APPEAL IS CONSTITUTIONALLY IMPERMISSIBLE, AND VIOLATES THE FOURTEENTH AMENDMENT, DUE PROCES [SIC], AND EQUAL PROTECTION, AS WELL AS VIOLATING THE APPELLANT'S RIGHTS UNDER THE FIRST AMENDMENT OF THE UNITED STATES CONSTITUTION. The first assignment is well taken in part and lacks merit in part. The second assignment lacks merit. Defendant argues the trial court improperly sentenced him to an indeterminate term of three to five years imprisonment on his drug abuse conviction with three years prior actual incarceration on the firearm specification. Defendant also argues the trial court improperly added three-year actual incarceration sentences to his concealed weapon and weapon disability convictions despite the fact that they had no firearm specifications. As noted above, this court previously affirmed defendant's convictions on direct appeal and remanded for resentencing on only his heroin drug abuse conviction. State v. Wilcox (June 11, 2 (...continued) 3 Weapons Disability w/ 3-5 3-5 +3 3 violence but no firearm specs. - 5 - 1992), Cuyahoga App. Nos. 60851 and 60886, unreported at pp. 11- 12. This court specifically held that defendant's sentence on this count should be reduced from a third degree felony to a fourth degree felony, because the prior drug abuse conviction which gave rise to the enhanced sentence had been reversed on appeal. Id. However, this court rejected defendant's argument that the trial court improperly imposed an indeterminate, as opposed to definite, sentence or that the trial court erred concerning its disposition of the violence specifications. Id. at 21, 16-17. In the current appeal, defendant seeks to relitigate again issues concerning his indeterminate sentence following resentencing. However, the prior opinion of this court constitutes the law of the case and defendant is precluded from relitigating these matters by the doctrine of res judicata. State v. Odubanjo (Jan. 26, 1995), Cuyahoga App. No. 66638, unreported at pp. 7. It should be noted, in any event, that defendant's arguments lack merit even if they had not already been resolved against him. Defendant contends that the trial court is precluded from imposing an indeterminate sentence against him on his heroin drug abuse conviction under R.C. 2929.11(B)(7) unless he was found to have committed at least one of the three accompanying violence specifications under R.C. 2929.11(D). Defendant further notes that a trial court cannot impose a term of imprisonment of actual incarceration on a firearm specification under R.C. 2929.71, - 6 - without an indeterminate sentence on the underlying claim. These abstract statements of law are correct, but do not apply under the facts of this case. The record shows defendant was properly found to have committed at least one of the prior offenses set forth in the three violence specifications to warrant imposing an indeterminate sentence in this case. Defendant complains in this appeal that the jury made no express finding concerning any of the three violence specifications in this case. In his prior appeal, defendant complained that the trial judge did not make specific findings prior to trial concerning these specifications. This court noted in the prior appeal that certified copies of journal entries reflecting defendant's convictions were produced in the trial court and that counsel stipulated to them. State v. Wilcox (June 11, 1992), Cuyahoga App. Nos. 60851 and 60886, unreported at pp. 16-17. This court has previously recognized that, depending on the circumstances of the case, either the jury or the trial court may make the necessary findings concerning violence specifications. State v. Farris (1991), 71 Ohio App.3d 817, 821. As in Farris, the jury found defendant guilty of each count "as charged in the indictment," which included the accompanying violence specifications. Moreover, the record was sufficient for the trial court to find independently that defendant was convicted of the offenses of violence contained in the violence specifications. - 7 - As a result, the trial court could properly impose an indeterminate sentence on defendant's drug abuse conviction because of the violence specifications. The jury expressly found defendant guilty of the accompanying firearm specification, so the trial court properly imposed a three-year term of actual incarceration for this specification. Consistent with this court's opinion in defendant's prior direct appeal, the trial court properly reduced defendant's sentence from an indeterminate period of four to ten years (for a third degree felony), to an indeterminate period of three to five years (for a fourth degree felony), with the same three-year prior actual incarceration on the firearm specification. Under the circumstances, defendant has failed to show any error concerning his three-to-five-year indeterminate sentence for drug abuse or the sentence of three years actual incarceration on the accompanying firearm 3 specification. Defendant also argues that the trial court improperly added sentences for three years actual incarceration to each of his 3 Defendant's argument confuses the effect of the reversal of his prior cocaine drug abuse conviction. As noted in the prior opinion in his direct appeal, it merely reduced the degree of his heroin drug abuse conviction in this case from a felony of the third to a felony of the fourth degree. The reversal has no effect on whether he was required to serve a determinate or indeterminate sentence because this aspect of his sentence was governed by the violence specifications arising from his prior robbery, aggravated robbery, and concealed weapon convictions. State v. Valentine (1991), 77 Ohio App.3d 489. None of these three convictions has been reversed, and any one of them warranted imposing an indeterminate sentence in this case. Defendant's prior cocaine drug abuse conviction was not an offense of violence, R.C. 2901.01(I), and was not used to impose an indeterminate sentence. - 8 - other two convictions--on the second count for carrying a concealed weapon and on the third for having a weapon while under disability --despite the fact that neither charge contained a firearm specification. Defendant argues that this court remanded the matter to the trial court solely for resentencing on the first count of drug abuse and that the trial court lacked 4 authority to resentence him on the remaining two convictions. We agree. As noted above, this court's prior opinion constitutes the law of the case, and the trial court was obligated on remand to follow our mandate, which also limited what was before the trial court. State v. Odubanjo, supra. Moreover, we note that the record shows the indictments on these two charges did not include accompanying firearm specifications. R.C. 2941.141 specifically prohibits imposing an additional term of incarceration in connection with an offense when the indictment does not contain a firearm specification as in this case. Defendant alternately requests this court either vacate the sentences imposed for these firearm specifications or remand the matter to the trial court for "resentencing." (Reply Brief at p. 4). Under the circumstances, in the interests of justice and judicial economy, we accept defendant's invitation to vacate the sentences on the two specifications rather than further multiplying or prolonging the proceedings. As a result, the 4 Defendant contends the trial court was motivated by "vindictiveness" when it resentenced him. However, the record does not support this claim. - 9 - trial court's imposition of sentence on firearm specifications for the second and third counts is hereby vacated and its original sentence concerning these two counts is hereby reinstated in accordance with our mandate in the prior appeal. Accordingly, defendant's first assignment is well taken in part and overruled in part. Defendant's second assignment of error is overruled. The judgment of the trial court ordering defendant to serve three years actual incarceration on count one followed by an indeterminate term of three to five years imprisonment for his drug abuse conviction is affirmed. The trial court's imposition of an additional three-year sentence on each of his remaining two convictions is vacated and its original indeterminate sentence of four to ten years, and three to five years, respectively on counts two and three, is hereby reinstated. Judgment accordingly. - 10 - 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. PATTON, J., and MAHONEY*, J., CONCUR. DIANE KARPINSKI PRESIDING JUDGE *Joseph E. Mahoney, Retired Judge of the Eleventh District Court of Appeals, sitting by assignment of the Supreme Court of Ohio. N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .