[Cite as State v. Holmes, 2015-Ohio-3672.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 102184



                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                   DESMON HOLMES
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-07-502442-A

        BEFORE:          McCormack, J., Keough, P.J., and Stewart, J.

        RELEASED AND JOURNALIZED: September 10, 2015
ATTORNEY FOR APPELLANT

Matthew M. Nee
Nee & Bittinger, L.L.C.
26032 Detroit Rd.
Suite 5
Westlake, OH 44145


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Anthony Thomas Miranda
Assistant County Prosecutor
9th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:

       {¶1}   This case came to be heard upon the accelerated calendar pursuant to

App.R. 11.1 and Loc.R. 11.1. Defendant-appellant, Desmon Holmes, appeals from his

sentence imposed by the Cuyahoga Court of Common Pleas. This is his fourth appeal

regarding his conviction and sentence for a rape he committed in 2007.            For the

following reasons, we affirm the trial court’s judgment.

                                Procedural Background

       {¶2} In 2007, Holmes was charged with rape and kidnapping. He gave the victim

a ride in exchange for gas money, but then parked his car behind a building and raped her.

 A jury found him guilty. The trial court merged rape and kidnapping and imposed a

10-year prison term. This court confirmed his conviction in State v. Holmes, 8th Dist.

Cuyahoga No. 91948, 2009-Ohio-3736, appeal not accepted, 124 Ohio St.3d 1507,

2010-Ohio-799, 922 N.E.2d 970.

       {¶3} Subsequently, in 2009, Holmes filed a petition for postconviction relief,

arguing his trial counsel rendered ineffective assistance by failing to retain an expert.

The trial court dismissed the petition on res judicata grounds. This court affirmed in

State v. Holmes, 8th Dist. Cuyahoga No. 96479, 2011-Ohio-5848.

       {¶4} In May 2012, the trial court filed a nunc pro tunc entry to reflect that the

five-year term of postrelease control ordered at sentencing in 2008 was mandatory.
       {¶5} Almost a year later, in April 2013, Holmes filed a motion to vacate or set

aside the May 2012 nunc pro tunc sentencing entry. The trial court summarily denied

his motion. This court granted Holmes’s delayed appeal to challenge the trial court’s

nunc pro tunc sentencing journal entry and the denial of his motion to vacate or set aside

the judgment and sentence. This court found merit to his appeal, and it reversed and

remanded for resentencing in State v. Holmes, 8th Dist. Cuyahoga No. 100388,

2014-Ohio-3816.

       {¶6} In that appeal, Holmes contended that at the original sentencing, the trial

court erred by imposing a prison term of 10 years each on the rape count and the

kidnapping count (which the court had found to be allied) before merging the sentence.

This court found merit to his claim and also found that the doctrine of res judicata did not

bar the claim, because the sentence was void.      This court therefore reversed his sentence

and remanded the matter to the trial court to conduct a new sentencing hearing.          The

state was to make an election on which count survived merger, and the court was to

impose sentence only on that count; the trial court was to also advise Holmes regarding

the assessment of costs, unless waived, and also properly advise Holmes of postrelease

control.   Id. at ¶ 25.

       {¶7} Upon remand, on October 9, 2014, the trial court held a resentencing

hearing.   The state elected to proceed on the rape count for sentencing, and the trial

court imposed a ten-year sentence.        The court also imposed the mandatory five-year

postrelease control.      The sentencing entry was dated October 14, 2014.
       {¶8} On November 10, 2014, Holmes, pro se, filed an appeal from his new

sentence in State v. Holmes, 8th Dist. Cuyahoga No. 102184. In the notice of appeal, he

stated the ground for the appeal was ineffective assistance of the trial counsel at his

resentencing hearing.

       {¶9} On December 17, 2014, however, the trial court held another resentencing

hearing.   The court explained that the October 9, 2014 resentencing hearing took place

before the physical file of the case was returned to the trial court and, therefore, it would

hold another resentencing hearing out of “an abundance of caution.”         The court again

imposed a ten-year term.    On December 31, 2014, the trial court journalized the sentence

entry. The October and December sentencing entries are identical.

       {¶10} After the parties filed the respective appellant and appellee briefs in Appeal

No. 102184 (the instant appeal), on April 30, 2015, Holmes, represented by counsel,

appealed from the second (December 31, 2014) sentencing order, in Appeal No. 102975.

This court dismissed that appeal for untimeliness but permitted Holmes to file an

amended notice of appeal to include the December 31, 2014 order as part of the instant

appeal.    Consequently, both the October and December sentencing entries are now

before this court for review.
                                     The Instant Appeal

        {¶11} The sole assignment of error in the instant appeal states:     “[t]he trial court

erred by resentencing Holmes after he filed a notice of appeal.”      Holmes argues the trial

court did not have jurisdiction to hold the second resentencing hearing on December 17,

2014.    He asserts that, once a notice of appeal is filed, the trial court is divested of

jurisdiction in the matter.   He seeks a remand to the trial court for resentencing .

        {¶12} Holmes is correct as to his argument about jurisdiction.     Once an appeal is

taken, the trial court is divested of jurisdiction in the matter. State ex rel. State Fire

Marshal v. Curl, 87 Ohio St.3d 568, 722 N.E.2d 73 (2000) (once an appeal is taken, the

trial court is divested of jurisdiction except over issues not inconsistent with that of the

appellate court to review, affirm, modify, or reverse the appealed judgment, such as the

collateral issues like contempt).

        {¶13} Holmes appealed his October 2014 resentence on November 10, 2014.

Therefore, the trial court was without power to take further action in the matter.      It did

not have jurisdiction to hold another resentencing hearing on December 17, 2014.           We

agree with Holmes as to the argument that the trial court erred in resentencing him a

second time on December 17, 2014.

        {¶14} Holmes, however, assigns no errors regarding the sentence imposed by the

trial court on October 9, 2014 — he does not claim his trial counsel rendered ineffective

assistance of counsel or the trial court improperly resentenced him without waiting for the

return of the physical file.     He apparently believed that the October sentence was
somehow replaced or voided by the second resentence in December.                 Holmes is

mistaken here. As he himself asserts, and this court agrees, the trial court was without

jurisdiction to hold the second resentencing hearing in December 2014. By way of his

appeal, only this court has the authority to modify, reverse, or vacate the October sentence

after November 10, 2014.

       {¶15} Holmes does not claim any errors regarding his sentence imposed on

October 9, 2014, upon remand from this court that would entitle him to relief.

       {¶16} Judgment affirmed.

       It is ordered that appellee recover of appellant 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. 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.


______________________________________________
TIM McCORMACK, JUDGE

KATHLEEN ANN KEOUGH, P.J., CONCURS;
MELODY J. STEWART, J., CONCURS IN JUDGMENT ONLY (WITH SEPARATE
OPINION ATTACHED)

MELODY J. STEWART, J., CONCURRING IN JUDGMENT ONLY:
       {¶17} I concur with the majority’s decision to affirm this case.   I write separately,

however, because I am not convinced that the trial court lacked jurisdiction to conduct the

December 2014 resentencing of Holmes.

       {¶18} “The general rule of law is that the trial court loses jurisdiction to take

action in a cause after an appeal has been taken and decided” except “to take action in aid

of the appeal, until the case is remanded to it by the appellate court.” State ex rel.

Special Prosecutors v. Judges, Belmont Cty. Court of Common Pleas, 55 Ohio St.2d 94,

97, 378 N.E.2d 162 (1978). Further, the Supreme Court has stated that “the trial court

does retain jurisdiction over issues not inconsistent with that of the appellate court to

review, affirm, modify or reverse the appealed judgment * * *.”     (Emphasis added.) Id.



       {¶19} The two resentencing entries were virtually identical in substance (there was

a minor change to reflect jail-time credit), so the trial judge did not do anything that

would interfere with this court’s jurisdiction.   In fact, the resentencing arguably was “in

aid of the appeal” because it ensured that the sentence itself was proper in all respects.

In cases where the trial judge acts after a notice of appeal has been filed, but simply

clarifies a judgment, this court has considered it to have been done in aid of the appeal.

See, e.g., In re Bailey, 8th Dist. Cuyahoga No. 101108, 2015-Ohio-413, fn. 2 (judgment

entry issued on reconsideration after a notice of appeal was filed clarified judge’s

decision so it was construed as being in aid of the appeal). In this respect, Holmes’s

reliance on State v. Leach, 8th Dist. Cuyahoga No. 84794, 2005-Ohio-1870, is misplaced.
 In Leach, this court found that a trial court was without authority to rule on the

defendant’s motion to withdraw guilty plea because the defendant had already filed an

appeal — this led to the possibility that the trial judge could vacate a guilty plea that this

court might uphold on appeal.        The second resentencing in this case was akin to a nunc

pro tunc entry because it changed nothing about the judgment; indeed, it was superfluous

for that reason.

       {¶20} Assuming for the sake of argument that the court lacked jurisdiction to

conduct the second resentencing, thus rendering it void, and the first resentencing entry

remained the valid resentencing entry, as the majority notes, Holmes has not asserted that

any error occurred in the first resentencing.     In other words, Holmes is arguing that he is

entitled to a new sentencing when he fails to raise any error with regard to his

resentencing.      I therefore agree with the majority’s decision to affirm the trial court.
