[Cite as State v. Kennedy, 2017-Ohio-5547.]


                                       COURT OF APPEALS
                                   GUERNSEY COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                 :   JUDGES:
                                               :
                                               :   Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                     :   Hon. John W. Wise, J.
                                               :   Hon. Earle E. Wise, Jr., J.
 -vs-                                          :
                                               :   Case No. 16-CA-27
                                               :
 RONALD KENNEDY, JR.                           :
                                               :
                                               :
        Defendant-Appellant                    :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Guernsey County Court
                                                   of Common Pleas, Case No. 10-CR-97



JUDGMENT:                                          REVERSED, SENTENCE VACATED,
                                                   AND REMANDED



DATE OF JUDGMENT ENTRY:                            June 26, 2017




APPEARANCES:

 For Plaintiff-Appellee:                           For Defendant-Appellant:

 JASON R. FARLEY                                   FREDERICK A. SEALOVER
 145 N. 7th Street                                 45 N. Fourth St.
 Cambridge, OH 43725                               P.O. Box 2910
                                                   Zanesville, OH 43702-2910
Guernsey County, Case No. 16-CA-27                                                      2

Delaney, P.J.

       {¶1} Appellant Ronald Kennedy, Jr. appeals from the decisions of the Guernsey

County Court of Common Pleas denying his motion to modify sentence and motion for

reconsideration thereof. Appellee is the state of Ohio.

                        FACTS AND PROCEDURAL HISTORY

       {¶2} A statement of the facts underlying appellant’s criminal convictions is not

necessary to our resolution of this appeal.

       {¶3} On November 23, 2010, appellant entered negotiated pleas of guilty to nine

counts of an 18-count indictment as follows: Count 4, theft, a felony of the fourth degree

pursuant to [former] R.C. 2913.02; Count 5, breaking and entering, a felony of the fifth

degree pursuant to R.C. 2911.13(B); Count 6, vandalism, a felony of the fourth degree

pursuant to [former] R.C. 2909.05(B);1 Count 10, theft, a felony of the fourth degree

pursuant to [former] R.C. 2913.02; Count 11, breaking and entering, a felony of the fifth

degree pursuant to R.C. 2911.13(B); Count 12, vandalism, a felony of the fourth degree

pursuant to [former] R.C. 2909.05(B);2 Count 16, theft, a felony of the fifth degree

pursuant to [former] R.C. 2913.02; Count 17, breaking and entering, a felony of the fifth

degree pursuant to R.C. 2911.13(B); and Count 18, vandalism, a felony of the fifth degree

pursuant to [former] R.C. 2909.05(B).3




1 Counts 4, 5, and 6 related to breaking and entering upon the property of the Guernsey-
Muskingum Electric Cumberland Substation and stealing copper wiring with a value of
$5,670.21. Appellee’s Bill of Particulars, Aug. 16, 2010.
2 Counts 10, 11, and 12 related to breaking into property of the American Electric Power

Company on Claypike Road in Senecaville, stealing copper wire, and incurring damage
or loss in the amount of $10,500. Appellee’s Bill of Particulars, Aug. 16, 2010.
3 Counts 16, 17, and 18 related to breaking and entering upon the property of Metallurg

Vanadium, stealing copper wire, and incurring damage or loss in the amount of $3,518.90.
Guernsey County, Case No. 16-CA-27                                                     3


       {¶4} At a sentencing hearing on November 23, 2010, appellant was sentenced

to an aggregate prison term of 54 months, consisting of nine consecutive terms of six

months each. The prison term was suspended, however, on the condition that appellant

complete six months of local incarceration and comply with terms and conditions of

community control supervision.

       {¶5} On March 5, 2015, a motion to revoke appellant’s community control

sanction was filed and a hearing was held on April 13, 2015. The trial court granted the

motion to revoke appellant’s community control and imposed the 54-month term, noting

the court “may consider judicial release at the appropriate time” and appointed counsel

to represent appellant in preparation of subsequent motions for judicial release.

       {¶6} Appellant filed a motion for judicial release on November 25, 2015; appellee

responded with a memorandum contra and the trial court denied the motion on December

29, 2015.

       {¶7} Appellant filed a second motion for judicial release on May 4, 2016; appellee

filed a memorandum contra and the trial court denied the motion on May 23, 2016, stating

in pertinent part, “The Court, having reviewed its file and the presentence investigation

report in this case, finds that the [motion] should be, and hereby is, DENIED WITH

PREJUDICE to Defendant’s filing any future motions for judicial release in this case

pursuant to Revised Code Section 2929.20.” (Emphasis in original.)

       {¶8} On September 9, 2016, appellant filed a pro se motion for reconsideration

of judicial release which was denied on September 12, 2016.

       {¶9} On October 5, 2016, appellant filed a pro se “Motion to Modify Sentence

Pursuant to Ohio Revised 2929.51, Ohio Revised Code 2941.25(B), Ohio Revised Code
Guernsey County, Case No. 16-CA-27                                                     4

1.58(b), and House Bill 86” (sic). Appellee filed a memorandum in response and the trial

court denied the motion on November 9, 2016.

      {¶10} Appellant filed a pro se motion for reconsideration which was denied on

November 28, 2016.

      {¶11} Appellant now appeals from the judgment entries of the trial court denying

his motion to modify sentence and his motion for reconsideration.

      {¶12} Appellant raises one assignment of error:

                              ASSIGNMENT OF ERROR

      {¶13} “THE TRIAL COURT ERRED BY DENYING THE DEFENDANT-

APPELLANT’S PRO SE MOTION TO MODIFY SENTENCE AND HIS MOTION FOR

RECONSIDERATION THEREOF.”

                                      ANALYSIS

      {¶14} In his sole assignment of error, appellant argues the trial court should have

granted his motion to modify his sentence. We agree and find that appellant’s sentence

must be vacated, and remand this matter for resentencing.

      {¶15} Appellant’s motion to modify sentence before the trial court was premised

upon three arguments and we will address each in turn.

             Two Claims Barred by Res Judicata: Merger, Ineffective Assistance

      {¶16} First, appellant argued his theft offenses should have merged for purposes

of sentencing. Second, appellant alleged ineffective assistance of trial counsel because

counsel should have made the argument for merger. Both of these claims are cognizable

from the record and are barred by the doctrine of res judicata, which may be applied to

bar further litigation in a criminal case of issues which were raised previously or could
Guernsey County, Case No. 16-CA-27                                                          5

have been raised previously in an appeal. State v. Johnson, 8th Dist. Cuyahoga No.

80247, 2002-Ohio-2712, ¶ 7.

       {¶17} Appellant failed to file a direct appeal from his convictions and sentence.

Nevertheless, under the doctrine of res judicata, a final judgment of conviction bars a

convicted defendant who was represented by counsel from raising and litigating in any

proceeding except an appeal from that judgment, any defense or claimed lack of due

process that was raised or could have been raised by the defendant at the trial, which

resulted in that judgment of conviction, or on an appeal from that judgment. State v.

Szefcyk, 77 Ohio St.3d 93, 96, 1996-Ohio-337, 671 N.E.2d 233; State v. Perry, 10 Ohio

St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus. Not only does res

judicata bar appellant from raising issues that were raised in his direct appeal, it also bars

issues that could have been raised in that appeal. Szefcyk, supra.

        Imposition of Appellant’s Sentence and Application of R.C. 1.58(B): Appellant is
                         entitled to Benefit of Changes under H.B. 86

       {¶18} Appellant’s third argument before the trial court was that his sentence was

imposed on April 9, 2015, and therefore he should have been subject to “the more

favorable provisions of H.B. 86,” although he failed to specify which favorable sentencing

amendments were applicable.         In appellee’s response contra the motion, appellee

conceded appellant’s argument for application of H.B.86, acknowledging the legislation

changed the degree of penalty of several of appellant’s convictions. The trial court agreed

with appellee, finding that although Counts 4, 6, 10, and 12 as applied to appellant are

now felonies of the fifth degree, any error in sentencing was “harmless” because the 6-

month terms imposed on each count are within the sentencing range for felonies of the

fifth degree.
Guernsey County, Case No. 16-CA-27                                                          6


         {¶19} We disagree with the underlying premise of harmless error because

appellant remains convicted of, and sentenced upon, felonies of the fourth degree which

should be felonies of the fifth degree. Moreover, the trial court did not make requisite

findings for imposing consecutive sentences as required post-H.B.86.

         {¶20} R.C. 1.58(B) states, “If the penalty, forfeiture, or punishment for any offense

is reduced by a reenactment or amendment of a statute, the penalty, forfeiture, or

punishment, if not already imposed, shall be imposed according to the statute as

amended.” The first issue is whether appellant’s sentence was “not already imposed” for

purposes of R.C. 1.58(B) at the time he was sentenced to community control in 2010 or

when community control was revoked and the prison term was imposed in 2015. Appellee

now argues appellant may not claim the benefit of amendments to the law. Before the

trial court, though, appellee conceded the changes wrought by H.B. 86 apply to appellant,

but argued any error in sentencing him upon the felonies of the fourth degree is harmless.4

         {¶21} On appeal, appellee argues non-conditional language in the original

sentencing entry means appellant’s sentence was effectively “imposed” in 2010, therefore

he is not entitled to the benefits of H.B. 86 as enacted in 2011. In State v. Taylor, 138

Ohio St.3d 194, 2014-Ohio-460, 5 N.E.3d 612, at ¶ 19, the Ohio Supreme Court held, in

accordance with R.C. 1.58(B) and the uncodified portion of Section 4 of H.B.86, the

determining factor whether the provisions of H.B.86 apply to an offender is not the date

of the commission of the offense but rather whether sentence has been “imposed.” In

Taylor, the offender was not yet sentenced on the date the amendments became




4   Memorandum in Response to Defendant’s Motion to Modify Sentence, Oct. 18, 2016.
Guernsey County, Case No. 16-CA-27                                                       7


effective, but had already entered pleas of guilty, therefore the trial court had a duty to

impose sentence in accord with the amended statutes. Id. at ¶ 20.

       {¶22} The question in the instant case is whether appellant’s sentence was

effectively “imposed” in 2010 (when he was originally sentenced) or in 2015 (when

community control was revoked and he was sent to prison). We have previously joined

with districts holding that a prison term is not “imposed” until the offender's community

control is revoked. State v. Fisher, 5th Dist. Stark No. 2012CA00031, 2013-Ohio-2081, ¶

15, citing State v. Nistelbeck, 10th Dist. Franklin No. 11AP–874, 2012–Ohio–1765; State

v. West, 2nd Dist. Montgomery No. 24998, 2012–Ohio–4615; State v. Marshall, 6th Dist.

Erie No. E–12–022, 2013–Ohio–1481. In these decisions, we and other districts looked

to the language of the trial court’s original sentencing entry. If the trial court used

conditional language indicating a prison term “would be imposed” if the offender violated

certain conditions, we found the conditional language supports the conclusion the prison

term was not “imposed” until the community control sanctions were revoked. Fisher,

supra, 2013-Ohio-2081 at ¶ 18.

       {¶23} It is possible for the outcome to vary based upon the language in the

sentencing entry. The Fourth District applied the same rationale to what it found to be

non-conditional language in a sentencing entry and reached a different result. State v.

Coon, 4th Dist. Meigs No. 14CA2, 2014-Ohio-5521, ¶ 10, citing Marshall, supra, 2013–

Ohio–1481; State v. Vlad, 153 Ohio App.3d 74, 2003–Ohio–2930, 790 N.E.2d 1246, ¶ 16

(7th Dist.); Nistelbeck, supra, 2012–Ohio–1765; West, supra, 2012–Ohio–4615; and

Fisher, supra, 2013-Ohio-2081.
Guernsey County, Case No. 16-CA-27                                                          8


       {¶24} Appellee directs us to the language of the sentencing entry, and words used

by the trial court at sentencing, to demonstrate Coon is on point with the instant case. In

Coon, at the original sentencing hearing in 2008, the trial court stated: “ * * * it is hereby

ORDERED, ADJUDGED and DECREED that the said Jeffrey A. Coon, as to Count

Three, charging the offense of THEFT, a felony of the fourth degree, be sentenced to a

term of EIGHTEEN MONTHS in a proper state penal institution; and as to Count Four,

charging the offense of PASSING BAD CHECKS, a felony of the third degree, be

sentenced to a term of FIVE YEARS in a proper state penal institution.” The trial court

further ordered those sentences to be served consecutively for an aggregate sentence of

six and one-half years. The trial court went on to state in the same sentencing entry: “It is

further ORDERED that the sentences as to Counts Three and Four be suspended and

the Defendant placed on community control for a period of five years * * *.” On appeal,

the Coon court concluded the trial court “imposed” the prison terms in 2008, but then

suspended them, placing the offender on community control; the prison terms were thus

effectively “imposed” prior to the effective date of H.B. 86, therefore the defendant did not

benefit from the changes in the law. Coon, supra, 2014-Ohio-5521 at ¶ 13.

       {¶25} Appellee asks us to rely upon similar language in the original sentencing

entry in the instant case, but we find the trial court’s language here to be conditional. We

note the following statement by the trial court on the record at the 2010 sentencing

hearing:

                     * * * *. However, the Court finds in this instant (sic) that the

              appropriate sentence for you is six months in prison for each of the

              counts to which you have plead “Guilty” and been convicted.
Guernsey County, Case No. 16-CA-27                                                      9


              However, each count will run consecutive with each other for a total

              of a fifty-four (54) moth prison sentence or four and a half years (4½)

              years in prison. That is an appropriate sentence for the conduct and

              the damage done here. However, that sentence is a stated term

              of imprisonment pursuant to State verses (sic) Brooks, if your

              community control sanctions are revoked. * * * *. (Emphasis

              added).

                     T. 18.

       {¶26} In the judgment entry of sentence dated November 23, 2010, the relevant

portions state:

                     * * * *.

                     1. Defendant is ORDERED to serve stated prison terms of

              SIX (6) MONTHS on each of the nine convictions, none of which is

              mandatory pursuant to Revised Code Section 2929.13(F).             The

              Court ORDERS these prison terms served CONSECUTIVELY, for a

              total period of imprisonment in this case of 54 months. (Emphasis in

              original.)

                     * * * *.

                     5.         Defendant’s   54-months   prison   term   is   hereby

              SUSPENDED, with Defendant ORDERED to serve SIX (6)

              MONTHS in the Guernsey County Jail. (Emphasis in original.)

                     * * * *.
Guernsey County, Case No. 16-CA-27                                                     10


                    9. Defendant was notified in open Court that violation of any

             of this sentence shall lead to a more restrictive sanction, a longer

             sanction, or reimposition of the 54-month prison term.

             (Emphasis added.)

                    * * * *.

       {¶27} We further note the judgment entry of April 13, 2015 revoking community

control states in pertinent part, “The Court hereby REIMPOSES the total 54-month stated

prison term imposed by Judgment Entry of Sentence filed November 23, 2010.”

(Emphasis in original.)

       {¶28} The effect of our review of the record, therefore, is that appellant’s prison

term was “imposed” when community control was revoked in 2015, thus for purposes of

R.C. 1.58(B), appellant is entitled to any reduction in the penalty imposed as amended

by H.B.86.

        Resentencing for Findings on Consecutive Sentences and Degree of Offenses

       {¶29} Appellant argues on appeal he is entitled to concurrent sentences pursuant

to H.B. 86 because the trial court did not make the findings enumerated in R.C.

2929.14(C)(4). The trial court is not necessarily required to impose concurrent sentences

in the instant case, but we do agree the trial court must make findings in support of

consecutive sentences.         H.B.86 amended subsection (E)(4) of R.C. 2929.14 [now

subsection (C)(4)] and subsection (A) of R.C. 2929.41, effective September 30, 2011.

Those sections now state the following, respectively:

                    R.C. 2929.14(C)(4): If multiple prison terms are imposed on

             an offender for convictions of multiple offenses, the court may require
Guernsey County, Case No. 16-CA-27                                                   11


           the offender to serve the prison terms consecutively if the court finds

           that the consecutive service is necessary to protect the public from

           future crime or to punish the offender and that consecutive sentences

           are not disproportionate to the seriousness of the offender's conduct

           and to the danger the offender poses to the public, and if the court

           also finds any of the following:

                  (a) The offender committed one or more of the multiple

           offenses while the offender was awaiting trial or sentencing, was

           under a sanction imposed pursuant to section 2929.16, 2929.17, or

           2929.18 of the Revised Code, or was under post-release control for

           a prior offense.

                  (b) At least two of the multiple offenses were committed as

           part of one or more courses of conduct, and the harm caused by two

           or more of the multiple offenses so committed was so great or

           unusual that no single prison term for any of the offenses committed

           as part of any of the courses of conduct adequately reflects the

           seriousness of the offender's conduct.

                  (c) The offender's history of criminal conduct demonstrates

           that consecutive sentences are necessary to protect the public from

           future crime by the offender.

                  R.C. 2929.41(A): Except as provided in division (B) of this

           section, division (E) of section 2929.14, or division (D) or (E) of

           section 2971.03 of the Revised Code, a prison term, jail term, or
Guernsey County, Case No. 16-CA-27                                                       12


              sentence of imprisonment shall be served concurrently with any

              other prison term, jail term, or sentence of imprisonment imposed by

              a court of this state, another state, or the United States. Except as

              provided in division (B)(3) of this section, a jail term or sentence of

              imprisonment for misdemeanor shall be served concurrently with a

              prison term or sentence of imprisonment for felony served in a state

              or federal correctional institution.

       {¶30} Pursuant to R.C. 2929.14, as revised by H.B.86 in effect at the time of

imposition of appellant’s sentence in 2015, the trial court was required to make the

statutorily-required findings prior to imposing consecutive sentences. Fisher, supra, 2013-

Ohio-2081 at ¶ 20. The trial court is not required to recite any “magic” or “talismanic”

words when imposing consecutive sentences provided it is “clear from the record that the

trial court engaged in the appropriate analysis.” Id., citing State v. Fauntleroy, 5th Dist.

Muskingum No. CT2012–0001, 2012–Ohio–4955, ¶ 7 citing State v. Murrin, 8th Dist.

Cuyahoga No. 83714, 2004–Ohio–3962, ¶ 12. Accord, State v. Jones, 1st Dist. Hamilton

No. C–110603, 2012–Ohio–2075, ¶ 22. In this case, our review of the sentencing hearing

demonstrates the trial court did not make the requisite findings. Fisher, supra, at ¶ 20.

       {¶31} Moreover, as we addressed supra, appellee’s argument before the trial

court acknowledged that H.B.86 changed the degree of four of appellant’s convictions

from felonies of the fourth degree to felonies of the fifth degree.        We remand for

resentencing on that basis as well.

       {¶32} Having found the trial court did not comply with the applicable sentencing

statutes in imposing consecutive sentences, and that appellant presently remains
Guernsey County, Case No. 16-CA-27                                                   13


convicted and sentenced upon offenses of the incorrect degree, we are unable to

conclude that the sentences imposed by the trial court constitute harmless error. State

v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 20 [sentences that

do not comport with mandatory provisions are subject to total resentencing]; State v.

Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1 [appellate court must

uphold felony sentence unless the evidence clearly and convincingly does not support

trial court's findings under the applicable sentencing statutes or sentence is otherwise

contrary to law].

       {¶33} Appellant’s sole assignment of error is sustained, the judgment entries of

the trial court are reversed, and appellant’s sentences are vacated. This matter is

remanded to the trial court for the limited purpose of resentencing.
Guernsey County, Case No. 16-CA-27                                                 14


                                    CONCLUSION

       {¶34} Appellant’s sole assignment of error is sustained and the judgment of the

Guernsey County Court of Common Pleas is reversed. Appellant’s sentence is vacated

and this matter is remanded for resentencing in accord with this opinion.

By: Delaney, P.J.,

Wise, John, J. and

Wise, Earle, J., concur.
