[Cite as State v. Hawkins, 2019-Ohio-562.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


State of Ohio,                                     :

                 Plaintiff-Appellee,               :
                                                                   No. 18AP-600
v.                                                 :           (C.P.C. No. 96CR-2229)

Leon Hawkins,                                      :       (ACCELERATED CALENDAR)

                 Defendant-Appellant.              :




                                             D E C I S I O N

                                   Rendered on February 14, 2019


                 On brief: Ron O'Brien, Prosecuting Attorney, and Sheryl L.
                 Prichard, for appellee.

                 On brief: Leon Hawkins, pro se.

                  APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
        {¶ 1} Defendant-appellant, Leon Hawkins, appeals the July 17, 2018 judgment
entry of the Franklin County Court of Common Pleas denying his motion for resentencing.
For the following reasons, we affirm.
I. Facts and Procedural History
        {¶ 2}     Appellant has been before the trial court and this court on numerous prior
occasions. See State v. Hawkins, 10th Dist. No. 97APA06-740 (Mar. 27, 1998) (affirming
appellant's convictions on direct appeal); State v. Hawkins, 10th Dist. No. 09AP-973
(Dec. 2, 2009) (Journal Entry of Dismissal) (dismissing appellant's appeal as trial court had
not yet ruled on appellant's motion for new trial); State v. Hawkins, 10th Dist. No. 12AP-
164 (Sept. 27, 2012) (memorandum decision) (affirming trial court's denial of a
No. 18AP-600                                                                               2


postconviction motion); and State v. Hawkins, 10th Dist. No. 18AP-126, 2018-Ohio-5251
(affirming trial court's denial of appellant's motion to resentence).
       {¶ 3} On May 21, 2018, appellant, pro se, filed another motion for resentencing.
Plaintiff-appellee, State of Ohio, opposed the same. On July 17, 2018, the trial court denied
appellant's motion noting that "[d]efendant did not receive a void or partially void
judgment, and is not entitled to a resentencing hearing."
II. Assignment of Error
       {¶ 4} Appellant appeals and assigns the following single assignment of error for our
review:
              The Trial court erred by denying Appellant's motion to set aside
              his conviction and sentence because the sentencing journal
              entries were void and violated his constitutional rights to due
              process and protection against double jeopardy.

III. Analysis
       {¶ 5} Appellant argues that, although, at the sentencing hearing, the trial court
merged Count 1, aggravated murder, and Count 2, aggravated murder, the trial court did
not merge the offenses in the judgment entry. Rather, according to appellant, the trial court
sentenced appellant on both Counts 1 and 2 in its sentence entry. Appellant argues the
sentence, therefore, is contrary to R.C. 2941.25(A), and should be remanded to the trial
court in light of State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658. Appellant points
to the following holding from Williams:
              A court only has authority to impose a sentence that conforms
              to law, and R.C. 2941.25 prohibits the imposition of multiple
              sentences for allied offenses of similar import. Thus, when a
              sentencing court concludes that an offender has been found
              guilty of two or more offenses that are allied offenses of
              similar import, in conformity with State v. Whitfield, 124 Ohio
              St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, it should permit the
              state to select the allied offense to proceed on for purposes of
              imposing sentence and it should impose sentence for only that
              offense. Accordingly, imposing separate sentences for allied
              offenses of similar import is contrary to law and such
              sentences are void. Therefore, res judicata does not preclude
              a court from correcting those sentences after a direct appeal.

Id. at ¶ 2.
No. 18AP-600                                                                             3


       {¶ 6} The state argues a complete reading of the sentencing entry indicates
appellant was only sentenced on Counts 1, 3, 4, and 5. In the alternative, the state argues
even if this court were to determine the trial court erred, the remedy would not be to
resentence appellant. Rather, the state suggests, pursuant to Williams, the remedy would
be to modify the judgment to vacate the sentence on Count 2 and leave the remaining
counts undisturbed. The state points to Williams:
              The judgment of conviction in this case states the trial court's
              finding that the two counts of aggravated murder and one
              count of murder of which Williams was convicted are allied
              offenses of similar import, and the concurrent sentences it
              imposed for those offenses are therefore contrary to law. But
              there is no need to remand for resentencing, because at the
              sentencing hearing, the state elected to have Williams
              sentenced for aggravated murder as charged in Count three,
              and the trial court had no discretion to impose separate
              sentences for Counts one and two.

              Accordingly, we modify the judgment of the court of appeals
              to vacate the sentences imposed for murder in Count one and
              aggravated murder in Count two, which the trial court found
              subject to merger. The remaining convictions and sentences,
              including the sentence of life with the possibility of parole
              after 30 years imposed for aggravated murder in Count three,
              are not affected by our ruling today.

Id. at ¶ 32-33.

       {¶ 7} The judgment entry in this case, filed May 9, 1997, states:
              The Court has considered all matters required by section
              2929.12 and 2951.02 of the Ohio Revised Code, and it is the
              sentence of the Court that the Defendant pay the costs of this
              prosecution and serve LIFE WITH THIRTY (30) FULL
              YEARS BEFORE PAROLE ELIBIGILITY plus THREE
              (3) ACTUAL INCARCERATION for the firearm
              specification as to Count One: LIFE WITH THIRTY
              (30) FULL YEARS BEFORE PAROLE ELIGIBILITY
              plus THREE (3) ACTUAL INCARCERATION for the
              firearm specification as to Count Two; Counts One
              and Two to merge for purposes of sentencing; the
              State elects to have the Defendant sentenced as to
              Count One; SEVEN (7) to TWENTY FIVE (25) YEARS
              plus THREE (3) YEARS ACTUAL INCARCERATION
              for the gun specification as to Count Three; TEN (10)
No. 18AP-600                                                                               4


                to TWENTY FIVE (25) YEARS plus THREE (3) YEARS
                ACTUAL INCARCERATION for the gun specification
                as to Counts Four and Five at the Ohio Department of
                Rehabilitation and Correction. The three (3) years actual
                incarceration for the gun specification on Counts One, Three,
                Four and Five are to merge into one three year actual
                incarceration for purposes of the sentence in this case. Counts
                One, Three and Four are to run CONSECUTIVE with each
                other. Count Five is to run CONCURRENT with all other
                counts.

(Emphasis added.) (Judgment Entry at 2.)
       {¶ 8} The state points out that this entry is inartfully stated. However, a complete
reading of the entry reveals the trial court only sentenced appellant on Count 1 and not on
Count 2. This conclusion is based on: (1) the statement in the entry that "Counts One and
Two to merge for purposes of sentencing; the State elects to have the Defendant sentenced
as to Count One"; and (2) the latter references in the entry to the merger of the three years
of actual incarceration for the gun specifications only as to Counts 1, 3, 4, and 5.
       {¶ 9} Therefore, we overrule appellant's assignment of error.
IV. Conclusion
       {¶ 10} Having overruled appellant's single assignment of error, we affirm the
judgment of the Franklin County Court of Common Pleas denying appellant's motion for
resentencing.
                                                                         Judgment affirmed.
                      LUPER SCHUSTER and BRUNNER, JJ., concur.
