[Cite as State v. Patterson, 2019-Ohio-5173.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                  JUDGES:
                                                Hon. William B. Hoffman, P.J
         Plaintiff-Appellee                     Hon. Patricia A. Delaney, J.
                                                Hon. Earle E. Wise, Jr., J.
 -vs-
                                                Case No. 2019CA00110
 BRANDON C. PATTERSON

        Defendant-Appellant                     O P I N IO N




 CHARACTER OF PROCEEDINGS:                      Appeal from the Stark County Court of
                                                Common Pleas, Case No. 2019-CR-0136


 JUDGMENT:                                      Affirmed

 DATE OF JUDGMENT ENTRY:                        December 9, 2019

 APPEARANCES:


 For Plaintiff-Appellee                         For Defendant-Appellant

 JOHN D. FERRERO                                BRANDON C. PATTERSON
 Prosecuting Attorney                           Inmate No. A564-655
 Stark County, Ohio                             Trumbull Correctional Institution
                                                P.O. Box 901
 KRISTINE W. BEARD                              Leavittsburg, Ohio 44430
 Assistant Prosecuting Attorney
 Appellate Section
 110 Central Plaza South, Suite #510
 Canton, Ohio 44702-1413
Stark County, Case No. 2019CA00110                                                     2


Hoffman, P.J.
       {¶1}   Appellant Brandon C. Patterson appeals the judgment entered by the Stark

County Common Pleas Court resentencing him to an aggregate term of incarceration of

fourteen years for his convictions of two counts of felonious assault with accompanying

firearm specifications, and one count of having weapons under disability.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   The facts and much of the procedural history of this case can be found in

our previous opinions in this matter, and is incorporated herein. See State v. Patterson,

5th Dist. Stark No. 2009CA00142, 2010-Ohio-2988; State v. Patterson, 5th Dist. Stark

No. 2014CA00220, 2015-Ohio-1714; State v. Patterson, 5th Dist. Stark No.

2015CA00125, 2015-Ohio-4325; State v. Patterson, 5th Dist. Stark No. 2017CA00153,

2017-Ohio-9001.

       {¶3}   On March 4, 2019, the Eleventh District Court of Appeals issued a writ of

habeas corpus vacating Appellant’s conviction for attempted felony murder and the

accompanying firearm specification pursuant to State v. Nolan, 141 Ohio St. 3d 454, 25

N.E.3d 1016, 2014-Ohio-4800, In Nolan, the Ohio Supreme Court held attempted felony

murder is not a crime under Ohio law, and found the defendant’s conviction to be void

and not merely voidable. Patterson v. Bracy, 11th Dist. Trumbull No. 2016-T-0067, 132

N.E.3d 1115, 2019-Ohio-747, ¶13. The court remanded to the Stark County Common

Pleas Court for resentencing on Count 2, felonious assault with its attendant firearm

specification, holding as follows:



              As petitioner's conviction on count one, attempted felony murder, is

       void, it is vacated. He has therefore demonstrated that he is entitled to
Stark County, Case No. 2019CA00110                                                       3


     release from confinement but not absolute discharge as sentencing issues

     remain that cannot be fully addressed in the context of this action regarding

     sentencing on count two and the accompanying firearm specification. It is

     clear that count two, felonious assault, and the accompanying firearm

     specification cannot merge with the void conviction on count one as ordered

     in the first sentencing entry. However, after first merging count two with

     count one, and after the Fifth District remanded for what appears to be the

     limited purpose of imposing post-release control, the trial court, in its second

     sentencing entry, merged count two with count three. Thus, an issue

     remains as to which merger order controls. See State v. Teagarden, 5th

     Dist. Licking No. 14-CA-56, 2015-Ohio-2563, 2015 WL 3935756; State v.

     Carsey, 4th Dist. Athens No. 14CA5, 2014 WL 4181351, 2014-Ohio-3682,

     ¶ 11 (a trial court lacks jurisdiction to exceed the scope of an appellate

     court's remand and actions beyond the scope are void).

            The trial court then issued what it deems to be a nunc pro tunc entry

     sentencing petitioner to three years on count two but not the accompanying

     firearm specification. An issue remains as to whether this is a proper nunc

     pro tunc order. State v. Miller, 127 Ohio St.3d 407, 2010-Ohio-5705, 940

     N.E.2d 924, ¶ 15 (“ ‘Although courts possess inherent authority to correct

     clerical errors in judgment entries so that the record speaks the truth, “nunc

     pro tunc entries ‘are limited in proper use to reflecting what the court actually

     decided, not what the court might or should have decided.’ ” ’ ”). See also

     Barille v. O'Toole, 8th Dist. Cuyahoga No. 82063, 2003-Ohio-4343, 2003
Stark County, Case No. 2019CA00110                                                       4


      WL 21956982, ¶ 50; State v. McIntyre, 2d Dist. Montgomery No. 25502,

      2013-Ohio-3281, 2013 WL 3936376, ¶ 5; State v. Waltz, 12th Dist.

      Claremont, 2014-Ohio-2474, 14 N.E.3d 429, ¶ 16 (improper nunc pro tunc

      order is unenforceable as void).

             There are no factual disputes, and the parties have been afforded an

      opportunity to brief all issues. Respondent's motion to dismiss and/or for

      summary judgment is overruled, and judgment is hereby entered in favor of

      petitioner on his habeas corpus petition. It is the order of this court that a

      writ of habeas corpus is issued, under which his conviction for attempted

      felony murder and the accompanying firearm specification are declared void

      and vacated. Respondent is ordered to remand petitioner, Brandon C.

      Patterson, to Stark County for a sentencing hearing in Stark County C.P.

      No. 2009CR0136, and depending on the resolution of the multiple

      contingencies identified and further raised by the parties, sentencing on

      count two and the accompanying firearm specification.



      {¶4}   Id. at ¶¶ 28-30.

      {¶5}   The case proceeded to a resentencing hearing on Count Two of felonious

assault in the trial court. The court sentenced Appellant to four years incarceration on

Count Two of felonious assault and three years on the accompanying firearm

specification, and ordered the sentence to run consecutively to his three year sentence

on Count Three of felonious assault and the three year sentence on its accompanying

firearm specification, and consecutively to a sentence of one year incarceration for having
Stark County, Case No. 2019CA00110                                                       5


weapons under disability, for an aggregate term of fourteen years. It is from that judgment

of resentencing Appellant prosecutes his appeal, assigning as error:



             I. DID THE TRIAL COURT EXCEED ITS JURISDICTION BY

      CONDUCTING A DE NOVO RESENTENCING HEARING ON COUNT

      TWO, FELONIOUS ASSAULT, PURSUANT TO R.C. 2903.11(A)(1)

      AND/OR (A)(2)?

             II. DID THE TRIAL COURT IMPOSE A SENTENCE CONTRARY TO

      LAW BY IMPROPERLY EMPLOYING THE SENTENCING PACKAGE

      DOCTRINE IN VIOLATION OF THE U.S. CONST. AMEND. V AND XIV,

      ART. 1, § I, AND THE OH. CONST. V AND XVI, AND R.C. 2953.08?

             III. DID THE TRIAL COURT VIOLATE THE DEFENDANT’S RIGHT

      TO DUE PROCESS WHEN THE ORIGINAL JUDGE RESENTENCED THE

      DEFENDANT TO A PRESUMPTIVELY VINDICTIVE, PEARCE, 395 U.S.

      711, 726, HARSHER SENTENCE [ON COUNT TWO] WITH NO

      OBJECTIVE INFORMATION ON THE RECORD?

             IV. DID THE TRIAL COURT CONSIDER AND PROPERLY APPLY

      THE STATUTORY GUIDELINES, PURSUANT TO R.C. 2929.11, 2929.12,

      AND R.C. 2929.14(C)(4), WHEN EXERCISING DISCRETION TO IMPOSE

      A CONSECUTIVE SENTENCE FOR COUNT TWO, FELONIOUS

      ASSAULT?
Stark County, Case No. 2019CA00110                                                     6


        {¶6}    Preliminarily, we note this case comes to us on the accelerated calendar.

App. R. 11.1, which governs accelerated calendar cases, provides in pertinent part the

following:



                (E) Determination and judgment on appeal

                The appeal will be determined as provided by App. R. 11.1. It shall

        be sufficient compliance with App. R. 12(A) for the statement of the reason

        for the court's decision as to each error to be in brief and conclusionary

        form.

                The decision may be by judgment entry in which case it will not be

        published in any form.



        {¶7}    This appeal shall be considered in accordance with the aforementioned

rule.

                                                I.

        {¶8}    In his first assignment of error, Appellant argues his previously imposed

sentence of three years incarceration on count two, felonious assault, ordered to run

concurrently with count one, attempted felony murder, was not affected by the remand

and could not be increased to four years. He further argues the imposition of a new

sentence on this count violates the double jeopardy clause.

        {¶9}    Pursuant to State v. Williams, 148 Ohio St. 3d 403, 2016-Ohio-7658, 71

N.E.3d 234, Appellant’s sentence for count two of felonious assault, which as an allied

offense merged into count one of attempted felony murder, was void. Having vacated as
Stark County, Case No. 2019CA00110                                                     7


void the sentence for attempted felony murder which count two of felonious assault had

merged into, the Eleventh District Court of Appeals remanded the matter for resentencing

on count two. A remand for a new sentencing hearing generally anticipates a de novo

sentencing hearing. State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d

381, ¶ 15. During a de novo resentencing, the trial court is free to impose the identical

sentence which was originally imposed, or a greater or lesser sentence within its

discretion. State v. Jackson, 8th Dist. Cuyahoga No. 92365, 2009-Ohio-4995, ¶ 9.

      {¶10} We find the trial court was free to impose a greater sentence than the three

year sentence, which was rendered void, it had previously imposed for felonious assault.

      {¶11} Further, we find no double jeopardy violation because Appellant’s previous

sentence for felonious assault was void. Jeopardy does not attach to a void sentence.

State v. Jordan, 104 Ohio St. 3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶25.

      {¶12} Appellant’s first assignment of error is overruled.

                                               II.

      {¶13} In his second assignment of error, Appellant argues the court erred in

employing the sentencing package doctrine.

      {¶14} The “sentencing package doctrine” is a federal sentencing doctrine which

requires federal courts to consider the sum of a defendant's convicted counts as a

package in handing down a single overarching sentence for those counts. As such, if any

one part of the sentence is vacated on appeal, the entire sentence may be vacated and

the package of offenses can be remanded for resentencing. See, generally, State v.

Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 4-5. In Saxon, the

Supreme Court of Ohio expressly rejected application of the doctrine for State offenses.
Stark County, Case No. 2019CA00110                                                       8


      {¶15} We find nothing in the record to demonstrate the court employed the

sentencing package doctrine.

      {¶16} The second assignment of error is overruled.

                                               III.

      {¶17} In his third assignment of error, Appellant argues the increase of his

sentence from three years to four years on remand is presumptively vindictive pursuant

to North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 l.Ed.2d 656 (1969).

      {¶18} In Pearce, the United States Supreme Court held when a judge imposes a

more severe sentence upon a defendant after a new trial, the reasons for his doing so

must “be based upon objective information concerning identifiable conduct on the part of

the defendant occurring after the time of the original sentencing proceeding,” and further

“the factual data upon which the increased sentence is based must be made part of the

record, so that the constitutional legitimacy of the increased sentence may be fully

reviewed on appeal.” Id. at 726, 89 S. Ct. at 2081.

      {¶19} However, Pearce was later altered by Alabama v. Smith, in which the United

States Supreme Court limited the presumption of vindictiveness to circumstances in

which there is a “reasonable likelihood” an unexplained increase in sentence is the

product of actual vindictiveness on the part of the sentencing authority. 490 U.S. 794, 109

S. Ct. 2201, 2202 (1989). Where there is no such reasonable likelihood, the defendant

has the burden of proving actual vindictiveness without aid of a presumption. Id.

      {¶20} Appellant has not proven actual vindictiveness in the instant case. The

State argued for a sentence of eight years for count two of felonious assault, while

Appellant argued for a sentence of three or five years. Resentencing Tr. 9. Appellant
Stark County, Case No. 2019CA00110                                                        9


has not demonstrated vindictiveness, as the four year sentence imposed by the court was

actually less than the high-end five year sentence proposed by Appellant.

       {¶21} The third assignment of error is overruled.

                                                IV.

       {¶22} In his fourth assignment of error, Appellant argues the court erred in

imposing consecutive sentences.

       {¶23} The sentencing transcript and the judgment entry of resentencing reflect the

court considered the general sentencing guidelines set forth in R.C. 2929.11 and R.C.

2929.12, and made findings in accordance with R.C. 2929.14(C)(4) to support the

imposition of consecutive sentences. Appellant argues there is no mention in the court’s

consecutive sentencing findings of his conduct in prison during the ten years elapsed

from his original sentence. The trial court is not obligated to state its reasons in support

of the statutory findings to support consecutive sentences. State v. Bonnell, 140 Ohio

St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37 (2014).
Stark County, Case No. 2019CA00110                                             10


      {¶24} The fourth assignment of error is overruled.

      {¶25} The judgment of the Stark County Common Pleas Court is affirmed.




By: Hoffman, P.J.
Delaney, J. and
Wise, Earle, J. concur
