[Cite as State v. Grier, 2016-Ohio-8036.]
                            STATE OF OHIO, MAHONING COUNTY

                                   IN THE COURT OF APPEALS

                                            SEVENTH DISTRICT


STATE OF OHIO                                     )    CASE NO. 15 MA 0085
                                                  )
        PLAINTIFF-APPELLEE                        )
                                                  )
VS.                                               )    OPINION
                                                  )
BREYONA GRIER                                     )
                                                  )
        DEFENDANT-APPELLANT                       )

CHARACTER OF PROCEEDINGS:                              Criminal Appeal from the Court of
                                                       Common Pleas of Mahoning County,
                                                       Ohio
                                                       Case No. 2014 CR 407

JUDGMENT:                                              Reversed and Vacated.

APPEARANCES:

For Plaintiff-Appellee:                                Atty. Paul J. Gains
                                                       Mahoning County Prosecutor
                                                       Atty. Ralph M. Rivera
                                                       Assistant Prosecuting Attorney
                                                       21 West Boardman Street, 6th Floor
                                                       Youngstown, Ohio 44503

For Defendant-Appellant:                               Atty. Ronald D. Yarwood
                                                       DeGenova & Yarwood, Ltd.
                                                       42 North Phelps Street
                                                       Youngstown, Ohio 44503


JUDGES:

Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Hon. Carol Ann Robb
                                                       Dated: December 7, 2016
[Cite as State v. Grier, 2016-Ohio-8036.]
WAITE, J.


        {¶1}     Appellant, Breyona Grier, appeals from a Mahoning County Common

Pleas Court judgment entry sentencing her to incarceration. Based on the following,

the judgment of the trial court is reversed, Appellant’s sentence is vacated, and the

February 26, 2015 judgment entry sentencing Appellant to community control is

hereby reinstated.

        {¶2}     On April 23, 2014, Appellant attempted to shoplift food from Family

Dollar. When her action was discovered, she threw the items at the store employee,

pushed the employee away and attempted to escape. On June 12, 2014, Appellant

was charged with robbery, in violation of R.C. 2911.02. On July 2, 2014, she entered

a guilty plea and the state recommended that Appellant enter mental health court.

The matter was referred to mental health court on July 9, 2014.

        {¶3}     On October 29, 2014, a bench warrant was issued because

Appellant was noncompliant with the mental health court program. Appellant's

bond was revoked and she was ordered held without bond awaiting further

action by the court. An evaluation by Turning Point Health Services was ordered.

On December 18, 2014, a magistrate determined that Appellant was in violation of

mental health court and she was taken into custody.

        {¶4}     A sentencing hearing was held on February 26, 2015. The state took

no position on sentencing. Defense counsel had been in contact with a program

entitled Teen Challenge, which evaluated Appellant and initially found her to be a

suitable candidate for the program. The trial court sentenced Appellant to five years
                                                                                     -2-

of community control and ordered that she successfully complete the Teen Challenge

program. The trial court decision stated:

       The Court finds pursuant to R.C. 2929.13(D) that:


       a non-prison sanction does not demean the seriousness of the offense;

       AND a non-prison sanction will adequately punish Defendant and

       protect the public AND factors decreasing seriousness outweigh those

       increasing seriousness; AND there is less likelihood of recidivism.

(2/26/15 J.E.)

       {¶5}   At the conclusion of the sentencing hearing Appellant was remanded to

the Mahoning County Jail to await transport to Teen Challenge. On March 25, 2015,

the trial court set the matter for a status hearing because Appellant had yet to be

transported to the Teen Challenge program. On May 6, 2015, the trial court elected

to hold what it captioned a “re-sentencing hearing.” At this hearing, defense counsel

informed the trial court that Appellant had been rejected by the Teen Challenge

program and that other programs were apparently not available. The state’s position

was that incarceration in a state penitentiary was the best option. At the conclusion

of the hearing, the trial court sentenced Appellant to three years of incarceration with

credit for time served.

       {¶6}   Appellant filed this timely appeal.     Appellee filed a confession of

judgment on August 31, 2015, admitting the trial court improperly sentenced

Appellant to a term of incarceration. Appellant filed a stay of execution of sentence

on September 8, 2015. Appellee filed a motion in opposition on September 10,
                                                                                   -3-

2015, contending Appellant should be required to post a bond before being released

from the penitentiary. On September 30, 2015 we granted Appellant's motion to

stay conditioned on Appellant posting a bond of $5,000 cash or surety.

       {¶7}   Appellant raises two assignments of error.

                           ASSIGNMENT OF ERROR NO. 1

       Appellant was denied due process of law as guaranteed by both the

       Ohio and United State's [sic] Constitution when the trial court imposed a

       prion [sic] term as part of a “re-sentencing” when it lacked jurisdiction

       over Appellant.

       {¶8}   Appellant argues she was denied due process when the trial court

imposed a sentence of incarceration at the second sentencing hearing.

       {¶9}   In reviewing a felony sentence, “an appellate court may vacate or

modify a felony sentence on appeal only if it determines by clear and convincing

evidence that the record does not support the trial court's findings under relevant

statutes or that the sentence is otherwise contrary to law.” State v. Marcum, 146

Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1.

       {¶10} Crim.R. 32(C) sets forth the requirements for a valid final judgment in a

criminal case. It reads, in pertinent part:

       A judgment of conviction shall set forth the fact of conviction and the

       sentence. * * * The judge shall sign the judgment and the clerk shall

       enter it on the journal. A judgment is effective only when entered on the

       journal by the clerk.
                                                                                       -4-

       {¶11} The underlying purpose of Crim. R. 32(C) is to ensure that a defendant

is provided notice as to when final judgment has been entered and the time for filing

an appeal has begun. A judgment entry that contains all the elements of Crim.R. 32

is a final appealable order pursuant to R.C. 2502.02. State v. Baker, 119 Ohio St.3d

197, 2008-Ohio-3330, 893 N.E.2d 163, syllabus. Once that final judgment is issued,

the trial court's jurisdiction is at an end. State v. Gilbert, 143 Ohio St.3d 150, 2014-

Ohio-4562, 35 N.E.3d 493, ¶ 9.

       {¶12} At the first sentencing hearing on February 26, 2015, the state

acknowledged that, as Appellant violated the terms of the mental health court, a pre-

sentence investigation (PSI) was conducted which did recommend incarceration.

However, the prosecutor also stated,

       Your Honor, I don't necessarily adopt the recommendation; just inform

       you of that, as I know you've already read it. That being the case, Your

       Honor, again, you know the people that are placed in the mental health

       court better than I do; so I would respectfully -- I leave it in the court's

       hands as far as sentencing.

(2/26/15 Tr., pp. 2-3.)

       {¶13} Thus, the state effectively took no position as to sentencing, leaving it to

the discretion of the trial court. Defense counsel then explained the Teen Challenge

program and its willingness to consider Appellant for the program:            “It's a new

program, a woman's program that Teen Challenge has in Willard, Ohio.                  They

interviewed [Appellant] this morning and do find her to be a good candidate.” (2/26/15
                                                                                     -5-

Tr., p. 4.) Defense counsel was asked whether Teen Challenge was a lock-down

facility.   Defense counsel responded that he did not believe it was.         The court

inquired, “[s]o she can walk away [from] there?” Defense counsel answered in the

affirmative. Id. at 7.

        {¶14} The trial court then proceeded to its sentencing colloquy, stating:

        The court further finds that a non-prison sanction will not demean the

        seriousness of the offense, will adequately punish the defendant and

        protect the public, and that factors decreasing seriousness outweigh

        those increasing seriousness, and there's less likelihood of recidivism.

        Therefore, the court's going to place the defendant on five years of

        community control sanctions to be monitored by the Adult Parole

        Authority. * * * You're going to be subject to random drug testing during

        that five year period of time, and you must meet with your probation

        officer at lease one time per month.     That is after you successfully

        complete the Teen Challenge program.

Id. at 8-9.

        {¶15} Appellant was ordered into custody to await transport by Teen

Challenge to the program’s facility. On March 25, 2015, as Appellant was still in

custody in the Mahoning County Jail, the trial court issued a judgment entry setting

the matter for an April 16th status hearing. Following the status call, a “re-sentencing

hearing” was held on May 6, 2015. At this hearing, the prosecutor stated:
                                                                                  -6-

       So today we are here for, I guess, a re-sentencing or something of that

       nature. Your Honor, it's my understanding that, you know, if she can't

       get into Teen Challenge, I mean, what else can we really do for her? At

       this point the way the state feels is that the penitentiary would be the

       best as far as getting her the help that she needs to combat her mental

       health problem, as well as at a cost that is available to her without

       having to spend too much. So at this time the state will recommend

       prison.

(5/6/15 Tr., pp. 2-3.)

       {¶16} Defense counsel responded that, although Appellant was initially

accepted into the Teen Challenge program, subsequent communications with this

program resulted in refusal to accept her into the program.         Defense counsel

indicated that he had attempted to contact other programs to no avail, and that

Appellant's mother was willing to accept her into her home under house arrest.

       {¶17} The court ultimately decided:

       Let the record reflect the defendant was present this date in court

       for a sentencing -- or a re-sentencing hearing. * * *


       The court has considered the record and the oral statements made, as

       well as the previous presentence investigation report that was prepared

       and the defendant's records in the Mental Health Court.
                                                                                   -7-

       Court has also considered the principles and purposes of sentencing

       under Ohio Revised Code 2929.11 and has balanced the seriousness

       and recidivism factors under Ohio Revised Code 2929.12.


       ***


       Court further finds that defendant is not amenable to community control

       and prison is consistent with the purposes of sentencing. Therefore, it

       will be the order of this court that defendant will be sentenced to three

       years in the Department of Rehabilitations and Corrections, with credit

       for time served as of this date, along with any future days in custody

       while she awaits transportation to the appropriate state institution.


       When you're released from prison, you will be subject to a mandatory

       post-release control time of three years.

(5/6/15 Tr., pp. 6-8.)

       {¶18} Thus, utilizing the very same pre-sentence investigation and mental

health court records obtained prior to the original sentencing, the trial court now

concluded that pursuant to R.C. 2929.11 and R.C. 2929.12, imprisonment was

warranted. Yet using those same records and considering the same statutory factors

only a few months earlier, the court reached a different conclusion. To be sure, at

the second “sentencing” hearing the trial court was aware that the Teen Challenge

program was not available to Appellant. Otherwise, the record contained absolutely

no new information.      There were no allegations that Appellant had violated her
                                                                                    -8-

community control sentence.       Appellant had simply been in custody awaiting

transport into the Teen Challenge program. In its confession of judgment, the state

admits that, on the record before us, “the trial court improperly sentenced Defendant

to a term of incarceration.” (8/31/15 Confession of Judgment.)

      {¶19} In State v. Carlisle, 131 Ohio App.3d 127, 2011-Ohio-6553, 961 N.E.2d

671, the Ohio Supreme Court held, “Absent statutory authority, a trial court is

generally not empowered to modify a criminal sentence by reconsidering its own final

judgment.” Id. at ¶ 1. Trial courts have no jurisdiction to modify a final sentence

during the period between sentencing and the execution of that sentence. Id. at ¶ 13.

Once the trial court entered a final judgment as to sentencing, the court lost

jurisdiction to “reconsider” that final judgment barring an event that would vest the

trial court with new jurisdiction, such as notice of some violation of the terms of the

sentence.   In accordance with Crim.R. 32(C), the trial court's initial sentencing

determination became a final order once it was journalized, on February 26, 2015.

The trial court lacked jurisdiction to modify that judgment approximately six weeks

later in the absence of any statutory authority or support in the record. A review of

this record clearly reveals that the trial court's attempt to modify Appellant's valid

sentence was improper and the resulting order is of no effect. Pursuant to Marcum,

there is clear and convincing evidence that the record does not support the trial

court's decision to “re-sentence” Appellant. Appellant's first assignment of error has

merit and is sustained.

                          ASSIGNMENT OF ERROR NO. 2
                                                                                       -9-

       The trial court violated Appellant's rights under the Double Jeopardy

       Clauses of the Fifth and Fourteenth Amendments of the United States

       Constitution, and Article I, Section 10 of the Ohio Constitution, when it,

       sua sponte, “re-sentenced” Appellant without jurisdiction to do so and

       when a sentence was already imposed for the offense.

       {¶20} In Appellant's second assignment of error, she asserts that double

jeopardy prevented the trial court from conducting the second sentencing hearing.

Based on our decision to sustain Appellant's first assignment of error, Appellant's

second assignment is moot.

                                       Conclusion

       {¶21} Once Appellant was sentenced by the trial court on February 26, 2015

and that judgment was properly finalized in accordance with Crim.R. 32(C), the entry

became a final appealable order pursuant to R.C. 2502.02. Because it had entered a

final order as to Appellant’s sentence, the trial court was without jurisdiction, absent

any statutory authority or support in the record, to conduct a “re-sentencing hearing.”

This record contains no such statutory authority or support for the trial court’s actions.

Therefore, the decision of the trial court is reversed. The sentencing judgment entry

dated May 6, 2015 is vacated and the February 26, 2015 judgment sentencing

Appellant to five years of community control sanctions is reinstated.


DeGenaro, J., concurs.

Robb, J., concurs.
