[Cite as State v. Hamby, 2011-Ohio-4542.]




          IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                     :

        Plaintiff-Appellee                        :   C.A. CASE NO. 24328

vs.                                              :    T.C. CASE NO. 08CR4887

MICHAEL L. HAMBY                                  :   (Criminal Appeal from
                                                                           Common
                                                      Pleas Court)
        Defendant-Appellant                       :

                                      . . . . . . . . .

                                            O P I N I O N

                 Rendered on the 9th day of September, 2011.

                                      . . . . . . . . .

Mathias J. Heck, Jr., Pros. Attorney; Kirsten A. Brandt, Asst.
Pros. Attorney, Atty. Reg. No. 0070162, P.O. Box 972, Dayton, OH
45422
     Attorney for Plaintiff-Appellee

Robert Alan Brenner, Atty. Reg. No. 0020084, P.O. Box 341021,
Beavercreek, OH 45434-1021
     Attorney for Defendant-Appellant

                                      . . . . . . . . .

VUKOVICH, J. (BY ASSIGNMENT):

        {¶ 1} Defendant-appellant               Michael     Hamby   appeals   from   the

sentencing decision of the Montgomery County Common Pleas Court.

He presents four contentions on appeal: the entry states the wrong

manner of conviction; the sentence was too harsh and thus
                                                                      2

constituted   an   abuse   of   discretion;   the   court   prematurely

disapproved transitional control; and the entry did not explain

that the post-release control terms will run concurrently.          For

the following reasons, this case is remanded for a revised

sentencing entry to state that appellant was convicted after a jury

trial rather than that he pled guilty, to omit the disapproval of

a future request for transitional control, and to explain that

post-release control terms will be served concurrently.

                       STATEMENT OF THE CASE

     {¶ 2} A jury convicted appellant of two counts of felonious

assault with a deadly weapon (one for each victim), one count of

felonious assault for causing serious physical harm, and one count

of kidnapping.     He was then sentenced to eight years in prison.

In the original appeal, appellant’s convictions were affirmed, but

his sentence was reversed and remanded because the merger doctrine

is not satisfied by the imposition of concurrent sentences, and

because the court should not have only merged the one deadly weapon

felonious assault with the serious harm felonious assault but also

should have merged the felonious assault of this same victim with

the kidnapping because the kidnapping was merely incidental to the

assault. State v. Hamby, Montgomery App. No. 23618, 2010-Ohio-404,

¶52-53, 58.

     {¶ 3} On remand, the trial court entered convictions and

sentences on felonious assault with a deadly weapon for one victim
                                                                    3

and kidnapping for the other victim.      In a September 20, 2010

entry, appellant was then sentenced to three years for felonious

assault and five years for kidnapping for a total of eight years

in prison.   On November 17, 2010, appellant filed an untimely

notice of appeal and a request to file a delayed appeal, which this

court permitted.

                   ASSIGNMENT OF ERROR NUMBER ONE

     {¶ 4} Appellant’s first assignment of error provides:

     {¶ 5} “THE TRIAL COURT FAILED TO COMPLY WITH OHIO CRIMINAL RULE

32(C).”

     {¶ 6} The court’s sentencing entry states that appellant had

entered a guilty plea to the four counts.     This is incorrect as

the manner of conviction was by way of a jury verdict in this case.

     {¶ 7} Pursuant to Crim.R. 32(C), a “judgment of conviction shall

set forth the plea, the verdict, or findings upon which each

conviction is based, and the sentence.”    A judgment of conviction

is not considered to be a final appealable order if it fails to

set forth the manner of conviction, which is either:        a guilty

plea, a no contest plea upon which the court has made a finding

of guilt, a finding of guilt based upon a bench trial, or a guilty

verdict resulting from a jury trial. State v. Baker, 119 Ohio St.3d

197, 2008-Ohio-3330, ¶10, 18. See, also, State ex rel. DeWine v.

Burge, 128 Ohio St.3d 236, 2011-Ohio-235, ¶13 (where the sentencing
                                                                     4

entry recited only that a defendant had been found guilty of the

various offenses but did not disclose that she had been found guilty

by a jury, the order was not final).

     {¶ 8} Appellant states that where an entry provides the wrong

manner of conviction, the entry is similarly not final and asks

that his appeal be dismissed.    The state responds that as long as

some manner of conviction is provided, the order is final because

providing the wrong manner of conviction is merely an error.       The

state also urges that the remedy is a nunc pro tunc entry, not

dismissal or reversal.    See id. at ¶17-19 (court issues revised

sentencing entry rather than vacating a conviction or holding a

new hearing).

     {¶ 9} The entry here sets forth a manner of conviction (a guilty

plea), just as it sets forth a sentence.   If it failed to set forth

a manner of conviction, the entry would not be final, just as it

would not be final if it failed to set forth a sentence.   The manner

of conviction is incorrect, but as the state argues, this is an

error.   It is not an omission of an element of a final order.   Along

the same vein, if a sentence was incorrect (for instance if it was

higher than permitted for the type of felony), then the sentencing

entry is still final, but subject to the defendant’s appeal of the

error.

     {¶ 10} Appellant has appealed this error, and he is entitled to

have the error corrected to show that he was convicted by way of
                                                                         5

a jury verdict.   As such, this matter is remanded for a corrected

sentencing entry reflecting that appellant was convicted by a jury

rather than a plea of guilty.

                  ASSIGNMENT OF ERROR NUMBER TWO

     {¶ 11} Appellant’s second assignment of error alleges:

     {¶ 12} “THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING THE

DEFENDANT.”

     {¶ 13} Appellant argues that his consecutive sentences of five

years for kidnapping and three years for felonious assault are too

harsh and thus constitute an abuse of discretion.            See State v.

Gratz, Mahoning App. No. 08MA101, 2009-Ohio-695, ¶8, applying

plurality in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912

(felony    sentences   are   reviewed   using   both   the   clearly   and

convincingly contrary to law and abuse of discretion standards of

review).    He minimizes the victims’ injuries and makes credibility

arguments regarding who was the aggressor.        Appellant notes that

his criminal record was not recent and that his longest prior

sentence was one year.

     {¶ 14} However, a jury already found him guilty of the offenses

and disbelieved his claim of self-defense.         Thus, the court did

not abuse its discretion in proceeding under the assumption that

his nephew did not break into appellant’s house and that appellant

was the aggressor.     As for the details of the incident, appellant
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was living in what had been his mother’s house before she entered

a nursing home.    Days after their mother died, appellant’s sister

came over with her two sons (aged sixteen and twenty-seven) to

retrieve photographs and shoes for the funeral.               Appellant

initially would not respond; he then set a photograph on the back

steps.   The sister spoke to him through an open window asking him

to provide her with photo albums.     At that point, appellant pushed

the air conditioner through the window.

     {¶ 15} Appellant then pulled his oldest nephew into the house

and hit him around the head and arms with a metal pipe.       Appellant

threatened to kill his nephew as the nephew lay on the floor

bleeding.    When appellant’s sister tried to protect her son,

appellant hit her with the metal pipe on her cheek, behind her ear,

and on her arm.     At that point, the sixteen-year-old threw a log

at the window, allowing his brother to escape.

     {¶ 16} The   victims   were   transported   to   the   hospital   by

ambulance.    The injured nephew testified that appellant hit him

“as hard as somebody could hit somebody.”        He had gashes on his

arms and back and lumps on the back and side of his head.              He

experienced headaches at least every other day for a few months.

He still has a scar on his arm.     Appellant’s sister testified that

her head and face were visibly injured and sore after the incident.

     {¶ 17} Regarding a criminal record, appellant was convicted of

misdemeanor assaults in 1981 and 1990.     He was convicted of felony
                                                                    7

theft in 1983 and felony fleeing and eluding in 1993.    He has other

failure to comply and fleeing and eluding convictions as well.    As

for arrests, he had a 1997 felonious assault charge dismissed and

was acquitted of rape in 1993.   He was diagnosed with alcohol and

cannabis dependence in 2009.

     {¶ 18} As the state points out, appellant does not accept

responsibility for his actions and portrays himself as the victim.

The state acknowledges that his record does not contain recent

violent offenses, but urges that this behavior now shows that he

has not resolved his past problems with violence.    It is also noted

that the victims were family members, who were attempting to

retrieve items for a funeral.

     {¶ 19} The five and three year sentences were at the low end of

the statutory range for the offenses:        three to ten years for

kidnapping (which the state chose over the merged offense for

felonious assault of the nephew) and two to eight years for

felonious    assault   (of   appellant’s     sister).     See   R.C.

2929.14(A)(1),(2).     The court had a broad range of information

before it when it sentenced appellant, including appellant’s own

trial testimony, which may have been very revealing of his

personality and control problems.          It is not unreasonable,

arbitrary,    or   unconscionable    to     disbelieve   appellant’s

self-defense claim and believe the victims’ claims that appellant

pulled his nephew into his house and beat him senseless with a metal
                                                                         8

pipe then turned that pipe on his sister when she tried to assist

her son.   There is no indication that the eight-year sentence for

two victims is an abuse of discretion.      See State v. Foster, 109

Ohio St.3d 1, ¶100, 102 (full discretion to sentence within range).

As such, this assignment of error is overruled.

                  ASSIGNMENT OF ERROR NUMBER THREE

     {¶ 20} Appellant’s third assignment of error states:

     {¶ 21} “THE TRIAL COURT ERRED BY DISAPPROVING THE TRANSFER OF

THE DEFENDANT TO TRANSITIONAL CONTROL IN THE SENTENCING ENTRY.”

     {¶ 22} In its sentencing entry, the court announced that it

“disapproves the transfer of the defendant to transitional control

under Section 2967.26 of the Revised Code.”          Pursuant to this

section, the prison can establish a transitional control program

and the adult parole authority may transfer eligible prisoners to

transitional control status during the final one hundred eighty

days of their confinement.         R.C. 2967.26(A).       Before such

transfer, the parole authority must provide the court with an

opportunity to disapprove the transfer and must send the court a

report on the prisoner's conduct in the institution covering the

prisoner's participation in school, vocational training, work,

treatment,     and   other   rehabilitative     activities      and    any

disciplinary     action   taken   against     the   prisoner.         R.C.

2967.25(A)(2).
                                                                     9

     {¶ 23} This appellate district has ruled that a sentencing court

cannot disapprove transitional control in a sentencing entry.

State v. Howard, 190 Ohio App.3d 735, 2010-Ohio-5283, ¶2, 40, 44.

The trial court’s decision in such case is premature and unaided

by a report of the prisoner’s conduct.    Id.     Thus, this argument

has merit. Id.   As another district has explained:

     {¶ 24} “While the statute does not specifically prohibit the

court from denying the transitional control prior to notice, we

find to do so clearly thwarts the design and purpose of the statute.

The statute is designed to promote prisoner rehabilitation effort

and good behavior while incarcerated.      To prematurely deny the

possibility of transitional control runs contra to those purposes.

While the trial court retains discretion to disapprove the

transitional control, we find to do so in the sentencing entry prior

to notice from the adult parole authority is premature.”        State

v. Spears, Licking App. No. 10CA95, 2011-Ohio-1538, ¶37.

     {¶ 25} At this point, the state claims waiver because appellant

failed to object when the court advised at the sentencing hearing

that it disapproves the transfer to transitional control.         The

state cites a case holding that a defendant must object to errors

at sentencing or he waives all but plain error.    See State v. Young,

Montgomery App. No. 23438, 2010-Ohio-5157, ¶13.      To reverse based

on plain error, a reviewing court must determine that a plain or

obvious error occurred that affected the outcome.     State v. Barnes
                                                                        10

(2002), 94 Ohio St.3d 21, 27. See, also, Crim.R. 52(B).

     {¶ 26} Even if an objection was required to an oral announcement

at sentencing, the error here is plain on the face of the sentencing

entry.   Under the law of the district, the entry is improper.     This

assignment of error is sustained, and the trial court is hereby

instructed to remove the premature denial of transitional control

from the sentencing entry.

                  ASSIGNMENT OF ERROR NUMBER FOUR

     {¶ 27} Appellant’s fourth assignment of error contends:

     {¶ 28} “THE TRIAL COURT ERRED BY SENTENCING THE DEFENDANT TO

MORE THAN ONE TERM OF POST-RELEASE CONTROL.”

     {¶ 29} The sentencing entry states the following with regards

to post-release control:

     {¶ 30} “The Court notifies the defendant that, as a part of this

sentence,   on   Count   2:   FELONIOUS   ASSAULT   (deadly   weapon)   -

2093.11(A)(2) F2 the defendant will be supervised by the Parole

Board for a period of Three years Post-Release Control after the

defendant’s release from imprisonment.”

     {¶ 31} “The Court notifies the defendant that, as a part of this

sentence, on Count 4: KIDNAPPING (terrorize/physical harm) -

2905.01(A)(3) F1 the defendant will be supervised by the Parole

Board for a period of five years Post-Release Control after the

defendant’s release from imprisonment.”
                                                                         11

     {¶ 32} Appellant contends that this language makes it sound as

though he is subject to eight years of post-release control.             He

urges that the court should have stated that the terms of

post-release control would run concurrently.              He cites R.C.

2967.28(F)(4)(c), which provides:

     {¶ 33} “If an offender is subject to more than one period of

post-release control, the period of post-release control for all

of the sentences shall be the period of post-release control that

expires last, as determined by the parole board or court.         Periods

of post-release control shall be served concurrently and shall not

be imposed consecutively to each other.”

     {¶ 34} We   note   that   this   provision   is   prefaced   by   this

statement:

     {¶ 35} “(4) Any period of post-release control shall commence

upon an offender's actual release from prison.          If an offender is

serving an indefinite prison term or a life sentence in addition

to a stated prison term, the offender shall serve the period of

post-release control in the following manner: * * * ”

     {¶ 36} This case does not involve a life sentence or an

indefinite sentence.       However, the Supreme Court has applied

(F)(4)(c) in a case that did not involve these types of sentences.

Durain v. Sheldon, 122 Ohio St.3d 582, 2009–Ohio–4082, ¶1 (citing

only part (c) in a case with definite, non-life sentences).            See,
                                                                      12

also, State v. Meredith, Summit App. No. 25198, 2011-Ohio-1517,

¶18.

       {¶ 37} In any event, the state does not dispute that the terms

of post-release control run concurrently.         See State v. Sulek,

Greene App. No. 09CA75, 2010-Ohio-3919, ¶23 (“Only one term of

post-release control is actually served, even though a defendant

was sentenced to multiple prison terms”); Meredith, Summit App.

No. 25198 at ¶18; State v. Maag, Hancock App. No. 5-08-35,

2009-Ohio-90, ¶18 (court cannot impose multiple terms for multiple

felonies).    As the state points out, however, the statute does not

require notice of the concurrent nature of the terms; it merely

states how they will run.

       {¶ 38} Moreover, the trial court did not purport to run the terms

consecutively. See Meredith, Summit App. No. 25198 at ¶18.        Since

the terms are legally to be served concurrently and since we are

remanding for a revised entry on other assignments of error, we

order the trial court to add to the entry that the post-release

control terms are concurrent and that the longest term will apply.

See State v. Sulek, Greene App. No. 09CA75, 2010-Ohio-3919, ¶23

(court can merely state longest term to encompass all felonies).

                               CONCLUSION

       {¶ 39} For the foregoing reasons, the sentencing entry is

remanded for the issuance of a revised entry.         The trial court

shall amend the manner of the conviction from a guilty plea to a
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jury verdict.   The trial court shall remove its statement that it

disapproves transitional control.   Finally, the trial court shall

state that the post-release control terms will run concurrently.



FAIN, J. And DONOVAN, J., concur.

(Hon. Joseph J. Vukovich, Seventh District Court of Appeals,
sitting by assignment of the Chief Justice of the Supreme Court
of Ohio.)


Copies mailed to:

Kirsten A. Brandt, Esq.
Robert Alan Brenner, Esq.
Hon. Mary Lynn Wiseman
