[Cite as State v. Carlisle, 131 Ohio St.3d 127, 2011-Ohio-6553.]




            THE STATE OF OHIO, APPELLEE, v. CARLISLE, APPELLANT.
         [Cite as State v. Carlisle, 131 Ohio St.3d 127, 2011-Ohio-6553.]
Sentencing—Trial court’s authority to modify sentence before sentence’s
        execution—Repeal of authorizing statute withdrew court’s authority to
        modify sentence—Judgment affirmed.
 (No. 2010-2158—Submitted October 18, 2011—Decided December 22, 2011.)
              APPEAL from the Court of Appeals for Cuyahoga County,
                               No. 93266, 2010-Ohio-3407.
                                  __________________
        O’CONNOR, C.J.
        {¶ 1} This appeal involves the question of whether the trial court had
authority to modify Carlisle’s criminal sentence. Absent statutory authority, a
trial court is generally not empowered to modify a criminal sentence by
reconsidering its own final judgment. For the reasons explained below, the trial
court lacked the requisite authority to modify Carlisle’s sentence. Accordingly,
we affirm the judgment of the court of appeals.
                                RELEVANT BACKGROUND
        {¶ 2} On June 8, 2007, a jury found Jack Carlisle guilty of kidnapping
and gross sexual imposition (“GSI”) in connection with the sexual assault of his
6-year-old foster daughter. On July 11, 2007, the trial court sentenced Carlisle to
three years’ imprisonment for kidnapping and one year of imprisonment for GSI,
to be served concurrently, followed by five years of mandatory postrelease
control. The trial court also classified Carlisle as a sexually oriented offender,
granted him 278 days of jail-time credit, and suspended execution of his sentence
and continued his bond pending appeal. On July 13, 2007, the clerk journalized
the final, appealable order that reflected his sentence.
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        {¶ 3} On appeal, Carlisle challenged his convictions but did not raise any
issues regarding his sentence. State v. Carlisle, Cuyahoga App. No. 90223, 2008-
Ohio-3818 (“Carlisle I”), ¶ 1. On July 31, 2008, the Eighth District Court of
Appeals affirmed Carlisle’s convictions, issued a special mandate to the trial court
to carry the judgment into execution, revoked his bail, and remanded the case to
the trial court for execution of sentence. Id. at ¶ 63. Carlisle unsuccessfully
moved the court of appeals to reconsider its merit opinion based on the appellate
court’s alleged misapplication of the rape-shield law, and the court of appeals
stayed execution of Carlisle’s sentence pending appeal to this court. On February
4, 2009, we declined jurisdiction. State v. Carlisle, 120 Ohio St.3d 1508, 2009-
Ohio-361, 900 N.E.2d 624.
        {¶ 4} Having exhausted his appeals and facing revocation of his bond
and imprisonment, on February 19, 2009, Carlisle moved the trial court to
reconsider and modify his sentence. Asserting that he suffers from chronic, life-
threatening conditions, Carlisle argued that the trial court had authority to modify
his sentence because the sentence had not been “executed,” i.e., Carlisle had not
yet been delivered to the state penal institution. The motion posited, “[T]his
Court must ask itself whether Mr. Carlisle’s punishment is worth the cost” in light
of his “expensive” medical treatment, including kidney dialysis three times a
week.
        {¶ 5} In opposing the motion, the state acknowledged the significant
medical expenses associated with Carlisle’s incarceration but represented,
essentially, that it was willing to bear those costs in light of the seriousness of the
offenses. It further argued that Carlisle’s medical conditions did not prevent him
from committing the offenses and, therefore, incarceration was necessary for the
protection of the community. The court granted the defense motion and set a
resentencing date. The state then filed an amended response asserting that the
trial court lacked authority to modify its final judgment.




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       {¶ 6} On April 2, 2009, the trial court vacated Carlisle’s sentence “due to
change of circumstances” and conducted a resentencing hearing, where Carlisle’s
attorneys noted that his dialysis alone costs Medicare and his private insurer
nearly $100,000 a year. At the hearing, the court mentioned that the state is
“cutting budgets everywhere” and that “the costs in this situation are going to be
astronomical.” It then found that Carlisle did not pose a threat to the community
and imposed a sentence of five years of community control.
       {¶ 7} The court of appeals reversed. State v. Carlisle, Cuyahoga App.
No. 93266, 2010-Ohio-3407 (“Carlisle II”), ¶ 49. In so doing, the court of
appeals agreed with Carlisle that a trial court has authority to modify a criminal
sentence until the defendant is delivered to the prison to begin serving the
sentence, holding, “[I]n criminal cases, a judgment is not considered final until
the sentence has been ordered into execution.”        Id. at ¶ 10, citing State v.
Garretson (2000), 140 Ohio App.3d 554, 558-559, 748 N.E.2d 560. It concluded,
however, that the trial court lacked authority to modify Carlisle’s sentence
because his convictions had been affirmed on appeal. Id. at ¶ 13. It held that
State ex rel. Special Prosecutors v. Judges, Court of Common Pleas (1978), 55
Ohio St.2d 94, 97, 9 O.O.3d 88, 378 N.E.2d 162, dictates that a judgment of a
reviewing court is “controlling upon the lower court as to all matters within the
compass of the judgment.” Id. Even though Carlisle’s appeal addressed only the
determinations of his guilt, and not his sentence, the court of appeals reasoned
that res judicata operated to bring Carlisle’s sentence within the compass of the
judgment because Carlisle could have challenged his sentence on appeal. Id. at
¶ 14. Accordingly, the court of appeals held that the trial court on remand was
authorized to carry out only the appellate court’s special mandate to execute
Carlisle’s sentence, not to modify it. Id. at ¶ 16.
       {¶ 8} We accepted Carlisle’s discretionary appeal from that judgment.
State v. Carlisle, 128 Ohio St.3d 1411, 2011-Ohio-828, 942 N.E.2d 384. He set



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forth one proposition of law: “This court’s holding in Special Prosecutors does
not divest the trial court of its jurisdiction to modify a sentence that has not yet
been executed even if the sentence modification occurs following the direct
appeal.”
       {¶ 9} At the threshold, we note that Carlisle’s proposition presupposes
that absent a mandate from the court of appeals, a trial court necessarily has
authority to modify a sentence that has not been executed. Not so. Consequently,
Special Prosecutors, which discusses the mandate rule, does not control our
analysis. Instead, application of State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d
353, 2006-Ohio-5795, 856 N.E.2d 263, which explained the general rule that a
trial court lacks authority to modify a final criminal judgment, is dispositive.
                                     ANALYSIS
       {¶ 10} Carlisle concedes that a trial court lacks statutory authority to
modify a final sentence. But Carlisle claims that the trial court had unfettered
authority to resentence him because his sentence had not yet been executed and,
therefore, was not yet final. We disagree.
       {¶ 11} A criminal sentence is final upon issuance of a final order. See,
e.g., State ex rel. White v. Junkin (1997), 80 Ohio St.3d 335, 337, 686 N.E.2d 267
(a trial court had authority to vacate a finding of guilt and imposition of sentence
and order the defendant to face trial on a more serious charge because the
judgment had never been journalized by the clerk pursuant to Crim.R. 32); see
also State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163,
syllabus, as modified by State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958
N.E.2d 142, at syllabus (a judgment of conviction is final when the order sets
forth (1) the fact of the conviction; “(2) the sentence; (3) the signature of the
judge; and (4) entry on the journal by the clerk of court”).
       {¶ 12} In this case, a valid judgment of conviction was journalized on July
13, 2007, yet the trial court purported to modify Carlisle’s sentence nearly two




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years later. The trial court’s attempt to do so was improper. See Johnson v. Sacks
(1962), 173 Ohio St. 452, 454, 20 O.O.2d 76, 184 N.E.2d 96; Walker v. Maxwell
(1965), 1 Ohio St.2d 136, 138, 30 O.O.2d 487, 205 N.E.2d 394; Majoros v.
Collins (1992), 64 Ohio St.3d 442, 443, 596 N.E.2d 1038; State ex rel. Massie v.
Rogers (1997), 77 Ohio St.3d 449, 450, 674 N.E.2d 1383 (all recognizing that
sentencing errors are an improper exercise of jurisdiction).
       {¶ 13} Carlisle’s argument that a sentence is not final until it is executed
evolved from trial courts’ now defunct authority to modify a criminal sentence at
any time before it is executed. See State v. Addison (1987), 40 Ohio App.3d 7,
530 N.E.2d 1335, syllabus. As a consequence, the case law that appears to
support Carlisle’s position suffers from a fundamental flaw: it relies on now-
repealed statutes.
       {¶ 14} In Addison, the defendant sought a sentence modification from the
trial court under the now-repealed “shock probation” statute, former R.C.
2947.061(B), 146 Ohio Laws, Part I, 100, 116-117, which authorized trial courts
to impose probation on defendants who had served a specified portion of their
prison sentences (thereby receiving the shock of incarceration). Id. at 7-8. The
trial court had properly denied the motion under former R.C. 2947.061(B), but
had modified the underlying sentence. The court of appeals held that the trial
court had no authority to do so because the modification had not been authorized
by statute. Id. at 8. Id. In so holding, the Tenth District Court of Appeals held
that the only authority for trial courts to modify final criminal sentences was
former R.C. 2929.51(A), 143 Ohio Laws, Part III, 4170, 4216, now repealed,
which provided that after sentencing for a felony up to the time the defendant is
delivered to the institution where he is to serve sentence, the court may suspend
the sentence and place the defendant on probation. The Tenth District Court of
Appeals concluded, “Once a sentence has been executed, the trial court no longer
has the power to modify the sentence except as provided by the legislature.” Id.



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at 8-9.    Similarly, the Fifth District Court of Appeals analyzed former R.C.
2929.51 and reached the same conclusion. State v. Lambert, Richland App. No.
03-CA-65, 2003-Ohio-6791, at ¶ 17 (“Once the defendant has been delivered into
the custody of the institution in which he is to serve his sentence, the trial court's
authority to suspend sentence under R.C. 2929.51(A) terminates * * *”).
          {¶ 15} Some courts of appeals have continued to cite the conclusion
reached in Addison and Lambert as a stand-alone proposition, even though
Addison and Lambert were premised on a statute that has since been repealed.
See, e.g., State v. Plunkett, 186 Ohio App.3d 408, 2009-Ohio-5307, 928 N.E.2d
760, ¶ 10 (citing Addison for authority that “[a]s a general rule, once a defendant
has commenced serving his sentence, the trial court no longer has the authority to
modify or amend that sentence, except as specifically provided by the General
Assembly”). In turn, that logic has been extended to conclude that a criminal
sentence is not final until it is executed, thereby creating the illusion of
compliance with our rule in Cruzado. Carlisle II, 2010-Ohio-3407, ¶ 10, citing
Garretson, 140 Ohio App.3d at 558-559, 748 N.E.2d 560, citing Addison for
authority that “[o]nce the trial court has carried into execution a valid sentence as
authorized above [under R.C. 2949.05], it may no longer amend or modify that
sentence.”     These holdings are unsound.       Neither Carlisle nor the courts of
appeals can rely on them.
          {¶ 16} Notwithstanding the repeal of R.C. 2929.51(A), Carlisle argues
that a trial court retains the authority to modify a final criminal sentence until it is
executed because the General Assembly has not expressly prohibited such
modifications.    We disagree.     The repeal of R.C. 2929.51(A) unequivocally
constituted a withdrawal of the authority provided under that section. State ex rel.
Carmean v. Hardin Cty. Bd. of Edn. (1960), 170 Ohio St. 415, 419, 11 O.O.2d
162, 165 N.E.2d 918 (repeal of a statute is the abrogation or destruction of that
law).




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                                  CONCLUSION
       {¶ 17} For the reasons explained, the judgment of the court of appeals is
affirmed, albeit on different grounds from those relied on by that court, and this
cause is remanded to the common pleas court to execute the original sentence.
                                                               Judgment affirmed
                                                             and cause remanded.
       PFEIFER, LUNDBERG STRATTON, O’DONNELL, LANZINGER, CUPP, and
MCGEE BROWN, JJ., concur.
                              __________________
       William D. Mason, Cuyahoga County Prosecuting Attorney, and T. Allan
Regas, Assistant Prosecuting Attorney, for appellee.
       Robert L. Tobik, Cuyahoga County Public Defender, and Erika B.
Cunliffe, Assistant Public Defender, for appellant.
       Alexandra T. Schimmer, Solicitor General, and David M. Lieberman,
Deputy Solicitor, urging affirmance for amicus curiae Ohio Attorney General
Michael DeWine.
                           ______________________




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