[Cite as State v. High, 2018-Ohio-829.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :       JUDGES:
                                             :       Hon. John W. Wise, P.J.
        Plaintiff-Appellee                   :       Hon. Craig R. Baldwin, J.
                                             :       Hon. Earle E. Wise, Jr., J.
-vs-                                         :
                                             :
CHRISTOPHER HIGH                             :       Case No. 2017CA00115
                                             :
        Defendant-Appellant                  :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 2016CR0090




JUDGMENT:                                            Sentence Vacated & Remanded




DATE OF JUDGMENT:                                    March 5, 2018




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JOHN D. FERRERO                                      AARON KOVALCHIK
Prosecuting Attorney                                 116 Cleveland Avenue, NW
By: KRISTINE W. BEARD                                Suite 808
Assistant Prosecuting Attorney                       Canton, OH 44702
110 Central Plaza South, Suite 510
Canton, OH 44702-1413
Stark County, Case No. 2017CA00115                                                       2

Wise, Earle, J.

       {¶ 1} Defendant-Appellant, Christopher High, appeals his June 2, 2017

resentencing by the Court of Common Pleas of Stark County, Ohio. Plaintiff-Appellee is

the state of Ohio.

                            FACTS AND PROCEDURAL HISTORY

       {¶ 2} On March 30, 2016, appellant was found guilty of one count of aggravated

robbery in violation of R.C. 2911.01(A)(1) and/or (3), one count of aggravated burglary

in violation of R.C. 2911.11(A)(1) and/or (2), and one count of felonious assault in

violation of R.C. 2903.11(A)(1). All three counts carried attendant firearm specifications

in violation of R.C. 2941.145. By judgment entry filed April 11, 2016, the trial court (a

visiting judge) sentenced appellant to six years on the aggravated robbery count, six

years on the aggravated burglary count, both to be served concurrently, and four years

on the felonious assault count, to be served consecutively to the six year sentence. The

trial court merged the sentences on the firearm specifications and imposed an additional

three years, to be served consecutively to the ten year sentence for a total term of

thirteen years in prison.

       {¶ 3} Appellant filed an appeal, challenging his sentence. This court found the

trial court failed to make findings relative to consecutive sentencing, and failed to merge

the felonious assault and aggravated robbery convictions.         This court vacated the

sentence and remanded the matter to the trial court for resentencing. State v. High, 5th

Dist. Stark No. 2016CA00095, 2017-Ohio-1242 (High I).

       {¶ 4} Upon remand, the trial court (a different judge) held a resentencing

hearing on May 24, 2017.        By judgment entry filed June 2, 2017, the trial court
Stark County, Case No. 2017CA00115                                                   3


sentenced appellant to ten years on the merged aggravated robbery and felonious

assault counts, plus three years on the firearm specification, and ten years on the

aggravated burglary count, plus three years on the firearm specification, to be served

concurrently for a total term of thirteen years in prison.

       {¶ 5} Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                              I

       {¶ 6} "THE TRIAL COURT ABUSED ITS DISCRETION BY ORDERING

APPELLANT TO SERVE A 13 YEAR PRISON TERM."

                                              I

       {¶ 7} In his sole assignment of error, appellant claims the trial court erred in

resentencing him to thirteen years in prison.        Appellant claims a more reasonable

sentence would be an aggregate term of nine years.

       {¶ 8} R.C. 2953.08 governs appeals based on felony sentencing guidelines.

State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231. Subsection

(G)(2) sets forth this court's standard of review as follows:



              (2) The court hearing an appeal under division (A), (B), or (C) of

       this section shall review the record, including the findings underlying the

       sentence or modification given by the sentencing court.

              The appellate court may increase, reduce, or otherwise modify a

       sentence that is appealed under this section or may vacate the sentence

       and remand the matter to the sentencing court for resentencing.        The
Stark County, Case No. 2017CA00115                                                        4


       appellate court's standard for review is not whether the sentencing court

       abused its discretion. The appellate court may take any action authorized

       by this division if it clearly and convincingly finds either of the following:

              (a) That the record does not support the sentencing court's findings

       under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of

       section 2929.14, or division (I) of section 2929.20 of the Revised Code,

       whichever, if any, is relevant;

              (b) That the sentence is otherwise contrary to law.



       {¶ 9} "Clear and convincing evidence is that measure or degree of proof which

is more than a mere 'preponderance of the evidence,' but not to the extent of such

certainty as is required 'beyond a reasonable doubt' in criminal cases, and which will

produce in the mind of the trier of facts a firm belief or conviction as to the facts sought

to be established."     Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954),

paragraph three of the syllabus.

       {¶ 10} " 'An appellate court will not find a sentence clearly and convincingly

contrary to law where the trial court considers the principles and purposes of R.C.

2929.11, as well as the factors listed in R.C. 2929.12, properly imposes postrelease

control, and sentences the defendant within the permissible statutory range.' " State v.

Garrison, 5th Dist. Muskingum No. CT2017-0018, 2018-Ohio-463, ¶ 47, quoting State v.

Ahlers, 12th Dist. Butler No. CA2015-06-100, 2016-Ohio-2890, ¶ 8.

       {¶ 11} Appellant was convicted of two felonies in the first degree (aggravated

robbery and aggravated burglary). Felonies of the first degree are punishable by "three,
Stark County, Case No. 2017CA00115                                                          5


four, five, six, seven, eight, nine, ten, or eleven years."   R.C. 2929.14(A)(1). Firearm

specifications carry a mandatory three year sentence. R.C. 2929.14(D)(1)(a). The trial

court sentenced appellant to ten years on each count, plus three years on each firearm

specification, to be served concurrently. The sentences are within the statutory range.

       {¶ 12} However, in fashioning a sentence, trial courts must consider R.C.

2929.11 (purposes and principles of felony sentencing) and R.C. 2929.12 (seriousness

and recidivism factors).    State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896

N.E.2d 124; Marcum, supra, at ¶ 23. "The trial court has no obligation to state reasons

to support its findings. Nor is it required to give a talismanic incantation of the words of

the statute, provided that the necessary findings can be found in the record and are

incorporated into the sentencing entry." State v. Wilson, 5th Dist. Richland No. 17CA31,

2018-Ohio-396, ¶ 61; State v. Bell, 5th Dist. Muskingum No. CT2016-0050, 2017-Ohio-

2621, ¶ 40.

       {¶ 13} We noted this court specifically vacated the previous sentence and

remanded the matter to the trial court for resentencing. As noted by appellee in its brief

at 7, citing Black's Law Dictionary 1546 (7th Ed.1999), "[o]nce a sentence is vacated it

no longer exists; it is a nullity. As a nullity, that sentence is treated as though it had not

taken place."

       {¶ 14} The resentencing trial judge was not the same trial judge that originally

imposed sentence. In the resentencing hearing transcript, the trial court stated, "after

reviewing the seriousness and recidivism factors set forth in the Ohio Revised Code, the

Court sentences you * * *." May 24, 2017 T. at 8-9. The trial court noted it was the

same thirteen year sentence imposed by the original trial court, "[f]inding that the
Stark County, Case No. 2017CA00115                                                        6

conduct warrants a 13 year prison term no matter how the years are allocated." Id. at

10. The resentencing judgment entry is devoid of any reference to R.C. 2929.11 and

2929.12.

       {¶ 15} We find the record does not sufficiently indicate that the trial court

considered the purposes and principles of sentencing and the seriousness and

recidivism factors as required by R.C. 2929.11 and 2929.12. Although the resentencing

trial court was merely following this court's directives on remand, the trial court did not

specifically adopt the original trial court's consideration (if any) of the R.C. 2929.11 and

2929.12 factors or enter its own independent consideration. In addition, although the

trial court advised appellant of postrelease control during the resentencing hearing, the

resentencing judgment entry is silent as to any postrelease control. Furthermore, the

trial court did not inform appellant during the resentencing hearing of his right to appeal

in violation of Crim.R. 32(B). State v. Hunter, 8th Dist. Cuyahoga No. 12626, 2010-

Ohio-657.

       {¶ 16} Upon review, we find the record does not clearly and convincingly support

the sentence imposed by the trial court.

       {¶ 17} The sole assignment is granted, albeit for different reasons than argued by

appellant.
Stark County, Case No. 2017CA00115                                                   7


       {¶ 18} The sentence of the Court of Common Pleas of Stark County, Ohio is

hereby vacated, and the matter is remanded to the trial court for resentencing per this

opinion and the opinion set forth in High I.

By Wise, Earle, J.

Wise, John, P.J. and

Baldwin, J. concur.




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