[Cite as State v. Future, 2012-Ohio-2300.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 96997




                                       STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                     DARWIN FUTURE
                                                      DEFENDANT-APPELLANT




                                   JUDGMENT:
                             REVERSED AND REMANDED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-505815

        BEFORE:          Celebrezze, P.J., Cooney, J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED:                     May 24, 2012
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender
BY: John T. Martin
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Katherine Mullin
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.:

       {¶1} Appellant, Darwin Future, alleges that

       the trial court’s plea colloquy was constitutionally inadequate when it failed
       to advise appellant that his right against self-incrimination included a
       constitutional protection against any adverse comment being made about, or
       adverse inference drawn from, the exercise of his right not to testify at trial.

However, because the trial court lacked jurisdiction to grant appellant’s motion for

resentencing, we reverse the trial court’s entry filed June 8, 2011, remand this cause to the

trial court with instructions to vacate this entry, and reinstate the April 30, 2008

sentencing entry.

       {¶2} Appellant pled guilty to two counts of felonious assault with three-year

firearm specifications and having a weapon under disability on April 7, 2008. He was

originally sentenced on April 30, 2008 to an aggregate prison term of 15 years. At

sentencing, the trial court failed to advise appellant of his appellate rights. As a result of

this lapse, three years later, appellant filed a motion for resentencing on April 18, 2011.

The state did not oppose the motion, and a resentencing hearing was conducted to restart

the period appellant had to perfect an original appeal.

       {¶3} Appellant did just that, claiming the above-cited error. However, he did not

seek leave to file a delayed appeal with this court and did not file a motion for

postconviction relief based on the failure of the trial court to advise him of his appellate

rights under Crim.R. 32.
       {¶4} Last year, this court addressed a very similar case with a slightly different

procedural posture, State v. Barr, 8th Dist. No. 96907, 2011-Ohio-6651. In that case, the

trial court denied Barr’s motion for resentencing filed four years after his original

sentence was imposed, claiming the trial court failed to advise him of his appellate rights.

 This court affirmed the denial and further held that because the original sentence was a

final order, “the trial court lack[ed] jurisdiction to resentence Barr pursuant to a ‘motion

for resentencing.’” Id. at ¶ 9.

       {¶5} As set forth in State v. Gover, 71 Ohio St.3d 577, 645 N.E.2d 1246 (1995),

the appropriate remedy is first to seek leave to file a delayed appeal with this court and, if

unsuccessful, to then file a motion for postconviction relief through R.C. 2953.21 with the

trial court.

       {¶6} Appellant cites State v. Hunter, 8th Dist. No. 92626, 2010-Ohio-657, as

controlling precedent. That case is similar to the present situation with one important

distinction. At the time his appeal was decided, Hunter’s sentence was considered void

for lack of proper imposition of postrelease control. Id. at ¶ 9, 16. The sentence was not

a final order and could be modified by the trial court. In the case before us, we have a

sentence that constitutes a final order that cannot be modified absent some jurisdictional

basis. State v. Carlisle, 131 Ohio St.3d 127, 2011-Ohio-6553, 961 N.E.2d 671.

       {¶7} The trial court lacked jurisdiction to vacate a final order of sentence without a

postconviction relief petition. Its attempt to reinstate the time period to perfect an appeal

was void.
       {¶8}    Judgment reversed, and the cause is remanded to the trial court with

instructions to vacate its June 8, 2011 entry and reinstate its April 30, 2008 entry.

       It is ordered that appellant recover of said appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

COLLEEN CONWAY COONEY, J., and
EILEEN A. GALLAGHER, J., CONCUR
