[Cite as State v. McComb, 2018-Ohio-674.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :   Appellate Case No. 27468
                                                  :
 v.                                               :   Trial Court Case No. 2015-CR-1836/3
                                                  :
 DAVION MCCOMB                                    :   (Criminal Appeal from
                                                  :    Common Pleas Court)
         Defendant-Appellant                      :
                                                  :

                                             ...........

                                            OPINION

                          Rendered on the 23rd day of February, 2018.

                                             ...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45402
       Attorney for Plaintiff-Appellee

ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, P.O. Box 340214, Beavercreek,
Ohio 45434
      Attorney for Defendant-Appellant

                                            .............
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FROELICH, J.

       {¶ 1} In this delayed appeal, Davion McComb claims that the trial court erred in

sentencing him to mandatory prison terms, in light of State v. Hand, 149 Ohio St.3d 94,

2016-Ohio-5504, 73 N.E.3d 448. For the following reasons, the trial court’s judgment

will be affirmed in part, modified in part, and the matter will be remanded for the trial court

to issue a revised judgment entry that eliminates the mandatory nature of defendant’s

sentence for aggravated robbery.

       {¶ 2} On October 9, 2015, McComb was charged by bill of information with

aggravated robbery (deadly weapon), a felony of the first degree, and with felonious

assault (deadly weapon), a felony of the second degree; each offense included a firearm

specification. The same day, McComb waived an indictment and 24-hour service of the

bill of information, and he pled no contest to the charges; the State dismissed the firearm

specifications. The trial court found him guilty and sentenced him to a mandatory three

years in prison for aggravated robbery and to two years in prison for felonious assault;

the trial court’s judgment entry indicated that the three-year sentence was mandatory

pursuant to R.C. 2929.13(F).       The trial court ordered the sentences to be served

concurrently to each other and to an aggregate 10-year sentence in another case

(Montgomery C.P. No. 2015-CR-1152/1).

       {¶ 3} McComb did not appeal his conviction within the 30-day time period required

by App.R. 4(A).

       {¶ 4} On February 17, 2017, McComb filed a notice of appeal and a motion for

leave to appeal, pursuant to App.R. 5(A). In his motion for leave to file a delayed appeal,

McComb indicated that he sought to challenge, in light of Hand, the mandatory nature of
                                                                                          -3-


his sentences. McComb stated that he had filed an appellate brief in his appeal from

Case No. 2015-CR-1152/1 (Appellate Case No. 26884), in which he challenged the

mandatory nature of his sentences under Hand. He asserted that “the Hand case would

also impact 2015 CR 01836/3 if McComb is permitted to have an appeal from that case

as well * * *.”

       {¶ 5} The State opposed the motion, arguing that McComb’s convictions in this

case were final due to his failure to timely appeal and that Hand did not apply retroactively

to convictions that were final.

       {¶ 6} On April 4, 2017, we granted McComb’s motion for leave to file a delayed

appeal, and stated that “[t]his matter shall proceed in accordance with the Rules of

Appellate Procedure.”

       {¶ 7} In his sole assignment of error, McComb claims that “the trial court erred

when it sentenced McComb to mandatory prison terms on Counts I and II.” As in its

memorandum opposing McComb’s motion for leave to file a delayed appeal, the State

argues in its appellate brief that Hand should not apply to McComb, because he did not

file a timely appeal and thus his conviction was final.

       {¶ 8} In general, “[a] new judicial ruling may be applied only to cases that are

pending on the announcement date, and the new judicial ruling may not be applied

retroactively to a conviction that has become final, that is, where the accused has

exhausted all of his appellate remedies.” State v. Greathouse, 2d Dist. Montgomery No.

24935, 2012-Ohio-2414, ¶ 6, citing Ali v. State, 104 Ohio St.3d 328, 2004-Ohio-6592, 819

N.E.2d 687; State v. Smith, 2d Dist. Montgomery No. 27294, 2017-Ohio-2684, ¶ 11.

       {¶ 9} Generally, a defendant’s appellate remedies from a judgment of conviction
                                                                                          -4-

consist of a timely appeal as of right to an intermediate court of appeals, see App.R. 3

and 4, and a jurisdictional appeal to the Supreme Court of Ohio, see S.Ct.Prac.R. 5.02.

The Ohio Rules of Appellate Procedure allow, in certain circumstances and with leave of

the appellate court, for an untimely appeal, see App.R. 5(A), and for the appellate process

to be reopened, see App.R. 5(B) and 26(B). Where leave is granted, the defendant has

not exhausted his or her appellate remedies, the conviction is not final, and an appellate

court may review the assignment of error as if the direct appeal had been timely filed.

       {¶ 10} At the outset, we note that McComb has already served more than two

years in prison, and thus he has completely served his sentence for felonious assault.

Accordingly, we find that McComb’s challenge to his two-year sentence for felonious

assault is moot. Regardless, although the trial court orally stated at the combined plea

and sentencing hearing that the prison sentences for both felonious assault and

aggravated robbery were mandatory, the trial court’s subsequent judgment entry, filed on

October 14, 2015, imposed a mandatory sentence only for Count 1, aggravated robbery.

Because a court speaks through its journal, e.g., State v. Friend, 2d Dist. Montgomery

Nos. 26867 & 26868, 2016-Ohio-5868, ¶ 27, McComb’s sentence for felonious assault

was a non-mandatory sentence. McComb’s assignment of error with respect to Count 2

(felonious assault) is overruled.

       {¶ 11} The record reflects that the court imposed a mandatory prison term for

aggravated robbery pursuant to R.C. 2929.13(F)(6), which provides for a mandatory

sentence when a defendant is convicted of a first-or second-degree felony and “previously

was convicted of or pleaded guilty to * * * any first or second degree felony[.]”

       {¶ 12} In Hand, 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448, the Ohio
                                                                                       -5-


Supreme Court struck down R.C. 2901.08(A), which provided that a prior juvenile

adjudication “is a conviction for a violation of the law or ordinance for purposes of

determining the offense with which the person should be charged and, if the person is

convicted of or pleads guilty to an offense, the sentence to be imposed upon the person

relative to the conviction or guilty plea.” The supreme court held that R.C. 2901.08(A)

violated the Due Process Clauses of the Ohio and United States Constitutions, because

“it is fundamentally unfair to treat a juvenile adjudication as a previous conviction that

enhances either the degree of or the sentence for a subsequent offense committed as an

adult.” Hand at paragraph one of the syllabus. Hand further held that, “[b]ecause a

juvenile adjudication is not established through a procedure that provides the right to a

jury trial, it cannot be used to increase a sentence beyond a statutory maximum or

mandatory minimum.” Id. at paragraph two of the syllabus.

       {¶ 13} The trial court imposed a mandatory sentence for aggravated robbery due

to McComb’s prior juvenile adjudication for aggravated robbery. In light of Hand, the

court’s imposition of a mandatory sentence based on the prior juvenile adjudication was

error. We reiterate that, by applying Hand to McComb’s aggravated robbery conviction,

we are not applying Hand retroactively to a final judgment; rather, we are applying Hand

to a conviction that is currently pending on direct appeal.

       {¶ 14} McComb’s assignment of error is sustained in part as to his aggravated

robbery conviction and overruled as to his felonious assault conviction. Accordingly, the

trial court’s judgment is affirmed as to Count 2 (felonious assault). Concerning Count 1

(aggravated robbery), the three-year term of imprisonment imposed by the trial court is

modified solely to reflect that the term of imprisonment is not mandatory in nature. As so
                                                                                         -6-


modified, the trial court’s judgment is affirmed. This matter is remanded to the trial court

for the limited purposes of issuing a revised judgment entry consistent with our judgment

herein and to notify the appropriate prison officials of that revised judgment entry.

                                     .............



DONOVAN, J. and HALL, J., concur.


Copies mailed to:

Mathias H. Heck
Andrew T. French
Robert Alan Brenner
Hon. James A. Brogan, Visiting Judge
Hon. Erik R. Blaine
