[Cite as State v. Eltringham, 2014-Ohio-4149.]
                          STATE OF OHIO, COLUMBIANA COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


STATE OF OHIO                                    )   CASE NO. 13 CO 7
                                                 )
        PLAINTIFF-APPELLEE                       )
                                                 )
VS.                                              )   OPINION
                                                 )
JOSEPH ELTRINGHAM                                )
                                                 )
        DEFENDANT-APPELLANT                      )

CHARACTER OF PROCEEDINGS:                            Criminal Appeal from the Court of
                                                     Common Pleas of Columbiana County,
                                                     Ohio
                                                     Case No. 11 CR 222

JUDGMENT:                                            Affirmed.

APPEARANCES:

For Plaintiff-Appellee:                              Atty. Robert Herron
                                                     Columbiana County Prosecutor
                                                     Atty. Ryan P. Weikart
                                                     Assistant Prosecuting Attorney
                                                     105 South Market Street
                                                     Lisbon, Ohio 44432

For Defendant-Appellant:                             Atty. Richard J. Hura
                                                     9 E. Park Avenue
                                                     Columbiana, Ohio 44408


JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
                                                     Dated: September 18, 2014
[Cite as State v. Eltringham, 2014-Ohio-4149.]
WAITE, J.


        {¶1}     Appellant Joseph Eltringham appeals the decision of the Columbiana

County Court of Common Pleas to deny a motion for resentencing in a felony criminal

case.    Appellant had beaten and robbed a World War II veteran and eventually

pleaded guilty to three felonies, including aggravated robbery and felonious assault.

Appellant is also a veteran. He was sentenced to eight years in prison. Five months

after the court filed the conviction and sentencing judgment entry, Appellant filed a

motion seeking to be resentenced under a new section of the sentencing statute that

would require a sentencing judge to take into consideration a defendant's military

service. The statute, R.C. 2929.12(F), was not yet effective at the time Appellant

filed his motion, much less at the time of sentencing. The court overruled the motion

on the grounds that a trial judge has no authority to vacate or modify a sentence

once it becomes final.

        {¶2}     On appeal, Appellant urges us to use our equitable powers to allow him

to be resentenced under the new law because he believes it could reduce his

sentence. We have no authority, equitable or otherwise, to do as Appellant asks.

There is no question that a sentencing judge cannot rescind or modify a sentence

after it is final and has been journalized. Appellant is also mistaken that the trial court

failed to take into account his military service, because that service is mentioned

throughout the sentencing transcript and the court's judgment entry. Newly enacted

R.C. 2929.12(F) does not require any particular outcome. It simply directs the trial

court to consider a defendant's military service. The record clearly indicates that the
                                                                                        -2-

trial court did take into account Appellant's military service at sentencing. Appellant's

assignment of error is without merit and the judgment of the trial court is affirmed.

                                  History of the Case

       {¶3}   On August 17, 2011, Appellant's daughter called 911 in East

Rochester, Ohio, to report that Appellant came home drunk and covered with blood,

and that she thought he had injured a friend of his named Robert Kastelic, an 86-year

old veteran of World War II.      At the time of the crime, Appellant was an active

member of the Ohio National Guard and had served in the military more than two

decades in places such as Iraq and Afghanistan.           Kastelic and Appellant were

neighbors in East Rochester, and knew each other through social organizations.

Kastelic also had provided some financial assistance to Appellant's family through

the American Legion.

       {¶4}   Two officers responded to the 911 call and looked for Kastelic at his

home. When they arrived, they saw signs of a violent struggle but did not find

Kastelic. He was soon discovered laying in a neighbor's yard across the street, the

victim of a vicious assault.    Appellant had beaten Kastelic for 30-45 minutes in

Kastelic's home, administering blows to the head, face, and midsection. Kastelic

suffered multiple injuries and bled profusely.

       {¶5}   Blood was found through Kastelic's house, including in the kitchen,

dining room, and bedroom. Although Kastelic was legally blind and his eyes were

swollen shut from the assault, he escaped the attack by climbing through a bedroom

window and crawling across a road to a neighbor's house, where he collapsed from

exhaustion. Officers found him lying in a field next to an electric fence and covered in
                                                                                   -3-

his own blood, with numerous contusions, lacerations, abrasions, swelling to his face,

and a broken rib.

      {¶6}   While the attack was going on, Appellant stole $400 from Kastelic's

wallet and took tools and golf clubs from the garage.       He also demanded that

Kastelic hand over the title to his car and the deed to his house, and took a strong

box full of Kastelic's personal documents. Appellant threatened to come back and kill

Kastelic if he told anyone about the attack and robbery. Kastelic spent nearly a week

in the hospital recovering, then two more weeks in a rehabilitation center, before

being permitted to return home. Thereafter, he required frequent visits from nurses

at his home during his recovery, and it took months before he fully regained his

independence.

      {¶7}   On the day of the attack Officers questioned Appellant at his home

about the assault. They saw he was covered with blood. He told them that he had

been at home at the time of the attack and that the blood was from a cut on his knee.

He became belligerent with the officers and was arrested for disorderly conduct. The

next morning he continued to insist that the blood was from a knee injury. When

confronted with the police statement made by Kastelic, he changed his story and

claimed that he had blacked out during the crime.

      {¶8}   Appellant was indicted on September 29, 2011, for aggravated robbery,

R.C. 2911.01(A)(3) (first degree felony); felonious assault, R.C. 2903.11.(A)(1)

(second degree felony); and intimidation, R.C. 2921.04(B) (third degree felony). The

crimes warranted a possible maximum punishment of 21 years in prison. He entered

a plea of not guilty by reason of insanity (NGRI). A forensic analysis was completed,
                                                                                      -4-

and Appellant requested an expert to evaluate him for post-traumatic stress disorder

(PTSD). Based on the results of the forensic analysis, which indicated that Appellant

knew the wrongfulness of his actions, he withdrew his request for a PTSD expert and

asked for a second medical analysis to be completed. When it became clear that

Appellant was not actually seeking a second forensic opinion on his sanity, but

rather, an opinion about PTSD and sundry other medical issues, the court denied

Appellant's motion for additional funds. On August 23, 2012, Appellant withdrew his

NGRI plea and entered guilty pleas on all three counts. In a written Crim.R. 11 plea

agreement, the state agreed to recommend a sentence of ten years in prison.

       {¶9}   Sentencing took place on November 1, 2012. The court received a

number of documents into evidence at sentencing, including a doctor's letter stating

that he diagnosed Appellant with PTSD, panic disorder and anxiety state disorder.

Both the prosecutor and Appellant's counsel spoke about the military service record

of Kastelic and Appellant. The prosecutor recommended a ten-year prison term.

The court noted Appellant's military service record and stated that “I don't believe that

the offenses that you've now pleaded guilty to define you. I don't believe that the

outcome of this hearing will erase your life's honorable accomplishments.” (11/1/12

Tr., p. 121.) The court sentenced Appellant to 8 years in prison for aggravated

robbery, 8 years for felonious assault, and 36 months for intimidation, to be served

concurrently, for a total prison term of 8 years. The court filed its judgment entry of

conviction and sentence on November 1, 2012.            No appeal was taken of that

judgment.
                                                                                     -5-

      {¶10} On January 7, 2013, Appellant filed a motion seeking to be resentenced

pursuant to 2012 HB 197, which would become effective on March 22, 2013.

Appellant believed he would receive more lenient sentencing under the new bill

because of revisions made to R.C. 2929.12(F) that specifically included military

service as a factor at sentencing. On January 23, 2013, the state filed a brief in

opposition. The court denied the motion in a judgment entry filed February 4, 2013.

The court noted that HB 197 was not yet effective at the time sentence was imposed,

that it was not a retroactive statute, and that a trial court is not empowered to modify

a final order of sentence, citing State v. Carlisle, 131 Ohio St.3d 127, 2011-Ohio-

6553, 961 N.E.2d 671. Appellant filed an appeal of the February 4, 2013, judgment

entry denying his motion for resentencing.

                             ASSIGNMENT OF ERROR

      Equity beckons this Honorable Court remand Sgt. Joseph Eltringham's

      case for re-sentencing.

      {¶11} Appellant appeals to the equitable powers of this Court to reverse the

trial court judgment and allow him to be resentenced under a sentencing statute that

was not in existence when he was sentenced. Appellant claims that 2012 HB 197,

particularly the revisions to R.C. 2929.12 contained in that bill, would allow a more

appropriate sentence for him as a veteran allegedly suffering from PTSD. 2012 HB

197 added section (F) to R.C. 2929.12, which states: “The sentencing court shall

consider the offender's military service record and whether the offender has an

emotional, mental, or physical condition that is traceable to the offender's service in
                                                                                       -6-

the armed forces of the United States and that was a contributing factor in the

offender's commission of the offense or offenses.”         Appellant believes that the

revised law is more favorable to veterans such as himself and that he might receive a

reduced sentence under the revised statute. Appellant is mistaken for two reasons.

       {¶12} First, a trial court has no authority to vacate or modify a sentence after it

has become final and appealable. A criminal sentence becomes a final judgment

upon issuance of the sentencing entry and the journalization of the sentence. State

v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, syllabus. “Absent

statutory authority, a trial court is generally not empowered to modify a criminal

sentence by reconsidering its own final judgment.” Carlisle, supra, 131 Ohio St.3d

127, at ¶1, applying State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-

5795, 856 N.E.2d 263. In Carlisle, the defendant was sentenced in July of 2007. A

year and one-half later, he filed a motion to reconsider and modify his sentence due

to severe health problems he was having. The trial court determined that it had the

authority to modify the sentence because the defendant had not yet been admitted to

prison. The Ohio Supreme Court reversed on the grounds that a trial court has no

authority to modify a sentence after a valid final judgment of conviction is journalized,

regardless whether the defendant had begun serving the prison term or not. Carlisle

at ¶11.

       {¶13} In this case, final judgment of conviction and sentence was journalized

on November 1, 2012. Appellant concedes that the trial court committed no error in

sentencing under the law in existence at the time he was sentenced. Appellant

simply believes he would have received a more favorable sentence under R.C.
                                                                                       -7-

2929.12 as revised by 2012 HB 197 because it would require the trial court to take

into consideration his military service and possible mental health problems

associated with his military service. The trial court correctly concluded that it did not

have authority to modify or vacate the final order of sentencing simply because the

sentencing laws had been amended after judgment was entered.                   Assuming

arguendo, that such a thing was possible, it appears clear from this record, however,

that the newly enacted R.C. 2929.12(F) would not change Appellant's sentence. The

trial court did take into account Appellant's military service and was thoroughly aware

of the allegations that Appellant suffered from PTSD.             The court mentioned

Appellant's military service several times in the judgment entry as a factor in

Appellant's favor. The court was in possession of a physician’s diagnosis of PTSD.

This record is unique in that both the victim and the perpetrator were veterans. The

trial court also took into account the military service of the victim, Robert Kastelic, an

86-year old veteran of World War II. That said, the trial court had no authority to

revise the final judgment of sentence and properly dismissed Appellant's motion to be

resentenced. Appellant's assignment of error is overruled and the judgment of the

trial court is affirmed.


Donofrio, J., concurs.

Vukovich, J., concurs.
