[Cite as State v. Houston, 2016-Ohio-3319.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                  Nos. 103252 and 103254



                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                            DOMINIQUE J. HOUSTON
                                                      DEFENDANT-APPELLANT



                              JUDGMENT:
                   AFFIRMED IN PART, VACATED IN PART,
                            AND REMANDED


                                   Criminal Appeal from the
                           Cuyahoga County Court of Common Pleas
                        Case Nos. CR-13-577465-A and CR-13-577675-A


        BEFORE:          Celebrezze, J., Keough, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: June 9, 2016
ATTORNEY FOR APPELLANT

Rick L. Ferrara
2077 East 4th Street
2nd Floor
Cleveland, Ohio 44114


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Frank Romeo Zeleznikar
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:

      {¶1} Appellant, Dominique J. Houston, appeals his five-year prison sentence.

He claims that the court erred in imposing a greater sentence than it originally imposed on

two counts of aggravated robbery, and in doing so, contravened the court’s own prior

findings. After a thorough review of the record and law, this court affirms the sentence

imposed in Cuyahoga C.P. No. CR-13-577675-A, vacates the sentence imposed in

Cuyahoga C.P. No. CR-13-577465-A, and remands.

                          I. Factual and Procedural History

      {¶2} On August 7, 2013, appellant robbed a man of his wallet and cell phone at

gunpoint. On August 19, 2013, appellant and another male robbed a man and his mother

at gunpoint. The victims in the second robbery respectively lost $276 and $2,290.50 in

cash and property.

      {¶3} Appellant was eventually identified and indicted in two cases. In C.P. No.

CR-13-577675-A, he was charged with violating R.C. 2911.10(A)(1), aggravated

robbery, and R.C. 2905.01(A)(2), kidnapping. In C.P. No. CR-13-577465-A, he was

also charged with two counts of aggravated robbery, first-degree felony violations of R.C.

2911.01(A)(1); two counts of robbery, second-degree felony violations of R.C.

2911.02(A)(2); and two counts of kidnapping, first-degree felony violations of R.C.

2905.01(A)(2). The charges included one- and three-year firearm specifications in each

case. Appellant eventually pled guilty to three counts of aggravated robbery. The other
charges and firearm specifications were dismissed.           After the court obtained a

presentence investigation report, it held a sentencing hearing on March 19, 2014.

       {¶4} There, the court heard from the state, two victims, appellant, and his

counsel. The court sentenced appellant to serve a six-year prison term. It imposed

three-year terms on each count of aggravated robbery in each case.             In C.P. No.

CR-13-577465-A, the court appeared to order the two three-year sentences to be served

consecutive to each other but concurrent with the sentence imposed in C.P. No.

CR-13-577675-A.      However, the sentencing transcript does not clearly reflect the

intention of the trial court. The trial court’s pronouncement at sentencing referenced a

six-year total sentence, but also stated that terms would be served concurrently. The

journal entry of sentence also did not set forth the findings necessary for the imposition of

consecutive sentences.     The court ordered restitution to the victims in C.P. No.

CR-13-577465-A as agreed to by appellant, but failed to incorporate that order into the

sentencing entry.

       {¶5} Appellant appealed from the sentences, arguing that the trial court did not

make the requisite findings necessary for consecutive sentences. However, this court

determined that there was no final, appealable order because the sentencing entries did

not include any information regarding restitution as ordered at the hearing and dismissed

the appeals without opinion. State v. Houston, 8th Dist. Cuyahoga Nos. 101293 and

101294 (Sept. 29, 2014). After the trial court reactivated the case, it held a sentencing

hearing where it imposed an aggregate five-year prison sentence.            It imposed two
five-year sentences on each count of aggravated robbery in C.P. No. CR-13-577465-A,

and one three-year sentence in C.P. No. CR-13-577675-A.             The court ordered all

sentences to be served concurrently, for a total of five years.1

       {¶6} Appellant then filed the instant appeal arguing two errors:

       I. The trial court abused its discretion when it rejected its own, prior
       findings to sentence appellant to a higher term of imprisonment per count.

       II. The trial court acted contrary to law in applying the federal,
       [sentencing-package] doctrine to create an “aggregate” punishment for
       appellant.

                                  II. Law and Analysis

       {¶7} In the first assignment of error, appellant claims that the court abused its

discretion when it rejected its prior findings and rendered a sentence different from the

one announced at the initial sentencing hearing. However, sentencing review does not

involve a determination of whether a trial court abused its discretion. State v. Marcum,

Slip Opinion No. 2016-Ohio-1002, ¶ 23. In Marcum, the Ohio Supreme Court held that

sentencing review is governed by R.C. 2953.08. Id. Even where findings necessary

under R.C. 2953.08(G) are not implicated,

       it is fully consistent for appellate courts to review those sentences that are
       imposed solely after consideration of the factors in R.C. 2929.11 and


       1This court remanded the case to the trial court after appellant filed his
notice of appeal because the trial court again failed to include restitution in the
journal entry of sentence. The court issued a nunc pro tunc entry that included an
order of restitution, but the amount set forth in the journal entry does not match
the amount of restitution ordered at the sentencing hearing. The court’s entry only
accounts for restitution ordered for one victim when the court, at sentencing,
ordered restitution for two victims with separate amounts for each.
       2929.12 under a standard that is equally deferential to the sentencing court.
       That is, an appellate court may vacate or modify any sentence that is not
       clearly and convincingly contrary to law only if the appellate court finds by
       clear and convincing evidence that the record does not support the sentence.

Id. at ¶ 23. This dictates our review here.        This court must review the record and

determine if the sentences imposed by the court and any findings they are built on are

clearly and convincingly not supported by the record. Id. at ¶ 22; R.C. 2953.08(G)(2).

       {¶8} First, this court must note that a trial court has no authority to reconsider its

own final determinations. State v. Carlisle, 131 Ohio St.3d 127, 2011-Ohio-6553, 961

N.E.2d 671. However, in the present case, this court deemed the sentencing entries did

not constitute final, appealable orders. An entry constitutes a final order of sentence

when “the judgment entry sets forth (1) the fact of the conviction, (2) the sentence, (3) the

judge’s signature, and (4) the time stamp indicating the entry upon the journal by the

clerk.” State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, ¶ 14;

Crim.R. 32. Further, “an order of restitution imposed by the sentencing court on an

offender for a felony is part of the sentence * * *.” State v. Danison, 105 Ohio St.3d

127, 2005-Ohio-781, 823 N.E.2d 444, ¶ 8.

       {¶9} While it is true that in one of appellant’s cases an order of sentence was not

final due to a lack of restitution in the journal entry, the sentencing entry in the other case

was final and appealable because no restitution had been ordered in that case. However,

this court’s decision remanded the case for the issuance of final, appealable orders in both

cases and no one appealed that order. This was error on the part of this court, but
because the trial court did not amend the sentence in C.P. No. CR-13-577675-A, it was

harmless and does not substantially affect this appeal.

       {¶10} Once the entries of sentence were deemed nonfinal orders, the trial court

had authority to hold a sentencing hearing after this court’s dismissal of appellant’s first

appeal even though it was not required to do so. See State v. Apger, 8th Dist. Cuyahoga

No. 97372, 2012-Ohio-1360, ¶ 4 (“[T]rial court had authority to hold the subsequent

hearing and sentence Apger because the sentence imposed at the [earlier] hearing was

never journalized by the clerk pursuant to Crim.R. 32.”). See also State v. Rose, 12th

Dist. Butler No. CA2011-11-214, 2012-Ohio-5607, ¶ 73.

       {¶11} Turning to the crux of appellant’s argument,

       “[c]ourts may increase sentences when the sentence does not constitute a
       final order. Brook Park v. Necak, 30 Ohio App.3d 118, 119, 506 N.E.2d
       936 [(8th Dist.1986)], citing Columbus v. Messer, [7 Ohio App.3d 266, 455
       N.E.2d 519 (10th Dist.1982)]. This Court has previously noted that a court
       speaks only through its journal entries. State v. Ismail [9th Dist. Summit
       No. 15007, 1991 Ohio App. LEXIS 4009, *2 (Aug. 21, 1991)]. Thus, an
       oral pronouncement of sentence in open court does not meet this rule. Id. In
       Ismail, this Court went on to note that “where there has been no
       journalization of the sentence, a sentence announced in open court may be
       amended without formal journal entry.” 1991 Ohio App. LEXIS 4009 at *
       3, citing State v. Harris, 2 Ohio App.3d 48, 49, 440 N.E.2d 572 [(10th Dist.
       1981)].”

State v. Overstreet, 9th Dist. Summit No. 21367, 2003-Ohio-4530, ¶ 8, quoting State v.

Teets, 9th Dist. Medina No. 3022-M, 2000 Ohio App. LEXIS 4228, *4 (Sept. 20, 2000).

 The Overstreet court held, “the trial court amended appellant’s sentence before it was

journalized. Therefore, the trial court did not enhance appellant’s sentence after he was

originally sentenced.” Id. at ¶ 9. These cases condone an increased sentence where
there has been some new information introduced that alters the trial court’s calculus in

arriving at an appropriate sentence.

       {¶12} Generally, when a court imposes harsher penalties on a criminal defendant

after successful appeal, a presumption of vindictiveness arises, “which the court [is]

required to rebut by affirmative findings regarding conduct or events discovered since the

prior sentencing.” State v. Bradley, 2d Dist. Champaign No. 06CA31, 2008-Ohio-720, ¶

7, citing North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969);

Wasman v. United States, 468 U.S. 559, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984). To

overcome the presumption of vindictiveness, the court must be able to point to events that

have transpired in the interim that “‘throw “new light upon the defendant’s life, health,

habits, conduct, and mental and moral propensities.”’” Id., quoting Wasman at 570-571,

quoting Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). The

principle of vindictiveness developed in these cases is equally applicable here even

though appellant’s first sentencing hearing was a nullity because the sentence imposed

was never properly journalized.2 The fact that appellant’s sentence was increased on two

counts following the dismissal of his appeal is analogous in many respects to other

situations where a defendant is resentenced following successful appeal, and this court

cannot find any substantive reason to treat them differently.



       2“The effect of determining that a judgment is void is well established. It is
as though such proceedings had never occurred; the judgment is a mere nullity and
the parties are in the same position as if there had been no judgment.” Romito v.
Maxwell, 10 Ohio St.2d 266, 267-268, 227 N.E.2d 223 (1967).
      {¶13} Appellant’s argument about vindictive sentencing flows into his second

assignment of error regarding the court’s use of a sentencing package. The trial court

indicated it was actually decreasing appellant’s sentence by imposing a five-year prison

sentence rather than six.    According to the trial court’s logic, there can be no

vindictiveness given the decrease. In appellant’s second assignment of error he alleges

that the court impermissibly applied a “sentencing package” rather than considering each

charge and resultant punishment separately.

      {¶14} The Ohio Supreme Court has rejected the use of a “sentencing

             package”:

      Although imposition of concurrent sentences in Ohio may appear to involve
      a “lump” sentence approach, the opposite is actually true. Instead of
      considering multiple offenses as a whole and imposing one, overarching
      sentence to encompass the entirety of the offenses as in the federal
      sentencing regime, a judge sentencing a defendant pursuant to Ohio law
      must consider each offense individually and impose a separate sentence for
      each offense. See R.C. 2929.11 through 2929.19. Only after the judge has
      imposed a separate prison term for each offense may the judge then
      consider in his discretion whether the offender should serve those terms
      concurrently or consecutively. See State v. Foster, 109 Ohio St.3d 1,
      2006-Ohio-856, 845 N.E.2d 470, paragraph seven of the syllabus, ¶ 100,
      102, 105; R.C. 2929.12(A); State v. Mathis, 109 Ohio St.3d 54,
      2006-Ohio-855, 846 N.E.2d 1, paragraph three of the syllabus.

State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 9.

      {¶15} In the present case, when the court imposed sentence, its rationale for

increasing appellant’s sentence for two offenses — that the sentences were actually less

than the previous sentences — is contrary to the way in which sentencing works in Ohio.

State v. Quinones, 8th Dist. Cuyahoga No. 97054, 2012-Ohio-1939.      In Quinones, this
court explained the way in which a federal judge arrives at a sentence using an overall

sentencing plan:

       “[The court will] craft a disposition in which the sentences on the various

       counts form part of an overall plan. When the conviction on one or more of

       the component counts is vacated, common sense dictates that the judge

       should be free to review the efficacy of what remains in light of the original

       plan, and to reconstruct the sentencing architecture upon remand, within

       applicable constitutional and statutory limits, if that appears necessary in

       order to ensure that the punishment still fits both crime and criminal.”

Id. at ¶ 7, quoting United States v. Pimienta-Redondo, 874 F.2d 9, 14 (1st Cir.1989).

This court then went on to determine that the trial court impermissibly used a sentencing

package according to the court’s statements at sentencing:

       By increasing the length of the remaining rape count to effectuate its
       original intent to have him serve five years, the court reviewed “the efficacy
       of what remain[ed] in light of the original plan” and fashioned a new
       sentence to effectuate its plan to have Quinones serve five years. By any
       measure, this was an admission by the court that it sentenced Quinones
       according to a “single comprehensive sentencing plan” of the kind
       described in Pimienta-Redondo.

Id. at ¶ 10.

       {¶16} Here, the court’s stated justification for increasing appellant’s sentences in

CR-13-577465-A was that the overall sentence would decrease. This indicates the use of

a comprehensive sentencing plan to justify the increase in appellant’s individual

sentences. This is not a valid justification in light of Saxon’s proscribed sentencing
methods. The court could have based an increase in sentence on appellant’s prison

record or any other new information the court had received, but it did not do so.

       {¶17} Therefore, appellant’s first and second assignment of errors are sustained.

As a result, the sentences imposed in CR-13-577465-A must be vacated and the case

remanded to the trial court for resentencing on this case only. The court may arrive at

different sentences than initially imposed, including the imposition of consecutive

sentences, but must cite to appropriate factors for doing so. As stated in Overstreet, the

court is not bound by its conclusions at the first sentencing hearing if the court hears new,

additional information not adduced at the first hearing. Overstreet, 9th Dist. Summit No.

21367, 2003-Ohio-4530, ¶ 8.         For instance, the court could consider appellant’s

disciplinary record at the prison institution where he was being housed.

       {¶18} On remand, the court should also endeavor to properly journalize its order of

restitution in the journal entry of sentence, which it has been unable to do thus far. In the

most recent entry, the court included an order of restitution for the female victim in the

amount of $2,290.50. However, the court failed to include the restitution amount of

$276 it ordered for the male victim in CR-13-577465-A.

                                     III. Conclusion

       {¶19} The trial court increased appellant’s length of imprisonment from three

years to five from the initial sentencing hearing to the second one in C.P. No.

CR-13-577465-A. The court did not cite to any change in circumstances that would

justify the increase, but instead relied on reasoning that can only be classified as an
impermissible sentencing package. Therefore, the court erred in increasing appellant’s

sentences in CR-13-577465-A.        The sentence imposed in CR-13-577675-A did not

change, and appellant raises no argument related to that sentence. Therefore, this sentence

is affirmed.

       {¶20} This cause is affirmed in part, vacated in part, and remanded to the lower

court for resentencing consistent with this opinion.

       It is ordered that appellant and appellee share the 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. Case remanded to the trial court for

resentencing.

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

the Rules of Appellate Procedure.


_________________________________________________________
FRANK D. CELEBREZZE, JR., JUDGE

KATHLEEN ANN KEOUGH, P.J., CONCURS;
SEAN C. GALLAGHER, J., DISSENTS (WITH SEPARATE OPINION)

SEAN C. GALLAGHER, J., DISSENTING:

       {¶21} I respectfully dissent. As the majority recognized, R.C. 2953.08 defines the

scope of appellate review over final sentences. Generally speaking, the legislature has

provided that defendants cannot appeal the imposed sentence unless under a provision of

R.C. 2953.08(A). The only applicable subdivision in this case is if Houston’s sentence
was contrary to law. R.C. 2953.08(A)(4). Because Houston failed to establish, let alone

argue, that his sentences were contrary to law, we lack the ability to review either of the

assigned errors.

       {¶22} A sentence is contrary to law if “(1) the sentence falls outside the statutory

range for the particular degree of offense, or (2) the trial court failed to consider the

purposes and principles of felony sentencing set forth in R.C. 2929.11 and the sentencing

factors in R.C. 2929.12.”          State v. Price, 8th Dist. Cuyahoga No. 103023,

2016-Ohio-591, ¶ 12; State v. Hinton, 8th Dist. Cuyahoga No. 102710, 2015-Ohio-4907,

¶ 10, citing State v. Smith, 8th Dist. Cuyahoga No. 100206, 2014-Ohio-1520, ¶ 13. In

this case, the trial court specifically indicated that it “considered all required factors of the

law [and] finds that prison is consistent with the purpose of R.C. 2929.11.” Further, the

five-year aggregate term of imprisonment was comprised of individual sentences to be

served concurrently, each within the applicable statutory guidelines. Houston’s sentence

is not contrary to law, and thus according to State v. Marcum, Slip Opinion No.

2016-Ohio-1002, R.C. 2953.08 precludes our review of his final sentence based on the

arguments advanced in the current appeal.

       {¶23} Houston’s reliance on the sentencing-package doctrine and the prohibition

against vindictive sentencing is misplaced. Even if we could consider the merits of the

assigned errors, neither argument applies to the current situation because Houston’s

original sentence was not reversed in a direct appeal.
       {¶24} Further, the fact that Houston claims that the sentence was a product of

vindictive sentencing is irrelevant because at the root of that claim, Houston is

complaining about the trial court’s decision to weigh sentencing factors in his de novo

sentencing hearing. Even if we considered the second sentencing hearing as a de novo

resentencing hearing, the outcome is the same. “During a de novo resentencing, ‘the trial

court is free to impose the identical sentence that was originally imposed, or a greater or

lesser sentence within its discretion.’” State v. Quinones, 8th Dist. Cuyahoga No. 97054,

2012-Ohio-1939, ¶ 3, quoting State v. Jackson, 8th Dist. Cuyahoga No. 92365,

2009-Ohio-4995, ¶ 9. The weight given to any sentencing factor is purely a product of

the trial court’s discretion in sentencing, and that discretion is, practically speaking,

unreviewable absent a claim that the trial court considered non-existent factors, which in

and of itself is difficult to prove because a trial court is not required to provide reasons or

explain what factors it considered. State v. Ongert, 8th Dist. Cuyahoga No. 103208,

2016-Ohio-1543, ¶ 15.

       {¶25} Finally, the sentencing-package doctrine is not implicated solely because a

trial court has an aggregate sentence in mind when individually sentencing on each count,

which is all that Ohio law requires. The sentencing-package doctrine precludes a trial

court from altering a sentence for a particular count of the indictment on remand that was

not reversed in the direct appeal, in an attempt to keep the aggregate sentence the same.

Quinones at ¶ 7. Although I acknowledge that Quinones remains the law of this district,

it may be time we limit application of the “sentencing-package doctrine” to that specific
case.      The    decision   continues   to   create   unnecessary    confusion.      “The

sentencing-package doctrine has no applicability to Ohio sentencing laws: the sentencing

court may not employ the doctrine when sentencing a defendant, and appellate courts

may not utilize the doctrine when reviewing a sentence or sentences.” (Emphasis added.)

 State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 10.

        {¶26} In Quinones, the offender’s sentences on multiple counts were reversed

based on errors implicating allied offense analysis. Id. In cases like Quinones, the

correct appellate procedure is to vacate all affected sentences and remand for a de novo

resentencing. State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶

18. At that resentencing, the trial court in Quinones conducted the new sentencing

hearing, but adopted its considerations from the original sentencing to arrive at the same

sentence originally imposed, which was well within the statutory sentencing guidelines

for the crime upon which the sentence was entered. Id. at ¶ 1. This should have been

permitted pursuant to Wilson and Saxon. Instead, the Quinones panel concluded that the

trial court was prohibited from imposing an authorized sentence because it implicated the

sentencing-package doctrine. But see State v. Rammel, 2d Dist. Montgomery Nos. 25899

and 25900, 2015-Ohio-2715 (trial court has discretion “reconfigure” the sentence upon

remand if the sentences were reversed in the direct appeal).

        {¶27} Fortunately, the facts of the present appeal do not call for an evaluation of

the continued vitality of Quinones solely based on the fact that there was no remand order

in this case to implicate Quinones or the sentencing- package doctrine.
{¶28} Houston’s assignment of error should be overruled. I would affirm.
