[Cite as State v. Pierce, 2012-Ohio-4716.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 97728


                                       STATE OF OHIO
                                               PLAINTIFF-APPELLANT

                                                vs.


                                         ROSUE PIERCE
                                               DEFENDANT-APPELLEE




                                             JUDGMENT:
                                              AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-505095

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

        RELEASED AND JOURNALIZED:                     October 11, 2012
ATTORNEYS FOR APPELLANT

Timothy J. McGinty
Cuyahoga County Prosecutor
Daniel T. Van
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy Young
State of Ohio Public Defender
Katherine A. Szudy
Assistant State Public Defender
250 East Broad Street
Suite 1400
Columbus, Ohio 43215
MARY EILEEN KILBANE, J.:

       {¶1} In this appeal, the state of Ohio (“State”) contends that the trial court erred in

conducting a de novo sentencing for defendant Rosue Pierce and imposing community

control sanctions.   The State maintains that the defendant is bound to the sentence

announced on February 11, 2009, and that he should be imprisoned for violating

community control sanctions. For the reasons set forth below, we conclude that the

sentence announced on February 11, 2009, was interlocutory. Therefore, we affirm the

trial court’s sentence imposed at the de novo sentencing hearing on November 17, 2011.

       {¶2} On December 27, 2007, the defendant was indicted for felonious assault

with a firearm specification, improperly discharging a firearm at or into a habitation, and

having a weapon while under disability. He subsequently pled guilty to the lesser charge of

attempted felonious assault, without a firearm specification, and having a weapon while

under disability.

       {¶3} On August 21, 2008, the trial court sentenced him to two years of

community control sanctions and ordered that he could be sentenced to a six-month term

of imprisonment for violations of community control.

       {¶4} The State subsequently charged defendant with violating community control

sanctions. Following a hearing on November 12, 2008, the trial court found him in
violation, but continued the community control sanctions with a warning to defendant that

if he violated again, he may be sentenced to ten years of incarceration.

       {¶5} On November 20, 2008, a capias was issued for defendant and he was

charged with a second round of community control violations. At a hearing on February

11, 2009, defendant admitted to testing positive for marijuana and that he was a probation

violator. The court terminated the community control sanctions and sentenced defendant

to a total of seven years of imprisonment.

       {¶6} Defendant appealed to this court on March 5, 2009. On July 20, 2010, the

matter was remanded for correction of the journal entry, in order to meet the requirements

set forth in State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163.

       {¶7} On August 5, 2010, acting pursuant to this court’s limited Baker remand, the

trial court issued a corrected journal entry. On August 9, 2010, defendant filed a motion in

the trial court requesting a de novo sentencing hearing.

       {¶8} On September 20, 2010, defendant moved to dismiss the March 5, 2009

appeal for lack of a final appealable order. Defendant argued that the original sentence

imposed on August 21, 2008, contained an improper “package” sentence of two years of

community control sanctions that did not separately set forth the individual sentences for

felonious assault and having a weapon while under disability. Id.

       {¶9} This court dismissed defendant’s appeal on November 10, 2010, for lack of a

final appealable order. State v. Pierce, 8th Dist. No. 92922, 2010-Ohio-5467 (“Pierce I”).

 Thereafter, on November 17, 2011, the trial court held a de novo sentencing hearing.
The court noted that defendant had served 40 months of imprisonment on the offenses,

and that terminating his imprisonment would not demean the seriousness of the offenses or

present a danger to the public.      The court ordered defendant to serve two years of

community control sanctions for attempted felonious assault, with an 18-month term in the

event of violations of community control, and two years of community control sanctions

for having a weapon under disability, with a three-year term in the event of violations.

The State now appeals, assigning the following error for our review:

        The trial court’s modification of defendant’s sentence was contrary to law
        because the prison sentence was a final judgment.

        {¶10} In this assignment of error, the State argues that the trial court erred in

conducting a de novo sentencing hearing.

        {¶11} The State insists that the sentence announced on February 11, 2009, is a final

order, under which defendant must serve seven years of imprisonment. According to the

State, any defect in connection with the trial court’s journal entries was corrected in the

August 5, 2010 orders on remand. The State also notes that in State v. Dumas, 8th Dist.

No. 95760, 2011-Ohio-2926, this court distinguished Pierce I. The State additionally

notes that in State v. South, 120 Ohio St.3d 358, 2008-Ohio-6693, 899 N.E.2d 146, the

Ohio Supreme Court held that the lower court was not divested of jurisdiction from

considering an appeal where the journal entry set forth a “lump sum of three years of

community control” and a term of 84 months for violations thereof, on convictions for

seven offenses, once the court revoked that community control and imposed the 84-month

term.
       {¶12} We note that a criminal sentence is final upon issuance of a final order.

Rocky River v. Garnek, 8th Dist. No. 97540, 2012-Ohio-3079, ¶ 6. At that point, a party’s

options for legal recourse become significantly limited because the court has no authority

to reconsider and modify a final sentence. Id. at ¶ 7.

       {¶13} In this matter, however, the November 10, 2010 decision set forth in Pierce I,

dismissed the case and concluded that there was no final appealable order. That decision

remains the law of the case and is not subject to further review. State v. Wilson, 129 Ohio

St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381. As such, the State may not challenge the

correctness of Pierce I in this appeal. Moreover, the August 5, 2010 entries were issued

in connection with our remand for compliance with Baker, 119 Ohio St.3d 197,

2008-Ohio-3330, 893 N.E.2d 163. and did not correct the finality issue later identified in

the November 10, 2010 Pierce I decision.

       {¶14} Furthermore, a judgment that leaves issues unresolved and contemplates that

further action must be taken is not a final appealable order. State v. Phillips, 8th Dist. No.

90124, 2008-Ohio-5101, citing State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843

N.E.2d 164, ¶ 5. As noted in Pierce I, “the trial court failed to impose community control

sanctions on each count of defendant’s multi-count indictment.”               Following the

determination that there was no final appealable order, it necessarily follows that the

sentencing entry containing the “packaged” sentence was “non-final in regard to all of the

charges[.]”   State v. Goodwin, 9th Dist. No. 23337, 2007-Ohio-2343 (setting forth a

comprehensive analysis of finality issue); Phillips; State v. Allman, 2d Dist. No. 24693,
2012-Ohio-413, ¶ 9; State v. Hayes, 9th Dist. No. 99CA007416, 2000 Ohio App. LEXIS

2198 (May 24, 2000).

       {¶15} In light of all of the foregoing, and in light of Pierce I, the sentence

announced on February 11, 2009, that “failed to impose community control sanctions on

each count of defendant’s multi-count indictment” and contained a “packaged sentence”

was not a final order. Therefore, it was proper for the November 17, 2011 de novo

sentence to be issued, and there was no improper reconsideration of a final sentence on

that date. State v. Ford, 9th Dist. No. 23269, 2006-Ohio-6961, ¶ 6.

       {¶16} Judgment affirmed.



       It is ordered that appellee recover from appellant 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.




MARY EILEEN KILBANE, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
SEAN C. GALLAGHER, J., CONCUR
