[Cite as State v. Ervin, 2014-Ohio-2981.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 100528


                                       STATE OF OHIO

                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                            GARY ERVIN

                                                              DEFENDANT-APPELLANT



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


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-04-448726-B

        BEFORE:           Jones, P.J., S. Gallagher, J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED: July 3, 2014
ATTORNEY FOR APPELLANT

Thomas A. Rein
Leader Building, Suite 940
526 Superior Avenue
Cleveland, Ohio 44114


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: John R. Kosko
        Brett Hammond
        Joseph J. Ricotta
Assistant County Prosecutors
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., P.J.:

       {¶1} Defendant-appellant Gary Ervin appeals from the trial court’s September

2013 sentencing judgment entry. We affirm in part, reverse in part, and remand the case

for further proceedings.

                                    I.   Procedural History

       {¶2} In 2004, Ervin was charged with 14 crimes stemming from the death of

Darnell Lester and the assault of several FBI agents; his codefendants, Aubrey Waller and

Wayne Ervin, were also charged with crimes for their participation in the incident.1

       {¶3} A jury convicted Ervin of felony murder, one count each of kidnapping,

aggravated robbery, grand theft of a motor vehicle, carrying a concealed weapon, and six

counts of felonious assault.      The trial court sentenced him to 31 years to life that

included a consecutive sentence.

       {¶4} Ervin appealed and in August 2006, this court issued its decision, wherein

Ervin’s conviction was upheld, but the sentence was vacated and the case was remanded

for resentencing.    State v. Ervin, 8th Dist. Cuyahoga No. 87333, 2006-Ohio-4498.

       {¶5} The trial court issued three orders on the following dates requesting that

Ervin be returned from prison to Cuyahoga County: November 11, 2006, February 14,

2007, and August 7, 2007. Ervin was never returned pursuant to those orders, however.

       {¶6} In 2013, the state filed a motion for writ of habeas corpus ad prosequendum

1
 See State v. Ervin, 8th Dist. Cuyahoga No. 87333, 2006-Ohio-4498, for a detailed recitation of the
facts.
wherein it sought an order directing the prison where Ervin was incarcerated to release

him so that he could appear for hearing in this case.   The trial court granted the motion,

Ervin was released, and he was resentenced in September 2013.         The court sentenced

him to the same 31-years-to-life term. It also imposed court costs against him.

      {¶7} Ervin presents the following assignments of error for our review:

      [I.] The trial court erred when it imposed a sentence upon Appellant after a
      seven (7) year unnecessary and unreasonable delay upon remand for
      resentencing, violating his rights to a final appealable judgment without
      unnecessary delay under the United States Constitution and the Ohio
      Constitution, which guarantee due process of law.

      [II.] The trial court erred by ordering Appellant to serve a consecutive
      sentence without making the appropriate findings required by R.C. 2929.14
      and HB 86.

      [III.] The trial court erred by ordering convictions and a consecutive
      sentence for separate counts because the trial court failed to make a proper
      determination as to whether those offenses are allied offenses pursuant to
      R.C. 2941.25 and they are part of the same transaction under R.C. 2929.14.

      [IV.] The trial court erred by ordering Appellant to pay costs in the journal
      entry because it was not addressed or ordered in open court.




                                  II.   Law and Analysis

Delay in Resentencing

      {¶8} Ervin contends in his first assignment of error that the trial court’s seven-year

delay violated his constitutional rights. He acknowledges this court’s decision in State v.
Nia, 8th Dist. Cuyahoga No. 99387, 2013-Ohio-5424,2 but contends that there is a

distinction here.

       {¶9} In Nia, 68 months, or approximately five years, elapsed between the time the

defendant’s case was remanded for resentencing and the time the resentencing occurred.

The delay was due to a “serious administrative lapse.” State v. Nia, 8th Dist. Cuyahoga

No. 99387, 2014-Ohio-2527, ¶ 33.

       {¶10} This court cited to its previous holding that the “requirement under Crim.R.

32(A) that a sentence be imposed without unnecessary delay does not apply to

resentencing.”      Id. at ¶ 30, citing State v. Wright, 8th Dist. Cuyahoga No. 95010,

2011-Ohio-482; State v. Coleman, 8th Dist. Cuyahoga No. 94866, 2011-Ohio-341; State

v. Craddock, 8th Dist. Cuyahoga No. 94387, 2010-Ohio-5782; and State v. Huber, 8th

Dist. Cuyahoga No. 85082, 2005-Ohio-2625.

       {¶11} “When reviewing a delay in resentencing, the appellate court must consider

whether the delay prejudiced the defendant.” Nia at ¶ 31, citing State v. McQueen, 8th

Dist. Cuyahoga No. 91370, 2009-Ohio-1085, ¶ 5. “Whether the defendant suffered

prejudice as a result of the delay depends on the facts of the case.” Nia at ¶ 31.         This

court has previously not found prejudice in instances             where the defendant was

incarcerated during the delay and would not have been eligible for release during that

time period. Nia at ¶ 31, citing Huber.

2
 Nia was recently reconsidered by this court en banc. The issue for consideration in the en banc
proceeding was consecutive sentences. This court’s holding relative to delay in resentencing
remained the same. State v. Nia, 8th Dist. Cuyahoga No. 99387, 2014-Ohio-2527.
       {¶12} In Nia, this court ordered the trial court to resentence the defendant to a

minimum of 20 years on one of the two counts on which he had been convicted. Thus,

because the defendant could not have been released during the 68 months that it took for

the trial court to resentence him, this court found he was not prejudiced.   Id. at ¶ 34.

       {¶13} Ervin contends that his case is distinguishable from Nia because he was “in

fact prejudiced by the delay” based on the fact that the “law with respect to consecutive

sentences which applies directly to Mr. Ervin has changed numerous times since 2005.”

       {¶14} Ervin was first sentenced in November 2005, and the version of R.C.

2929.14 in effect then required the trial court to make findings when imposing

consecutive sentences.    In November 2005, Ervin appealed his sentence, contending that

the trial court did not make the required findings.

       {¶15} In February 2006, while Ervin’s appeal was pending, the Ohio Supreme

Court issued its decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d

470, wherein it held that several sentencing provisions, including R.C. 2929.14 governing

consecutive sentences, were unconstitutional; the offending sections were excised from

the Revised Code.

       {¶16} Because Ervin’s appeal was pending at the time Foster was decided, this

court applied Foster, vacated his sentence, and remanded for resentencing in accordance

with Foster. This court declined to address Ervin’s contention that Foster violated his

right against ex post facto legislation because the issue was not ripe for review as Ervin

had not yet been sentenced under Foster.
       {¶17} The delay occurred on remand, and when Ervin was resentenced in 2013,

Foster no longer applied; rather, the requirements under R.C. 2929.14 governing the

imposition of consecutive sentences had been reinstated.          According to Ervin, the

authority under which he was sentenced in 2013 “did not exist at the time of the offense

or at the time of his convictions.”   We disagree.

       {¶18} The statutory findings required for the imposition of consecutive sentences

in 2005, when Ervin was initially sentenced, and in 2013, when he was resentenced, were

substantively the same: “former R.C. 2929.14(E)(4) had been ‘revived’ under

Am.Sub.H.B. No. 86 and recodified as R.C. 2929.14(C)(4).”                   State v. Venes,

2013-Ohio-1891, 992 N.E.2d 453 (8th Dist.), ¶ 2.

       {¶19} On this record, Ervin’s contention that he was prejudiced by the change in

law is not well taken.       The revived statutory requirements that the trial court was

required to follow in 2013 were the same requirements it was required to follow when it

initially sentenced Ervin.   And those requirements required more of the trial court before

imposing consecutive sentences, as opposed to the sentencing scheme under Foster,

which did not require findings.

       {¶20} Moreover, Ervin was sentenced to 31 years to life in this case, and was

serving a 101-year sentence imposed by the federal court.      Thus, because the defendant

could not have been released during the approximate 84 months that it took for the trial

court to resentence him, he was not prejudiced by the delay.

       {¶21} In light of the above, the first assignment of error is overruled.
Consecutive Sentence

       {¶22} For his second assignment of error, Ervin contends that the trial court erred

in imposing a consecutive sentence because it did not make the required statutory

findings.   We agree.

       {¶23} Under R.C. 2953.08(G)(2), we may overturn the imposition of a consecutive

sentence if (1) the sentence is otherwise contrary to law or (2) we clearly and

convincingly find that the record does not support the sentencing court’s findings under

R.C. 2929.14(C)(4). See also Venes, 2013-Ohio-1891, 992 N.E.2d 453 (8th Dist.) ¶ 11;

State v. Goins, 8th Dist. Cuyahoga No. 98256, 2013-Ohio-263, ¶ 6.

       {¶24} In imposing consecutive sentences, R.C. 2929.14(C)(4) requires that the trial

court must find that the sentence is “necessary to protect the public from future crime or

to punish the offender,” that consecutive sentences are “not disproportionate to the

seriousness of the offender’s conduct and to the danger the offender poses to the public,”

and the existence of one of the three statutory factors set forth in R.C.

2929.14(C)(4)(a)-(c), which are as follows:

       (a) the offender committed one or more of the multiple offenses while
       awaiting trial or sentencing, while under a sanction imposed pursuant to
       R.C. 2929.16, 2929.17, or 2929.18, or while under postrelease control for a
       prior offense; (b) at least two of the multiple offenses were committed as
       part of one or more courses of conduct, and the harm caused by two or more
       of the offenses was so great or unusual that no single prison term for any of
       the offenses committed as part of any of the courses of conduct adequately
       reflects the seriousness of the offender’s conduct; or (c) the offender’s
       history of criminal conduct demonstrates that consecutive sentences are
       necessary to protect the public from future crime by the offender.
       The trial court found that subsections (b) and (c) applied.
       {¶25} However, the court failed to find that the sentence was necessary to protect

the public from future crime or to punish Ervin, and it failed to make the

disproportionality finding.   Thus, we reverse and remand for resentencing so that the

trial court can review the record to determine if it supports the imposition of consecutive

sentences and, if so, to make the required findings.       See Nia, 8th Dist. Cuyahoga No.

99387, 2014-Ohio-2527, ¶ 28.

       {¶26} The second assignment of error is sustained.

Allied Offenses Analysis

       {¶27} In his third assignment of error, Ervin contends that the trial court erred in

imposing consecutive sentences because it failed to make a proper determination as to

whether the offenses were allied offenses.     Although we are remanding for resentencing,

we nonetheless address Ervin’s contention and find it to be without merit.

       {¶28} Initially, we note that Ervin’s contention is barred under the doctrine of res

judicata.   “The doctrine of res judicata prevents repeated attacks on a final judgment and

applies to all issues that were or might have been previously litigated.”    State v. Lowe,

9th Dist. Summit No. 25475, 2011-Ohio-3355, ¶ 7. Ervin did not raise this issue in his

first appeal and, thus, his contention here is barred by res judicata.

       {¶29} Notwithstanding that the doctrine of res judicata bars Ervin’s contention, it

substantively has no merit. That is, the trial court did consider whether the offenses

were allied.   Specifically, the court stated the following:

       [T]his crime * * * involved three separate courses of conduct * * *. It was
       a very serious, heinous offense that involved a deliberate, cold, and
       calculated kidnapping of an individual, who, during the course of that
       kidnapping, in fear of his life, contacted FBI agents, [and] communicated
       the fact surreptitiously that he was under the custody of these individuals *
       * *.

       ***

       And then [FBI agents] showed up. Instead of surrendering themselves, a
       felonious assault was committed against the FBI agents. And then a series
       of gunfire erupts from the car * * *; return fire takes place and the kidnap
       victim is murdered as a result.

       {¶30} The trial court asked counsel, “[a]re we all in agreement that none of these

sentences merge for any particular or allied offenses.”          The assistant prosecuting

attorney reminded the court that it had previously merged the counts of felonious assault

against the FBI agents, but stated that with the exception of those counts, there was no

other merger.   Defense counsel stated that, based on this court’s decision, the trial court

was left with “discretion to lessen the sentence or leave it the way it is * * *.”     Ervin

spoke and urged the court to merge the counts that it had not previously merged.

       {¶31} On this record, the court properly considered the issue of merger.

Moreover, the record supports the court’s finding that, besides the charges of felonious

assault against the FBI agents, the other crimes were committed with a separate animus

and, therefore, were not subject to merger.

       {¶32} In light of the above, the third assignment of error is overruled.

Imposition of Costs

       {¶33} For his final assignment of error, Ervin contends that the trial court erred in

assessing costs against him because, although it was stated in the sentencing entry, he was
not so informed in open court.     The state concedes the error and we agree.

       {¶34} In State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, the

Ohio Supreme Court held that it was reversible error under Crim.R. 43(A) for the trial

court to impose costs in its sentencing entry when it did not impose those costs at the

sentencing hearing. Id. at ¶ 22.

       {¶35} The fourth assignment of error is, therefore, sustained.

       {¶36} Judgment affirmed in part and reversed in part; case remanded for

resentencing as to the consecutive counts and for advisement to the defendant about the

imposition of costs.

       It is ordered that appellant and appellee split 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.

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

the Rules of Appellate Procedure.




LARRY A. JONES, SR., PRESIDING JUDGE

SEAN C. GALLAGHER, J., and
EILEEN T. GALLAGHER, J., CONCUR
