[Cite as State v. Thomas, 2012-Ohio-2626.]



                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                       No. 97185



                                     STATE OF OHIO

                                                      PLAINTIFF-APPELLEE

                                                vs.

                                 THOMAS L. THOMAS
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-523899

        BEFORE: Stewart, P.J., Rocco, J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED:                     June 14, 2012
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender

BY: John T. Martin
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Katherine Mullin
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
MELODY J. STEWART, P.J.:

       {¶1} In State v. Thomas, 8th Dist. No. 94492, 2011-Ohio-705, we vacated

defendant-appellant Thomas Thomas’s convictions on six of thirteen convictions for want

of sufficient evidence. The court issued a new sentencing entry “in accordance with the

mandate set forth in State v. Thomas” and reimposed the same prison terms on the

remaining counts. Thomas argues in this appeal that the court violated his constitutional

rights by failing to conduct a new sentencing hearing at which he could have argued that

he was entitled to a shorter sentence because there were fewer extant counts than there

were at the first sentencing.

       {¶2} We agree with the state that Thomas’s requested relief is foreclosed because a

sentencing court has no authority to modify a final sentence. State v. Carlisle, 131 Ohio

St.3d 127, 2011-Ohio-6553, 961 N.E.2d 671, ¶ 11. This court’s vacation of some of

Thomas’s offenses did not affect the validity of either the conviction or sentence ordered

on those offenses that remained undisturbed in the first appeal. Thomas makes no

argument that the remaining sentences were contrary to law, so the court had no authority

to modify that which was final and that remained so even after the partial vacation of

some of his convictions.

       {¶3} Thomas provides no authority for his argument that a reversal of one

conviction requires per se that a defendant be resentenced on the remaining conviction or
convictions. In any event, to prevail with his argument that vacating one or more, but

not all convictions, requires a resentencing for the court to redetermine the sentence on

remaining counts, Thomas must necessarily presume that the court imposed sentence

according to an illegal sentencing package.        But Ohio does not permit sentencing

according to a sentencing package in which the court fashions a single, comprehensive

sentence based on multiple offenses. Instead, Ohio law recognizes that “[a] sentence is

the sanction or combination of sanctions imposed for each separate, individual offense.”

State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, paragraph one of

the syllabus.

       {¶4} Thomas argues that Saxon is distinguishable because it did not involve a

situation where a defendant had been convicted of multiple counts and had one or more of

those counts vacated on appeal, but instead involved a case where the defendant had been

convicted of multiple counts and had the sentence for one of those convictions vacated on

appeal. This is a distinction without meaning. Regardless of whether Saxon involved a

vacated sentence and this case involved a vacated count, the result remains the same

because Saxon made it clear that a sentence is based on a separate, individual offense. It

does not matter that this court vacated a sentence as opposed to a count — the end result

is the same.    We decline to hold that whenever one or more counts of multiple,

jointly-tried offenses are reversed, every other remaining count of those jointly-tried

offenses must also be reversed for resentencing.
       {¶5} Both parties reference State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669,

951 N.E.2d 381, in support of their respective positions. Wilson involved a remand for

resentencing on allied offenses in which the Supreme Court held: (1) “When a cause is

remanded to a trial court to correct an allied-offenses sentencing error, the trial court must

hold a new sentencing hearing for the offenses that remain after the state selects which

allied offense or offenses to pursue” and (2) “[a] defendant is not barred by res judicata

from raising objections to issues that arise in a resentencing hearing, even if similar issues

arose and were not objected to at the original sentencing hearing.” Id. at paragraphs one

and two of the syllabus.

       {¶6} An indictment may contain counts for conduct that could be construed to

constitute allied offenses of similar import, but the defendant may be convicted of only

one. R.C. 2941.25(A). When a defendant is sentenced on one or more allied offenses

of similar import, the protections of the Double Jeopardy Clause of the United States

Constitution are invoked because the defendant is receiving multiple punishments for the

same offense. United States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 104 L.Ed.2d

487 (1989). For this reason, allied offenses errors require a remand at which the state is

entitled to elect which offense it will pursue against the defendant. State v. Whitfield,

124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, paragraph two of the syllabus.

       {¶7} Unlike an error involving allied offenses that requires a remand for a de novo

resentencing, this case required no new sentencing hearing. The remand in Thomas’s

first appeal was for the sole purpose of having the court vacate counts from the judgment
of conviction. Each of those counts and sentences existed independently. Vacating

individual counts necessarily vacated the sentences for those counts, but had no impact on

the sentences for counts that remained. Thomas was not sentenced twice for the same

conduct, so Wilson has no applicability.

       {¶8} Judgment affirmed.

       It is ordered that appellee recover of appellant his 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 Cuyahoga

County Court of Common Pleas               to carry this judgment into execution.     The

defendant’s conviction having been affirmed, any bail pending appeal is terminated.

Case remanded to the trial court for execution of sentence.

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

the Rules of Appellate Procedure.




MELODY J. STEWART, PRESIDING JUDGE

KENNETH A. ROCCO, J., and
EILEEN A. GALLAGHER, J., CONCUR
