[Cite as State v. Hurst, 2015-Ohio-4107.]


                            IN THE COURT OF APPEALS OF OHIO
                               FOURTH APPELLATE DISTRICT
                                  WASHINGTON COUNTY

STATE OF OHIO,                  :
                                :   Case No. 14CA21
     Plaintiff-Appellee,        :
                                :
     vs.                        :   DECISION AND JUDGMENT
                                :   ENTRY
MICHAEL HURST,                  :
                                :
     Defendant-Appellant.       :   Released: 09/28/15
_____________________________________________________________
                          APPEARANCES:

Timothy Young, Ohio Public Defender, and Francisco E. Lüttecke, Assistant
State Public Defender, Columbus, Ohio, for Appellant.

James E. Schneider, Washington County Prosecuting Attorney, and Kevin
A. Rings, Assistant Prosecuting Attorney, Marietta, Ohio, for Appellee.
_____________________________________________________________

McFarland, A.J.

         {¶1} Michael Hurst appeals from three decisions, the first of which is

his original conviction and sentencing entry filed on March 28, 2011.1 The

second and third are both post-remand journal entries filed by the trial court

on May 20, 2014 and August 27, 2014. On appeal, Appellant contends that

1) the trial court erred when it imposed separate sentences for offenses that

arose from the same conduct, were not committed separately or with a


1
 This journal entry was actually an “Amended Journal Entry” filed to correct an error in the trial court’s
original October 13, 2010 journal entry of sentencing.
Washington App. No. 14CA21                                                     2

separate animus, and should have been merged for sentencing purposes

under R.C. 2941.25; and 2) the trial court violated his right to due process

when it resentenced him without a resentencing hearing. Because we

conclude that the trial court, by merging offenses and modifying Appellant’s

sentences, essentially re-sentenced Appellant without holding a re-

sentencing hearing, which was in violation of Appellant’s due process rights

contained in Crim.R. 43(A), we must once again reverse and remand this

matter for re-sentencing. Further, because Appellant’s second assignment of

error is dispositive of the appeal, it is sustained and we do not reach the

issues raised under Appellant’s first assignment of error.

                                    FACTS

      {¶2} Appellant was convicted of eleven counts of illegal use of a

minor in nudity oriented material or performance, second degree felonies in

violation of R.C. 2907.323(A)(1). These convictions involved the “transfer”

of the material or performance and were identified as counts 3-13.

Appellant was also convicted of eleven counts of illegal use of a minor in

nudity oriented material or performance, fifth degree felonies in violation of

R.C. 2907.323(A)(3), which simply involved “possession” of the material or

performance and were identified as counts 14-24. Appellant was further

convicted of tampering with evidence, a third degree felony in violation of
Washington App. No. 14CA21                                                     3

R.C. 2921.12(A)(2), identified as count 1 of the indictment. Appellant was

sentenced for his convictions on each count, to a combined prison term of

twenty-six and a half years, as evidenced in the trial court's original October

13, 2010 entry, and as corrected in the amended March 28, 2011 journal

entry.

         {¶3} Appellant filed an initial appeal from his convictions and

sentences, which we affirmed in State v. Hurst, 4th Dist. Washington No.

10CA33, 2012-Ohio-2465. Appellant subsequently filed an application for

reopening. Over the objection of the State, this Court granted Appellant's

application for reopening regarding whether appellate counsel was

ineffective in failing to raise an assignment of error based upon the trial

court's imposition of separate, consecutive sentences for offenses which

Appellant argues were allied offenses of similar import under R.C. 2941.25.

In granting Appellant's application, this Court concluded that Appellant had

raised a colorable claim of ineffective assistance of counsel based upon

appellate counsel's failure to challenge the trial court's imposition of

separate, consecutive sentences for offenses which possibly should have

been merged as allied offenses of similar import under the test set forth in

State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 2010-Ohio-6314,

942 N.E.2d 1061.
Washington App. No. 14CA21                                                       4

      {¶4} As a result, the matter was reopened, counsel was appointed, and

a brief was filed alleging an allied offenses sentencing error. Specifically,

Appellant claimed that the “transfer” convictions, identified as counts 3-13,

should have been merged with the “possession” convictions, counts 14-24.

Finding it would be inappropriate for this Court to make an initial allied

offenses determination when the trial court had not yet considered the

particular question and had not had the benefit of applying the new test set

forth in Johnson, supra, we vacated the consecutive sentences imposed on all

of the “transfer” convictions (counts 3-13) and “possession” convictions

(counts 14-24), and remanded the matter for an allied offenses determination

and further proceedings. State v. Hurst, 4th Dist. Washington No. 10CA33,

2013-Ohio-4016.

      {¶5} On remand, the trial court failed to hold a hearing, but instead

apparently ordered briefs to be submitted on the issue of allied offenses. In a

decision dated May 20, 2014, the trial court stated that the matter had been

remanded to the trial court for a specific determination regarding the issue of

merger of the “transfer” convictions with the “possession” convictions.

Over the apparent urging of Appellant to the contrary, the trial court further

stated that it had “no jurisdiction to re-sentence this Defendant.” Thus,

although the trial court acknowledged in its decision that this Court had
Washington App. No. 14CA21                                                                                       5

vacated all of the sentences for the transfer and possession offenses, it

claimed it had no jurisdiction to resentence Appellant and did not hold a re-

sentencing hearing.2

         {¶6} Nonetheless, although no hearing was held and Appellant was

not present, the trial court went on to discuss merger of the allied offenses,

ultimately merging the convictions on counts 10 and 12 and modifying

Appellant’s sentence from “an aggregate of 26 years to an aggregate of 25

years.”3 The trial court applied the Johnson test and found that the

remaining counts were not allied offenses of similar import. As the trial

court did not consider these actions to be a “re-sentencing” of Appellant, the

journal entry filed did not contain any of the usual and required advisements

including, but not limited to, post-release control, the imposition of

consecutive sentences, and the right to appeal.

         {¶7} The record indicates the parties filed objections to the trial

court’s decision and as such, the trial court filed another journal entry on

August 27, 2014. This journal entry, one page in length, noted the State’s

election to proceed with sentencing on count 12 rather than count 10,

modified Appellant’s sentence once again, back to the original twenty-six


2
  The trial court also stated, in error, that the Appellate Court “did not disturb” the sentences on counts 3-
13; however, as explained in our remand order, the sentences for counts 3-13 and 14-24 were all vacated.
3
  Appellant was originally sentenced to an aggregate twenty-six and a half year sentence, rather than
twenty-six, as stated by the trial court.
Washington App. No. 14CA21                                                         6

and a half years, and purported to provide the notice regarding consecutive

sentencing required by R.C. 2929.14(C)(4).4 Appellant now appeals the trial

court’s post-remand decisions, raising two assignments of error for our

review, as follows.

                                  ASSIGNMENTS OF ERROR

“I.         THE TRIAL COURT ERRED WHEN IT IMPOSED SEPARATE
            SENTENCES FOR OFFENSES THAT AROSE FROM THE SAME
            CONDUCT, WERE NOT COMMITTED SEPARATELY OR WITH
            A SEPARATE ANIMUS, AND SHOULD HAVE BEEN MERGED
            FOR SENTENCING PURPOSES UNDER R.C. 2941.25.

      II.      THE TRIAL COURT VIOLATED MR. HURST'S RIGHT TO
               DUE PROCESS WHEN IT RESENTENCED MR. HURST
               WITHOUT A RESENTENCING HEARING."

                                      PROCEDURAL POSTURE

            {¶8} We initially note the complex and problematic procedural

posture in which this case presents itself. As indicated above, Appellant

appealed from three different orders. The first order is his original, albeit

amended, judgment entry of his conviction and sentence dated March 28,

2011. The second order, dated May 20, 2014, is a post-remand decision

issued by the trial court merging two counts and modifying Appellant’s

aggregate sentence. The third order, dated August 27, 2014, was made a




4
    The notice regarding the imposition of consecutive sentences was incomplete.
Washington App. No. 14CA21                                                     7

part of the appellate record when Appellant filed a “motion for leave to

supplement record with final appealable order * * *.”

      {¶9} The third order consisted of a single page which modified

Appellant’s aggregate sentence once again, and contained an incomplete

advisement regarding the imposition of consecutive sentences. In his motion

for leave to supplement the record, Appellant claimed that the August 2014

journal entry, as well as the originally appealed decision, presumably the

2011 decision, “form the final appealable order for this case.” Although we

granted Appellant’s motion and permitted the record be supplemented with

the August 2014 journal entry, the notion that both orders together form the

final appealable order is problematic.

      {¶10} It has been held “that the judgment of conviction is a single

document.” State v. Bonner, 10th Dist. Franklin No. 14AP-611, 2015-Ohio-

1010, ¶ 18; quoting State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330,

893 N.E.2d 163, ¶ 1. As such, multiple documents may not constitute a final

appealable order, as “[o]nly one document can constitute a final appealable

order.” Id. at ¶ 17; See also State v. Thompson, 141 Ohio St.3d 254, 2014-

Ohio-4751, 23 N.E.3d 1096, ¶ 39; State v. Ketterer, 126 Ohio St.3d 448,

2010-Ohio-3831, 935 N.E.2d 9, ¶ 15-17; State v. Draget, 4th Dist. Scioto

No. 09CA3306, 2010-Ohio-3541, ¶ 6 (noting that “allowing multiple
Washington App. No. 14CA21                                                       8

documents to create a final appealable order is improper; all required

information must be present in a single document”). Further, a modified

sentencing entry that fails to include the convictions for the additional counts

violates Baker and fails to constitute a final appealable order, because in

order to determine the aggregate sentence, multiple documents must be

considered. Bonner at ¶ 25-26.

      {¶11} Here, not only can Appellant not combine the trial court’s

March 2011 and August 2014 journal entries to create a final appealable

order, the trial court’s August 2014 journal entry was not a final appealable

order as it did not include all of Appellant’s sentences. Thus, we cannot

consider the trial court’s August 2014 journal entry. However, because the

trial court’s May 2014 journal entry addressed the undisturbed sentence

imposed on count 1 and then went on to address the remaining counts 3-24,

and ultimately modified Appellant’s aggregate sentence, we find it

adequately included all of Appellant’s sentences and therefore satisfies both

Baker and Crim.R. 32. As such, we proceed to the merits of Appellant’s

assignments of error, focusing on the May 2014 journal entry only.

                       ASSIGNMENT OF ERROR II

      {¶12} We address Appellant's second assignment of error first, out of

order, as it is dispositive of Appellant's appeal. In his second assignment of
Washington App. No. 14CA21                                                      9

error, Appellant contends that the trial court violated his right to due process

when it re-sentenced him without holding a re-sentencing hearing. The State

counters by arguing that the trial court did not hold a re-sentencing hearing

on remand and thus “could not have erred in failing to secure appellant's

appearance for a hearing that did not occur.” Based upon the following

reasons, however, we agree with Appellant.

      {¶13} The Supreme Court of Ohio has held that “[w]hen 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.” State v.

Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, paragraph

one of the syllabus. Wilson explained that “[a] sentence that contains an

allied-offenses sentencing error is contrary to law” per R.C. 2953.08(A)(4)

and thus, an appellate court has authority to vacate sentences affected by an

allied-offenses sentencing error and remand the matter for a new sentencing

hearing. Wilson at ¶ 14. Wilson further explained that while “[a] remand for

a new sentencing hearing generally anticipates a de novo sentencing

hearing[,]” “only the sentences for the offenses that were affected by the

appealed error are reviewed de novo; the sentences for any offenses that

were not affected by the appealed error are not vacated and are not subject to
Washington App. No. 14CA21                                                  10

review. Id. at ¶ 15; See also State v. Garvin, 8th Dist. Cuyahoga No.

100165, 2014-Ohio-1726 and State v. Grose, 5th Dist. Richland No.

14CA30, 2014-Ohio-4499 (reasoning that a re-sentencing hearing need not

be held when original sentences were not vacated and when no finding of

allied offenses was made and thus, no merger occurred post-remand, but

noting that if prior sentences were vacated or if trial court merged offenses

on remand, defendant must be re-sentenced).

      {¶14} Based upon the foregoing caselaw as applied to the facts of this

case, the trial court was clearly required to hold a re-sentencing hearing on

remand. Further, based upon the following, not only was the trial court

required to hold a re-sentencing hearing, Appellant was required to be

physically present at the hearing. Crim.R. 43(A) provides in section (1) as

follows:

      “* * * the defendant must be physically present at every stage

      of the criminal proceeding and trial, including the impaneling

      of the jury, the return of the verdict, and the imposition of

      sentence, except as otherwise provided by these rules.”

“ ‘Crim.R. 43 provides a criminal defendant the right to be present at every

stage of the criminal proceedings and any modification of a sentence.’ ”

State v. Smith, 4th Dist. Scioto No. 14CA3657, 2015-Ohio-841, ¶ 12;
Washington App. No. 14CA21                                                     11

quoting State v. Patrick, 4th Dist. Lawrence No. 12CA16, 2013-Ohio-3821,

¶ 10; citing Crim.R. 43(A)(1); compare State v. Glasser, 4th Dist. Athens

No. 11CA11, 2012-Ohio-3265, ¶ 49; citing State v. Davis, 116 Ohio St.3d

404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 90 (accused has a fundamental right to

be present at all critical stages of the criminal trial, but his absence does not

necessarily result in prejudicial or constitutional error). Further, it has been

held that “[a] violation of Crim.R. 43(A) is a violation of the defendant’s due

process rights, which requires a reviewing court to reverse and remand the

case for resentencing.” State v. Coach, 1st Dist. Hamilton No. C-990349,

2000 WL 543801 (May 5, 2000).

      {¶15} As indicated above, this case is before this Court for the fourth

time. Most recently, this Court reversed Appellant's convictions, in part,

vacating all of Appellant's convictions sentencing him to consecutive

sentences on the eleven "transfer" convictions and the eleven "possession"

convictions. Thus, this Court vacated the sentences imposed on counts 3-13

and 14-24. In total, this Court vacated the sentences for twenty-two

convictions the last time this matter was before us. We further ordered the

matter remanded for further proceedings, and instructed the trial court, upon

remand, “to determine whether Appellant's conduct is allied under State v.

Johnson, supra.” Rather, than conducting a re-sentencing hearing, applying
Washington App. No. 14CA21                                                                             12

the proper allied offenses test, and re-sentencing Appellant on the twenty-

two counts, all of which had been vacated, the trial court ordered briefs be

submitted on the allied offenses issue, and then it issued a journal entry on

May 20, 2014, merging counts 10 and 12, and modifying Appellant's

sentence from twenty-six years to twenty-five years.5

        {¶16} In its May 20, 2014 journal entry, the trial court stated that it

had “one, and only one issue to determine on remand; the issue of merger of

the 'transfer' convictions with the 'possession' convictions” and that it had

“no jurisdiction to re-sentence this Defendant.” As the trial court did not

consider this to be a re-sentencing, it provided no advisements, including

those related to the imposition of post-release control, consecutive sentences

or the right to appeal. Further, as no hearing was held, Appellant was not

present when his sentence was modified. All of this was done in error and in

violation of State v. Wilson, supra, and Crim.R. 43(A).

        {¶17} Subsequently, as indicated above, Appellant filed a notice of

appeal in this Court on June 19, 2014, indicating that he was appealing from

both the March 28, 2011 original sentencing entry, as well as the May 20,

2014 journal entry, which merged counts 10 and 12 and modified his

aggregate sentence. Thereafter, on September 11, 2014, Appellant filed a

5
 Notably, and as indicated above, Appellant was originally sentenced to twenty-six and one-half years, not
twenty-six years.
Washington App. No. 14CA21                                                     13

motion for leave to supplement the record with a final appealable order,

attaching thereto an August 27, 2014 journal entry by the trial court, again

modifying Appellant's sentence, this time from twenty-five years back to

twenty-six and one-half years, and purporting to provide a notice, albeit

incomplete, regarding the imposition of consecutive sentences. Once again,

there is no indication that a hearing was held or that Appellant was present

when his sentence was again modified or when the trial court attempted to

provide a statutory advisement regarding the imposition of consecutive

sentences.

      {¶18} As it now stands, if the trial court's position were accurate,

Appellant's twenty-two convictions that were vacated by this Court were

never reinstated if the trial court had no jurisdiction to re-sentence

Appellant. However, in our view, despite the fact that the trial court stated

that it was without jurisdiction to re-sentence Appellant on remand, by going

on to merge certain counts and then modify Appellant's aggregate sentence,

the trial court did, in fact, re-sentence Appellant, albeit without holding a re-

sentencing hearing or affording Appellant his Crim.R. 43(A) right to be

present during the re-sentencing. Thus, we agree with Appellant that the

trial court erred in re-sentencing him without holding a hearing or permitting

him to be present. Further, because Appellant’s Crim.R. 43(A) rights were
Washington App. No. 14CA21                                                   14

violated, the judgment entry is invalid and we must reverse and remand this

case for re-sentencing.

      {¶19} The trial court is instructed, on remand, to conduct a de novo

re-sentencing hearing as to the previously vacated counts 3-13 and 14-24.

Appellant is required to be present at the hearing, and the hearing and

written order that is subsequently filed must address and include all of

Appellant’s sentences, including counts 1, 3-13 and 14-24. Appellant should

also be provided the required statutory advisements, as if being sentenced

for the first time. Accordingly, the May 20, 2014 decision of the trial court

is reversed and this matter is remanded for re-sentencing.

                          ASSIGNMENT OF ERROR I

      {¶20} In his first assignment of error, Appellant contends that the trial

court erred when it imposed separate sentences for offenses that arose from

the same conduct, were not committed separately or with a separate animus,

and should have been merged for sentencing purposes under R.C. 2941.25.

However, because Appellant’s second assignment of error is dispositive of

the appeal, we do not reach the issues raised under Appellant’s first

assignment of error.

                                              JUDGMENT REVERSED
                                              AND REMANDED.
Washington App. No. 14CA21                                                  15

Harsha, J., concurring:

      {¶21} I concur in the reversal and remand but wish to make two

points clear. First, by virtue of our previous remand the trial court regained

jurisdiction to resentence Hurst. Second, under our current remand the trial

court must proceed under Johnson, supra as modified by State v. Ruff, 143

Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892 ¶ 16 and paragraphs one

through three of the syllabus.
Washington App. No. 14CA21                                                      16

                            JUDGMENT ENTRY

    It is ordered that the JUDGMENT BE REVERSED AND CAUSE
REMANDED. Appellant shall recover of Appellee any costs herein.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Washington County Common Pleas Court to carry this judgment into
execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Abele, J.: Concurs in Judgment and Opinion.
Harsha, J.: Concurs with Concurring Opinion.

                                                For the Court,

                                         BY: _________________________
                                             Matthew W. McFarland
                                             Administrative Judge
NOTICE TO COUNSEL
        Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.
