[Cite as State v. Craig, 2012-Ohio-2301.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 97061



                                      STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                     MICHAEL CRAIG
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-518877

        BEFORE: E. Gallagher, J., Celebrezze, P.J., and Cooney, J.

        RELEASED AND JOURNALIZED: May 24, 2012
ATTORNEY FOR APPELLANT

Paul Mancino, Jr.
75 Public Square
Suite 1016
Cleveland, Ohio 44113-2098


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Katherine Mullin
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:

       {¶1} Defendant-appellant, Michael Craig, appeals his resentencing entered in

the Cuyahoga County Court of Common Pleas and from the order of the common pleas

court overruling his motion to vacate that sentence. Appellant argues that the trial court

erred in conducting a resentencing while an appeal was pending in the Ohio Supreme

Court, failing to provide a de novo resentencing, and denying appellant’s motion to

vacate. For the following reasons, we overrule appellant’s assignments of error.

       {¶2} On August 6, 2008, appellant was charged with two counts of aggravated

burglary, four counts of felonious assault, five counts of aggravated robbery, five counts

of kidnapping and one count of having a weapon while under disability. All counts with

the exception of the single count of having a weapon while under disability contained

one- and three-year firearm specifications.

       {¶3} Appellant entered a plea of not guilty and the case proceeded to trial prior

to which appellant filed a jury waiver only on the weapon under disability charge. The

remaining counts were submitted to the jury. The jury returned verdicts of guilty on all

counts except for one count of aggravated robbery. The court found appellant guilty of

the weapon under disability charge and he was sentenced to a total of 33 years in prison.

       {¶4} In State v. Craig, 8th Dist No. 94455, 2011-Ohio-206 (“Craig I”),

appellant appealed his convictions and sentence to this court. In that case, we affirmed
in part and reversed in part and remanded the matter for a resentencing concerning

certain offenses, which we found to be allied offenses and ordered merged. Id. at ¶ 72.

          {¶5} On March 11, 2011, a new trial court judge resentenced appellant pursuant

to this court’s remand in Craig I. After merging various counts and hearing statements

on behalf of the state and appellant, the trial court sentenced appellant to 33 years in

prison.

          {¶6} At appellant’s resentencing hearing, appellant’s attorney indicated that he

intended to initiate an appeal of this court’s decision in Craig I to the Ohio Supreme

Court. At that time, however, it had not been filed.

          {¶7} On June 17, 2011, appellant filed a motion to vacate the resentencing,

contending that the trial court was without jurisdiction prior to the relinquishment of

jurisdiction by the Ohio Supreme Court. The motion was overruled by the trial court on

June 22, 2011.

          {¶8} Appellant appealed to this court with three assignments of error.

          {¶9} Appellant’s first assignment of error states: “Defendant was denied due

process of law when the court sentenced defendant while an appeal was pending in the

Ohio Supreme Court.”

          {¶10} In this matter, appellant argues that the trial court lacked jurisdiction to

resentence him once he initiated an appeal, which was pending at the time of his

resentencing. The record reflects that appellant’s attorney indicated to the trial court at
appellant’s resentencing that he “will” file an appeal with the Ohio Supreme Court in

connection with this case and had not done so until April 4, 2011.

       {¶11} Even if the appellant had filed a memorandum in support of jurisdiction to

the Ohio Supreme Court prior to the date of appellant’s resentencing hearing, we have

held that “an appeal to the supreme court is not an appeal of right and jurisdiction does

not vest with the supreme court until it accepts an appeal for review.” State v. Bruce,

8th Dist. No. 95064, 2011-Ohio-1240, at ¶ 3, citing State v. Brown, 8th Dist. No. 54765,

1988 WL 136044 (Dec. 15, 1988); State v. Thomas, 111 Ohio App.3d 510, 515, 676

N.E.2d 903 (8th Dist.1996). Unlike Bruce, the Ohio Supreme Court had not accepted

appellant’s appeal because there had been none filed at the time the trial court

resentenced him. In both Bruce and the present case, the Ohio Supreme Court later

declined leave to appeal.

       {¶12} Therefore, appellant’s first assignment of error is overruled.

       {¶13} Appellant’s second assignment of error states: “Defendant was denied

due process of law when the court sentenced the defendant believing it had no discretion

to modify the sentence.”

       {¶14}    In State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d

381, the Ohio Supreme Court explained that a trial court is required to hold a new

sentencing hearing when an appellate court remands a case for resentencing based on an

allied-offense error. Id. at ¶ 1. “A remand for a new sentencing hearing generally

anticipates a de novo sentencing hearing.”       Id. at ¶ 15, citing R.C. 2929.19(A).
However, “only the sentences for the offenses that were affected by the appealed error

are reviewed de novo.” Id. at ¶ 15.

       {¶15}    In accordance with R.C. 2929.19(A), at the resentencing hearing the

offender, the prosecuting attorney and the victim or the victim’s personal representative

may present information relevant to the imposition of sentence in the case.

Furthermore,

        [t]he court shall inform the offender of the verdict of the jury or finding of
       the court and ask the offender whether the offender has anything to say as
       to why sentence should not be imposed * * * [and] shall consider the
       record, any information presented at the hearing * * *. (Emphasis added.)
        R.C. 2929.19(A)-(B).

       {¶16} Appellant argues that the trial court violated his due process rights when

the judge noted that he was not the original trial judge, and that he was going “to defer to

the wisdom of the trial judge” and “basically maintain the same sentence [the previous

trial court judge] gave out.”     While these statements viewed in isolation could be

construed to suggest an improper resentencing, the record reflects that the trial court

clearly engaged in a de novo sentencing hearing pursuant to R.C. 2929.19.

       {¶17} The trial court informed the offender of the jury verdict, allowed both the

state and defense counsel to present relevant information, asked appellant if he had

anything to say on his behalf, mentioned discussions between counsel within chambers

and made findings of fact. The trial court noted appellant’s previous convictions, that

there was an actual threat of physical harm with a firearm in this case and that the court

felt that prison was consistent with the purposes of felony sentencing. Moreover, the
trial court merged and clarified appellant’s sentence. Compare State v. Godfrey, 183

Ohio App.3d 344, 2009-Ohio-3726, 916 N.E.2d 143, at ¶ 4-6 (1st Dist.) (the trial court

specifically stated that, in good conscience, he could not change his sentence, because he

wasn’t the sentencing judge, this was a case of violence, and that he did not know

enough about the case or facts).

         {¶18} Although the trial court ultimately imposed the same aggregate prison

term as had been imposed at appellant’s prior sentencing hearing, the trial court clearly

conducted a de novo sentencing hearing, exercised its discretion and carefully considered

the applicable felony sentencing statutes.

         {¶19} Appellant’s second assignment of error is overruled.

         {¶20} Appellant’s third assignment of error states: “Defendant was denied due

process of law when the court overruled defendant’s motion to vacate.”

         {¶21} Appellant argues in the third assignment of error that the trial court erred

in denying his motion to vacate wherein appellant asserted the same arguments

addressed in the first and second assignments of error. In light of our resolution of

those assignments of error, we find appellant’s third assignment of error to be without

merit.

         {¶22} Appellant’s third assignment of error is overruled.

         {¶23} The judgment of the trial court is 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 be sent to said lower 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.




EILEEN A. GALLAGHER, JUDGE

COLLEEN CONWAY COONEY, J., CONCURS;
FRANK D. CELEBREZZE, JR., P.J., DISSENTS
IN PART WITH SEPARATE OPINION


FRANK D. CELEBREZZE, JR., P.J., DISSENTING IN PART:

      {¶24}    I concur with the majority in the resolution of appellant’s first and third

assignments of error. However, I respectfully dissent with the holding that a de novo

sentencing hearing was conducted.    For that reason, I would remand this case for a new

sentencing hearing.

      {¶25}    During the resentencing hearing, the trial court indicated:

      Because the case is being appealed, I will defer to the wisdom [of] the trial
      judge who was previously on this bench. * * * I’m going to basically
      maintain the same sentence she gave out in order to allow this to go
      forward with the Supreme Court. However, I will make some findings
      with regard to this matter.

      {¶26} The trial court then set forth its findings, as recited by the majority. I find

the court’s perceived lack of discretion to impose any other sentence than that previously

imposed means the trial court did not conduct a de novo hearing.       The other steps the
trial court undertook that the majority points to as evidence of a de novo hearing mean

nothing if the sentence cannot change.      They are without substance.

       {¶27}      The majority sites as support for its holding the First District case State v.

Godfrey, 183 Ohio App.3d 344, 2009-Ohio-3726, 916 N.E.2d 1143. However, the

Godfrey court remanded the case for a new sentencing hearing specifically because the

trial court stated that it felt constrained to impose the same sentence. Id. at ¶ 6.       The

court expressed its opinion that the trial court may reimpose the same sentence if it feels

it is appropriate, but required the trial court to make that determination itself and not in

reliance on the sentence previously imposed by the original trial judge.

       {¶28}      Just as in Godfrey, the trial court here did not comply with R.C. 2929.11

and 2929.12 when it did not independently determine the appropriate sentence appellant

should receive.

       {¶29}      Therefore, I agree with appellant that a de novo sentencing hearing was

not conducted.      I would sustain his second assignment of error and remand the case for

a new sentencing hearing.
