[Cite as State v. Clark, 2018-Ohio-4168.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                LOGAN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 8-18-10

        v.

TAMMY DIANE CLARK,                                         OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Logan County Common Pleas Court
                           Trial Court No. CR15-12-0330

                                        Appeal Dismissed

                            Date of Decision: October 15, 2018




APPEARANCES:

        Samantha L. Berkhofer for Appellant

        Sarah J. Warren for Appellee
Case No. 8-18-10


SHAW, J.

       {¶1} Defendant-Appellant, Tammy D. Clark, appeals the March 1, 2018

judgment of the Logan County Court of Common Pleas imposing a sentence of fifty-

four months in prison following the revocation of her community control.

       {¶2} Clark was indicted in December of 2015 for theft of drugs, a felony of

the fourth degree in case number CR 15-12-330, which is the trial court proceeding

underlying this appeal. Clark entered into a negotiated plea agreement wherein she

tendered a guilty plea to the abovementioned theft of drugs charge and three other

charges arising out case number CR 15-09-0174, which included a third degree

felony domestic violence, a first degree misdemeanor petty theft, and a fourth

degree misdemeanor criminal trespass. The trial court accepted Clark’s guilty pleas

and ordered the completion of a presentence investigation with a mental health

evaluation.

       {¶3} On February 6, 2017, Clark appeared for sentencing. The trial court

ordered Clark to be placed on five years of community control for the fourth degree

felony theft of drugs. The trial court imposed specific sanctions and conditions as

part of Clark’s community control. Clark was further advised by the trial court that

any violation of the terms and condition of her community control could result in

the trial court imposing a more restrictive sanction, including an eighteen-month

prison term. The trial court specified that the eighteen-month prison term for the


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theft of drugs conviction in case number CR 15-12-330 could also be imposed

consecutive to the sentence in case number CR 15-09-0174, for an aggregate prison

term of fifty-four months. (Doc. No. 60).

       {¶4} On October 20, 2017, the State filed a motion to revoke Clark’s

community control and attached as an exhibit an affidavit of Clark’s parole officer

alleging that Clark had violated the conditions of her community control. The trial

court subsequently held a hearing on the matter where Clark admitted to the

violations. Specifically, the record reflects Clark’s violations of the conditions of

her community control were (1) her failure to complete the Probation Incentive

Program and (2) her failure to complete a drug and alcohol assessment.

       {¶5} On December 18, 2017, the trial court issued a judgment entry revoking

Clark’s community control and imposing an eighteen-month prison term in the

underlying action (CR 15-12-330) to be served consecutively to the thirty-six month

sentence in case number CR 15-09-0174, for an aggregate prison term of fifty-four

months.

       {¶6} On February 7, 2018, Clark filed a “Motion for Resentencing Hearing,”

wherein her defense counsel argued that Clark’s violations of the terms and

conditions of her community control were “technical violations” and that R.C.

2929.15(B) had recently been amended to limit the amount of prison time a court




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can impose for any technical violation of the conditions of a community control

sanction for a felony of the fourth degree, such as the one in Clark’s case.

       {¶7} On March 1, 2018, the trial court held a hearing on the matter. The trial

court specifically found that Clark’s violations of the conditions of her community

control were more than technical violations and issued a judgment entry of

“resentencing” reiterating the same. The trial court imposed the same eighteen-

month prison term for the underlying fourth degree felony offense in CR 15-12-330

to be served consecutively to the thirty-six month prison term in CR 15-09-0174,

for an aggregate prison term of fifty-four months.

       {¶8} Clark appealed, asserting the following assignment of error.

       WHETHER THE TRIAL COURT ABUSED ITS DISCRETION
       IN SENTENCING CLARK TO FIFTY-FOUR MONTHS [IN
       PRISON] FOR A COMMUNITY CONTROL VIOLATION
       WITHOUT PROOF OF SUBSTANTIAL NATURE [SIC].

       {¶9} At the outset, we note that the statutory amendment to R.C. 2929.15(B),

which forms the basis of Clark’s assigned error, took effect on September 29, 2017,

approximately a month prior to the State filing its motion to revoke Clark’s

community control. However, Clark did not raise the claim that her failure to abide

by the conditions of her community control amounted to a mere “technical

violation” at the revocation hearing or within thirty days from the trial court’s

December 18, 2017 Judgment Entry revoking her community control and imposing

the eighteen-month prison term. See App.R. 4(A)(which states that “A party shall

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file the notice of appeal required by App.R. 3 within thirty days of the later of entry

of the judgment or order appealed”).

       {¶10} Instead, for reasons not apparent in the record, Clark waited nearly two

months to file a motion with the trial court requesting it to consider the newly

amended statute with respect to her sentence. Consequently, since Clark failed to

raise this claim either at the revocation hearing or in a timely appeal from the

judgment entry imposing the eighteen month sentence, we would question whether

it is now barred by the doctrine of res judicata.

       {¶11} This notwithstanding, we must determine whether this Court has

jurisdiction to reach the merits of Clark’s assigned error.

       {¶12} “It is well established that a trial court cannot reconsider a valid final

judgment in a criminal case.” State v. Cozzone, 11th Dist. Geauga No. 2017-G-041,

2018-Ohio-2249, ¶ 34, citing State ex rel. Hansen v. Reed, 63 Ohio St.3d 597, 599

(1992); Brook Park v. Necak, 30 Ohio App.3d 118, 120 (8th Dist.1986). In essence,

Clark’s February 7, 2018 “Motion for Resentencing Hearing” was a motion for

reconsideration of her sentence. “A motion to modify a sentence after it has begun

is akin to a motion for reconsideration after a final appealable order has been

rendered.” State v. Young, 2d Dist. Montgomery No. 20813, 2005-Ohio-5584, ¶ 6.

       {¶13} We further note that a motion for reconsideration of a final judgment

in the trial court is a nullity and a purported judgment ruling on a motion for


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reconsideration is likewise a nullity. State v. Arega, 10th Dist. Franklin No. 17AP-

112, 2017-Ohio-5610, ¶¶ 10-14, citing Pitts v. Ohio Dept. of Transp., 67 Ohio St.2d

378, 379 (1981); see also State v. Dunn, 4th Dist. No. 06CA23, 2007-Ohio-854, ¶

12 (stating “the Ohio Rules of Criminal Procedure provide no authority for a motion

for reconsideration and they, too, are a nullity”).

       {¶14} Thus, because a motion for reconsideration of a final order is a nullity,

and all orders from said motion are also a nullity and not subject to appeal, the trial

court’s March 1, 2018 Judgment Entry overruling Clark’s “Motion for Resentencing

Hearing” in the present case is not a final, appealable order. Accordingly, due to

the fact that the trial court’s March 1, 2018 Judgment Entry was not a final,

appealable order, this Court is without jurisdiction to entertain an appeal from that

judgment. Therefore, Clark’s appeal must be dismissed.

       {¶15} Accordingly, Clark’s single assignment of error is rendered moot and

we dismiss the appeal.

                                                                   Appeal Dismissed

ZIMMERMAN and PRESTON, J.J., concur.

/jlr




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