[Cite as State v. Rose, 2017-Ohio-4235.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                           LAKE COUNTY, OHIO


STATE OF OHIO,                                      :      OPINION

                 Plaintiff-Appellee,                :
                                                           CASE NO. 2016-L-067
        - vs -                                      :

JOSEPH W. ROSE, JR.,                                :

                 Defendant-Appellant.               :


Criminal Appeal from the Lake County Court of Common Pleas.
Case No. 14 CR 000031.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).

Anita B. Staley, Barthol & Staley, L.P.A., 7327 Center Street, Mentor, OH 44060 (For
Defendant-Appellant).



TIMOTHY P. CANNON, J.

        {¶1}     Appellant, Joseph W. Rose, Jr., appeals from the June 1, 2016 agreed

judgment entry of amended sentence, which was entered by the Lake County Court of

Common Pleas following this court’s remand order.              For the following reasons, the

judgment of the trial court is affirmed.

        {¶2}     On January 21, 2014, appellant was indicted on seven counts: Count 1,

receiving stolen property (a license plate), a fifth-degree felony in violation of R.C.
2913.51(A); Count 2, aggravated robbery, a first-degree felony in violation of R.C.

2911.01(A)(1) with a repeat violent offender specification; Count 3, robbery, a second-

degree felony in violation of R.C. 2911.02(A)(2), with a repeat violent offender

specification; Count 4, robbery, a third-degree felony in violation of R.C. 2911.02(A)(3);

Count 5, receiving stolen property (a 1995 Plymouth Voyager minivan), a fourth-degree

felony in violation of R.C. 2913.51(A); Count 6, receiving stolen property (a 2000 Dodge

Durango), a fourth-degree felony in violation of R.C. 2913.51(A); and Count 7, illegal

use or possession of drug paraphernalia, a fourth-degree misdemeanor in violation of

R.C. 2925.14(C)(1).

       {¶3}   Appellant pled not guilty to all charges. Count 7 was dismissed at the

request of the state prior to trial. The remaining counts were tried before a jury.

       {¶4}   The jury found appellant guilty of three counts of receiving stolen property

and one count of robbery. Appellant was found not guilty of the remaining charges. He

was sentenced to 12 months in prison on Count 1 (receiving a stolen license plate); 36

months in prison on Count 4 (robbery); 18 months in prison on Count 5 (receiving a

stolen Plymouth minivan); and 18 months in prison on Count 6 (receiving a stolen

Dodge Durango). The trial court ordered the sentences to be served consecutive to

each other for a total of 84 months in prison.

       {¶5}   Appellant timely appealed the sentencing order. We reversed the finding

of guilt on Count 1, receiving stolen property (license plate), due to trial counsel’s failure

to object to inadmissible hearsay testimony that was presented in violation of his

constitutional right to confront the witnesses against him. State v. Rose, 11th Dist. Lake

No. 2014-L-086, 2015-Ohio-2607, ¶11-30.           The matter was remanded for further




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proceedings with respect to Count 1. Id. at ¶44. In all other respects, the trial court’s

judgment was affirmed. Id.

       {¶6}   On June 1, 2016, the trial court entered an “Agreed Judgment Entry of

Amended Sentence.” The entry had been prepared by the prosecuting attorney, at the

direction of the trial court, on May 31, 2016. The entry, states, in pertinent part:

              The Lake County Prosecuting Attorney, Charles E. Coulson, by and
              through Karen A. Sheppert, Assistant Prosecuting Attorney, on
              behalf of the State of Ohio, has represented that the State will not
              be pursuing prosecution of the Defendant, Joseph W. Rose, Jr., on
              Count 1. The State and the Defendant, represented by counsel,
              Vanessa R. Clapp, Assistant Public Defender, agree that the
              Defendant’s judgment entry of sentence, filed July 31, 2014, will be
              amended as follows.

The entry deletes reference to the finding of guilt and sentence on Count 1. The entry

also provides, “[a]s to Counts 5 and 6, the Court further finds that the Defendant

committed the offenses as part of an organized criminal activity[.]” This provision had

previously included Count 1 as part of the organized criminal activity.

       {¶7}   The trial court recited the sentence on the remaining counts without any

other change from the court’s original sentencing entry. As a result, appellant remained

sentenced to 36 months in prison on Count 4, 18 months in prison on Count 5, and 18

months in prison on Count 6, for a total of 72 months.

       {¶8}   Appellant filed a timely notice of appeal from this entry and raised three

assignments of error for our review.

       {¶9}   A review of the docket revealed the state had not moved to nolle Count 1

of the indictment nor was Count 1 dismissed by the trial court. Thus, the trial court’s

June 1, 2016 entry was not a final, appealable order. We remanded the matter to the

trial court for the sole purpose of disposing of Count 1 of the indictment. On remand,



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the state entered a nolle prosequi on Count 1 of the indictment, which was accepted by

the trial court, and the case was refiled in this court.

         {¶10} Appellant’s first assignment of error states:

         {¶11} “The trial court failed to comply with Criminal Rule 32 when resentencing

the appellant after the Court of Appeals reversed and remanded for proceedings

consistent with its decision.”

         {¶12} Appellant asserts the trial court did not comply with Crim.R. 32 because it

resentenced appellant without holding a hearing and giving appellant the opportunity to

speak.

         {¶13} Crim.R. 32(A)(1) provides: “At the time of imposing sentence, the court

shall * * * [a]fford counsel an opportunity to speak on behalf of the defendant and

address the defendant personally and ask if he or she wishes to make a statement in

his or her own behalf or present any information in mitigation of punishment.” A trial

court is required to afford this same opportunity to the defendant when an appellate

court remands a case for resentencing. See, e.g., State v. Steimle, 8th Dist. Cuyahoga

Nos. 79154 & 79155, 2002-Ohio-2238, ¶14-16.

         {¶14} In our opinion on appellant’s direct appeal, we held appellant was

prejudiced by trial counsel’s failure to object to inadmissible hearsay testimony in

violation of appellant’s constitutional right to confront witnesses against him. Rose,

supra, at ¶24. That hearsay testimony was the only evidence presented by the state in

support of Count 1. Id. at ¶28. This was a trial error, not a sentencing error. Thus,

appellant’s assertion that his appeal was remanded for resentencing is inaccurate; it




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was remanded for the trial court to cure the trial error that occurred with regard to the

finding of guilt on Count 1.

       {¶15} “‘The law-of-the-case doctrine holds that the decision of the reviewing

court in a case remains the law of that case on the questions of law involved for all

subsequent proceedings at the trial and appellate levels.’” State v. Ulery, 2d Dist. Clark

No. 2010 CA 89, 2011-Ohio-4549, ¶12, quoting Nolan v. Nolan, 11 Ohio St.3d 1, 3

(1984).   “‘The doctrine functions to compel trial courts to follow the mandates of

reviewing courts.’” State v. Wolfe, 2d Dist. Montgomery Nos. 26681, 26729, & 26983,

2016-Ohio-4897, ¶16, quoting Blust v. Lamar Advertising of Mobile, Inc., 183 Ohio

App.3d 478, 2009-Ohio-3947, ¶10 (2d Dist.). See also Brook Park v. Necak, 30 Ohio

App.3d 118, 120 (8th Dist.1986) (“Ohio courts have no authority to reconsider their own

valid final judgments in criminal cases”).

       {¶16} Our mandate to the trial court was to revisit the finding of guilt on Count 1.

The trial court had no authority to resentence appellant on remand from this court

unless further proceedings resulted in a finding of guilt on Count 1. The remainder of

appellant’s convictions had been affirmed by this court on direct appeal. Rose, supra,

at ¶44. Thus, a resentencing hearing was not held nor was it required to be held on the

remaining counts. See generally State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245

(explaining why the “sentencing package doctrine” has no application in Ohio).

Because the state chose not to pursue a conviction on Count 1, the count was

dismissed and the sentencing entry was properly amended.

       {¶17} The trial court was not required to afford appellant an opportunity to speak

at a hearing, pursuant to Crim.R. 32, because appellant was not resentenced.




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       {¶18} Appellant’s first assignment of error is without merit.

       {¶19} Appellant’s second and third assignments of error state:

              [2.] The trial court abused its discretion and erred to the prejudice of
              appellant by sentencing him to a total of 72-months imprisonment in
              that the prison term is excessive for the purposes set forth in Ohio
              Revised Code Section 2929.11(A) and (B), and is not necessary to
              protect the public.

              [3.] The trial court abused its discretion to the prejudice of appellant
              by imposing a maximum prison term, when consideration of the
              factors in 2929.12 tended to favor a lesser sentence.

       {¶20} “[A]ny issues that were raised or could have been raised by a defendant at

the trial court level or on direct appeal are res judicata and not subject to review in

subsequent proceedings.” State v. Lintz, 11th Dist. Lake No. 2010-L-067, 2011-Ohio-

6511, ¶36, citing State v. Perry, 10 Ohio St.2d 175 (1967), paragraph nine of the

syllabus.

       {¶21} The proper time for appellant to raise these arguments was in his direct

appeal from the trial court’s judgment of conviction. He did not do so, and the trial court

did not resentence appellant following our remand. Appellant’s arguments are now

barred by the doctrine of res judicata.

       {¶22} Appellant’s second and third assignments of error are without merit.

       {¶23} The judgment of the Lake County Court of Common Pleas is hereby

affirmed.



CYNTHIA WESTCOTT RICE, P.J.,

DIANE V. GRENDELL, J.,

concur.




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