[Cite as State v. Barksdale, 2014-Ohio-326.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                  MONTGOMERY COUNTY

STATE OF OHIO                                     :
                                                  :     Appellate Case No. 25746
        Plaintiff-Appellee                        :
                                                  :     Trial Court Case No. 08-CR-3283
v.                                                :
                                                  :
CHRISTOPHER BARKSDALE                             :     (Criminal Appeal from
                                                  :     (Common Pleas Court)
        Defendant-Appellant                       :
                                                  :
                                               ...........

                                               OPINION

                             Rendered on the 31st day of January, 2014.

                                               ...........

MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. #0069829, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box
972, 301 West Third Street, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

RICHARD A. NYSTROM, Atty. Reg. #0040615, 1502 Liberty Tower, 120 West Second Street,
Dayton, Ohio 45402
      Attorney for Defendant-Appellant

                                               .............

FAIN, J.

        {¶ 1}     Defendant-appellant Christopher Barksdale appeals from the four-year prison

sentence the trial court imposed for Felonious Assault (serious physical harm), in violation of
                                                                                                   2


R.C. 2903.11(A)(1). The trial court imposed the sentence after remand from this court for the

merger of two Felonious Assault convictions for which Barksdale had been sentenced to

concurrent four-year terms. Barksdale contends that the trial court failed “to fully and fairly

reconsider defendant’s sentence and all of the underlying facts and circumstances after appellate

remand to reconsider same and thereby violated defendant’s constitutional right to due process.”

       {¶ 2}    We conclude that the record does not support Barksdale’s contention.

Accordingly, the judgment of the trial court is Affirmed.



                                 I. The Course of Proceedings

       {¶ 3}    Barksdale was charged by indictment with one count of Felonious Assault

(serious physical harm), in violation of R.C. 2903.11(A)(1), and one count of Felonious Assault

(deadly weapon), in violation of R.C. 2903.11(A)(2). Following a jury trial, he was sentenced to

four-year terms of imprisonment on both counts, to be served concurrently. He appealed.

       {¶ 4}    We initially affirmed, based upon Barksdale’s failure to provide a transcript.

State v. Barksdale, 2d Dist. Montgomery No. 23422, 2011-Ohio-630 (Barksdale I).

       {¶ 5}    We later re-opened Barksdale’s appeal, reversed his sentence, and remanded the

cause to the trial court for the merger of the two Felonious Assault convictions, “and for the trial

court to sentence Barksdale accordingly.” State v. Barksdale, 2d Dist. Montgomery No. 23422,

2013-Ohio-1066, ¶ 48 (Barksdale II).

       {¶ 6}    By the time Barksdale appeared for the merger and re-sentencing, he had

completed serving his four-year prison sentence, but was still subject to post-release control

sanctions, the penalty for the violation of which could depend upon the length of the underlying
                                                                                              3


sentence.

       {¶ 7}    Because of the nature of Barksdale’s contentions on appeal, the merger and

re-sentencing colloquy is worth setting out in full:

               THE COURT: * * * . I believe in this case Mr. Barksdale was sentenced

       and there was an appeal.       There were two counts of felonious assault guilt

       determinations. The Court sentenced on both of those counts. The Appellate

       Court found that I believe that they were allied offenses of similar import or

       otherwise to be improper to sentence on both.

               The State needed to elect which of the felonious assault counts it wished to

       have Mr. Barksdale sentenced on. I’m thinking is this like – I imagine it’s – is it

       felonious assault serious harm and felonious assault deadly weapon.            Two

       different types? Is that –

               MS. RAKE [representing the State]: Yes, Your Honor.

               THE COURT: Okay. Which would the Court or the department – would

       the State of Ohio wish Mr. Barksdale sentenced on?

               MS. RAKE: Your Honor, the State would choose to have Mr. Barksdale

       sentenced on the felonious assault serious harm.

               THE COURT: All right. I imagine we should – the Court then merges the

       felonious assault counts for sentencing purposes. Hold on just a minute. Would

       counsel approach sidebar.

                                            (At sidebar)

               THE COURT: The Appellate decision on here, it doesn’t have – you think
                                                                                     4


we should go from the top on this and –

         MR. WESNER [representing Barksdale]: He served two consecutive or

two concurrent four years, right?

         MS. RAKE: Uh-huh.

         MR. WESNER: He’s already served his time.

         THE COURT: I know he has. But I’m just – you don’t have a termination

entry?

         MS. RAKE: I don’t.

         THE CLERK: What are you asking?

         MS. RAKE: Termination entry.

         THE CLERK: I can get you one in just one second.

         THE COURT: Okay. For safety sake, allow allocution and all that type of

thing.

         MS. RAKE: She would know from the appellate standpoint. He wants to

know, do we need to go over the stuff and the cap from an appellate standpoint?

         THE COURT: Just like if we’re – if this were the first time we were here?

         MS. RAKE: Because he’s already served his appellate [sic] sentence.

         THE COURT: Should we have allocution by the State? I imagine we

should, right?

         MS. RAKE: Because we’re not – well, he’s be [sic] resentenced.

         UNIDENTIFIED SPEAKER: He’s being resentenced.

         MS. RAKE: It’s going to be time served.
[Cite as State v. Barksdale, 2014-Ohio-326.]
        THE COURT: For four years I think.

        MR. WESNER: He’d like to make – I told him to say that he believes the

merits of the entire appeal, however, he’s just here for resentencing.         He

understands that. But if you could just state that.

        THE COURT: Okay. I’ll – I’m thinking that I don’t think that hurts

anything. Should we get

        MS. RAKE: I don’t think it’s going to – do we need to go through all that?

        THE COURT: – and do the full PCR [sic] warning and all that?

        UNIDENTIFIED SPEAKER: I think so because he’s – he may appeal it.

        MS. RAKE: Oh, okay. Okay.

        UNIDENTIFIED SPEAKER: It’s a new sentencing and it’d be a good idea

because it’s on the one count of merger and he’s being sentenced on the one count,

same four years, same everything else. So I think you do have to go through

everything.

        THE COURT: Do I need to [sic] a jail time credit. I need a jail time

credit report or do you – can we stipulate that he served it?

        MS. RAKE: We can stipulate.

        UNIDENTIFIED SPEAKER: You can stipulate that he has served it.

        THE COURT: Okay. All right.

        MR. WESNER: Thank you.

                                       (End sidebar)

        THE COURT: The Court had previously received a PSI in the case and

considered it. Counsel, is there anything you’d like to say before the Court
                                                                                                                                              6


        announces sentence?

                   MR. WESNER: Your Honor, just that we believe the entire merits of the

        appeal, the first and second assignments of error, 1 I know we’re just here for

        re-sentencing, but I just wanted that on the record.

                   THE COURT: Thank you. Mr. Barksdale, anything you would like to say

        before the Court announces sentence?

                   MR. WESNER: He concurs with my statement, Your Honor. That’s what

        he just informed me of. You don’t want to say anything on the record?

                   THE DEFENDANT: (Nods negatively).

                   MR. WESNER: He doesn’t wish to say anything on the record, Your

        Honor.




          1
             Barksdale’s first assignment of error in his re-opened appeal was that his convictions were against the manifest weight of the
evidence; we overruled that assignment of error. Barksdale II, ¶ 33, 44. His second assignment of error was that the convictions should
have been merged; we sustained that assignment of error. Id., ¶ 45, 47.
       [Cite as State v. Barksdale, 2014-Ohio-326.]
                THE COURT: All right. Based on counsel’s statement, considering the

       resentence [sic] investigation report,2 considering the purposes and principles of

       sentencing as set forth in RC2929.11, considering the seriousness and recidivism

       factors as set forth in RC2929.12, in this case 08-CR-3283, the Court sentences

       Christopher Barksdale on felonious assault, a felony of the 2nd degree, to a term

       of four years CRC.

                Further, the Court orders that Mr. Barksdale pay restitution to Curtis

       Johnson in the amount of $17,484.41.

                The Court orders Mr. Barksdale to pay Court costs and Mr. Barksdale is

       advised that failure to pay Court costs could result in the requirement to perform

       community service.

                On the issue of jail time credit, I believe that the parties would stipulate

       that Mr. Barksdale has in fact served four years and thus doesn’t have to actually

       serve any more prison time. Are counsel willing to stipulate that there is four – at

       least four years jail time credit?

                MS. RAKE: Yes, Your Honor.

                MR. WESNER: Yes, Your Honor.

       {¶ 8}      The trial court then advised Barksdale of the post-release control sanctions

pertaining to him.

       {¶ 9}      Barksdale appeals from the sentence imposed upon him on remand.




         2
         The only pre-sentence investigation report in our record is the report prepared for the original sentencing in 2009.
                                                                                                                                        8


     II. The Trial Court Did Not Err When It Imposed the Same Sentence on Remand

         {¶ 10} Barksdale’s sole assignment of error (framed as “Issue I”) is as follows:

                    WHETHER THE TRIAL COURT ERRED BY FAILING TO FULLY

         AND FAIRLY RECONSIDER DEFENDANT’S SENTENCE AND ALL OF

         THE UNDERLYING FACTS AND CIRCUMSTANCES AFTER APPELLATE

         REMAND              TO       RECONSIDER                 SAME          AND         THEREBY             VIOLATED

         DEFENDANT’S CONSTITUTIONAL RIGHT TO DUE PROCESS UNDER

         THE FIFTH, EIGHTH, AND FOURTEENTH AMENDMENT OF THE UNITED

         STATES CONSTITUTION AND ARTICLE I SECTION 10 OF THE OHIO STATE

         CONSTITUTION. (Italics in original.)

         {¶ 11} To begin with, a trial court is under no obligation to impose a reduced sentence

simply because an appellate court has reversed the original sentence and remanded the cause for

merger and re-sentencing. State v. Fuller, 2d Dist. Montgomery No. 25380, 2013-Ohio-3274, ¶

12-14.

         {¶ 12} There was some confusion at the outset of the remand sentencing hearing

concerning the task before the trial court. The trial court appropriately sought and received the

guidance of counsel, receiving in the process also some guidance from the “unidentified

speaker.”3

         {¶ 13} The trial court did telegraph its thought that the four-year sentence originally

imposed for the offense was still the appropriate sentence. We find nothing wrong with a trial


           3
              If forced to speculate, we would guess the unidentified speaker to have been someone from the appellate division of the
 prosecutor’s office.
                                                                                                       9


court indicating its thinking as to an appropriate sentence at the outset of a sentencing hearing,

especially where, as here, a sentence had been imposed for the same offense at a previous

sentencing hearing, so long as the court affords the defendant an opportunity to be heard, which

the trial court did here.

        {¶ 14} Significantly, neither the defendant nor his counsel objected, at any point during

the sentencing hearing, to the appropriateness of the procedure followed by the trial court.

Defendant, through his counsel, had multiple opportunities during the hearing to suggest a

different procedure, but did not do so.

        {¶ 15} The trial court stated, on the record, that it had considered the pre-sentence

investigation report provided for the initial sentencing, that it had considered the purposes and

principles of sentencing set forth in R.C. 2929.11, and that it had considered the seriousness and

recidivism factors set forth in R.C. 2929.12. We presume that it did so.

        {¶ 16} The trial court imposed a four-year sentence, which is one year less than the

five-year sentence falling in the middle of the two-to-eight-year range for a second-degree felony.

 The victim was hospitalized, generating hospital and ambulance bills totaling $18,184.41. As

of the date of the pre-sentence investigation report, on April 3, 2009, the victim had not been able

to work in his self-employment as a contractor for almost eight months.

        {¶ 17} At the time of Barksdale’s original sentencing, he had seven prior misdemeanor

convictions, including three Domestic Violence convictions and three Assault convictions, and

six prior felony convictions. He had served prison time on three of the prior felony convictions.

All of Barksdale’s prior felony convictions occurred more than ten years before the Felonious

Assault offense in this case, but a number of his misdemeanor convictions were more recent, and
                                                                                                                                     10


he also had two misdemeanor charges – Driving Under the Influence and Fleeing and

Eluding/Obstructing Official Business – that were pending at the time of his original sentencing

in this case.

         {¶ 18} The trial court presumably chose an appropriate sentence for Barksdale’s

Felonious Assault conviction at the original 2009 sentencing hearing. Considering that no one

said or presented anything during the remand sentencing hearing to suggest that the trial court’s

initial four-year sentence for the offense was not appropriate, we find it unremarkable that the

trial court decided to impose a four-year sentence, which Barksdale had already served.

         {¶ 19} Finally, there is a suggestion at one point in Barksdale’s brief that: “[A]ny

interpretation in the in-chambers discussion4 or in the open-court hearing that Barksdale’s trial

attorney waived any review of the sentence – by stipulating to the 2009 hearing and four-[year]

sentence – is ineffective assistance of counsel since [State v.] Whitfield [124 Ohio St.3d 319,

2010-Ohio-2, 922 N.E.2d 182,] requires nothing less than a new hearing.” A successful claim of

ineffective assistance of trial counsel would require a showing that there was any cogent

argument to make in support of a sentence of less than four years. Otherwise, trial counsel

would not have been ineffective for having failed to make that argument, and Barksdale would

not have been prejudiced as a result of the failure to make it. There is nothing in this record to

suggest that there was an argument that Barksdale could have made that would have been likely

to cause the trial court to impose a sentence of less than four years.

         {¶ 20} Barksdale’s sole assignment of error is overruled.


           4
             Perhaps this is a reference to the sidebar conference quoted in Part I, above. In any event, we have no record of any
 in-chambers proceedings relating to the remand sentencing.
                                                                                           11




                                     III. Conclusion

       {¶ 21} Barksdale’s sole assignment of error having been overruled, the judgment of the

trial court is Affirmed.

                                      .............

FROELICH, P.J., and DONOVAN, J., concur.


Copies mailed to:

Mathias H. Heck
Michele D. Phipps
Richard A. Nystrom
Hon. Timothy N. O’Connell
