[Cite as State v. Stambaugh, 2013-Ohio-4558.]


STATE OF OHIO                    )                   IN THE COURT OF APPEALS
                                 )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                 )

STATE OF OHIO                                        C.A. No.    12CA0096-M

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
MARK A. STAMBAUGH                                    COURT OF COMMON PLEAS
                                                     COUNTY OF MEDINA, OHIO
        Appellant                                    CASE No.   06-CR-0205

                                DECISION AND JOURNAL ENTRY

Dated: October 15, 2013



        HENSAL, Judge.

        {¶1}    Defendant-Appellant, Mark A. Stambaugh, appeals from the judgment of the

Medina County Court of Common Pleas. For the reasons set forth below, this Court vacates and

remands for proceedings consistent with this opinion.

                                                I.

        {¶2}    In 2008, Stambaugh was found guilty of one count of forgery, in violation of

Revised Code Section 2913.31(A)(1). The trial court sentenced him, inter alia, to five years of

community control and five and one-half months in jail with credit for five and one-half months

of time served. The court further provided that any violation of the sentence would result in a

one-year prison term.

        {¶3}    Stambaugh was charged with several community control violations in September

2012.    He was appointed counsel, who represented him at the hearing on the violations.

Stambaugh admitted to the violations at the hearing, and was sentenced to nine months in prison
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with credit for 126 days of time served in a judgment entry filed on September 26, 2012.

Stambaugh was subsequently conveyed to prison. The trial court held another hearing on

October 29, 2012, pursuant to a request from the Bureau of Sentence Computation for

clarification as to the amount of jail time credit.1 Stambaugh was conveyed from prison for the

hearing. He did not request counsel for the hearing nor did the trial court ask him if he wanted

counsel appointed.

       {¶4}    On November 1, 2012, the trial court issued a journal entry ordering Stambaugh

to serve a one-year prison sentence with credit for 165 days (five and one-half months) of time

served. The trial court made the sentence retroactive to the date of the probation violation

hearing. On November 5, 2012, Stambaugh, while acting pro se, filed a motion seeking 256

days of jail-time credit. It does not appear from the record that the trial court issued a decision

on Stambaugh’s motion.

       {¶5}     Stambaugh filed a timely appeal of the November 1, 2012, order and raises two

assignments of error for this Court’s review.

                                                II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT VIOLATED MR. STAMBAUGH’S RIGHT TO BE FREE
       FROM DOUBLE JEOPARDY WHEN IT MODIFIED HIS PRISON
       SENTENCE AFTER THE TRIAL COURT ISSUED A VALID FINAL ORDER
       IN THE CASE.

       {¶6}    Stambaugh argues in his first assignment of error that the trial court erred in

modifying his sentence as the September 26, 2012, judgment was final and could not be

modified. By increasing the prison sentence to one year, Stambaugh argues, the trial court


       1
       The record is devoid of any such request in writing from the Bureau of Sentence
Computation.
                                                 3


subjected him to double jeopardy.       The State agrees with Stambaugh’s argument that the

September 26, 2012, judgment is final and not subject to modification. Both Stambaugh and the

State advocate that the November 1, 2012, judgment should be vacated as it is a nullity. This

Court agrees.

       {¶7}     Because the validity of Stambaugh’s November 1, 2012, sentencing order

presents a question of law, this Court applies a de novo standard of review. State v. Abuhilwa,

9th Dist. Summit No. 26183, 2012-Ohio-3441, ¶ 5. “When reviewing a matter de novo, this

Court does not give deference to the trial court’s decision.” Id.

       {¶8}     “A criminal sentence is final upon issuance of a final order.” State v. Carlisle,

131 Ohio St.3d 127, 2011-Ohio-6553, ¶ 11. At the time of the sentence, Criminal Rule 32(C)

provided in pertinent part that “[a] judgment of conviction shall set forth the plea, the verdict, or

findings, upon which each conviction is based, and the sentence. * * * The judge shall sign the

judgment and the clerk shall enter it on the journal.” The Ohio Supreme Court held in State v.

Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, ¶ 11 that in order to qualify as a final, appealable

order, the judgment of conviction must contain these substantive provisions.

   {¶9}         In this case, the trial court’s September 26, 2012, judgment was a final order as it

contained all the pertinent provisions mandated by Criminal Rule 32(C). “Absent statutory

authority, a trial court is generally not empowered to modify a criminal sentence by

reconsidering its own final judgment.” Carlisle at ¶ 1. By increasing Stambaugh’s prison

sentence to one year, the trial court reconsidered and modified its own final judgment in

contravention of the Supreme Court’s holding in Carlisle. Id. The trial court did not, therefore,

have the authority to increase his prison sentence to one year. Based on the foregoing, the
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November 1, 2012, judgment is vacated. The trial court’s September 26, 2012, judgment entry

remains valid. Stambaugh’s first assignment of error is sustained.

                                  ASSIGNMENT OF ERROR II

       THE TRIAL COURT VIOLATED MR. STAMBAUGH’S RIGHT TO
       COUNSEL WHEN IT FAILED TO APPOINT MR. STAMBAUGH AN
       ATTORNEY TO REPRESENT HIM AT A RESENTENCING HEARING AT
       WHICH HIS PRISON SENTENCE WAS INCREASED.

       {¶10} In his second assignment of error, Stambaugh argues that he was entitled to

appointed counsel for the October 29, 2012, hearing as his sentence was increased. Due to this

Court’s resolution of Stambaugh’s first assignment of error, his second assignment of error is

moot. This Court, therefore, declines to address it. App.R. 12(A)(1)(c).

                                                III.

       {¶11} Stambaugh’s first assignment of error is sustained and his second assignment of

error is moot. The November 1, 2012, judgment of the Medina County Court of Common pleas

is vacated and the cause is remanded to the trial court for proceedings consistent with this

opinion.

                                                                               Judgment vacated,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
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period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                    JENNIFER HENSAL
                                                    FOR THE COURT


MOORE, P. J.
CARR, J.
CONCUR.

APPEARANCES:

MELISSA M. PRENDERGAST, Assistant State Public Defender, for Appellant.

DEAN HOLMAN, Prosecuting Attorney, and MICHAEL O. MCGINTY, Assistant Prosecuting
Attorney, for Appellee.
