[Cite as State v. Allen, 2013-Ohio-1414.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. John W. Wise, P. J.
        Plaintiff-Appellee                        Hon. Patricia A. Delaney, J.
                                                  Hon. Craig R. Baldwin, J.
-vs-
                                                  Case No. 13 CA 1
JEFFREY D. ALLEN

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 2010 CR 632


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                        April 8, 2013



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

EARL L. FROST                                  SIOBHAN R. CLOVIS
ASSISTANT PROSECUTOR                           36 North Second Street
20 South Second Street, 4th Floor              Post Office Box 919
Newark, Ohio 43055                             Newark, Ohio 43058-0919
Licking County, Case No. 13 CA 1                                                       2

Wise, P. J.

        {¶1}   Defendant-appellant Jeffrey D. Allen appeals the December 19, 2012,

decision of the Licking County Common Pleas Court denying his Motion to Reduce or

Modify Sentence.

        {¶2}   Plaintiff-Appellee is the State of Ohio.

        {¶3}   This case comes to us on the accelerated calendar. App. R. 11.1, which

governs accelerated calendar cases, provides, in pertinent part:

        {¶4}   “(E) Determination and judgment on appeal. The appeal will be

determined as provided by App.R. 11.1. It shall be sufficient compliance with App.R.

12(A) for the statement of the reason for the court’s decision as to each error to be in

brief and conclusionary form. The decision may be by judgment entry in which case it

will not be published in any form.”

        {¶5}   This appeal shall be considered in accordance with the aforementioned

rule.

                        STATEMENT OF THE CASE AND FACTS

        {¶6}   On March 18, 2011, Appellant Jeffery D. Allen, entered a plea of guilty to

one count of Aggravated Possession of Drugs, a violation of R.C. §2925.11(A)(C)(1)(c),

a felony of the second degree; one count of Aggravated Possession of Drugs, a

violation of R.C. §2925.11(A)(C)(1)(b), a felony of the third degree; and, one count of

Possession      of   Marijuana,    a    minor    misdemeanor,   a   violation   of   R.C.

§2925.11(A)(C)(3)(a).

        {¶7}   Appellant’s charges arose out of a traffic stop where the drugs were found

on Appellant’s person and in his vehicle. (T. at 13-14).
Licking County, Case No. 13 CA 1                                                           3


       {¶8}   By Judgment Entry filed March 21, 2011, based on Appellant’s pleas of

guilty, the trial court found Appellant guilty and sentence him to a two (2) year

mandatory prison term on second-degree felony and a two (2) year prison term on the

third-degree felony, to be run consecutively to each other, for a cumulative prison

sentence of four (4) years. No sentence was imposed on the minor misdemeanor

offense.

       {¶9}   On October 29, 2012, Appellant filed a pro se “Motion to Reduce or Modify

the Sentence”, arguing that the prison sentence imposed by the trial court should have

been ordered to run concurrently with a federal prison term.

       {¶10} By Judgment Entry filed December 19, 2012, the trial court denied

Appellant’s motion.

       {¶11} Appellant now appeals, assigning the following error for review:

                               ASSIGNMENTS OF ERROR

       {¶12} “I.      IT WAS ERROR TO SENTENCE MR. ALLEN, A NONVIOLENT

DRUG OFFENDER, TO A FOUR-YEAR PRISON TERM WITHOUT SPECIFYING

THAT IT BE SERVED CONCURRENTLY TO A FEDERAL PRISON TERM.”

                                             I.

       {¶13} In Appellant’s assignment of error, Appellant argues that the trial court

erred in failing to order his sentence in this case to run concurrently with a federal prison

term. We disagree.

       {¶14} In the case sub judice, Appellant cites this Court to the transcript of the

sentencing hearing wherein the trial court was made aware that Appellant was facing a

federal prison term for a parole violation following his conviction and sentence in the
Licking County, Case No. 13 CA 1                                                        4


instant case. Appellant argues that the trial court’s silence on whether his sentence in

this case should be served consecutive or concurrent to the ensuing federal prison

sentence was error.

       {¶15} Upon review, we find that it is clear from the record that the sentence by

the Licking County Court was imposed prior to the sentence in federal court.

       {¶16} The Ohio Supreme Court addressed this issue in State v. White, 18 Ohio

St.3d 340, 342, 481 N.E.2d 596, wherein it stated:

       {¶17} “R.C. 2929.41(A) provides generally that a sentence of imprisonment shall

be served concurrently with any other sentence of imprisonment. In R.C. 2929.41(B) the

trial court is granted discretion to specify that, “[a] sentence of imprisonment shall be

served consecutively to any other sentence of imprisonment.” However, this court is

persuaded that the grant of discretion to a trial court concerning the imposition of a

consecutive sentence is based upon the premise that the other sentence is either one

being imposed by the trial court at that time or is a sentence previously imposed, even if

by another court, and is not a sentence in futuro.”

       {¶18} The Court in State v. White, went on to reason:

       {¶19} “When a trial court imposes a sentence and orders it to be served

consecutively with any future sentence to be imposed, it appears that such a sentence

interferes with the discretion granted the second trial judge to fashion an appropriate

sentence or sentences pursuant to the provisions of the Revised Code. The second trial

judge must have discretion pursuant to R.C. 2929.41(A) and (B) to fashion the sentence

to be imposed as a result of the conviction in his trial court.”
Licking County, Case No. 13 CA 1                                                               5


       {¶20} Additionally, a trial court has no jurisdiction to amend or modify its own

valid final judgments. Brook Park v. Necak (1986), 30 Ohio App.3d 118, 120. In criminal

cases, a judgment is not considered final until the sentence has been ordered into

execution.

       {¶21} In State v. Garretson (2000), 140 Ohio App.3d 554, 558–559, the court of

appeals stated:

       {¶22} “ ‘In Columbus v. Messer (1982), 7 Ohio App.3d 266, the Court of Appeals

for Franklin County addressed the question of exactly when the execution of

the sentence has begun: “Where the full sentence involves imprisonment, the execution

of the sentence is commenced when the defendant is delivered from the temporary

detention facility of the judicial branch to the penal institution of the executive branch.”

       {¶23} As a result, a trial court does not have jurisdiction to modify a valid

sentence of imprisonment once imprisonment has begun. Should a trial court retain

jurisdiction to modify an otherwise valid sentence “the defendant would have no

assurance about the punishment's finality.” Brook Park v. Necak * * * ’

       {¶24} Before execution of a sentence has begun, the trial court possesses

authority to modify the sentence. State v. Evans, 161 Ohio App.3d 24, 2005-Ohio-2337,

¶ 15-17. Due primarily to the constitutional right prohibiting double jeopardy, the trial

court loses jurisdiction to amend or modify the sentence once the sentence has begun

to be executed. State v. Carr, 167 Ohio App.3d 223, 2006-Ohio-3073, ¶ 3, citing State

v. Garretson (2000), 140 Ohio App.3d 554, 748 N.E.2d 560; see also, State v. Addison

(1987), 40 Ohio App.3d 7, 530 N.E.2d 1335; State v. Ballard (1991), 77 Ohio App.3d
Licking County, Case No. 13 CA 1                                                  6

595, 602 N.E.2d 1234; see also, Ex parte Lange (1873), 85 U.S. 163, 21 L.Ed. 872;

United States v. Benz (1931), 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354.

      {¶25} Based on the foregoing, we find Appellant’s sole Assignment of Error not

well-taken and overrule same.

      {¶26} The judgment of the Court of Common Pleas of Licking County, Ohio, is

affirmed.



By: Wise, P. J.

Delaney, J., and

Baldwin, J., concur.


                                           ___________________________________


                                           ___________________________________


                                           ___________________________________

                                                              JUDGES
JWW/d 0326
Licking County, Case No. 13 CA 1                                              7


             IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT




STATE OF OHIO                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
JEFFREY D. ALLEN                           :
                                           :
       Defendant-Appellant                 :         Case No. 13 CA 1




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Licking County, Ohio, is affirmed.

       Costs assessed to Appellant.




                                           ___________________________________


                                           ___________________________________


                                           ___________________________________

                                                              JUDGES
