[Cite as State v. Smith, 2012-Ohio-926.]



                      Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 97038



                                       STATE OF OHIO

                                                     PLAINTIFF-APPELLEE

                                               vs.

                                           ERIC SMITH
                                                     DEFENDANT-APPELLANT




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-521598

        BEFORE: Stewart, P.J., Cooney, J., and Kilbane, J.

        RELEASED AND JOURNALIZED:                    March 8, 2012
ATTORNEY FOR APPELLANT

Susan J. Moran
55 Public Square, Suite 1616
Cleveland, OH 44113-1901


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Marc D. Bullard
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 9th Floor
Cleveland, OH 44113
MELODY J. STEWART, P.J.:

       {¶1} Defendant-appellant, Eric Smith, appeals from an eight-year term of

incarceration that was imposed at a resentencing hearing. He complains that the trial

court ordered the same sentence that it had previously given him, did not weigh

seriousness and recidivism factors when considering the felony sentencing guidelines,

and did not state that it considered the requisite sentencing factors. Smith requests this

court to vacate his sentence and remand for another sentencing hearing. We reverse and

remand this case to the trial court, but for reasons different from those asserted by

appellant.

       {¶2} Smith, while being arrested for his participation in a buy bust operation,

became involved in a skirmish with a law enforcement officer after he attempted to

wrestle away the officer’s service weapon. In response, the officer kicked Smith in the

chest and never lost control of his weapon. Smith was charged with aggravated robbery

in violation of R.C. 2911.01(B)(1) with both a one-year and a three-year firearm

specification, and drug possession pursuant to R.C. 2925.11.    After a jury trial, he was

found guilty of aggravated robbery with a one-year firearm specification and drug

possession. He was sentenced to eight years for the aggravated robbery, one year for the

firearm specification, and one year for drug possession, to be served consecutively for a

total of ten years.

       {¶3} Smith appealed, challenging the weight and sufficiency of the evidence

used to convict him. This court affirmed in part and reversed in part after finding that
the evidence was insufficient to sustain his conviction on the one-year firearm

specification.   We remanded the case with instructions to vacate the firearm

specification. State v. Smith, 8th Dist. No. 93593, 2010-Ohio-4006, 2010 WL 3353606

(“Smith I”).

       {¶4} A resentencing hearing was held, but was continued by the trial court when

it realized that no presentence investigation had been conducted, that Smith’s institutional

records had not been obtained by defense counsel, and that counsel had not spoken to

Smith prior to the hearing.

       {¶5} When the resentencing hearing was reconvened three weeks later, defense

counsel informed the trial court that in spite of his involvement in several minor

infractions while incarcerated, Smith had signed up for several rehabilitative programs.

Smith addressed the court and stated that he was attending Bible studies and was also

attempting to gain admission into college. The trial court noted that it had considered the

institutional reports, and also encouraged Smith to continue his pursuit of higher

education. Then, the court reinstated the eight-year term for the charge of aggravated

robbery, and the one-year term for drug possession.         However, the sentences were

ordered to be served concurrently, as opposed to the previously imposed consecutive

term, for a total of eight years. The trial court informed Smith that “you got a year off

because of your good behavior and things you’re doing.”

       {¶6} In his sole assignment of error, Smith complains that the trial court abused

its discretion when sentencing him to an eight-year term of incarceration. He claims that
the trial court failed to reconsider his sentence in its entirety, and relies upon language

from this court’s decision to reverse his firearm specification conviction to bolster his

argument for a sentence reduction for the aggravated robbery count. However, the fact

that the trial court reconsidered his sentence at all was error.

       {¶7} In Smith I, this court sustained Smith’s first assignment of error, and the

matter was “[r]emanded with instructions to the trial court to vacate the conviction on the

one-year firearm specification.” Therefore, the trial court on remand was authorized

only to follow these instructions, and erred in resentencing Smith because it lacked

jurisdiction to do so.      “Absent statutory authority, a trial court is generally not

empowered to modify a criminal sentence by reconsidering its own final judgment.”

State v. Carlisle, __ Ohio St.3d __, 2011-Ohio-6553, __ N.E.2d __, ¶ 1.

       {¶8} Because the trial court lacked authority to resentence Smith, we need not

address his assigned error. We reverse and remand to the trial court with instructions to

reinstate Smith’s original sentence, minus the conviction on the one-year firearm

specification.

       {¶9} This case is reversed and remanded for proceedings consistent with this

opinion.

       It is ordered that the parties bear their own costs herein taxed.

       It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas to carry this judgment into execution. Case remanded

to the trial court for execution of sentence.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MELODY J. STEWART, PRESIDING JUDGE

COLLEEN CONWAY COONEY, J., and
MARY EILEEN KILBANE, J., CONCUR
