State v. Provens - Case Law

[Cite as State v. Provens, 2013-Ohio-3225.]

COURT OF APPEALS
STARK 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. 2012CA00151
ARMONE PROVENS

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 2006CR00193

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: July 22, 2013

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO PAUL F. ADAMSON
PROSECUTING ATTORNEY 137 South Main Street
KATHLEEN O. TATARSKY Suite 201
ASSISTANT PROSECUTOR Akron, Ohio 44308
110 Central Plaza South, Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2012CA00151 2

Wise, P. J.

{¶1} Appellant Armone Provens appeals the decision of the Court of Common

Pleas, Stark County, which resentenced him following a remand from this Court.

Appellee is the State of Ohio. The relevant facts leading to this appeal are as follows.

{¶2} On January 1, 2006, Eric Grimes was fatally shot near the Leshdale

Apartments in Canton, Ohio. On March 17, 2006, in connection with that incident, the

Stark County Grand Jury indicted appellant on one count of murder, one count of

felonious assault, and one count of having weapons while under a disability. The

charges of murder and felonious assault were accompanied by firearm specifications.

Appellant thereafter entered a plea of not guilty to said charges.

{¶3} Appellant's jury trial began on July 17, 2006. During a break in the trial,

appellant entered a plea of guilty to the crime of having weapons while under disability,

a felony of the third degree. Sentencing on that charge was deferred until the

completion of appellant’s trial on the remaining charges.

{¶4} On July 20, 2006, the jury found appellant guilty of the lesser included

offense of reckless homicide, a felony of the third degree, with a firearm specification.

The trial court declared a mistrial on the charges of murder and felonious assault.

{¶5} Pursuant to a judgment entry filed on July 25, 2006, appellant was

sentenced to five years in prison for reckless homicide and five years in prison for

having weapons while under disability, to be served consecutively. A three-year

sentence was also imposed for the gun specification. In addition, because appellant

was on post-release control under another Stark County case (1998CR0124(B)) at the

time of the shooting, an additional three years and fifty-four days was tacked on to his
Stark County, Case No. 2012CA00151 3

sentence. In all, appellant received a prison sentence of sixteen years and fifty-four

days.

{¶6} Appellant thereupon filed a direct appeal. On April 14, 2008, this Court

affirmed appellant’s conviction and sentence.

{¶7} Appellant subsequently filed a motion to reopen his direct appeal pursuant

to App. R. 26(B), which this Court denied via a memorandum-opinion on August 4,

2008. See State v. Provens, Stark App. No. 2007CA00034, 2008–Ohio–3933.

{¶8} On September 2, 2010, appellant filed in the trial court a “motion to vacate

and correct sentence.” Appellant therein alleged that his sentencing entry in his earlier

Stark County case, 1998CR0124(B), was void because he was improperly advised of

post-release control in that matter. Appellant specifically alleged that the trial court in

case number 1998CR0124(B) had incorrectly stated that appellant would be subject to

post-release control for “up to five years” when “R.C. 2967.28(B) mandated that

[appellant's] sentence include a mandatory period of post-release control of five years.”

Appellant argued that because he could not be forced to serve time for violating the

improper term of post-release control issued in 1998CR0124(B), the trial court in the

case sub judice was required to vacate that portion of his sentence tacking on the three

years and fifty-four days onto his sentence. Appellant, in his motion, also argued that

the trial court's entry in 1998CR0124(B) failed to advise him that he faced the

possibility of serving up to one-half of his original prison term as a new prison sentence

if he violated the terms of his release.

{¶9} Appellee filed a response to the motion on March 7, 2011. On March 16,

2011, the trial court overruled appellant's motion. Appellant filed an appeal of said
Stark County, Case No. 2012CA00151 4

decision, arguing that the trial court had erred in failing to vacate and correct his

sentence. On September 26, 2011, in a 2 – 1 decision, we sustained appellant’s

assigned error and held that the sentence in 1998CR0124(B) “was void as it relates to

post-release control.” We further held that the trial court had erred in imposing the

three years and fifty-four remaining days of post-release control time as additional

prison time in the present case. See State v. Provens, Stark App.No. 2011CA00089,

2011-Ohio-5197. We therefore remanded the matter for resentencing.

{¶10} On remand, appellant filed a motion to withdraw his guilty plea to the

count of having a weapon under disability, as well as a sentencing memorandum in

which he argued that the sentences for reckless homicide and having weapons under

disability should merge.

{¶11} At a hearing conducted on April 12, 2012, appellant asserted the

additional argument that he was entitled to be sentenced under the H.B. 86

amendments which, inter alia, reduced the maximum sentences for many third-degree

felonies. At the hearing, the court stated in part as follows: "I believe I have to

resentence him on the law that existed at that time ***." The court proceeded to impose

five years on the reckless homicide count, five years consecutive on the weapons

under disability count, and three years consecutive on the gun specification. See Tr. of

Sentencing, April 12, 2012, at 27.

{¶12} On April 12, 2012, the trial court issued a “judgment entry – post release

control notification hearing.” However, the trial court conducted an additional hearing

on July 2, 2012. At that hearing, the trial court indicated an intention to correct its prior
Stark County, Case No. 2012CA00151 5

entry by including an order vacating the additional three years and fifty-four days and

correcting the terms of post-release control for the two third-degree felonies at issue.

{¶13} The trial court issued a judgment entry on July 9, 2012, although it made

no reference to the three years and fifty-four days. Another judgment entry was filed on

October 17, 2012, incorrectly ordering the sentence portion of three years and fifty-four

days to remain in effect. However, on November 13, 2012, the trial court issued a

judgment entry vacating the additional prison term of three years and fifty-four days.

{¶14} In the meantime, on August 3, 2012, appellant had filed a notice of appeal

of the trial court’s judgment entry of July 9, 2012. He herein raises the following sole

Assignment of Error:

{¶15} “I. THE TRIAL COURT ERRED IN FAILING TO CONSIDER THE

STATUTORY AMENDMENTS OF HOUSE BILL 86 IN SENTENCING FOR THE

THIRD DEGREE FELONIES IN THIS CASE.”

{¶16} In his sole Assignment of Error, appellant contends the trial court erred,

upon appellant’s resentencing, in failing to apply the pertinent statutory amendments

under H.B. 86 to his sentence. We disagree.

{¶17} Current R.C. 2929.14(A)(3)(b), following the revisions under 2011

Am.Sub.H.B. No. 86, effective September 30, 2011, reduced the maximum prison term

for many third-degree felonies from five years to thirty-six months. By implication, third-

degree convictions for reckless homicide and having weapons under a disability, under

the revised sentencing statutes, are offenses subject to this new statutory 36–month

maximum. In addition, H.B. 86 has amended former R.C. 2929.14(E)(4) (now
Stark County, Case No. 2012CA00151 6

captioned as R.C. 2929.14(C)(4)) to explicitly require judicial factfinding when ordering

the imposition of consecutive sentences. See State v. Ayers, Warren App.No.

CA2011–11–123, 2013-Ohio-2641, ¶ 13.

{¶18} As indicated in our recitation of facts in this matter, appellant was originally

sentenced in July 2006, well before the effective date of H.B. 86.

{¶19} We note R.C. 1.58(B) states as follows: “If the penalty, forfeiture, or

punishment for any offense is reduced by a reenactment or amendment of a statute,

the penalty, forfeiture, or punishment, if not already imposed, shall be imposed

according to the statute as amended.” (Emphasis added). In State v. Henderson,

Ashland App.No. 11–COA–045, 2012–Ohio–2709, we reviewed an appellant's claim

that the trial court had erred in not applying the provisions of H.B. 86 at his

resentencing, following an appellate remand on issues pertaining to post-release

control in accordance with State v. Fischer, 128 Ohio St.3d 92, 2010–Ohio–6238.

Henderson at ¶ 45 - ¶ 46. Applying R.C. 1.58(B), supra, we rejected that argument,

determining that Henderson's “sentence had already been imposed prior to the

enactment of H.B. 86; therefore, the trial court did not err in not applying the

amendments therein.” Id. at ¶ 51. Cf., also, State v. Craycraft, Clermont App.Nos.

CA2011–04–029 and CA2011–04–030, 2012–Ohio–884, ¶ 16, (concluding that

“nothing in the language of 2011 Am.Sub.H.B. No. 86, nor anything in its legislative

history, suggests that the General Assembly intended for those newly enacted

statutory provisions to be applied by [the appellate] court when reviewing a sentence

imposed by the trial court prior to its effective date.”).
Stark County, Case No. 2012CA00151 7

{¶20} We find that similar reasoning applies here. Despite the lengthy

procedural history of this case, it stands out that our remand of September 26, 2011,

although not simply a Fischer remand, was chiefly designed to facilitate the removal of

the three years and fifty-four remaining days of post-release control time from

1998CR0124(B) as additional prison time in the present case. Based on appellant’s

2006 sentencing date (pre-H.B. 86), we hold the trial court did not err in declining to

afford appellant the sentencing revisions under H.B. 86 when it resentenced him in

accordance with our prior remand order.

{¶21} Accordingly, appellant’s sole Assignment of Error is overruled.

{¶22} For the reasons stated in the foregoing opinion, the decision of the Court

of Common Pleas, Stark County, Ohio, is hereby affirmed.

By: Wise, P. J.

Delaney, J., and

Baldwin, J., concur.

___________________________________

JUDGES
JWW/d 0709
Stark County, Case No. 2012CA00151 8

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

STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
ARMONE PROVENS :
:
Defendant-Appellant : Case No. 2012CA00151

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

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

Costs assessed to appellant.

___________________________________

JUDGES