[Cite as State v. Broyles, 2013-Ohio-1130.]
IN THE COURT OF APPEALS
FIFTH APPELLATE DISTRICT
RICHLAND COUNTY, OHIO
STATE OF OHIO : JUDGES:
:
Plaintiff-Appellee :
: Hon., Sheila G. Farmer P.J.
: Hon., William B. Hoffman J.
-vs- : Hon., John W. Wise J.
:
WADE G. BROYLES : CASE NO. 12CA67
:
Defendant-Appellant :
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2009CR138
JUDGMENT: Reversed
DATE OF JUDGMENT ENTRY: March 12, 2013
APPEARANCES:
For Appellant: For Appellee:
Dale M. Musilli - #38035 Jill M. Cochran - #79088
Attorney for Appellant Assistant Richland County Pros.
105 Sturges Avenue 38 South Park Street
Mansfield, OH 44903 Mansfield, OH 44902
Richland County, Case No. 12CA67 1
Farmer, J.
{¶1} Defendant-appellant, Wade Broyles, appeals his sentence from the
Richland County Court of Common Pleas on one count of tampering with evidence.
STATEMENT OF THE FACTS AND CASE
{¶2} On May 5, 2009, appellant was convicted and sentenced on one count of
burglary and one count of tampering with evidence. At that time, the trial court imposed
a sentence of six years for the burglary conviction and one year for the tampering with
evidence conviction for a total term of incarceration of seven years. Appellant appealed
his conviction and sentence as to the burglary count only. This Court reversed the
appellant’s burglary conviction and remanded the cause to the trial court with
instructions “to enter a conviction on the lesser-included offense of burglary in violation
of R.C. 2911.12(A)(3) and to resentence appellant.” State v. Broyles, 5th Dist. No. 2009
CA 0072, 2010 WL 1694509 (Apr. 21, 2010).
{¶3} Upon remand, the trial court sentenced appellant to a term of three years
as to the burglary count and resentenced appellant to three years as to the tampering
with evidence count.
{¶4} Appellant now appeals, assigning as error:
“I. THE LOWER COURT COMMITTED PLAIN ERROR BY RE-SENTENCING
ON THE SECOND CHARGE (TAMPERING WITH EVIDENCE).”
I.
{¶5} The issue presented here is whether the trial court lacks jurisdiction to
resentence appellant on a count which was not appealed to this Court and was not
Richland County, Case No. 12CA67 2
Farmer, J.
remanded to the trial court for the purpose of resentencing. We find the trial court
lacked jurisdiction to impose a new sentence upon appellant on the tampering with
evidence count. For this reason, we sustain appellant’s sole assignment of error.
{¶6} In its brief, appellee, the State of Ohio, concedes the trial court lacked
jurisdiction to resentence appellant on the tampering with evidence count.
{¶7} The Ohio Supreme Court addressed an issue analogous to the instant
case holding, “An appellate court may modify or vacate only a sentence that is appealed
by the defendant and may not modify or vacate the entire multiple-offense sentence
based upon an appealed error in the sentence for a single offense.” State v. Saxon,
109 Ohio St.3d 176, 183, 846 N.E.2d 824, 831 (Ohio, 2006). Similarly, the trial court
cannot vacate a sentence which was not reversed as part of the appeal.
{¶8} We must now consider whether it is necessary to remand this case for the
purpose of imposing the original sentence as to the tampering with evidence charge.
The Supreme Court has explained, “Correcting a defect in a sentence without a remand
is an option that has been used in Ohio and elsewhere for years in cases in which the
original sentencing court, as here, had no sentencing discretion.” State v. Fischer,128
Ohio St.3d 92, 942 N.E.2d 332 (2010).
{¶9} Because we have jurisdiction to do so, we vacate the three year sentence
imposed by the trial court on July 25, 2013 for tampering with evidence. We reinstate
and impose the one year sentence for tampering with evidence as entered by the trial
court on May 5, 2009. All other portions of the tampering with evidence sentence,
Richland County, Case No. 12CA67 3
Farmer, J.
including the imposition of any post release control, imposed by the trial court remain
unchanged.
{¶10} The judgment of the Court of Common Pleas of Richland County, Ohio is
hereby reversed.
By: Farmer, P.J.
Hoffman, J. and
Wise, J. concur
s/Sheila G. Farmer______________
HON. SHEILA G. FARMER
s/ William B. Hoffman____________
HON. WILLIAM B. HOFFMAN
s/ John W. Wise_________________
HON. JOHN W. WISE
IN THE COURT OF APPEALS
FIFTH APPELLATE DISTRICT
RICHLAND COUNTY, OHIO
STATE OF OHIO :
: CASE NO. 12CA67
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
WADE G. BROYLES :
:
:
Defendant-Appellant :
:
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Richland County, Ohio is reversed.
Costs to Appellee.
s/Sheila G. Farmer______________
HON. SHEILA G. FARMER
s/ William B. Hoffman____________
HON. WILLIAM B. HOFFMAN
s/ John W. Wise_________________
HON. JOHN W. WISE