State v. Emanuel

[Cite as State v. Emanuel, 2016-Ohio-3187.]
IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee/ : No. 15AP-734
Cross-Appellant, (C.P.C. No. 95CR-2089)
:
v. (REGULAR CALENDAR)
:
Dale L. Emanuel,
:
Defendant-Appellant/
Cross-Appellee. :

D E C I S I O N

Rendered on May 26, 2016

On brief: Ron O'Brien, Prosecuting Attorney, and
Valerie B. Swanson, for appellee/cross-appellant. Argued:
Valerie B. Swanson.

On brief: Kura, Wilford & Schregardus Co., L.P.A., and
Sarah M. Schregardus, for appellant/cross-appellee.
Argued: Sarah M. Schregardus.

APPEAL from the Franklin County Court of Common Pleas

DORRIAN, P.J.

{¶ 1} Defendant-appellant/cross-appellee, Dale L. Emanuel, appeals the July 9,
2015 judgment of the Franklin County Court of Common Pleas resentencing him
pursuant to this court's decision in State v. Emanuel, 10th Dist. No. 96APA01-59
(Sept. 19, 1996). Plaintiff-appellee/cross-appellant, State of Ohio, has filed a cross-appeal.
For the following reasons, we reverse the judgment of the trial court.
I. Facts and Procedural History
{¶ 2} As we extensively discussed the factual and procedural history of this matter
in our prior decision, we shall limit our discussion to only those facts relevant to the
disposition of the present appeal.
No. 15AP-734 2

{¶ 3} On April 7, 1995, a Franklin County Grand Jury filed an indictment
charging Emanuel and his co-defendants with a total of 15 criminal counts: 5 counts of
aggravated robbery, in violation of R.C. 2911.01, 5 counts of robbery, in violation of R.C.
2911.02, 2 counts of felonious assault, in violation of R.C. 2903.11, and 3 counts of
kidnapping, in violation of R.C. 2905.01. All counts contained an attached firearm
specification.
{¶ 4} Following trial, a jury found Emanuel not guilty of one count of aggravated
robbery, one count of robbery, and two counts of kidnapping, but guilty of the remaining
counts, including firearm specifications. As reflected in its January 8, 1996 corrected
judgment entry, the trial court merged the aggravated robbery and robbery convictions.
The trial court imposed the following sentence upon Emanuel: "not less than ten (10)
years nor more than twenty-five (25[)] years, with ten years actual incarceration, on
Counts Three, Eight, Ten, Twelve and Fourteen, to run consecutive to each other; a
sentence of not less than eight (8) years nor more than fifteen (15) years, with eight years
actual incarceration, on Counts Five and Thirteen, to run consecutive to each other; and a
sentence of three (3) years actual incarceration for firearm specifications on each of
Counts Three, Five, Eight, Ten, Twelve, Thirteen, and Fourteen to run consecutive with
each other." (Emphasis deleted.) Thus, the trial court imposed a total sentence of 21 years
for the firearm specifications and 66 to 155 years for the felony convictions.
{¶ 5} On appeal, this court affirmed the trial court's judgment in part, but
reversed Emanuel's conviction and sentence for aggravated robbery, as provided in Count
3 of the indictment. We remanded to the trial court for "further proceedings in
accordance with law and consistent with this opinion." Id.
{¶ 6} On December 15, 2008, Emanuel filed a motion requesting the trial court
hold a resentencing hearing and enter a judgment of acquittal in accordance with this
court's decision. Emanuel also sought dismissal of other counts of the indictment
pursuant to State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, overruled in State v.
Horner, 126 Ohio St.3d 466, 2010-Ohio-3830, ¶ 46. On January 7, 2009, the state filed a
memorandum contra in which it conceded that Emanuel's convictions "on counts three
and four must be vacated pursuant to the mandate of the court of appeals," but also stated
that the trial court "has no jurisdiction to revisit the remaining counts." On February 3,
2009, the trial court filed an order granting Emanuel an extension of time to reply to the
No. 15AP-734 3

state's memorandum contra. Emanuel never filed a reply, and the trial court held no
further proceedings on Emanuel's December 15, 2008 motion.
{¶ 7} On March 31, 2015, Emanuel filed a motion to enforce the mandate and for
a limited resentencing hearing. On April 7, 2015, the state filed a response to Emanuel's
March 31, 2015 motion opposing Emanuel's request for a resentencing hearing and
requesting that the trial court "issue an amended sentencing entry reflecting the Tenth
District's decision vacating Counts 3 and 4 and re-journalizing defendant's sentences for
his remaining convictions that are unchanged." On June 16, 2015, the state filed a
memorandum contra Emanuel's request for resentencing. On June 17, 2015, Emanuel
filed a sentencing memorandum.
{¶ 8} On June 10, 2015, the trial court held a hearing and ordered the parties to
prepare arguments related to whether it should address consecutive sentence findings. On
June 24, 2015, the trial court held a hearing, at which it denied Emanuel's motion for a
limited resentencing hearing to make consecutive sentencing findings. The trial court
stated:
I think I just have to go with Counts 3 and 4, throw them out,
and implement the initial sentence.

Count 5 will be 8 to 15, plus 3.

Count 8 will be 10 to 15, plus 3.

Count 12 will be 10 to 25, plus 3.

Count 13 is 10 to 25, plus 3.

Count 14 is 8 to 15, plus 3.

Okay. Those were originally run consecutive. I don't see any
authority that says that I have to make any findings in these
circumstances. I'm just basically implementing what the Court
of Appeals did. Those run consecutive to each other.

(June 24, 2015 Tr. at 4.)

{¶ 9} On July 9, 2015, the trial court filed a resentencing amended judgment
entry. In the entry, the trial court stated: "On June 24, 2015, the Court imposed the
following sentence: eight (8) years to fifteen (15) years on Count Five, plus three (3) years
for the firearm specification; ten (10) years to twenty-five (25) years each on Count Eight,
No. 15AP-734 4

Count Ten, Count Twelve, Count Thirteen and Count Fourteen, plus three (3) years for the
firearm specification on each count to be served consecutive to each other." (Emphasis
omitted.)
II. Assignment of Error
{¶ 10} Emanuel appeals, assigning the following error:
THE TRIAL COURT IMPOSED A SENTENCE CONTRARY
TO LAW UPON APPELLANT.

{¶ 11} The state cross-appeals, assigning the following error:

THE SENTENCE THAT WAS IMPOSED ON JUNE 24, 2015
IS CONTRARY TO LAW AND THE COURT EXCEEDED ITS
JURISDICTION BY RESENTENCING DEFENDANT ON
COUNTS THAT HAD BEEN AFFIRMED ON APPEAL.

For ease of discussion, we first address the state's cross-assignment of error.
III. Discussion
A. State's Cross-Assignment of Error
{¶ 12} In its assignment of error raised on cross-appeal, the state contends the trial
court erred and exceeded its jurisdiction by resentencing Emanuel on all counts for which
he was convicted, because our prior decision only required the trial court to vacate two
counts of Emanuel's conviction.
{¶ 13} "A sentence is the sanction or combination of sanctions imposed for each
separate, individual offense." State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245,
paragraph one of the syllabus. "An appellate court may modify, remand, or vacate only a
sentence for an offense that is appealed by the defendant and may not modify, remand, or
vacate the entire multiple-offense sentence based upon an appealed error in the sentence
for a single offense." Id. at paragraph three of the syllabus.
{¶ 14} "A remand for a new sentencing hearing generally anticipates a de novo
sentencing hearing. R.C. 2929.19(A). However, a number of discretionary and mandatory
limitations may apply to narrow the scope of a particular resentencing hearing." State v.
Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, ¶ 15. "In one such limitation on the scope of
a resentencing hearing, 'only the sentences for the offenses that were affected by the
appealed error are reviewed de novo; the sentences for any offenses that were not affected
by the appealed error are not vacated and are not subject to review.' " State v. Dennison,
No. 15AP-734 5

10th Dist. No. 14AP-486, 2015-Ohio-1135, ¶ 8, quoting Wilson at ¶ 15, citing Saxon at
paragraph three of the syllabus.
{¶ 15} We have previously considered whether a trial court must resentence a
defendant on all counts or on only those counts that were affected by the prior appeal.
State v. Cochran, 10th Dist. No. 14AP-447, 2015-Ohio-1102. In Cochran, we reviewed the
resentencing of a defendant following an appeal in which we vacated the sentences for two
counts and remanded for the trial court to hold a resentencing hearing on those counts.
On remand, the trial court failed to hold a resentencing hearing and imposed the same
sentence on the defendant. Appealing the resentencing, the defendant argued that the
entire sentence, including those parts that remained undisturbed by the prior appeal,
must be newly imposed and subject to the statutory penalty scheme in effect at the time of
the resentencing. See id. at ¶ 15.
{¶ 16} We disagreed with the defendant's contention, finding that because we
vacated only part of the defendant's sentence, only that part was subject to resentencing,
and, as a result, "[t]he other sentences remained undisturbed." Id. at ¶ 19. Furthermore,
we stated that "[t]he fact that the trial court must memorialize the result of all
proceedings in a single entry did not suffice to vacate the other counts and require
resentencing for them as well." Id. at ¶ 22. Therefore, we concluded that the trial court
must resentence the defendant only on the previously vacated counts and directed the
trial court to "issue a single sentencing entry setting forth all the sentences imposed in the
case." Id. at ¶ 24.
{¶ 17} Here, our prior decision only reversed Emanuel's conviction and sentences
for Counts 3 and 4, namely aggravated robbery and robbery as related to Louis Meeker.
We stated in conclusion that the trial court's judgment was "affirmed in part, reversed in
part and remanded to the Franklin County Court of Common Pleas for further
proceedings in accordance with law and consistent with this opinion." Emanuel.
{¶ 18} On remand, the trial court stated that it was vacating Counts 3 and 4 and
"implement[ing] the initial sentence." (June 24, 2015 Tr. at 4.) Notably, the trial court,
both at the June 24, 2015 hearing and in its July 9, 2015 resentencing amended judgment
entry, imposed sentences differing from those originally imposed on Emanuel. At the
June 24, 2015 hearing, the trial court increased Emanuel's sentence on Count 13 from 8 to
15 years to 10 to 25 years incarceration. The trial court also decreased Emanuel's sentence
No. 15AP-734 6

on Count 14 from 10 to 25 years to 8 to 15 years incarceration. Finally, the trial court did
not orally pronounce sentence with regard to Count 10. However, in the July 9, 2015
resentencing judgment entry, the trial court imposed sentence with regard to Count 10
and increased Emanuel's sentence only with regard to Count 13 from 8 to 15 years to 10 to
25 years incarceration.
{¶ 19} Because we reversed the trial court's judgment in part only as it related to
Emanuel's conviction and sentences for Counts 3 and 4 and affirmed the remainder of the
judgment, "[t]he other sentences remained undisturbed." Cochran at ¶ 19. Therefore, our
prior opinion did not "vacate the other counts and require resentencing for them as well."
Id. at ¶ 22. As a result, we find the trial court erred by resentencing Emanuel on the other
counts that were undisturbed by our prior decision. Wilson at ¶ 15; Saxon at paragraph
three of the syllabus. See State v. Blevins, 4th Dist. No. 11CA3431, 2012-Ohio-573, ¶ 6-8.
{¶ 20} Therefore, we sustain the state's cross-assignment of error and reverse the
July 9, 2015 resentencing judgment of the Franklin County Court of Common Pleas. On
remand, the trial court must issue a single order memorializing the results of all the
proceedings in a single entry and vacating Emanuel's conviction and sentences for
aggravated robbery and robbery as provided in Counts 3 and 4 of the indictment.
B. Emanuel's Assignment of Error
{¶ 21} In his assignment of error, Emanuel asserts that the trial court imposed a
sentence that was contrary to law because it was required to make findings pursuant to
R.C. 2929.14(C)(4) in order to impose consecutive sentences. However, in light of our
resolution of the state's cross-assignment of error, Emanuel's assignment of error is
rendered moot.
IV. Conclusion
{¶ 22} Having sustained the state's cross-assignment of error and rendered moot
Emanuel's assignment of error, we reverse the judgment of the Franklin County Court of
Common Pleas and remand for further action consistent with law and this decision.
Judgment reversed;
cause remanded with instructions.

TYACK and HORTON, JJ., concur.