[Cite as State v. McElroy, 2017-Ohio-5856.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NOS. 2016-L-119
- vs - : 2016-L-120
2016-L-121
JOHNNY R. MCELROY, JR., :
Defendant-Appellant. :
Criminal Appeals from the Lake County Court of Common Pleas, Case Nos. and 2016
CR 000282, 2015 CR 000965 and 2015 CR 000966.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).
Johnny R. McElroy, Jr., pro se, PID: A683-512, Lake Erie Correctional Institution, P.O.
Box 8000, 501 Thompson Road, Conneaut, OH 44030 (Defendant-Appellant).
COLLEEN MARY O’TOOLE, J.
{¶1} Appellant, Johnny R. McElroy, Jr., appeals from the October 26, 2016
judgments of the Lake County Court of Common Pleas, denying his pro se motions to
receive concurrent sentences without a hearing. Because the trial court lacked
jurisdiction to modify appellant’s sentences from consecutive to concurrent once his
incarceration had begun, we affirm.
{¶2} This matter involves three separate cases, Case Nos. 2015 CR 000965,
2015 CR 000966, and 2016 CR 000282. On April 19, 2016, appellant waived his right
to have his cases presented to a grand jury and pleaded guilty by way of informations.
In Case No. 2015 CR 000965, appellant entered a guilty plea to complicity to burglary, a
felony of the third degree, in violation of R.C. 2923.03(A)(2) and 2911.12(A)(3). In Case
No. 2015 CR 000966, appellant entered guilty pleas to complicity to theft from a person
in a protected class, a felony of the fourth degree, in violation of R.C. 2923.03(A)(2) and
2913.02(A)(1), and complicity to forgery, a felony of the fifth degree, in violation of R.C.
2923.03(A)(2) and 2913.31(A)(3). In Case No. 2016 CR 000282, appellant entered a
guilty plea to complicity to burglary, a felony of the third degree, in violation of R.C.
2923.03(A)(2) and 2911.12(A)(3).
{¶3} On May 31, 2016, the trial court sentenced appellant on all three cases.
In Case No. 2015 CR 000965, appellant was sentenced to 18 months in prison. In
Case No. 2015 CR 000966, appellant was sentenced to nine months on each count, to
be served concurrently. In Case No. 2016 CR 000282, appellant was sentenced to 18
months in prison. The sentences in the two 2015 cases were ordered to be served
concurrent to each other and consecutive to the 2016 case, for a total of three years in
prison.
{¶4} Thereafter, appellant filed pro se motions to receive concurrent sentences.
On October 26, 2016, the trial court denied his motions for sentence modification
without a hearing. Appellant filed timely pro se appeals and asserts the following
assignment of error:1
1. Appellant’s three appeals, Case Nos. 2016-L-119, 2016-L-120, and 2016-L-121, were consolidated by
this court for all purposes.
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{¶5} “The trial court abused its discretion for failing to hold an evidentiary
hearing prior to overruling appellant’s motion to receive concurrent sentences.”
{¶6} As stated, appellant’s sentences in the two 2015 cases were ordered to be
served concurrent to each other and consecutive to the 2016 case, for a total of three
years in prison. Each of appellant’s written plea agreements reveal that he understood
that the sentences in all three cases could be run consecutively. Appellant later filed
pro se motions for sentence modification, i.e., from consecutive to concurrent, following
his incarceration.
{¶7} On appeal, appellant raises an allied offense argument. However, we find
that the issue of whether the trial court had jurisdiction to consider appellant’s motions
for sentence modification is determinative to the outcome of this appeal.
{¶8} Appellant’s pro se motions can best be characterized as motions to modify
his sentences since he sought to modify, not vacate, his sentences. See State v.
Archibald, 11th Dist. Lake Nos. 2014-L-005 and 2014-L-006, 2014-Ohio-4314, ¶21.
“However, ‘(o)nce a trial court has carried into execution a valid sentence, the court no
longer has the power to modify that sentence absent statutory authority to do so. State
v. Longmire, 11th Dist. Portage No. 2001-P-0014, 2002-Ohio-7153, ¶14. Thus, a trial
court does not have jurisdiction to modify a valid sentence of imprisonment once
imprisonment has begun. Id. at ¶15.” Archibald, supra, at ¶21; see also Longmire,
supra, at ¶15-16 (a trial court does not have jurisdiction to modify a valid sentence of
imprisonment once imprisonment has begun except to correct a void sentencing order
or a clerical mistake).
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{¶9} In this case, appellant requested the trial court to amend his prison term
from consecutive to concurrent sentences. Appellant did not allege that his sentences
had to be modified to correct a void sentencing order or a clerical mistake. Thus, the
trial court lacked jurisdiction to entertain appellant’s pro se motions for sentence
modification. Archibald, supra, at ¶21; Longmire, supra, at ¶15-17.
{¶10} For the foregoing reasons, appellant’s sole assignment of error is not well-
taken. The judgments of the Lake County Court of Common Pleas are affirmed.
TIMOTHY P. CANNON, J., concurs,
DIANE V. GRENDELL, J., concurs in judgment only.
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