[Cite as State v. McComb, 2018-Ohio-674.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 27468
:
v. : Trial Court Case No. 2015-CR-1836/3
:
DAVION MCCOMB : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 23rd day of February, 2018.
...........
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, P.O. Box 340214, Beavercreek,
Ohio 45434
Attorney for Defendant-Appellant
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FROELICH, J.
{¶ 1} In this delayed appeal, Davion McComb claims that the trial court erred in
sentencing him to mandatory prison terms, in light of State v. Hand, 149 Ohio St.3d 94,
2016-Ohio-5504, 73 N.E.3d 448. For the following reasons, the trial court’s judgment
will be affirmed in part, modified in part, and the matter will be remanded for the trial court
to issue a revised judgment entry that eliminates the mandatory nature of defendant’s
sentence for aggravated robbery.
{¶ 2} On October 9, 2015, McComb was charged by bill of information with
aggravated robbery (deadly weapon), a felony of the first degree, and with felonious
assault (deadly weapon), a felony of the second degree; each offense included a firearm
specification. The same day, McComb waived an indictment and 24-hour service of the
bill of information, and he pled no contest to the charges; the State dismissed the firearm
specifications. The trial court found him guilty and sentenced him to a mandatory three
years in prison for aggravated robbery and to two years in prison for felonious assault;
the trial court’s judgment entry indicated that the three-year sentence was mandatory
pursuant to R.C. 2929.13(F). The trial court ordered the sentences to be served
concurrently to each other and to an aggregate 10-year sentence in another case
(Montgomery C.P. No. 2015-CR-1152/1).
{¶ 3} McComb did not appeal his conviction within the 30-day time period required
by App.R. 4(A).
{¶ 4} On February 17, 2017, McComb filed a notice of appeal and a motion for
leave to appeal, pursuant to App.R. 5(A). In his motion for leave to file a delayed appeal,
McComb indicated that he sought to challenge, in light of Hand, the mandatory nature of
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his sentences. McComb stated that he had filed an appellate brief in his appeal from
Case No. 2015-CR-1152/1 (Appellate Case No. 26884), in which he challenged the
mandatory nature of his sentences under Hand. He asserted that “the Hand case would
also impact 2015 CR 01836/3 if McComb is permitted to have an appeal from that case
as well * * *.”
{¶ 5} The State opposed the motion, arguing that McComb’s convictions in this
case were final due to his failure to timely appeal and that Hand did not apply retroactively
to convictions that were final.
{¶ 6} On April 4, 2017, we granted McComb’s motion for leave to file a delayed
appeal, and stated that “[t]his matter shall proceed in accordance with the Rules of
Appellate Procedure.”
{¶ 7} In his sole assignment of error, McComb claims that “the trial court erred
when it sentenced McComb to mandatory prison terms on Counts I and II.” As in its
memorandum opposing McComb’s motion for leave to file a delayed appeal, the State
argues in its appellate brief that Hand should not apply to McComb, because he did not
file a timely appeal and thus his conviction was final.
{¶ 8} In general, “[a] new judicial ruling may be applied only to cases that are
pending on the announcement date, and the new judicial ruling may not be applied
retroactively to a conviction that has become final, that is, where the accused has
exhausted all of his appellate remedies.” State v. Greathouse, 2d Dist. Montgomery No.
24935, 2012-Ohio-2414, ¶ 6, citing Ali v. State, 104 Ohio St.3d 328, 2004-Ohio-6592, 819
N.E.2d 687; State v. Smith, 2d Dist. Montgomery No. 27294, 2017-Ohio-2684, ¶ 11.
{¶ 9} Generally, a defendant’s appellate remedies from a judgment of conviction
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consist of a timely appeal as of right to an intermediate court of appeals, see App.R. 3
and 4, and a jurisdictional appeal to the Supreme Court of Ohio, see S.Ct.Prac.R. 5.02.
The Ohio Rules of Appellate Procedure allow, in certain circumstances and with leave of
the appellate court, for an untimely appeal, see App.R. 5(A), and for the appellate process
to be reopened, see App.R. 5(B) and 26(B). Where leave is granted, the defendant has
not exhausted his or her appellate remedies, the conviction is not final, and an appellate
court may review the assignment of error as if the direct appeal had been timely filed.
{¶ 10} At the outset, we note that McComb has already served more than two
years in prison, and thus he has completely served his sentence for felonious assault.
Accordingly, we find that McComb’s challenge to his two-year sentence for felonious
assault is moot. Regardless, although the trial court orally stated at the combined plea
and sentencing hearing that the prison sentences for both felonious assault and
aggravated robbery were mandatory, the trial court’s subsequent judgment entry, filed on
October 14, 2015, imposed a mandatory sentence only for Count 1, aggravated robbery.
Because a court speaks through its journal, e.g., State v. Friend, 2d Dist. Montgomery
Nos. 26867 & 26868, 2016-Ohio-5868, ¶ 27, McComb’s sentence for felonious assault
was a non-mandatory sentence. McComb’s assignment of error with respect to Count 2
(felonious assault) is overruled.
{¶ 11} The record reflects that the court imposed a mandatory prison term for
aggravated robbery pursuant to R.C. 2929.13(F)(6), which provides for a mandatory
sentence when a defendant is convicted of a first-or second-degree felony and “previously
was convicted of or pleaded guilty to * * * any first or second degree felony[.]”
{¶ 12} In Hand, 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448, the Ohio
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Supreme Court struck down R.C. 2901.08(A), which provided that a prior juvenile
adjudication “is a conviction for a violation of the law or ordinance for purposes of
determining the offense with which the person should be charged and, if the person is
convicted of or pleads guilty to an offense, the sentence to be imposed upon the person
relative to the conviction or guilty plea.” The supreme court held that R.C. 2901.08(A)
violated the Due Process Clauses of the Ohio and United States Constitutions, because
“it is fundamentally unfair to treat a juvenile adjudication as a previous conviction that
enhances either the degree of or the sentence for a subsequent offense committed as an
adult.” Hand at paragraph one of the syllabus. Hand further held that, “[b]ecause a
juvenile adjudication is not established through a procedure that provides the right to a
jury trial, it cannot be used to increase a sentence beyond a statutory maximum or
mandatory minimum.” Id. at paragraph two of the syllabus.
{¶ 13} The trial court imposed a mandatory sentence for aggravated robbery due
to McComb’s prior juvenile adjudication for aggravated robbery. In light of Hand, the
court’s imposition of a mandatory sentence based on the prior juvenile adjudication was
error. We reiterate that, by applying Hand to McComb’s aggravated robbery conviction,
we are not applying Hand retroactively to a final judgment; rather, we are applying Hand
to a conviction that is currently pending on direct appeal.
{¶ 14} McComb’s assignment of error is sustained in part as to his aggravated
robbery conviction and overruled as to his felonious assault conviction. Accordingly, the
trial court’s judgment is affirmed as to Count 2 (felonious assault). Concerning Count 1
(aggravated robbery), the three-year term of imprisonment imposed by the trial court is
modified solely to reflect that the term of imprisonment is not mandatory in nature. As so
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modified, the trial court’s judgment is affirmed. This matter is remanded to the trial court
for the limited purposes of issuing a revised judgment entry consistent with our judgment
herein and to notify the appropriate prison officials of that revised judgment entry.
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DONOVAN, J. and HALL, J., concur.
Copies mailed to:
Mathias H. Heck
Andrew T. French
Robert Alan Brenner
Hon. James A. Brogan, Visiting Judge
Hon. Erik R. Blaine