State v. Ervin

[Cite as State v. Ervin, 2018-Ohio-1359.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. CA2017-06-084

: OPINION
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:

JODY ERVIN, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2009-12-2008

Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Neal D. Schuett, 121 West High Street, Oxford, Ohio 45056, for defendant-appellant

HENDRICKSON, J.

{¶ 1} Defendant-appellant, Jody Ervin, appeals from the decision of the Butler County

Court of Common Pleas resentencing her on two counts of complicity to felonious assault

upon remand from this court's decision in State v. Ervin, 12th Dist. Butler No. CA2016-04-

079, 2017-Ohio-1491 (hereafter, "Ervin I"). For the reasons set forth below, we affirm Ervin's

sentence.

{¶ 2} In December 2009, Ervin was indicted on two counts of complicity to
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aggravated robbery in violation of R.C. 2923.03(A)(2) and 2911.01(A)(1), felonies of the first

degree (counts eight and nine), and three counts of complicity to felonious assault in violation

of R.C. 2929.03(A)(2) and 2903.11(A)(2), felonies of the second degree (counts ten, eleven,

and twelve). Each count was accompanied by a firearm specification, as set forth in R.C.

2941.145.

{¶ 3} In February 2010, following plea negotiations, Ervin entered a guilty plea to two

counts of complicity to felonious assault (counts eleven and twelve). She also pled guilty to

the firearm specification attached to count eleven. The firearm specification attached to

count twelve was dismissed, as were counts eight, nine, and ten. Ervin was sentenced to a

three-year prison term for the firearm specification accompanying count eleven and to five

years on community control on the complicity to felonious assault charges. The community

control sanction was ordered to be served consecutively to the three-year prison term on the

firearm specification. Ervin did not directly appeal her conviction or sentence.

{¶ 4} In December 2012, Ervin completed her prison sentence on the firearm

specification, was released from prison, and began to serve her five-year community control

sanction. Ervin violated her community control in July 2015, but the trial court continued her

community control. In February 2016, Ervin again violated her community control. In an

entry dated March 24, 2016, the trial court found Ervin was no longer amenable to community

control and imposed 36 months in prison on each count of complicity to felonious assault.

The 36-month prison terms were ordered to be served consecutively to one another, for an

aggregate prison term of 72 months.

{¶ 5} Ervin appealed her sentence, and this court reversed after concluding that

Ervin's 2010 community control sentence was void as the trial court lacked the statutory

authority to order Ervin to serve community control sanctions consecutive to the completion

of her prison sentence. See Ervin I, 2017-Ohio-1491 at ¶ 12-23. We stated, in relevant part,
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that

because there is no statutory authority for the imposition of
community control sanctions to be served consecutive to, or
following the completion of, a prison term or jail term or other
sentence of imprisonment, the trial court was without authority to
impose the same. The community control sanctions are therefore
void and must be vacated.

In light of the foregoing, Ervin's community control sanctions on
the complicity charges and the trial court's sentencing decision on
violation of community control are vacated, and the case is
remanded for resentencing on those counts alone. Ervin's guilt
on those counts is otherwise undisturbed. Furthermore, our
decision does not disturb the conviction and sentence related to
the gun specification for which Ervin has already served three
years.

(Emphasis added.) Id. at ¶ 23-24.

{¶ 6} After the case was remanded, Ervin filed a motion to dismiss counts eleven and

twelve on the basis that the trial court lacked jurisdiction to impose a sentence on the

convictions as she had already served her prison term on the firearm specification. She

further argued resentencing on the complicity to felonious assault charges violated her right

against double jeopardy. On May 22, 2017, Ervin appeared before the trial court for

resentencing. At this time, she argued the merits of her motion to dismiss. The trial court

denied her motion and resentenced her to four years in prison on count eleven and four

years in prison on count twelve.1 The court ordered that the sentence on count twelve be

served concurrently with the sentence on count eleven, for a total of four years.

{¶ 7} Ervin timely appealed her sentence, raising two assignments of error.

{¶ 8} Assignment of Error No. 1:

{¶ 9} THE TRIAL COURT ERRED TO APPELLANT'S PREJUDICE BY IMPOSING A

1. Although the trial court orally denied Ervin's motion to dismiss at the resentencing hearing, it did not journalize
an entry denying the motion. While a trial court speaks only through its journal entries, it is well established that
"an appellate court may presume a trial court overruled a motion when a trial court fails to rule on a motion."
State v. Rivera, 12th Dist. Butler No. CA2008-12-308, 2010-Ohio-323, ¶ 10, fn. 1, citing State v. Chamberlain,
12th Dist. Madison No. CA99-01-003, 2000 Ohio App. LEXIS 263, * 7 (Jan. 31, 2000).
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PRISON SENTENCE THAT WAS CONTRARY TO LAW.

{¶ 10} In her first assignment of error, Ervin challenges her sentence. She argues

that she had a legitimate expectation of finality in her original prison sentence and that

resentencing her to prison after the consecutive community control sanction was found to be

void was "contrary to Ohio law and United States law."

{¶ 11} Felony sentences are reviewed under R.C. 2953.08(G)(2). State v. Marcum,

146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1; State v. Crawford, 12th Dist. Clermont No.

CA2012-12-088, 2013-Ohio-3315, ¶ 6. Pursuant to that statute, an appellate court does not

review the sentencing court's decision for an abuse of discretion. Marcum at ¶ 10. Rather,

R.C. 2953.08(G)(2) compels an appellate court to modify or vacate a sentence only if the

appellate court finds by clear and convincing evidence that "the record does not support the

trial court's findings under relevant statutes or that the sentence is otherwise contrary to law."

Id. at ¶ 1. A sentence is not clearly and convincingly contrary to law where the trial court

"considers the principles and purposes of R.C. 2929.11, as well as the factors listed in R.C.

2929.12, properly imposes postrelease control, and sentences the defendant within the

permissible statutory range." State v. Ahlers, 12th Dist. Butler No. CA2015-06-100, 2016-

Ohio-2890, ¶ 8; State v. Julious, 12th Dist. Butler No. CA2015-12-224, 2016-Ohio-4822, ¶ 8.

Thus, this court may "increase, reduce, or otherwise modify a sentence only when it clearly

and convincingly finds that the sentence is (1) contrary to law or (2) unsupported by the

record." State v. Brandenburg, 146 Ohio St.3d 221, 2016-Ohio-2970, ¶ 1, citing Marcum at ¶

7.

{¶ 12} The Ohio Supreme Court has recognized that "[i]f a judge imposes a sentence

that is unauthorized by law, the sentence is unlawful * * * [and] [i]f an act is unlawful, * * * it is

wholly unauthorized and void." (Emphasis sic.) State v. Simpkins, 117 Ohio St.3d 420,

2008-Ohio-1197, ¶ 21. See also State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, ¶
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20 ("any attempt by a court to disregard statutory requirements when imposing a sentence

renders the attempted sentence a nullity or void"). A sentence that is null and void must be

vacated, and "[t]he effect of vacating the sentence places the parties in the same position

they would have been in had there been no sentence." Simpkins at ¶ 22, citing State v.

Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, ¶ 13. However, a court "retains jurisdiction to

correct a void sentence and is authorized to do so." Id. at ¶ 23, citing State ex rel. Cruzado v.

Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, ¶ 19.

{¶ 13} In Ervin's prior appeal, we determined that the community control sanctions

imposed on counts eleven and twelve were void as no sentencing statute authorized the trial

court to impose community control sanctions consecutive to a prison sentence. Ervin I,

2017-Ohio-1491 at ¶ 23.2 When we vacated Ervin's void sentences, Ervin was placed in the

same position she would have been in had no sentence been imposed on the complicity

convictions set forth in counts eleven and twelve. See Simpkins at ¶ 22. The trial court

retained jurisdiction to resentence her on those counts, and pursuant to our remand

instructions, sentenced her accordingly on May 22, 2017.

{¶ 14} Citing the Ohio Supreme Court's decision in State v. Holdcroft, 137 Ohio St.3d

526, 2013-Ohio-5014, Ervin argues that once her valid prison sanction for the firearm

specification was served, the trial court lost jurisdiction to modify her sentence. She

2. The Ohio Supreme Court recently released State v. Paige, Slip Opinion No. 2018-Ohio-813, wherein the court
recognized that a trial court may lawfully impose a sentence of community control on one count, and run that
sentence concurrently to a prison term imposed on another count. Id. at ¶ 6-10. There a defendant was
sentenced to a 42-month prison term for sexual battery and to five years of community control for domestic
violence, to be run concurrently to one another. Id. at ¶ 3. The supreme court determined that the imposed
sentence did not constitute a "split sentence" and further stated that "the mere fact that the sentences on each
offense were to run concurrently does not mean that the community-control sentence imposed on the domestic-
violence count included a prison term. The prison term was imposed on the sexual-battery count, and a period
of community-control supervision was imposed separately on the domestic-violence count. This complies with
our recent decision in [State v.] Anderson [143 Ohio St.3d 173, 2015-Ohio-2089]." Id. at ¶ 9. The sentence
originally imposed in Ervin's case is distinguishable from the circumstances in Paige, as the trial court ordered
Ervin to serve a period of community control consecutively to a prison term – a sentence which was not
authorized by statute. See Ervin I, 2017-Ohio-1491 at ¶ 23.
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contends her constitutional right against double jeopardy has been violated by the court's

imposition of prison sanctions on the complicity to felonious assault counts.

{¶ 15} In Holdcroft, a defendant was sentenced to a ten-year prison term for

aggravated arson and a five-year prison term for arson. Id. at ¶ 2. The trial court ordered

that the prison terms be served consecutively. Id. The court notified the defendant that a

postrelease control sanction would be imposed, but failed to state whether it was part of the

sentence for aggravated arson, arson, or both, and the sentencing entry reflected the same

defects. Id. After the defendant completed his ten-year prison term for aggravated arson,

but before he completed the five-year prison term for arson, the trial court held a new

sentencing hearing to correct errors relating to postrelease control. Id. at ¶ 3. The trial court

imposed a mandatory term of five years of postrelease control for the aggravated-arson

offense and a discretionary postrelease-control term of up to three years for the arson

offense. Id.

{¶ 16} The defendant appealed from his resentencing, arguing that the trial court

lacked jurisdiction to impose postrelease control for his aggravated-arson offense as he had

already completed the prison sentence for that offense. Id. at ¶ 4. The Third District Court of

Appeals disagreed with the defendant's argument and upheld the defendant's sentence. Id.

On appeal, the supreme court reversed, finding that once the defendant completed his prison

term for aggravated arson, the trial court lost the authority to resentence him for that offense.

Id. at ¶ 10. The court held that "[a] trial court does not have the authority to resentence a

defendant for the purpose of adding a term of postrelease control as a sanction for a

particular offense after the defendant has already served the prison term for that offense."

Id. at paragraph three of the syllabus.

{¶ 17} Holdcroft, therefore, involved a sentence comprised of two sanctions – a valid

prison term and an unlawful sanction of postrelease control. Pursuant to statute, postrelease
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control is a sanction that must follow "after the offender's release from prison." See R.C.

2929.14(D); R.C. 2929.19(B); R.C. 2967.28(B). The present case is distinguishable from

Holdcroft, as it does not involve the imposition of postrelease control after a valid prison term

was served.

{¶ 18} Rather, Ervin's sentence involved a valid, three-year prison sentence on a

firearm specification that was served prior to the void sentences imposed on the underlying

felony convictions for complicity to felonious assault. Unlike a postrelease-control term, a

firearm specification requires a separate finding of guilt and the imposition of its own three-

year prison sentence, which must be served "consecutively to and prior to any prison term

imposed for the underlying felony" offense. R.C. 2941.145(A); R.C. 2929.14(B)(1)(a)(ii) and

(C)(1)(a).3 This three-year prison term is separate from the sentence imposed on the

underlying felony conviction. By statute, Ervin had to serve her three-year sentence on the

firearm specification before serving any remaining prison term for her felony convictions of

complicity to felonious assault. We considered this in Ervin's prior appeal, found that she

had properly served her specification sentence and specifically stated that our remand did

not "disturb the conviction and sentence related to the gun specification for which Ervin has

already served three years." Ervin I, 2017-Ohio-1491 at ¶ 24.

{¶ 19} Ervin has not, however, served a lawful sentence on her convictions for

complicity for felonious assault. Contrary to Ervin's arguments, there was no reasonable

expectation of finality in her sentence after she completed her three-year prison term for the

firearm specification. As the Ohio Supreme Court has recognized, "[w]here * * * the sentence

3. We recognize that a firearm specification is not a separate criminal offense, but rather a sentencing
enhancement that is contingent upon an underlying felony conviction. See State v. Ford, 128 Ohio St.3d 398,
2011-Ohio-765, ¶ 16-17. Nonetheless, the legislature has provided that when convicted of a firearm
specification as set forth in R.C. 2941.145, a separate, mandatory three-year prison term is imposed on the
offender and the offender "shall serve any mandatory prison term imposed * * * consecutively to and prior to any
prison term imposed for the underlying felony * * * and consecutively to any other prison term or mandatory
prison term previously or subsequently imposed upon the offender." R.C. 2929.14(C)(1)(a).
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imposed was unlawful and thus void, there can be no reasonable, legitimate expectation of

the finality in it." Simpkins, 2008-Ohio-1197 at ¶ 36. Furthermore, double jeopardy does not

attach to a void sentence, and the correction of a void sentence does not violate principles of

double jeopardy. State v. Beasley, 14 Ohio St.3d 74, 75 (1984); State v. Fischer, 128 Ohio

St.3d 92, 2010-Ohio-6238, ¶ 9.

{¶ 20} When the trial court resentenced Ervin for complicity to felonious assault on

May 22, 2017, it did not violate principles of double jeopardy. The effect of finding Ervin's

original sentence on counts eleven and twelve void was that Ervin was placed back in the

position she would have been in if no sentence had been imposed. See Simpkins at ¶ 22.

The trial court retained jurisdiction to correct her sentence, and when it sentenced Ervin to

concurrent four-year prison terms for her felony offenses, it was as if it was imposing

punishment for those offenses for the first time. See id. The court's imposition of concurrent

four-year prison terms was not clearly and convincingly contrary to law and is supported by

the record. In imposing the four-year prison sentence, the trial court properly considered our

remand instructions, the principles and purposes of R.C. 2929.11, and the seriousness and

recidivism factors listed in R.C. 2929.12. We therefore find no merit to Ervin's arguments

and overrule her first assignment of error.4

{¶ 21} Assignment of Error No. 2:

{¶ 22} THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES.

{¶ 23} In her second assignment of error, Ervin argues the trial court erred in

4. In rejecting Ervin's arguments, we are mindful that "'the power of a sentencing court to correct even a
statutorily invalid sentence must be subject to some temporal limit' imposed by due process and fundamental
fairness." State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, ¶ 34, quoting Breest v. Helgemoe, 579 F.2d
95, 101 (1st Cir.1978). However, a review of the record indicates Ervin did not oppose resentencing on the
complicity to felonious assault offenses on the basis that her due process rights had been violated due to the
passage of time. Rather, Ervin made only two arguments in support of dismissal: (1) the court lost jurisdiction to
resentence her on the complicity charges as she had already served her prison term on the firearm specification;
and (2) resentencing her on the complicity charges subjected her to double jeopardy. As set forth above, these
arguments are without merit.
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imposing her sentence as the court "did not make the necessary findings to impose

consecutive sentences pursuant to R.C. 2929.14(C)." As set forth above, we review the

imposed sentence under the standard of review set forth in R.C. 2953.08(G)(2). See

Marcum, 2016-Ohio-1002 at ¶ 1.

{¶ 24} As an initial matter, we note that the trial court imposed concurrent four-year

prison terms on counts eleven and twelve. As such, the trial court was not required to make

the consecutive sentencing findings set forth in R.C. 2929.14(C) when resentencing Ervin.

{¶ 25} Further, to the extent that Ervin is arguing that the trial court needed to make

consecutive sentencing findings as the four-year prison term on count eleven was run

consecutively to the three-year prison term imposed on the firearm specification, we find her

argument to be without merit. R.C. 2929.14(C)(1)(a) specifically provides that "if a mandatory

prison term is imposed upon an offender * * * for having a firearm on or about the offender's

person or under the offender's control while committing a felony, * * * the offender shall serve

any mandatory prison term imposed * * * consecutively to and prior to any prison term

imposed for the underlying felony * * * and consecutively to any other prison term or

mandatory prison term previously or subsequently imposed upon the offender." Thus,

pursuant to R.C. 2929.14(C)(1)(a), the trial court was mandated by statute to run the

sentence for the firearm specification consecutively to and prior to the sentence for the

underlying complicity to felonious assault conviction in count eleven. The finding

requirements of R.C. 2929.14(C)(4) were, therefore, not applicable to the case at hand. See

State v. Freeman, 7th Dist. Mahoning No. 14 MA 25, 2014-Ohio-5725, ¶ 31 ("because the

Ohio Revised Code requires imposition of consecutive sentences for firearm specifications

attendant to their underlying felony offense, the trial court is not required to make R.C.

2929.14(C)(4) findings before imposing a consecutive sentence on that conviction"); State v.

Wicker, 5th Muskingum No. CT2016-0005, 2016-Ohio-7311, ¶ 7-12. Ervin's second
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assignment of error is, therefore, overruled.

{¶ 26} Judgment affirmed.

S. POWELL, P.J., concurs.

M. POWELL, J., concurs in part and dissents in part.

M. POWELL, J., concurring in part and dissenting in part.

{¶ 27} I concur in part and dissent in part. I concur with the majority in affirming the

trial court’s imposition of the prison term for count twelve. However, pursuant to the Ohio

Supreme Court’s opinion in Holdcroft, I dissent from the majority’s opinion affirming the trial

court’s imposition of a four-year prison term for count eleven.

{¶ 28} Holdcroft involved a defendant who was sentenced to consecutive ten-year

and five-year prison terms for aggravated arson and arson, respectively. The postrelease

control portion of the sentences was improperly imposed. After Holdcroft completed the ten-

year aggravated arson prison term, but before he completed the five-year arson prison term,

he was brought back before the trial court and the postrelease control portion of the

sentences was reimposed. Holdcroft argued he could not be resentenced to postrelease

control on the aggravated arson conviction because he had completed the prison term for

that offense.

{¶ 29} The supreme court held that Holdcroft could not be resentenced to postrelease

control upon the aggravated arson conviction because he had completed the prison term for

that offense. State v. Holdcroft, 137 Ohio St.3d 26, 2013-Ohio-5014, ¶ 10 ("We conclude

that once Holdcroft completed his prison term for aggravated arson, the trial court lost the

authority to resentence him for that offense"). In so holding, the supreme court recognized

three principles applicable to a sentencing court’s authority to review an original sentence

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imposed upon an offender:

First, when a sentence is subject to direct review, it may be
modified; second, when the prison-sanction portion of a
sentence that also includes a void sanction has not been
completely served, the void sanction may be modified; and third,
when the entirety of a prison sanction has been served, the
defendant's interest in finality in his sentence becomes
paramount, and his sentence for that crime may no longer be
modified.

Id. at ¶ 18.5

{¶ 30} Focusing upon the sentence imposed for a particular crime, Holdcroft

constrains a sentencing court from modifying the sentence if a prison term sanction for that

offense has been completed. Holdcroft emphasized that the constraint upon the modification

of such a sentence arises from a lack of jurisdiction. Id. at ¶ 14 ("[O]nce a valid prison

sanction has been served * * * the court has lost jurisdiction to modify the sentence").

{¶ 31} In determining if Holdcroft applies to prohibit the imposition of an additional

prison term upon Ervin for count eleven, the first issue is whether the three-year prison term

Ervin completed was for the underlying complicity to felonious assault offense or for the

firearm specification. If the original, completed three-year prison term was imposed for the

underlying complicity to felonious assault offense, Holdcroft prohibits any additional

punishment for that offense.

{¶ 32} R.C. 2929.01(EE) defines "sentence" as "the sanction or combination of

sanctions imposed by the sentencing court on an offender who is convicted of or pleads

guilty to an offense." (Emphasis added.) Likewise, a "sanction," such as a prison term, is

"any penalty imposed upon an offender who is convicted of or pleads guilty to an offense, as

punishment for the offense." (Emphasis added.) R.C. 2929.01(DD). Each of these

statutory definitions requires that there be a predicate "offense" to support a "sentence" or a

5. This language does not restrict application of these principles only to void postrelease control sanctions.
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"sanction." Therefore, a second issue is whether a firearm specification is an "offense" for

which there may be a sentence or a sanction.

{¶ 33} Pursuant to the Ohio Revised Code, an "offense" must include a "prohibition."

R.C. 2901.03(B) provides that "[a]n offense is defined when one or more sections of the

Revised Code state a positive prohibition or enjoin a specific duty, and provide a penalty for

violation of such prohibition or failure to meet such duty." Commenting upon this section, the

Ohio Supreme Court made the following observation regarding R.C. 2941.145 and

2929.14(D)(1)(a), which establish the firearm specification and the additional prison term

upon conviction of the firearm specification, respectively:

Read together, the language in [R.C. 2929.14(D)(1)(a) and
2941.145] indicates that the firearm specification is contingent
upon an underlying felony conviction. Thus, R.C. 2941.145 and
2929.14(D) do not contain a positive prohibition of conduct, as
required by R.C. 2901.03(B). Instead, these provisions indicate
that if a defendant is convicted of a felony offense and, during
the commission of that offense, if the defendant displays,
indicates possession of, or uses a firearm to facilitate the
offense, the defendant's underlying felony sentence will be
increased by three years. In other words, the statutes do not
state that a defendant shall not use a firearm during the
commission of a crime: they state that when a firearm is used, an
additional penalty will be imposed.

(Emphasis sic.) State v. Ford, 128 Ohio St.3d 398, 2011-Ohio-765, ¶16.6

{¶ 34} Noting that the firearm specification statues were not included within the

chapters of the Ohio Revised Code which define the various offenses, the supreme court

went on to state, "Moreover, the placement of R.C. 2941.145 and 2929.14 within the Revised

Code confirms that the firearm specification is merely a sentence enhancement, not a

separate criminal offense." Id. at ¶ 17.

{¶ 35} Some years ago, this court held that a firearm specification is not an "offense."

6. R.C. 2929.14(D)(1)(a), the firearm specification additional prison term section referred to by the supreme
court in Ford, is now codified as R.C. 2929.14(B)(1)(a).
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In the context of whether the imposition of prison terms for both a firearm specification and

having weapons under disability offended R.C. 2941.25 as allied offenses of similar import,

we held that

R.C. 2941.25 does not apply, inasmuch as only enhanced
punishment is involved, not conviction of a separate crime
involving identical conduct. A firearm specification is not a
separate offense and thus cannot be an allied offense of similar
import for purposes of R.C. 2941.25.

State v. Blankenship, 102 Ohio App.3d 534, 547 (12th Dist.1995). Since Blankenship, it has

been clear in this district that a firearm specification is not a separate criminal offense, but

merely "enhanced punishment." See, e.g., State v. Stephenson, 12th Dist. Warren No.

CA2014-05-072, 2015-Ohio-233.

{¶ 36} In Ford, the Ohio Supreme Court not only addressed that a firearm

specification under R.C. 2941.145 was not an "offense," but it also discussed the nature of a

firearm specification as follows: "Thus, the firearm specification is merely a sentencing

provision that requires an enhanced penalty upon certain findings. We hold that R.C.

2941.145 and 2929.14(D) define a sentence enhancement that attaches to a predicate

offense." (Citations omitted and emphasis added.) Ford, 2011-Ohio-765 at ¶ 16.

{¶ 37} Ford makes clear that the effect of a conviction of a firearm specification is to

increase the sentence for the "underlying felony." Thus, although a conviction for the firearm

specification increases the penalty, that penalty is imposed for the commission of an

underlying felony which includes the conduct described by the firearm specification.

{¶ 38} In this sense, this case differs from Holdcroft only in the details. Just as

postrelease control and a prison term for the underlying felony are separate components of a

felony sentence, a sanction for an underlying felony and a prison term for a firearm

specification are also separate components of a felony sentence. Just as the firearm

specification prison term is served separately from any sanction for the underlying felony,
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including a prison term, so is postrelease control served separately from the prison term for

its underlying felony. As Holdcroft prohibits modification of a void postrelease control

sanction once the prison term for the underlying felony has been completed, by logical

extension, it also prohibits modification of a void sanction for an underlying felony offense

after the firearm specification prison term for that offense has been completed. Thus,

consistent with Holdcroft, the trial court lacked jurisdiction to sentence Ervin to an additional

prison term for her conviction on count eleven.

{¶ 39} Because a firearm specification is not an "offense" for which there may be a

"sentence" or a "sanction," the original three-year prison term imposed upon Ervin

necessarily was a sentence for the complicity to felonious assault offense to which the

firearm specification attached. Ervin completed the entirety of the prison term that was

imposed for the count eleven firearm specification. After we vacated the consecutive

community control sanction imposed on count eleven as void and remanded for

resentencing, the trial court imposed an additional four-year prison term upon Ervin for count

eleven. Pursuant to Holdcroft, once "the entirety of a prison sanction has been served, the

defendant's interest in finality in his sentence becomes paramount, and his sentence for that

crime may no longer be modified." Thus, the additional four-year prison term imposed upon

Ervin for count eleven should be vacated.

{¶ 40} With regard and respect for my colleagues in the majority, I dissent and would

order that the four-year prison term imposed for the count eleven complicity to felonious

assault offense be vacated.

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