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State of Ohio v. Craig Morris

October 27, 2011

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
CRAIG MORRIS, DEFENDANT-APPELLANT.



(C.P.C. No. 03CR-01-391)

The opinion of the court was delivered by: Connor, J.

Cite as State v. Morris,

(REGULAR CALENDAR)

DECISION

ON APPLICATION FOR RECONSIDERATION

{¶1} Appellee, State of Ohio ("appellee"), has filed an application for reconsideration pursuant to App.R. 26(A), requesting that this court reconsider our decision and judgment entry in State v. Morris, 10th Dist. No. 10AP-512, 2011-Ohio-2226 ("Morris II"), in which we sustained an assignment of error advanced by appellant, Craig Morris ("appellant"), and reversed the judgment of the trial court. Appellant has offered no response to appellee's application for reconsideration.

{¶2} As background, appellant was convicted of four counts of felonious assault, all second degree felonies, along with accompanying firearm specifications. The trial court conducted a sentencing hearing on May 20, 2004 and journalized its judgment on May 24, 2004. According to the sentencing entry, appellant was sentenced to two years for each of the four counts of felonious assault, which were to be served consecutively. The court also imposed three years for the firearm specification. Therefore, the total period of incarceration was for eleven years.

{¶3} This court considered and rejected the substantive challenges to appellant's convictions. See State v. Morris, 10th Dist. No. 05AP-1139, 2009-Ohio-2396 ("Morris I").

{¶4} In 2009 and in early 2010, appellant filed motions asking the trial court to correct his sentence. Appellee acknowledged the need for a resentencing hearing in order to correctly impose a term of post-release control ("PRC") as a part of appellant's sentence. On May 26, 2010, the trial court conducted such a hearing, which occurred via videoconference.

{¶5} By way of its May 27, 2010 judgment entry, the trial court imposed a sentence of eight years on the second count, and two years on counts three, four, and five, all to be served concurrently to one another. The court also imposed a sentence of three years as to the firearm specification. Thus, the total period of incarceration was for eleven years. The May 27, 2010 entry also informed appellant that he was subject to three years of mandatory PRC.

{¶6} Appellant appealed and raised five assignments of error. In response, appellee conceded that appellant was denied his constitutional right to counsel during the resentencing hearing and acknowledged that a reversal was required. We reversed based, in part, upon the conceded error. See Morris II at ¶7. However, by way of its application for reconsideration, appellee notes that it withdrew its concession because the Supreme Court of Ohio issued State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238.

{¶7} When presented with an application for reconsideration, an appellate court must determine whether the application calls to the court's attention an obvious error in its decision, or raises an issue for consideration that was either not considered at all or not fully considered by the court when it should have been. State v. Rowe (Feb. 10, 1994), 10th Dist. No. 92AP-1763, citing Matthews v. Matthews (1981), 5 Ohio App.3d 140. However, "[a]n application for reconsideration is not designed for use in instances where a party simply disagrees with the conclusions reached and the logic used by an appellate court." State v. Owens (1997), 112 Ohio App.3d 334, 336. "App.R. 26 does not provide specific guidelines to be used by an appellate court when determining whether a decision should be reconsidered or modified." Id. at 335.

{¶8} We find that reconsideration is proper because we admittedly relied, in part, upon a concession that was withdrawn. Accordingly, we grant appellee's application. This decision shall therefore replace the decision rendered in Morris II.

{ΒΆ9} Upon granting reconsideration, we note that appellant has raised the following five assignments of error in regard to his ...


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