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State v. Kimmie

Court of Appeals of Ohio, Eighth District

July 3, 2013

STATE OF OHIO PLAINTIFF-APPELLEE
v.
EDWARD KIMMIE DEFENDANT-APPELLANT

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-348645 and CR-349507

ATTORNEY FOR APPELLANT Kevin P. Shannon .

ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor James M. Price Assistant County Prosecutor.

BEFORE: Jones, J., Stewart, A.J., and Celebrezze, J.

JOURNAL ENTRY AND OPINION

LARRY A. JONES, SR., J.

{¶1} Defendant-appellant, Edward Kirnmie, appeals from the trial court's July 2012 judgment entry imposing postrelease control (Cuyahoga C.P. No. CR-349507) and its September 2012 nunc pro tunc judgment entry (Cuyahoga C.P. No. CR-348645), in which the court corrected its 1997 sentencing judgment entry. We affirm in part and reverse in part.

I. Procedural History

{¶2} In 1997, Kimmie was sentenced on two separate cases, CR-349507 and CR-348645. The same trial court judge presided over the proceedings in both cases. In CR-349507, Kimmie was sentenced in June 1997 to eight years on Count 1, burglary, and one year on Count 2, possession of criminal tools ("burglary case"). The sentences were ordered to be served concurrently for a total eight-year sentence.

{¶3} In CR-348645, Kimmie was sentenced in September 1997 to ten years on four counts of rape and one count of kidnapping, to be served concurrently; five years on one count of intimidation, to be served concurrently with the ten-year sentence on the rapes and kidnapping; and five years on tampering with evidence, to be served consecutively to the other sentences, for a total 15-year sentence ("rape case").

{¶4} The judgment entry from the 15-year sentence in the rape case stated that the "sentence in this case to be served consecutively to sentence imposed in CR- 223382 now being served." It is undisputed that CR-223382 referenced in the sentencing entry was not a case in which Kimmie was a defendant.

{¶5} At the sentencing for the rape case, the trial court stated the following relative to making the sentence consecutive to another case:

I think it was two months ago, Mr. Kimmie, that you stood before me for sentencing with regard to your other case. At that time I had an opportunity to review your prior record * * *. Also by operation of law this sentence is going to be consecutive with any other sentence that you have been ordered to serve and I think the citizens of the State of Ohio would be well served in having you warehoused and away from them as long as possible.

{¶6} Kimmie appealed both cases. The judgment in the rape case was affirmed in toto. State v. Kimmie, 8th Dist. No. 73405, 1999 Ohio App. LEXIS 1827 (Apr. 22, 1999). The judgment of conviction for the burglary case was affirmed, but the case was remanded for resentencing because the trial court did not comply with the then-required statutory analysis. State v. Kimmie, 8th Dist. No. 72904, 1998 Ohio App. LEXIS 3049 (July 2, 1998). On remand, Kimmie was resentenced to eight years; the judgment was affirmed by this court. State v. Kimmie, 8th Dist. No. 75231, 1999 Ohio App. LEXIS 5694 (Dec. 2, 1999).

{¶7} In July 2012, Kimmie was "resentenced" in both cases to include postrelease control. In August 2012, the state filed a "motion to correct judgment entry, nunc pro tunc" in the rape case. In September 2012, the trial court granted the motion, stating: "Clerical mistake was made in original judgment entry running this case consecutive to Case # 223382. Entry should read as follows: Sentence in this case (CR-97-348645) to be served ...


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