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State v. Provens

Court of Appeals of Ohio, Fifth District

July 22, 2013

STATE OF OHIO Plaintiff-Appellee
v.
ARMONE PROVENS Defendant-Appellant

DATE OF JUDGMENT ENTRY July 22, 2013

Criminal Appeal from the Court of Common Pleas, Case No. 2006CR00193

For Plaintiff-Appellee JOHN D. FERRERO PROSECUTING ATTORNEY KATHLEEN O. TATARSKY ASSISTANT PROSECUTOR

For Defendant-Appellant PAUL F. ADAMSON

Hon. John W. Wise, P. J. Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J.

OPINION

Wise, P. J.

{¶1} Appellant Armone Provens appeals the decision of the Court of Common Pleas, Stark County, which resentenced him following a remand from this Court. Appellee is the State of Ohio. The relevant facts leading to this appeal are as follows.

{¶2} On January 1, 2006, Eric Grimes was fatally shot near the Leshdale Apartments in Canton, Ohio. On March 17, 2006, in connection with that incident, the Stark County Grand Jury indicted appellant on one count of murder, one count of felonious assault, and one count of having weapons while under a disability. The charges of murder and felonious assault were accompanied by firearm specifications. Appellant thereafter entered a plea of not guilty to said charges.

{¶3} Appellant's jury trial began on July 17, 2006. During a break in the trial, appellant entered a plea of guilty to the crime of having weapons while under disability, a felony of the third degree. Sentencing on that charge was deferred until the completion of appellant's trial on the remaining charges.

{¶4} On July 20, 2006, the jury found appellant guilty of the lesser included offense of reckless homicide, a felony of the third degree, with a firearm specification. The trial court declared a mistrial on the charges of murder and felonious assault.

{¶5} Pursuant to a judgment entry filed on July 25, 2006, appellant was sentenced to five years in prison for reckless homicide and five years in prison for having weapons while under disability, to be served consecutively. A three-year sentence was also imposed for the gun specification. In addition, because appellant was on post-release control under another Stark County case (1998CR0124(B)) at the time of the shooting, an additional three years and fifty-four days was tacked on to his sentence. In all, appellant received a prison sentence of sixteen years and fifty-four days.

{¶6} Appellant thereupon filed a direct appeal. On April 14, 2008, this Court affirmed appellant's conviction and sentence.

{¶7} Appellant subsequently filed a motion to reopen his direct appeal pursuant to App. R. 26(B), which this Court denied via a memorandum-opinion on August 4, 2008. See State v. Provens, Stark App. No. 2007CA00034, 2008-Ohio-3933.

{¶8} On September 2, 2010, appellant filed in the trial court a "motion to vacate and correct sentence." Appellant therein alleged that his sentencing entry in his earlier Stark County case, 1998CR0124(B), was void because he was improperly advised of post-release control in that matter. Appellant specifically alleged that the trial court in case number 1998CR0124(B) had incorrectly stated that appellant would be subject to post-release control for "up to five years" when "R.C. 2967.28(B) mandated that [appellant's] sentence include a mandatory period of post-release control of five years." Appellant argued that because he could not be forced to serve time for violating the improper term of post-release control issued in 1998CR0124(B), the trial court in the case sub judice was required to vacate that portion of his sentence tacking on the three years and fifty-four days onto his sentence. Appellant, in his motion, also argued that the trial ...


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