APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO CASE No. 09 CR 0069
GREGORY SCOTT ROBEY, Attorney at Law, for Appellant.
DEAN HOLMAN, Prosecuting Attorney, and MATTHEW A. KERN, Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
BELFANCE, Presiding Judge.
(¶1} Defendant-Appellant Randy Neumann-Boles appeals from her resentencing in the Medina County Court of Common Pleas. For the reasons set forth below, we vacate the August 10, 2012 entry that is the subject of this appeal.
(¶2} This Court related much of the background of this matter in a prior appeal:
On September 16, 2008, Ms. Neumann-Boles was driving under the influence of alcohol in violation of RC. 4511.19(A)(1)(a) when she caused the vehicle she was driving to swerve from the eastbound lane of State Route 18 and collide with a vehicle being driven in the westbound lane. Both Ms. Neumann-Boles and the other driver were seriously injured in the collision.
As a result of the collision, Ms. Neumann-Boles was charged with one count of aggravated vehicular assault in violation of R.C. 2903.08(A)(1)(a), and one count of aggravated vehicular assault in violation of R.C. 2903.08(A)(2)(b). Pursuant to the enhancement provisions of R.C. 2903.08(B)(1)(a) and R.C. 2903.08(C)(2) respectively, the violation of R.C. 2903.08(A)(1)(a) was charged as a second-degree felony and the violation of R.C. 2903 .08(A)(2)(b) was charged as a third-degree felony. The indictment for both counts alleged that at the time of the offense, Ms. Neumann-Boles was "under a driving suspension imposed under Chapter 4510 or any other provision of the Ohio Revised Code, or any substantial[ly] equivalent current or former law of another state[.]" See R.C. 2903.08(B)(1)(a), (C)(2), (G). The matter proceeded to a bench trial and the trial court found Ms. Neumann-Boles guilty of both counts. The trial court concluded the offenses were allied, and the State elected to have Ms. Neumann-Boles sentenced for the violation of R.C. 2903.08(A)(1)(a) as a second-degree felony. The trial court sentenced Ms. Neumann-Boles to seven years in prison.
State v. Neumann-Boles, 9th Dist. Medina No. 10CA0013-M, 2011-Ohio-6684, ¶ 2-3.
(¶3} Ms. Neumann-Boles appealed asserting that there was insufficient evidence presented by the State to establish the element that enhanced the penalty of her offenses. See id at ¶ 4. This Court concluded that "the State failed to produce sufficient evidence of the fact which would elevate Ms. Neumann-Boles' conviction [from a third-degree felony] to a second-degree felony." Id. at ¶ 9. We "agree[d] that Ms. Neumann-Boles could not be convicted of a second-degree felony based upon the evidence presented at trial." Id. at ¶ 10. This Court noted that, "[g]enerally, a violation of R.C. 2903.08(A)(1)(a), absent a demonstration of facts leading to a penalty enhancement, is a felony of the third degree." Id. "Consequently, we remand[ed the matter] to the trial court with instructions that the trial court enter a conviction against Ms. Neumann-Boles for a third-degree felony violation of R.C. 2903.08(A)(1)(a) and that she be sentenced accordingly." Id
(¶4} On May 25, 2012, a resentencing hearing was held at which the trial court acknowledged this Court's remand instructions. Accordingly, at the hearing, the trial court sentenced Ms. Neumann-Boles to 60 months in prison for a third-degree felony violation of R.C. 2903.08(A)(1)(a). However, the trial court's June 5, 2012 sentencing entry contains several typographical errors that do not reflect what occurred at the sentencing hearing. The entry states that Ms. Neumann-Boles was found guilty of a second-degree felony, that she was convicted of a second-degree felony, and thereafter imposes a sentence for a second-degree felony.
(¶5} On June 11, 2012, Ms. Neumann-Boles filed a motion to vacate her sentence asserting that, because of our remand instructions, the trial court lacked jurisdiction to sentence Ms. Neumann-Boles for a second-degree felony. The trial court held a hearing on Ms. Neumann-Boles' motion on July 20, 2012. At the hearing, the trial court determined Ms. Neumann-Boles should be resentenced and proceeded to do so. The trial court did not vacate its prior entry and issued a new sentencing entry journalized August 10, 2012, which still recited that Ms. Neumann-Boles was found guilty and convicted of a second-degree felony and appears to improperly refer to count one as count two in discussing the State's election with respect to merger. However, the entry does appear to sentence Ms. ...