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State v. Kozic

Court of Appeals of Ohio, Seventh District, Mahoning

March 15, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
JAMIE KOZIC DEFENDANT-APPELLANT

         Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 2010 CR 506A

          For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney

          For Defendant-Appellant: Atty. Edward A. Czopur DeGenova & Yarwood, Ltd.

          Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary DeGenaro

          OPINION

          WAITE, J.

         {¶1} Appellant Jamie Kozic appeals a November 16, 2015 Mahoning County Common Pleas Court resentencing entry. Appellant contends that the trial court failed to make the requisite R.C. 2929.14(C)(4) consecutive sentence findings. Pursuant to State v. (Zoltan) Kozic, 7th Dist. No. 15 MA 0215, 2016-Ohio-8556 ("Z Kozic"), Appellant's arguments are without merit. However, the trial court erroneously resentenced Appellant on two counts that should have been merged. Accordingly, the judgment of the trial court is reversed in part and the matter is remanded for a limited resentencing hearing to correct only this issue.

         Factual and Procedural History

         {¶2} Appellant and his codefendant were collectively charged in a twenty-two count indictment stemming from a rash of burglaries. Of those twenty-two counts, seventeen pertained to Appellant. Appellant was indicted on the following: eight counts of burglary, a felony of the second degree in violation of R.C. 2911.12(A)(2), (C); two counts of attempted burglary, a felony of the third degree in violation of R.C. 2911.12(A)(2)(c) and R.C. 2923.02; one count of burglary, a felony of the third degree in violation of R.C. 2911.12(A)(3), (C); one count of possession of criminal tools, a felony of the fifth degree in violation of R.C. 2923.24(A), (C); two counts of drug trafficking, a felony of the fourth degree in violation of R.C. 2925.03(A)(1), (C)(1)(a); one count of drug trafficking, a felony of the second degree in violation of R.C. 2925.03 (A)(1), (C)(1)(c); one count of drug trafficking, a felony of the third degree, in violation of R.C. 2925.03 (A)(1), (C)(1)(b); and one count of engaging in corrupt activity, a felony of the first degree in violation of R.C. 2923.32(A)(1), (B).

         {¶3} Ultimately, Appellant was convicted on seven counts of burglary, one count of attempted burglary, one count of possession of criminal tools, three counts of drug trafficking, and one count of engaging in corrupt activity. The trial court imposed an aggregate sentence of 20 years of incarceration. Appellant filed a direct appeal with this Court, contesting both his convictions and sentence. State v. Kozic, 7th Dist. No. 11 MA 135, 2014-Ohio-3807 ("Kozic I "). We affirmed the judgment of the trial court in part and reversed in part. As to Appellant's conviction, we vacated count twelve (possession of criminal tools). Regarding his sentence, we ordered a limited remand, only for the purpose of removing count twelve from sentencing and to merge counts sixteen and seventeen (drug trafficking). The remaining aspects of Appellant's conviction and sentence were affirmed.

         {¶4} On August 24, 2015, the trial court held a limited resentencing hearing. The court imposed an 18-year aggregate sentence on Appellant. It is from this sentence that Appellant timely appeals.

         ASSIGNMENT OF ERROR

Appellant's sentence is both contrary to law and an abuse of discretion as the trial court failed to make any of the findings required by R.C. 2929.14(C)(4) prior to imposing consecutive sentences.

         {¶5} Appellant contends that the trial court failed to make the requisite R.C. 2929.14(C)(4) findings at the resentencing hearing and within the resentencing entry.

          {¶6} In response, the state argues that this Court issued a limited remand in Kozic I for the sole purposes of vacating count twelve and merging counts sixteen and seventeen. Since this Court ordered only a limited remand, the state argues that the trial court lacked jurisdiction to revisit any other issue. As such, the state argues that Appellant is barred by res judicata from raising an argument regarding consecutive sentences. The state ...


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