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State v. Rose

Court of Appeals of Ohio, Eleventh District, Lake

June 12, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
JOSEPH W. ROSE, JR., Defendant-Appellant.

         Criminal Appeal from the Lake County Court of Common Pleas. Case No. 14 CR 000031.

          Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant Prosecutor, Lake County Administration Building, (For Plaintiff-Appellee).

          Anita B. Staley, Barthol & Staley, L.P.A., (For Defendant-Appellant).

          OPINION

          TIMOTHY P. CANNON, J.

         {¶1} Appellant, Joseph W. Rose, Jr., appeals from the June 1, 2016 agreed judgment entry of amended sentence, which was entered by the Lake County Court of Common Pleas following this court's remand order. For the following reasons, the judgment of the trial court is affirmed.

         {¶2} On January 21, 2014, appellant was indicted on seven counts: Count 1, receiving stolen property (a license plate), a fifth-degree felony in violation of R.C. 2913.51(A); Count 2, aggravated robbery, a first-degree felony in violation of R.C. 2911.01(A)(1) with a repeat violent offender specification; Count 3, robbery, a second-degree felony in violation of R.C. 2911.02(A)(2), with a repeat violent offender specification; Count 4, robbery, a third-degree felony in violation of R.C. 2911.02(A)(3); Count 5, receiving stolen property (a 1995 Plymouth Voyager minivan), a fourth-degree felony in violation of R.C. 2913.51(A); Count 6, receiving stolen property (a 2000 Dodge Durango), a fourth-degree felony in violation of R.C. 2913.51(A); and Count 7, illegal use or possession of drug paraphernalia, a fourth-degree misdemeanor in violation of R.C. 2925.14(C)(1).

         {¶3} Appellant pled not guilty to all charges. Count 7 was dismissed at the request of the state prior to trial. The remaining counts were tried before a jury.

         {¶4} The jury found appellant guilty of three counts of receiving stolen property and one count of robbery. Appellant was found not guilty of the remaining charges. He was sentenced to 12 months in prison on Count 1 (receiving a stolen license plate); 36 months in prison on Count 4 (robbery); 18 months in prison on Count 5 (receiving a stolen Plymouth minivan); and 18 months in prison on Count 6 (receiving a stolen Dodge Durango). The trial court ordered the sentences to be served consecutive to each other for a total of 84 months in prison.

         {¶5} Appellant timely appealed the sentencing order. We reversed the finding of guilt on Count 1, receiving stolen property (license plate), due to trial counsel's failure to object to inadmissible hearsay testimony that was presented in violation of his constitutional right to confront the witnesses against him. State v. Rose, 11th Dist. Lake No. 2014-L-086, 2015-Ohio-2607, ¶11-30. The matter was remanded for further proceedings with respect to Count 1. Id. at ¶44. In all other respects, the trial court's judgment was affirmed. Id.

         {¶6} On June 1, 2016, the trial court entered an "Agreed Judgment Entry of Amended Sentence." The entry had been prepared by the prosecuting attorney, at the direction of the trial court, on May 31, 2016. The entry, states, in pertinent part:

The Lake County Prosecuting Attorney, Charles E. Coulson, by and through Karen A. Sheppert, Assistant Prosecuting Attorney, on behalf of the State of Ohio, has represented that the State will not be pursuing prosecution of the Defendant, Joseph W. Rose, Jr., on Count 1. The State and the Defendant, represented by counsel, Vanessa R. Clapp, Assistant Public Defender, agree that the Defendant's judgment entry of sentence, filed July 31, 2014, will be amended as follows.

         The entry deletes reference to the finding of guilt and sentence on Count 1. The entry also provides, "[a]s to Counts 5 and 6, the Court further finds that the Defendant committed the offenses as part of an organized criminal activity[.]" This provision had previously included Count 1 as part of the organized criminal activity.

         {¶7} The trial court recited the sentence on the remaining counts without any other change from the court's original sentencing entry. As a result, appellant remained sentenced to 36 months in prison on Count 4, 18 months in prison on Count 5, and 18 months in prison on Count 6, for a total of 72 months.

         {¶8} Appellant filed a timely notice of appeal from this entry and raised three ...


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