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State v. Robinson

Court of Appeals of Ohio, Ninth District, Summit

August 30, 2017

STATE OF OHIO Appellee
v.
GLENN D. ROBINSON Appellant

         APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. 2003-01-0003

          GLENN D. ROBINSON, pro se, for Appellant.

          SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          JULIE A. SCHAFER, PRESIDING JUDGE.

         {¶1} Defendant-Appellant, Glenn D. Robinson, appeals the judgment of the Summit County Court of Common Pleas. We affirm.

         I.

         {¶2} In April 2003, a jury convicted Robinson of two counts of aggravated murder, one count of murder, one count of aggravated robbery, one count of having weapons while under a disability, and one count of carrying concealed weapons. The jury also found Robinson guilty of the firearm specifications that accompanied the aggravated murder, murder, aggravated robbery, and having weapons while under disability counts. Robinson also pleaded guilty to one count of felonious assault. The trial court sentenced Robinson to life imprisonment with parole eligibility after 38 years. On appeal, this Court determined Robinson's guilty plea was defective, but affirmed his other convictions and sentences. See State v. Robinson, 9th Dist. Summit No. 21583, 2004-Ohio-963, ¶ 26, 38. On remand, Robinson re-entered his guilty plea to the felonious assault count. He did not appeal his conviction or sentence for that offense.

         {¶3} In October 2010, the trial court resentenced Robinson after determining that its initial sentence was void for failing to notify Robinson of post-release control. The trial court did not resentence Robinson on the felonious assault charge since he had already fully served his sentence on that count. The trial court imposed the same prison sentence with respect to his other convictions and noted that he was subject to a mandatory five-year term of post-release control upon his release from prison. On appeal, this Court partially vacated the October 2010 sentencing entry after determining that the trial court exceeded its authority by conducting a de novo sentencing hearing and reissuing a sentence to Robinson. See State v. Robinson, 9th Dist. Summit No. 25795, 2011-Ohio-6065, ¶ 12, 13. However, this Court affirmed the trial court's imposition of a mandatory five-year period of post-release control. Id.

         {¶4} Robinson has since filed a number of post-judgment motions. Relevant to this appeal, in November 2016, Robinson filed a "motion to vacate void sentence, and for resentencing." Within this motion, Robinson cited to the Supreme Court of Ohio's holding in State v. Williams, 148 Ohio St.3d 403');">148 Ohio St.3d 403, 2016-Ohio-7658, in arguing that the trial court erred by imposing separate, albeit concurrent, sentences on both of his aggravated murder convictions, as well as his conviction for murder (counts one, two, and three of the indictment, respectively) after initially determining that those counts were subject to merger. The State filed a memorandum in opposition to Robinson's motion wherein it agreed that Robinson's sentences on counts two and three (aggravated murder and murder, respectively) should be vacated, but requested and elected that Robinson remain sentenced on count one (aggravated murder). On December 21, 2016, the trial court issued an entry vacating Robinson's sentences on counts two and three and resentencing him on count one to life in prison with parole eligibility after 20 years, which was the same sentence that the trial court had imposed on count one during the initial sentencing hearing in 2003.

         {¶5} Robinson filed this timely appeal and presents three assignments of error for our review. As Robinson's first and third assignments of error implicate similar issues, we elect to address them together.

         II.

         Assignment of Error I

When the trial court determines that the sentence is void pursuant to State v. Williams, [148 Ohio St.3d 403');">148 Ohio St.3d 403, ] 2016-Ohio-7658, and when the State failed to elect which offense it would pursue at the original sentencing hearing, the State is required to make the election as to which offense it wants to pursue at resentencing as is the prescribed remedy in Williams, ¶ 30, and the State is not permitted to make the election in a memorandum, which essentially denies a defendant the opportunity to contest the election.

         Assignment ...


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