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State v. Banks

Court of Appeals of Ohio, Tenth District

November 2, 2017

State of Ohio, Plaintiff-Appellee,
v.
Chase M. Banks, Defendant-Appellant.

         APPEAL from the Franklin County Court of Common Pleas No. 09CR-3946

         On brief:

          Ron O'Brien, Prosecuting Attorney, and Barbara A. Farnbacher, for appellee.

         On brief:

          Chase M. Banks, pro se.

          DECISION

          DORRIAN, J.

         {¶ 1} Defendant-appellant, Chase M. Banks, appeals from a judgment of the Franklin County Court of Common Pleas denying his motion for resentencing based on lack of subject-matter jurisdiction pursuant to R.C. 2929.13(F).

         I. Facts and Procedural History

         {¶ 2} Appellant was indicted on July 2, 2009 with one count of felonious assault and one count of having a weapon while under disability. The felonious assault charge contained two accompanying specifications, one for the use of a firearm and one for discharging a firearm from a motor vehicle. On December 16, 2010, appellant entered an Alford[1] plea of guilty to the stipulated lesser-included offense of felonious assault with the accompanying specifications, in violation of R.C. 2903.11, 2923.161, and 2921.141, a felony of the second degree. The judgment entry, filed December 17, 2010, indicated that the parties jointly recommended an aggregate nine-year sentence; however, the trial court imposed an aggregate sentence of ten years, comprised of four years for the felonious assault, consecutive to five years for the discharging a firearm from a motor vehicle specification, consecutive to one year for the firearm specification. The judgment entry also stated "[t]he Court further finds that a prison term is mandatory pursuant to R.C. 2929.13(F)." (Dec. 17, 2010 Jgmt. Entry.) The entry did not specify whether the mandatory prison term applied to the felonious assault and the specifications, just to the felonious assault or just to the specifications. No appeal was taken.

         {¶ 3} Over one year later, appellant filed, on December 20, 2011, a motion to correct sentence. In this motion, appellant argued the trial court failed to comply with Crim.R. 11 when it accepted his plea and, further, that he was entitled to have his sentence corrected in accordance with 2011 Am.Sub.H.B. No. 86 ("H.B. No. 86"), which amended Ohio's criminal sentencing laws. Stating that H.B. No. 86 does not apply to sentences imposed prior to its effective date, the trial court denied appellant's motion via entry filed January 26, 2012. We affirmed the trial court's decision in State v. Banks, 10th Dist. No. 12AP-96, 2012-Ohio-3770. On January 15, 2013, appellant filed a post-sentence motion to withdraw plea, which the trial court denied. Appellant appealed, and we dismissed the appeal as untimely. State v. Banks, 10th Dist. No. 13AP-822 (Oct. 15, 2013 Jgmt. Entry). On January 22, 2015, appellant filed a motion for resentencing based on void judgment. The trial court denied the motion. Again, appellant failed to file a timely appeal, but did file a motion for leave to file delayed appeal. We denied the motion as well as his request for reconsideration of same. State v. Banks, 10th Dist. No. 15AP-238 (May 5, 2015) (memorandum decision). On February 19, 2016, appellant filed another motion to vacate and/or set aside judgment of conviction and to withdraw guilty plea, pursuant to Crim.R. 32.1 and 11, based on void judgment and ineffective counsel, which the trial court denied. Once again, appellant failed to file a timely appeal and we denied his motion for delayed appeal. State v. Banks, 10th Dist. No. 16AP-641 (Oct. 4, 2016) (memorandum decision). We denied as well his request for reconsideration and en banc consideration.

         {¶ 4} On March 23, 2017, appellant filed a motion for resentencing based on lack of subject-matter jurisdiction, pursuant to R.C. 2929.13(F) ("motion for resentencing"). In this motion, appellant argued the trial court erred in imposing a mandatory prison term for the felonious assault because only the specifications carried mandatory prison terms. In response, plaintiff-appellee, State of Ohio, opposed the motion, but also stated "[defendant is correct in stating that his 4 year sentence for Felonious Assault is not mandatory and that only his 6 years for the specifications are mandatory." (Apr. 5, 2017 Memo. Contra at 2.) The state noted, however, that "[f]rom [Ohio Department of Rehabilitation and Correction] online records, it seems that ODRC is reading the Entry in this case as saying that all 10 years of defendant's sentence is mandatory, when really only 6 years are mandatory." (Apr. 5, 2017 Memo. Contra at 2.) The state then suggested that "[t]o remedy this situation, the Court can simply issue a nunc pro tunc entry clarifying that defendant's 4 year sentence for Felonious Assault is not mandatory, only the specifications require mandatory prison time." (Apr. 5, 2017 Memo. Contra at 2-3.) The state finally urged the court that it was not necessary to hold a resentencing hearing because the sentence is not void.

         {¶ 5} On May 5, 2017, the trial court denied defendant's motion for resentencing by simply stating it was "not well-taken" and in the same entry stated "but [it] will file contemporaneously herewith a Nunc Pro Tunc Entry clarifying that only six (6) years out of Defendant's total ten (10) year sentence are mandatory time. The four (4) years imposed on the underlying felony are not mandatory time." (May 5, 2017 Entry.) The same day, two minutes later, the trial court entered the nunc pro tunc judgment entry which stated:

For clarification, the FOUR (4) YEARS on the underlying felony is NOT mandatory time. However, the FIVE (5) YEARS on the Drive-By Specification and ONE (1) YEAR on the Firearm Specification ARE mandatory ...

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