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State v. McComb

Court of Appeals of Ohio, Second District, Montgomery

February 23, 2018

STATE OF OHIO Plaintiff-Appellee
DAVION MCCOMB Defendant-Appellant

         Criminal Appeal from Common Pleas Court Trial Court Case No. 2015-CR-1836/3

          MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Attorney for Plaintiff-Appellee

          ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, Attorney for Defendant-Appellant


          FROELICH, J.

         {¶ 1} In this delayed appeal, Davion McComb claims that the trial court erred in sentencing him to mandatory prison terms, in light of State v. Hand, 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448. For the following reasons, the trial court's judgment will be affirmed in part, modified in part, and the matter will be remanded for the trial court to issue a revised judgment entry that eliminates the mandatory nature of defendant's sentence for aggravated robbery.

         {¶ 2} On October 9, 2015, McComb was charged by bill of information with aggravated robbery (deadly weapon), a felony of the first degree, and with felonious assault (deadly weapon), a felony of the second degree; each offense included a firearm specification. The same day, McComb waived an indictment and 24-hour service of the bill of information, and he pled no contest to the charges; the State dismissed the firearm specifications. The trial court found him guilty and sentenced him to a mandatory three years in prison for aggravated robbery and to two years in prison for felonious assault; the trial court's judgment entry indicated that the three-year sentence was mandatory pursuant to R.C. 2929.13(F). The trial court ordered the sentences to be served concurrently to each other and to an aggregate 10-year sentence in another case (Montgomery C.P. No. 2015-CR-1152/1).

         {¶ 3} McComb did not appeal his conviction within the 30-day time period required by App.R. 4(A).

         {¶ 4} On February 17, 2017, McComb filed a notice of appeal and a motion for leave to appeal, pursuant to App.R. 5(A). In his motion for leave to file a delayed appeal, McComb indicated that he sought to challenge, in light of Hand, the mandatory nature of his sentences. McComb stated that he had filed an appellate brief in his appeal from Case No. 2015-CR-1152/1 (Appellate Case No. 26884), in which he challenged the mandatory nature of his sentences under Hand. He asserted that "the Hand case would also impact 2015 CR 01836/3 if McComb is permitted to have an appeal from that case as well * * *."

         {¶ 5} The State opposed the motion, arguing that McComb's convictions in this case were final due to his failure to timely appeal and that Hand did not apply retroactively to convictions that were final.

         {¶ 6} On April 4, 2017, we granted McComb's motion for leave to file a delayed appeal, and stated that "[t]his matter shall proceed in accordance with the Rules of Appellate Procedure."

         {¶ 7} In his sole assignment of error, McComb claims that "the trial court erred when it sentenced McComb to mandatory prison terms on Counts I and II." As in its memorandum opposing McComb's motion for leave to file a delayed appeal, the State argues in its appellate brief that Hand should not apply to McComb, because he did not file a timely appeal and thus his conviction was final.

         {¶ 8} In general, "[a] new judicial ruling may be applied only to cases that are pending on the announcement date, and the new judicial ruling may not be applied retroactively to a conviction that has become final, that is, where the accused has exhausted all of his appellate remedies." State v. Greathouse, 2d Dist. Montgomery No. 24935, 2012-Ohio-2414, ¶ 6, citing Ali v. State, 104 Ohio St.3d 328, 2004-Ohio-6592, 819 N.E.2d 687; State v. Smith, 2d Dist. Montgomery No. 27294, 2017-Ohio-2684, ¶ 11.

         {¶ 9} Generally, a defendant's appellate remedies from a judgment of conviction consist of a timely appeal as of right to an intermediate court of appeals, see App.R. 3 and 4, and a jurisdictional appeal to the Supreme Court of Ohio, see S.Ct.Prac.R. 5.02. The Ohio Rules of Appellate Procedure allow, in certain circumstances and with leave of the appellate court, for an untimely appeal, see App.R. 5(A), and for the appellate process to be reopened, see App.R. 5(B) and 26(B). Where leave is granted, the defendant has not exhausted his or her appellate remedies, the conviction is not final, and an appellate court may review the assignment of error as if the direct appeal had been timely filed.

         {¶ 10} At the outset, we note that McComb has already served more than two years in prison, and thus he has completely served his sentence for felonious assault. Accordingly, we find that McComb's challenge to his two-year sentence for felonious assault is moot. Regardless, although the trial court orally stated at the combined plea and sentencing hearing that the prison sentences for both felonious assault and aggravated robbery were mandatory, the trial court's subsequent judgment entry, filed on October 14, 2015, imposed a mandatory sentence only for Count 1, aggravated robbery. Because a court speaks through its journal, e.g., State v. Friend, 2d Dist. Montgomery Nos. 26867 & 26868, 2016- ...

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