Court of Appeals of Ohio, Second District, Montgomery
Appeal from Common Pleas Court Trial Court Case No.
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No.
0069384, Attorney for Plaintiff-Appellee
ALAN BRENNER, Atty. Reg. No. 0067714, Attorney for
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
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.
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- ...