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State v. Moore

Court of Appeals of Ohio, Eleventh District, Trumbull

May 7, 2018

STATE OF OHIO, Plaintiff-Appellee,
v.
MAURICE MOORE, Defendant-Appellant.

          Criminal Appeal from the Trumbull County Court of Common Pleas. Case No. 2013 CR 00775.

          Dennis Watkins, Trumbull County Prosecutor, (For Plaintiff-Appellee).

          Maurice Moore, pro se, (Defendant-Appellant).

          OPINION

          TIMOTHY P. CANNON, J.

         {¶1} Appellant, Maurice Moore, appeals from the October 16, 2017 "Nunc Pro Tunc Entry on Sentence" of the Trumbull County Court of Common Pleas. The trial court's judgment is reversed and remanded for the following reasons.

         {¶2} On November 26, 2013, appellant was indicted in the Trumbull County Court of Common Pleas on one count of Burglary, a second-degree felony, in violation of R.C. 2911.12(A)(2) and (D) for the break-in of his ex-girlfriend's home. The matter proceeded to trial after appellant entered a plea of not guilty. Appellant was found guilty by a jury.

         {¶3} On June 10, 2015, appellant was sentenced to eight years in prison "to be served consecutively to any other sentences imposed upon Defendant by any other court." The trial court also ordered appellant to pay court costs and restitution to the victim. The entry of sentence was filed June 12, 2015. At the time the sentence was imposed, appellant apparently had charges pending in federal court; however, he had not yet been sentenced on those charges. In addition, he was serving a sentence imposed by Summit County, the length of which is not contained in the record before us.

         {¶4} Appellant filed a pro se appeal from the trial court's sentencing entry. State v. Moore, 11th Dist. Trumbull No. 2015-T-0072, 2017 WL 3226468. At appellant's request, he was appointed counsel after his pro se brief was filed. Appellant filed supplemental briefing through counsel. After oral argument, this court ordered the parties to submit additional briefing.

         {¶5} On appeal, we determined the trial court failed to make all the findings necessary for the imposition of consecutive sentences under R.C. 2929.14(C)(4) at the sentencing hearing. Id., at ¶52-53. We further held that when imposing a sentence consecutive to another sentence currently being served, the record should clearly reflect the nature and extent of the sentence being served in order for the trial court to properly assess the factors set forth in R.C. 2929.14(C)(4)(a), (b), and (c). Id. at ¶55. We remanded the matter to the trial court for resentencing. Id. at ¶56.

         {¶6} On remand, the trial court did not hold a resentencing hearing. It instead entered a nunc pro tunc sentencing entry. The entry states appellant is sentenced to eight years in prison "to be served consecutively to the sentence imposed in Summit County Common Pleas Court Case No. 2013-07-1818." The nature and extent of the Summit County sentence is not discernable from the record. On October 31, 2017, appellant filed a motion objecting to the nunc pro tunc entry. The trial court did not rule on that motion.

         {¶7} Appellant noticed a timely appeal from the nunc pro tunc entry. He asserts two assignments of error:

[1.] The trial court erred by resentencing Moore while he was not present in court in violation of Crim.R. 43(A) and the Due Process Clause to the Fourteenth Amendment to the United States Constitution.
[2.] The trial court completely deprived Moore effective assistance of counsel in violation of the Sixth Amendment to the United States Constitution, when the court resentenced Moore without being present.

         Appellee, the state of Ohio, waived its submission of an answer brief, stating in a notice to this court: "[T]he State does not oppose a remand to the trial court for a resentencing hearing in ...


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