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State v. Long

Court of Appeals of Ohio, Tenth District

June 19, 2018

State of Ohio, Plaintiff-Appellee,
v.
Montez J. Long, Defendant-Appellant.

          APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 93CR-5762

         On brief:

          Montez J. Long, pro se.

          Ron O'Brien, Prosecuting Attorney, and Sheryl L. Prichard, for appellee.

          DECISION

          BRUNNER, J.

         {¶ 1} Defendant-appellant, Montez J. Long, appeals from a judgment entered on October 31, 2017 by the Franklin County Court of Common Pleas denying his motion for resentencing. Although the trial court's original criminal sentencing entry did not comply with a number of procedural requirements, because the sentence imposed was not discretionary, because Long has waited 20 years to challenge the sentence, and because he did so by motion for reconsideration rather than a substantiated motion for delayed appeal, there is no basis for granting his motion. In addition, because the State did not cross-appeal on the question of whether the trial court was empowered to suspend Long's court costs, we do not consider the merits of that argument. We therefore affirm.

         I. FACTS AND PROCEDURAL HISTORY

         {¶ 2} On November 9, 1993, a Franklin County Grand Jury indicted Long for aggravated murder with a firearm specification. (Nov. 9, 1993 Indictment.) We have previously discussed the facts of this case in considerable detail and will not engage in a full recitation of the facts in reviewing the trial court's resolution of Long's motion. In short, Long was convicted after having fatally shot a person who attempted to skip to the front of the queue at a Church's Chicken on July 10, 1993 at approximately 2:00 a.m. State v. Long, 10th Dist. No. 96APA04-511, 1997 WL 52911, 1997 Ohio App. LEXIS 416, *2-12 (Feb. 6, 1997).

         {¶ 3} On March 29, 1996, despite having been instructed on the option of convicting Long on a lesser-included offense of murder, a jury convicted Long of aggravated murder and found he had used a firearm in the commission of the offense. (Apr. 2, 1996 Verdict Form; Tr. Vol. VI at 969-72, 976-79, filed June 3, 1996.) Based on the jury's finding, the trial court sentenced Long to 20 years to life with a mandatory consecutive 3 years of incarceration for the firearm specification. (Apr. 2, 1996 Entry at 1.) The trial court ordered in its entry "that the defendant pay the costs of this prosecution" but did not specifically calculate an amount. Id.

         {¶ 4} On appeal, this Court found that the jury's verdict was insufficiently supported as a matter of law as to the premeditation element of aggravated murder. Long at *28-29. We, thereafter, modified Long's conviction from aggravated murder to the lesser offense of murder and remanded his case for resentencing. Id. at *29.

         {¶ 5} On August 7, 1997, the trial court held a resentencing hearing which, in its entirety, consisted of the following:

THE COURT: State of Ohio versus Montez Long, 93CR-5762, set for resentencing. We're here on the Montez Long case based on the Court of Appeals decision that has reduced the verdict to that of a finding of guilty on a murder conviction.
Is there anything from either party?
[PROSECUTION]: No, Your Honor. I believe the sentence is statutory. It is murder with a firearm specification. It carries a sentence of 15 years to life. I believe all the parties agree on that.
THE COURT: Anything, [DEFENSE COUNSEL]?
[DEFENSE COUNSEL]: I have nothing.
THE COURT: Court then will go forward with the sentencing.
Mr. Long, if you can stand up for sentencing, please.
Court imposes a statutory sentence of 15 years to life. There is an additional 3 years to be served consecutive for use of a firearm.
Thank you.
[DEFENSE COUNSEL]: Thank you.

(Aug. 7, 1997 Resentencing Tr. at 3-4, filed July 31, 2017.) Following its oral pronouncement, the trial court entered judgment sentencing Long to serve 15 years to life with an additional consecutive sentence of 3 years for the firearm specification. (Aug. 7, 1997 Resentencing Entry at 2.) As before, the defendant was ordered to "pay the costs of this prosecution, " though the trial court did not calculate the exact cost bill in its entry. Id. at 1-2.

         {¶ 6} Slightly over 20 years later, Long filed a motion in the trial court seeking another resentencing, alleging that the August 1997 sentencing entry was void. (Oct. 5, 2017 Mot. for Resentencing.) Among other arguments, Long asserted that the trial court had failed to properly impose costs, had failed to inform him of his appellate rights, had failed to offer him an opportunity to allocute, had failed to determine his parole eligibility, and failed to state reasons for consecutive and maximum sentences. Id. at 4-10. Long also argued that trial counsel was ineffective in failing to raise some of these issues at sentencing. Id. at 5-6. The State responded that costs were properly imposed, that the trial court lacked jurisdiction to modify costs, and that none of Long's arguments supported a conclusion that the trial court's sentencing entry was void. (Oct. 20, 2017 Memo in Opp.) The trial court adopted some of the State's arguments and summarily denied Long's motion. (Oct. 31, 2017 Entry.) However, it did order further collection of court costs to be suspended during Long's incarceration. Id.

         {¶ 7} Long now appeals.

         II. ...


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