Criminal Appeal from the Court of Common Pleas, Case No. 2003
Plaintiff-Appellee JOHN D. FERRERO PROSECUTING ATTORNEY
RONALD MARK CALDWELL ASSISTANT PROSECUTOR.
Defendant-Appellant WAYNE E. GRAHAM.
John W. Wise, P. J. Hon. W. Scott Gwin, J. Hon. Earle E.
Wise, Jr., J.
John, P. J.
Defendant-Appellant Donald A. Franklin, Jr., appeals from the
decision of the Court of Common Pleas, Stark County, which
resentenced him, pursuant to R.C. 2929.191, on his 2003
felony convictions. Appellee is the State of Ohio. The
relevant facts leading to this appeal are as follows.
On November 26, 2003, appellant was sentenced by the Stark
County Court of Common Pleas to a total of twenty years in
prison for one count of aggravated burglary, a felony of the
first degree (R.C. 2911.11(A)(1)), and one count of attempt
to commit murder, a felony of the first degree (R.C.
2923.02(A)). On direct appeal, appellant raised issues of
manifest weight of the evidence and sufficiency of the
evidence, and he challenged the imposition of consecutive
maximum sentences. This Court affirmed on October 4, 2004.
See State v. Franklin, 5th Dist. Stark No.
2003CA00442, 2004-Ohio-5398. Appellant was thereafter
unsuccessful in obtaining review in the Ohio Supreme Court
via a delayed appeal.
On February 1, 2016, appellant filed a "Motion to Vacate
Void Judgment," arguing (1) his post-release control
("PRC") was improperly imposed and (2) his two
aforesaid offenses should have been merged pursuant to R. C.
2941.25. The State of Ohio filed a response to
appellant's motion on February 25, 2016. Appellant filed
a reply on March 9, 2016.
The trial court conducted a video-conference resentencing on
April 1, 2016 for purposes of PRC notification.
Via a judgment entry issued April 19, 2016, the trial court
noted it had conducted the aforesaid video-conference
resentencing hearing, and further ruled that appellant's
remaining claim as to allied offenses was not well-taken.
On April 21, 2016, the trial court issued a resentencing
entry, pursuant to R.C. 2929.191, stating inter alia
that appellant had been advised of a five-year mandatory
period of PRC on each charge.
Appellant subsequently filed pro se notices of appeal,
indicating his intent to challenge both the resentencing and
the denial of his allied offenses claim. On June 10, 2016,
the trial court appointed appellate counsel for appellant,
but only as to his challenge to resentencing.
Appellant thereafter presented this Court with two assigned
errors. First, appellant argued that the trial court had
erred as a matter of law in failing to appoint counsel for
the resentencing hearing. Secondly, appellant maintained that
the trial court had erred as a matter of law in failing to
appoint appellate counsel for an appeal of the trial
court's denial of appellant's motion to vacate his
sentence, as it pertained to the issue of allied offenses.
Upon review, we found merit in appellant's contention
that his right to counsel had been violated during the video
conference resentencing hearing of April, 1, 2016. We noted
that the State at that time conceded the validity of
appellant's argument. We then found appellant's
remaining assigned error to be premature. Therefore, in an
opinion issued June 12, 2017, we vacated the portion of the
resentencing entered by the trial court regarding
post-release control contained in the April 21, 2016 judgment