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State v. Franklin

Court of Appeals of Ohio, Fifth District, Stark

July 23, 2018

STATE OF OHIO Plaintiff-Appellee
v.
DONALD ALBERT FRANKLIN, JR. Defendant-Appellant

          Criminal Appeal from the Court of Common Pleas, Case No. 2003 CR 01311

          For Plaintiff-Appellee JOHN D. FERRERO PROSECUTING ATTORNEY RONALD MARK CALDWELL ASSISTANT PROSECUTOR.

          For Defendant-Appellant WAYNE E. GRAHAM.

          Hon. John W. Wise, P. J. Hon. W. Scott Gwin, J. Hon. Earle E. Wise, Jr., J.

          OPINION

          Wise, John, P. J.

         {¶1} 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.

         {¶2} 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.

         {¶3} 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.

         {¶4} The trial court conducted a video-conference resentencing on April 1, 2016 for purposes of PRC notification.

         {¶5} 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.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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.

         {¶9} 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 ...


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