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State v. Bunn

Court of Appeals of Ohio, Seventh District, Mahoning

June 14, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
JERMAINE BUNN, Defendant-Appellant.

          Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 16-CR-378

          Atty. Paul J. Gains, Mahoning County Prosecutor, Atty. Ralph M. Rivera, Assistant Prosecuting Attorney, for Plaintiff-Appellee and

          Atty. Katherine R Ross-Kinzie, Assistant Public Defender, Office Of The Ohio Public Defender, for Defendant-Appellant.

          BEFORE: Carol Ann Robb, Cheryl L. Waite, David A. D'Apolito, Judges.

          OPINION AND JUDGMENT ENTRY

          Robb, J.

         {¶1} Defendant-Appellant Jermaine Bunn appeals from his conviction in Mahoning County Common Pleas Court of having a weapon while under disability and tampering with evidence. Four issues are raised in this appeal. The first issue is whether the judicial sanction for committing the offenses while on postrelease control is a void sentence. Appellant alleges the trial court did not properly impose postrelease control for his 2009 conviction of felonious assault and therefore, that postrelease control term is void and he could not be sentenced to a judicial sanction for violating a void postrelease control term. The second issue is whether the trial court made the necessary statutory findings for imposing consecutive sentences. The third issue is whether the weapon while under disability and tampering with evidence offenses are allied offenses of similar import. The fourth issue is whether the convictions for having a weapon while under disability and tampering with evidence are against the manifest weight of the evidence.

         {¶2} For the reasons expressed below, the first assignment of error has merit. The imposition of postrelease control in case number 2008-CR-742 is void and vacated; the judgment entry imposing postrelease control did not contain all the necessary advisements. Consequently, since postrelease control is void, the judicial sanction sentence imposed for violating postrelease control must be reversed and vacated. However, the second, third, and fourth assignments of error are meritless. The remainder of Appellant's convictions are affirmed.

         Statement of Facts and Case

         {¶3} In 2009 Appellant was found guilty of felonious assault and sentenced to seven years in prison. State v. Bunn, 7th Dist. Mahoning No. 10 MA 10, 2011-Ohio-1344, ¶ 1, 15; 1/27/10 J.E. case number 2008-CR-742. He also was sentenced to a mandatory three year term of postrelease control. 1/27/10 J.E. case number 2008-CR-742.

         {¶4} On the evening of April 2, 2016 through the early morning hours of April 3, 2016, Thomas May was having a birthday party for himself at his residence located at 62 East Evergreen Avenue in Youngstown, Ohio. Michael Pete, Thomas Mays' cousin, attended this party.

         {¶5} Appellant had been released from prison a couple of days prior to April 2, 2016. On the evening of April 2, 2016, Appellant and his two cousins, Steven Pickard and James Jackson, driving around Youngstown. At some point they were on East Evergreen and noticed Mays' birthday party. Tr. 305. Appellant, who was driving the car, stopped the car in the street and decided to attend the party. Jackson and Pickard remained in the car. Pickard at some point moved the car because it was blocking the street.

         {¶6} During the party, Appellant and Michael Pete were alone on the porch talking. While they were talking on the porch, gunfire erupted. Michael Pete was shot in the side and Appellant was shot in the face.

         {¶7} Appellant fled to the car and drove himself to the hospital. Although neither Pickard nor Jackson noticed Appellant carrying anything when he got into the car, they did see him throw a gun out the window of the car on the way to the hospital. Tr. 311, 435. When they arrived at the hospital, Appellant told Pickard to go back and get the gun. Tr. 312-313. Pickard and Jackson complied with the request, found the gun, and Pickard later threw the gun into McKelvey Lake. Tr. 313, 315, 435.

         {¶8} Immediately after the gunfire, numerous people made 911 calls. During the police investigation of the scene, twenty-two casings were collected; it was determined that three different guns were involved in the shooting. Tr. 525. Nine people were tested for gunshot residue, including Appellant and Pete. State's Exhibit 107, 108, 109. All subjects tested positive for gunshot residue. State's Exhibit 107, 108, 109.

         {¶9} The gunshot wound sustained by Michael Pete was fatal; it severed his spinal cord, went through his lung, and bruised his heart. Tr. 548. Appellant recovered from his gunshot wound.

         {¶10} On April 14, 2016 Appellant was indicted for murder in violation of R.C. 2903.02(A)(1), an unclassified felony; improperly discharging a firearm into a habitation in violation of R.C. 2923.161(A)(1)(C), a second-degree felony; having weapons while under disability in violation of R.C. 2923.13(A)(3)(B), a third-degree felony; and tampering with evidence in violation of R.C. 2921.12(A)(1)(B), a third-degree felony. 4/14/16 Indictment. The murder and improperly discharging a firearm into a habitation had attendant firearm specifications. 4/14/16 Indictment.

         {¶11} Appellant waived his right to counsel and proceeded pro se; standby counsel was appointed. 2/23/17 J.E.; 2/24/17 J.E. Jury trial began on August 14, 2017. Appellant was acquitted of murder and improperly discharging a firearm into a habitation. 8/25/17 J.E. He was found guilty of having a weapon while under disability and tampering with evidence.

         {¶12} Sentencing was held on August 24, 2017; Appellant received an aggregate nine-year sentence. 8/28/17 J.E. Appellant was sentenced to three years for having a weapon while under disability and three years for tampering with evidence. 8/28/17 J.E. The trial court ordered consecutive sentences. 8/28/17 J.E. Pursuant to R.C. 2929.141, the trial court also ordered Appellant to serve an additional three years, the balance of his postrelease control in case number 08-CR-742. 8/28/17 J.E. This was required to run consecutive to the above sentences. 8/28/17 J.E.

         {¶13} Appellant timely appealed the convictions.

         First Assignment of Error

         "The trial court committed reversible error when it imposed a judicial sanction sentence on Mr. Bunn based on void postrelease control in Case No. 2008-CR-742."

         {¶14} Appellant was sentenced to a judicial sanction because the crimes committed in this case were committed while Appellant was on postrelease control. The postrelease control term was issued in case number 2008-CR-742. Appellant argues the term of postrelease control was void because the judgment entry imposing postrelease control failed to include all the necessary language to properly impose a term of postrelease control. He cites this court to the Ohio Supreme Court decision State v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-2927, 85 N.E.3d 700.

         {¶15} In Grimes, the offender was convicted of crimes in 2011 and given postrelease control as part of his sentence. Id. at ¶ 2. Grimes served his prison sentence and was released on postrelease control. Id. While under supervision, Grimes committed another offense, was indicted, and found guilty. Id. at ¶ 3. Pursuant to R.C. 2929.141, in addition to the sentence for the new crime, Grimes received a judicial sanction for having committed the offense while on postrelease control. Id. at ¶ 4. After completing the sentence for the new crime and while serving the judicial sanction sentence, Grimes filed a motion with the trial court that imposed the judicial sanction asking for the court to vacate the judicial sanction because the postrelease control sentence imposed for the 2011 crimes was not validly imposed. Id. at ¶ 5. The argument was based on the language in the judgment entry, not the advisement at the sentencing hearing. Id. at ¶ 2. The trial court denied the motion, however, the appellate court reversed. Id. at ¶ 5-6. The case was accepted by the Ohio Supreme Court on the following question:

To impose valid post release control, the language in the sentencing entry may incorporate the advisements given during the sentencing hearing by referencing the post release control sections of the Ohio Revised Code and do not need to repeat what was said during the sentencing hearing.

Id. at ¶ 7.

         {¶16} The Ohio Supreme Court reversed the appellate court's decision and found the judgment entry included the necessary advisements to validly impose postrelease control. The Court stated:

We hold that to validly impose postrelease control when the court orally provides all the required advisements at the sentencing hearing, the sentencing entry must contain the following information: (1) whether postrelease control is discretionary or mandatory, (2) the duration of the postrelease-control period, and (3) a statement to the effect that the Adult Parole Authority ("APA") will administer the postrelease control pursuant to R.C. 2967.28 and that any violation by the offender of the conditions of postrelease control will subject the offender to the consequences set forth in that statute.

Id. at ¶ 1.

         {¶17} Appellant acknowledges the trial court in 2008-CR-742 complied with the first two requirements. He argues the court did not comply with the third requirement.

         The state counters asserting the judgment entry in 2008-CR-742 complied with all three requirements.

         {¶18} At the outset it is noted that Grimes and the case at hand are procedurally different. In Grimes, the offender filed a motion with the trial court to vacate a void sentence. Here, Appellant attacked the judicial sanction on direct appeal arguing the postrelease control it is based upon is void and thus, a sentence cannot be given. Considering the issue involves postrelease control, both manners of attacking the alleged void sentence are proper. Recently we have stated, "A sentence that does not include the statutorily mandated term of postrelease control is void, is not precluded from appellate review by principles of res judicata, and may be reviewed at any time, on direct appeal or by collateral attack." State v. Hutter, 7th Dist. Mahoning No. 17 MA 0152, 2018-Ohio-3488, ¶ 12, citing State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 1.

         {¶19} It is also noted that the only advisement we are reviewing in this assignment of error is the advisement given in the judgment entry in case number 2008-CR-742. The judgment entry from that case was properly made a part of the record before us. However, the sentencing transcript in that case is not a part of our record and there is no claim that the advisement at the sentencing hearing was inadequate. This is similar to Grimes where the Court stated:

Notably, we caution that this appeal presents a case in which it is undisputed that the trial court provided all the required advisements regarding postrelease control to Grimes at the sentencing hearing. Grimes did not introduce a transcript of the hearing into the record, so we must assume the regularity of the sentencing hearing. Natl. City Bank v. Beyer, 89 Ohio St.3d 152, 160, 729 N.E.2d 711 (2000). Our holding is limited to those cases in which the trial court makes the proper advisements to the offender at the sentencing hearing. We reach no conclusion as to the requirements for sentencing entries in cases in which notice at the sentencing hearing was deficient.

Grimes, 2017-Ohio-2927 at ¶ 20.

         {¶20} The judgment entry in 2008-CR-742 stated:

AND THEREFORE, the Court Orders that the Defendant serve a term of SEVEN (7) YEARS in prison, of which ZERO (0) years is a mandatory term pursuant to R.C. 2929.13(F), 2929.14(D)(3) or 2925, followed by a mandatory period of post-release control of ...

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