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State v. Moore

Court of Appeals of Ohio, Eleventh District, Trumbull

June 24, 2019

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, and Ashleigh Musick, Assistant Prosecutor, Administration Building, (For Plaintiff-Appellee).

          Stephen A. Turner, Turner, May & Shepherd, (For Defendant-Appellant).

          OPINION

          TIMOTHY P. CANNON, J.

         {¶1} Appellant, Maurice Moore, appeals from the judgment of conviction entered in the Trumbull County Court of Common Pleas pursuant to a jury verdict finding him guilty of Burglary, a felony of the second degree, in violation of R.C. 2911.12(A)(2). The trial court sentenced Moore to a prison term of eight years and ordered him to pay restitution in the amount of $1, 000.00, as well as the costs of prosecution. We affirm the trial court's judgment.

         {¶2} The facts and procedure for this matter have previously been stated in State v. Moore, 11th Dist. Trumbull No. 2015-T-0072, 2017-Ohio-7024 ("Moore I ") and State v. Moore, 11th Dist. Trumbull No. 2017-T-0104, 2018-Ohio-1773 ("Moore II"). They are restated here as follows:

         {¶3} On June 21, 2012, the home of Moore's ex-girlfriend, Pam Valentino, was broken into. Ms. Valentino was not home during the break-in. To gain access into the home, a front window was broken and the door was kicked in, which shattered the door frame.

         {¶4} When Ms. Valentino arrived home, she noticed her television was missing and the window next to the door was broken. As she looked around her house, she noticed other things missing, along with droplets of blood all through her home. Ms. Valentino called the police.

         {¶5} Ms. Valentino was visibly upset when police arrived. The police created a report of the incident. Various items had been stolen from Ms. Valentino's home, including a Magnavox television, a Blu-ray player, DVDs, a stereo, a camera, a laptop, a leather jacket, and a police scanner. The perpetrator left a trail of blood throughout the house. Police took two samples of blood from the home, one from the floor and the other from the doorknob. The blood samples were secured, sealed, initialed, and logged as evidence. The blood samples were sent to the Bureau of Criminal Investigation ("BCI"), where the samples were run through the Combined DNA Index System ("CODIS") for comparison.

         {¶6} Police received notification from BCI that CODIS revealed a preliminary match between the DNA in the blood samples sent from Ms. Valentino's home and Moore's DNA. In addition, the preliminary match was corroborated through thumbprint comparisons.

         {¶7} Based on the letter from BCI, police obtained a search warrant for Moore's DNA. In executing the warrant, police collected buccal swabs from the inside of each of Moore's cheeks. Those swabs were sent to BCI, which confirmed the preliminary results.

         {¶8} Moore was indicted by the grand jury in the Trumbull County Court of Common Pleas on one count of Burglary, a felony of the second degree, in violation of R.C. 2911.12(A)(2). Moore entered a plea of not guilty.

         {¶9} On January 23, 2014, Moore executed a Crim.R. 44(C) waiver of his right to counsel. The court appointed stand-by counsel. Subsequently, Moore filed several pro se motions and attended pretrial hearings on February 6, March 6, and March 13, 2014. Moore was incarcerated in Summit County on other charges from April 2014 until March 2015. Moore filed additional pro se motions and attended pretrial hearings on February 26, March 19, and May 7, 2015.

         {¶10} The case proceeded to jury trial on June 1, 2015. On June 2, 2015, the jury found Moore guilty of Burglary, a felony of the second degree. Moore was sentenced on June 10, 2015, to eight years in prison "to be served consecutively to any other sentences imposed upon the Defendant by any other court." After considering Moore's ability to pay, the court ordered Moore to pay $1, 000.00 in restitution requested by the victim. The court additionally stated the cost of prosecution was assessed to Moore, and the trial judge waived Moore's fines due to Moore's indigence. Moore did not request a waiver of his court costs at the sentencing hearing.

         {¶11} Thereafter, Moore filed a pro se appeal from the trial court's sentencing entry in Moore I. In that 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. Moore I, supra, 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.

         {¶12} On remand, the trial court did not hold a resentencing hearing. It instead entered a nunc pro tunc sentencing entry. The entry stated that Moore was 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 was not discernable from the record. On October 31, 2017, Moore filed a motion objecting to the nunc pro tunc entry. The trial court did not rule on that motion. Moore II, supra, at ¶6.

         {¶13} Moore filed a second pro se notice of appeal (Moore II). The basis of the appeal was that it was error to remedy the sentencing through a nunc pro tunc entry. The state did not oppose the appeal with an opposing brief. Id. at ΒΆ7. In that appeal, we reversed and remanded for the trial court to resentence Moore ...


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