Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-17-618637-A
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Brian Lynch, Assistant Prosecuting Attorney,
Law, L.L.C., and Leigh S. Prugh, for appellant
JOURNAL ENTRY AND OPINION
PATRICIA ANN BLACKMON, P.J.
1} Justin Jarmon ("Jarmon") appeals his
30-year prison sentence and assigns the following error for
I. The trial court erred in failing to hold a hearing for
appellant Justin Jarmon to attend to impose his modified
2} Having reviewed the record and pertinent law, we
affirm the trial court's judgment. The apposite facts
3} On November 16, 2017, Jarmon pled guilty to four
counts of attempted murder and other associated offenses in
connection with a gang-related drive-by shooting that injured
two children on October 4, 2016. On December 21, 2017, the
court sentenced Jarmon to 35 years in prison, which included
two consecutive five-year drive-by shooting firearm
specifications. On direct appeal, this court held that the
sentence violated R.C. 2929.14(B)(1)(c)(iii), which
"limits imposing a single five-year sentence on the
'drive-by' specification when the underlying offenses
are based on the same act or transaction." State v.
Jarmon, 8th Dist. Cuyahoga No. 106727, 2018-Ohio-4710,
4} Specifically, this court found as follows:
"the record indicates that Jarmon 'rolled down the
window and fired over five shots towards [the alleged rival
gang members.]' Accordingly, we conclude that the
multiple shots fired at the rival gang members were the same
transaction." Id. at ¶ 28. This court
remanded the case to the trial court for "vacation of
one of the five-year drive-by specifications."
Id. at ¶ 35.
5} On January 24, 2019, the trial court issued a
journal entry on remand, the pertinent parts of which follow.
This court hereby vacates the imposition of the consecutive
sentence as to only the 5 year firearm specification (ORC
2941.146) in count 16. Thus, the sentence re-calculation
after execution of the judgment pursuant to opinion 18-106727
is as follows: * * * The court imposes a prison sentence * *
* of 30 year(s). * * * Count 16: * * * The 5 year firearm
specification merges with the 5 year firearm specification in
count 2. * * *.
6} It is from this journal entry that Jarmon
7} Jarmon argues that the court erred by failing to
hold a hearing before issuing the journal entry regarding his
"modified sentence." As Jarmon claims in his
appellate brief, "[t]his appeal chiefly concerns the
legal issue of a defendant's right to be present at all
stages of a criminal proceeding, regardless of how
inconsequential the impending court action may seem."
8} Jarmon supports his argument by citing Crim.R.
43(A), which states in part that "the defendant must be
physically present at every stage of the criminal proceeding
and trial, including * * * imposition of sentence * *
*." The Ohio Supreme Court recently addressed this issue
in State ...