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State v. Jarmon

Court of Appeals of Ohio, Eighth District, Cuyahoga

January 16, 2020

STATE OF OHIO, Plaintiff-Appellee,
v.
JUSTIN JARMON, Defendant-Appellant.

          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, for appellee.

          Prugh 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 our review:

I. The trial court erred in failing to hold a hearing for appellant Justin Jarmon to attend to impose his modified sentence.

         {¶ 2} Having reviewed the record and pertinent law, we affirm the trial court's judgment. The apposite facts follow.

         {¶ 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, ¶ 27.

         {¶ 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 appeals.

         {¶ 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 ...


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