State v. Baker

Citations

• 2018 Ohio 1865

Syllabus

Defendant was convicted in 2004 of attempted felony murder (Count I) and two counts of felonious assault (Counts II and IV) Counts I and II involved victim 1, and Count IV involved victim 2. After merging Count IV for sentencing, defendant was originally sentenced on Counts I and II, the attempted felony murder and felonious assault on victim 1. In 2017, upon motion by the defendant based on an Ohio Supreme Court case, the trial court vacated the conviction for Count I the court then resentenced defendant on Counts II and IV, stating that its original sentence on Count II was a \scrivener's error\ and should have been on Count IV and that Count II had been merged with Count I. The trial court did not violate double jeopardy when it sentenced defendant on Count IV. The trial court's statement in the original judgment entry that defendant was acquitted of Count IV was a typographical error the jury had found defendant guilty of Count IV and the trial court stated at the original sentencing that it was merging that count for sentencing as an allied offense of similar import. The trial court's imposition of sentence on Count II at the original sentencing was not a \scrivener's error.\ Although the trial court may have intended to sentence the defendant on Count IV (felonious assault on victim 2) and merge Count II (felonious assault on victim 1), the court orally imposed sentence on Count II and expressly stated that Count IV would be merged. Even if erroneous, that sentence was not challenged on direct appeal, was now final, and could not be changed upon resentencing. And, because the trial court apparently merged Count IV into Count II at the original sentencing hearing, the trial court lacked authority in 2017 to impose a sentence on Count IV upon vacating Count I. Judgment reversed, and case remanded for an amended judgment entry consistent with this Opinion.