[Cite as State v. Roberson,
2021-Ohio-4016.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110356
v. :
WILLIAM K. ROBERSON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: November 10, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-20-651559-A and CR-20-651560-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Callista Plemel, Assistant Prosecuting
Attorney, for appellee.
Marein & Bradley and Michael I. Marein, for appellant.
KATHLEEN ANN KEOUGH, J.:
Defendant-appellant, William K. Roberson (“Roberson”), appeals his
sentence. For the reasons that follow, we affirm.
I. Background
Roberson was indicted in a four-count indictment in Cuyahoga C.P. No.
CR-20-651559 as follows: Count 1, having weapons while under disability in
violation of R.C. 2923.13(A)(2); Count 2, improperly handling firearms in a motor
vehicle in violation of R.C. 2923.16(B); Count 3, carrying a concealed weapon in
violation of R.C. 2923.12(A)(2); and Count 4, receiving stolen property in violation
of R.C. 2913.51(A). He was indicted in Cuyahoga C.P. No. CR-20-651560 on one
count of domestic violence in violation of R.C. 2919.25(A).
Roberson reached a plea agreement with the state and pleaded guilty in
CR-20-651559 to Count 2, improperly handling firearms in a motor vehicle, a
fourth-degree felony; and Count 4, receiving stolen property, a felony of the fifth
degree. The remaining counts were dismissed. He pleaded guilty in CR-20-651560
to an amended count of breaking and entering in violation of R.C. 2911.13(B), a fifth-
degree felony.
At sentencing, the trial court found that Roberson’s criminal history —
which included seven prior convictions — his substance abuse, and his access to
firearms raised concerns for the safety of the community. (Tr. 9.) Nevertheless,
after noting that Roberson had not been to prison before, the judge sentenced him
to one year of community control sanctions on each count, beginning with a term at
a community-based correctional facility (“CBCF”) upon a determination that he was
eligible to be placed there. The judge told Roberson:
So you’re going to be placed on community control sanctions, but
you’re going to start at the CBCF. If you are eligible, you’ll be in the
custody of the county jail. You’re going to be held until there is a bed
available at the CBCF. At that time you’ll be released directly into the
custody of CBCF personnel.
(Tr. 10-11.)
The trial court’s journal entry of sentencing reiterated that Roberson’s
community control sanctions were conditioned upon his eligibility for the CBCF
program. The judgment entry stated in pertinent part:
It is therefore ordered that the defendant is sentenced to one year of
community control on each count, under the supervision of the Adult
Probation Department’s CBCF unit. … Defendant ordered to be
screened for placement into the McDonnell Center community based
correctional facility. The court authorizes a copy of the PSI report be
given to CBCF for purposes of screening, evaluation, and case planning.
If found eligible, and in custody of Cuyahoga County Jail, defendant is
to be held until such time as a bed becomes available at the CBCF, at
which time defendant is to be released into the custody of CBCF
personnel. If found eligible, defendant to successfully complete entire
CBCF program and follow all program and community plan
recommendations. (Emphasis added.)
After sentencing, the court remanded Roberson to the Cuyahoga County Jail
pending determination of his eligibility for the CBCF.
Upon learning that Roberson was ineligible for the CBCF because of a
medical condition, the trial court held another sentencing hearing. The trial court
rejected defense counsel’s assertion that Roberson’s medical condition was not a
violation of his community control sanctions, stating:
Well, the court is not here to determine whether or not Mr. Roberson
has violated a condition of his probation. The only condition that I
required of Mr. Roberson was to be accepted to the CBCF. Since he was
unable to be accepted to the CBCF, the court is going to vacate that
finding of community control sanctions and resentence Mr. Roberson
to what’s appropriate.
(Tr. 18.)
The court resentenced Roberson to 18 months in prison on each count
in CR-20-651559, to be served concurrently, and concurrent to a 12-month term of
imprisonment in CR-20-651560, for a total term of 18 months. The judge stated:
[T]he court is finding that after Mr. Roberson was not eligible for CBCF,
that was the only level of community control sanctions this court felt
adequately protected the community and also supervised Mr.
Roberson in a residential setting. And since he’s ineligible due to the
medical conditions, for the safety of the community, I’m going to send
him to the Lorain Correctional Institution … because I find he’s not
amenable to any other community control sanction.
(Tr. 22.)
This appeal followed.
II. Law and Analysis
Roberson raises four assignments of error. He contends that the trial
court’s resentencing was in error because (1) he had not violated any term of his
community control supervision and therefore, the trial court had no authority to
revoke the sentence; (2) the trial court’s revocation of community control and
imposition of a prison sentence violated his constitutional right against double
jeopardy; (3) the trial court’s failure to give him adequate notice of any claimed
violation of his community control sanctions before the resentencing hearing
violated his due process rights; and (4) his prison sentence was contrary to law
because the trial court did not consider the R.C. 2929.11 and 2929.12 sentencing
factors before imposing a term of imprisonment.
We address assignments of error one, two, and three together because
they are related.
As a general rule, a court has no authority to reconsider its own valid
final judgment. State v. Carlisle, 8th Dist. Cuyahoga No. 93266, 2010-Ohio-3407,
¶ 10, citing Brook Park v. Necak,
30 Ohio App.3d 118, 120,
504 N.E.2d 936 (8th
Dist.1996). In criminal cases, a judgment is not considered final until the sentence
has been ordered into execution. Carlisle at
id.
“Where the full sentence involves imprisonment, the execution of the
sentence is commenced when the defendant is delivered from the temporary
detention facility of the judicial branch to the penal institution of the executive
branch.” Columbus v. Messer, 7 Ohio App.3d 266, 268,
455 N.E.2d 519 (10th
Dist.1982). “In other words, a criminal judgment is not final and the court retains
the authority to modify the sentence until the defendant is delivered to a penal
institution to start serving a sentence.” Carlisle at ¶ 12. Pertinent to this case,
“imprisonment” includes a term in a CBCF. State v. Paige,
153 Ohio St.3d 214, 2018-
Ohio-813,
103 N.E.3d 800, ¶ 12.
In light of the foregoing principles, it is apparent that execution of
Roberson’s sentence of community control supervision at the McDonnell Center had
not yet commenced when the trial court resentenced him to prison. Specifically,
Roberson had not been transferred from the Cuyahoga County Jail (the temporary
detention facility of the judicial branch where he was waiting pending a
determination of his eligibility for a CBCF) to the CBCF where he was to serve his
community based supervision. Because execution of his sentence had not
commenced, the judgment sentencing him to community control sanctions was not
final, and the trial court retained authority to modify the sentence and resentence
him to prison.
Accordingly, whether Roberson had violated the terms of his
community control supervision was not a relevant consideration at the resentencing
hearing, and no due process requirement regarding notice of any alleged violation
of community control sanctions was implicated. Nor did the resentencing hearing
violate Roberson’s constitutional right against double jeopardy. See State v.
McElroy, 8th Dist. Cuyahoga Nos. 104639, 104640, and 104641, 2017-Ohio-1049
(where the defendant was never transported to or placed in the CBCF, the sentence
had not “commenced,” and the prohibition against double jeopardy did not preclude
the trial court from resentencing him to a prison term). The first, second, and third
assignments of error are therefore overruled.
We likewise find no merit to Roberson’s fourth assignment of error,
which asserts that his prison sentence is contrary to law because the trial court did
not consider the sentencing factors set forth in R.C. 2929.11 and 2929.12 before
sentencing him to prison.
When sentencing a defendant for felony offenses, the court must
consider the purpose and principles of sentencing set forth in R.C. 2929.11 and the
seriousness and recidivism factors in R.C. 2929.12. State v. Hodges, 8th Dist.
Cuyahoga No. 99511, 2013-Ohio-5025, ¶ 23. Trial courts are not required to make
factual findings under R.C. 2929.11 or 2929.12, however. State v. White, 8th Dist.
Cuyahoga No. 106580,
2018-Ohio-3414, ¶ 9, citing State v. Kronenberg, 8th Dist.
Cuyahoga No. 101403,
2015-Ohio-1020, ¶ 27. Indeed, consideration of the factors
is presumed unless the defendant affirmatively demonstrates otherwise. State v.
Seith, 8th Dist. Cuyahoga No. 104510,
2016-Ohio-8302, ¶ 12. This court has
consistently found that a trial court’s statement in its sentencing journal entry that
it considered the required statutory factors, without more, is sufficient to fulfill its
obligations under R.C. 2929.11 and 2929.12. White at ¶ 9, citing Kronenberg at ¶ 27.
Before resentencing Roberson, the trial court stated that it had
“considered all the principles and purposes of felony sentencing, all the appropriate
recidivism and seriousness factors.” (Tr. 22.) Likewise, the trial court’s journal
entry of sentencing states that “[t]he court considered all required factors of the
law,” and that “the court finds that prison is consistent with the purpose of R.C.
2929.11.” Thus, it is apparent that the trial court considered the required statutory
factors before sentencing Roberson. We note, however, that the trial court’s
imposition of 18 months in prison — when it had originally sentenced Roberson to
12 months in a CBCF — seems unduly harsh and punitive. Roberson does not raise
that issue, however, and the trial court adequately considered the statutory factors
before sentencing him. The fourth assignment of error is therefore overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending is terminated. Case remanded to
the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
EILEEN A. GALLAGHER, J., CONCUR
