[Cite as State v. Lett,

.] STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO. 09 MA 131 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) MARK S. LETT ) ) DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Youngstown Municipal Court of Mahoning County, Ohio Case Nos. 07TRD4978; 07TRD8037

JUDGMENT: Reversed and Modified.

APPEARANCES:

For Plaintiff-Appellee: Atty. Joseph Macejko Youngstown City Prosecutor 26 S. Phelps Street Youngstown, Ohio 44503

For Defendant-Appellant: Atty. James E. Lanzo 4126 Youngstown-Poland Road Youngstown, Ohio 44503

JUDGES:

Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Joseph J. Vukovich

Dated: June 25, 2010

WAITE, J. -2-

{¶1} Appellant Mark S. Lett is appealing the denial of a motion to modify his

sentence in the Youngstown Municipal Court. The motion is being treated on appeal

as the denial of a petition for postconviction relief. Appellant was sentenced to 180

days in jail in Youngstown Municipal Court Case No. 07TRD4978. After a failed

appeal of that judgment, the trial court modified the sentence and ordered Appellant

to serve 100 days in jail concurrent with the 60-day jail sentence ordered in another

matter, Case No. 07TRD8037. Appellant served 12 days of the sentence when the

sentence was again stayed on appeal. The stay was later lifted. When it became

time to serve the remainder of the sentence, the court held an execution of sentence

hearing and ordered Appellant to serve 180 days in jail. Appellant filed this appeal

challenging the extra 80 days of jail time. The record contains no explanation as to

why the 100-day sentence was subsequently increased to 180 days. Because

Appellant’s sentence had been reduced to 100 days in jail, and Appellant had already

served part of the sentence when the court attempted to increase the sentence to

180 days, the decision of the trial court increasing the sentence to 180 days is hereby

reversed and the 100-day jail term is reinstituted.

{¶2} Appellee has not responded to this appeal. The record indicates that

on June 11, 2007, Appellant was cited for speeding, driving under suspension, and a

seat belt violation in Case No. 07TRD4978. On September 26, 2007, he entered into

a Crim.R. 11 plea agreement. He pleaded no contest to driving under suspension,

R.C. 4510.16, a first degree misdemeanor. The other two charges were dismissed.

Sentencing was scheduled for November 9, 2007. -3-

{¶3} On October 24, 2007, Appellant was cited for driving under suspension,

operating a motor vehicle without a license, and failure to signal in Case. No.

07TRD8037.

{¶4} On November 9, 2007, in Case No. 07TRD4978, the court sentenced

Appellant to 180 days in jail.

{¶5} On November 9, 2007, Appellant filed an appeal in Case No.

07TRD4978. The appeal was dismissed for failure to prosecute on April 18, 2008.

{¶6} On February 15, 2008, Appellant entered into a Crim.R. 11 plea

agreement in Case No. 07TRD8037. He pleaded no contest to operating a motor

vehicle without a license, R.C. 4510.12, a first degree misdemeanor, and the other

two charges were dismissed. Sentencing was scheduled for April 23, 2008, but

Appellant filed an appeal and sentencing was postponed. On December 9, 2008, the

appeal was dismissed for failure to prosecute.

{¶7} On February 26, 2009, the court held a sentencing hearing on both

cases. The court modified the sentence in Case No. 07TRD4978 to 100 days in jail,

and in Case No. 07TRD8037 the court imposed a 60-day jail sentence, to be served

concurrently. The court ordered Appellant to report to the jail on March 6, 2009.

{¶8} On March 4, 2009, Appellant filed another appeal, designated as

Appeal No. 09 MA 46. Appellant filed a stay of execution with the trial court, but the

stay was denied. Appellant began serving his 100-day jail term in Case No.

07TRD4978 on March 6, 2009. On March 18, 2009, we granted a stay of execution

of the jail sentence in Case No. 07TRD4978. Appellant had served 12 days of his jail

sentence. We vacated the stay on May 29, 2009. -4-

{¶9} On June 8, 2009, the trial court held an execution of sentence hearing

in Case No. 07TRD4978. The court ordered Appellant to serve 180 days in jail to be

executed concurrently with the sentence in Case No. 07TRD8037. Appellant did not

appeal this judgment entry.

{¶10} On July 14, 2009, Appellant filed a motion to modify his sentence. The

trial court denied the motion on August 5, 2009. Appellant filed this appeal on August

6, 2009.

{¶11} On September 8, 2009, this Court issued a judgment entry ordering the

parties to file jurisdictional memos. It was evident from the record that Appellant had

not filed a timely appeal of the June 8, 2009, execution of sentence judgment entry.

The question arose as to whether the order denying the motion to modify sentence

was a final appealable order.

{¶12} On September 23, 2009, we issued a judgment entry holding that

Appellant’s motion to modify sentence would be treated as a petition for

postconviction relief, and that the trial court’s judgment of August 5, 2009, was a final

appealable order. We also granted a stay of execution of the final 80 days of the

180-day sentence imposed in Case No. 07TRD4978.

{¶13} Appellant asserts one assignment of error on appeal. Appellee has not

filed a responsive brief.

ASSIGNMENT OF ERROR

{¶14} “THE TRIAL COURT ERRED BY DENYING APPELLANT’S MOTION

TO MODIFY SENTENCE, AS THE TRIAL COURT LACKED THE AUTHORITY TO -5-

INCREASE APPELLANT’S SENTENCE AFTER THE SENTENCE WAS

EXECUTED.”

{¶15} We previously determined that we would treat Appellant’s motion to

correct sentence as a petition for postconviction relief. “Courts may recast irregular

motions into whatever category necessary to identify and establish the criteria by

which the motion should be judged.” State v. Schlee,

, 2008-

Ohio-545, ¶12.

{¶16} Petitions for post-conviction relief are governed by R.C. 2953.21 and

R.C. 2953.23. Under R.C. 2953.21, relief from a judgment or sentence is available

for a person convicted of a criminal offense who shows that, “there was such a denial

or infringement of the person's rights as to render the judgment void or voidable

under the Ohio Constitution or the Constitution of the United States.” Postconviction

relief petitions are reviewed for abuse of discretion: “Absent a showing of an abuse

of discretion, a reviewing court will not overrule a trial court's findings on a petition for

postconviction relief that are supported by competent and credible evidence.” State

v. Davis (1999),

,

. An abuse of discretion

connotes more than an error of law or judgment; it implies that the court's attitude is

unreasonable, arbitrary, or unconscionable. State v. Adams (1980),

,

.

{¶17} When execution of the sentence has not begun, the trial court

possesses authority to modify the sentence. State v. Evans,

,

. Due primarily to the constitutional right prohibiting double

jeopardy, the trial court loses jurisdiction to amend or modify the sentence once the -6-

sentence has begun to be executed. State v. Carr,

, 2006-

Ohio-3073, ¶3, citing State v. Garretson (2000),

,

; see also, State v. Addison (1987),

,

; State v.

Ballard (1991),

,

; see also, Ex parte Lange

(1873),

,

; United States v. Benz (1931),

,

,

.

{¶18} “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 (1982),

, 7 OBR 347,

. If a trial court could retain jurisdiction to modify an otherwise valid

sentence, “the defendant would have no assurance about the punishment's finality.”

Brook Park v. Necak (1986),

, 30 OBR 218,

.

{¶19} Appellee has not opposed the arguments in this appeal, and thus, there

are no questions raised about the propriety of raising this particular sentencing issue

by means of a petition for postconviction relief rather than on direct appeal of the

sentence. There are also no challenges to the procedural aspects of the filing of the

motion to modify sentence, or to our interpretation that the motion was in effect a

petition for postconviction relief. App.R. 18(C) states: “If an appellee fails to file the

appellee's brief within the time provided by this rule, or within the time as extended, *

* * the court may accept the appellant's statement of the facts and issues as correct -7-

and reverse the judgment if appellant's brief reasonably appears to sustain such

action.”

{¶20} The record reflects that the trial court imposed a 180-day jail term on

November 9, 2007, that the trial court modified the sentence to 100 days on February

6, 2009, and that Appellant subsequently served 12 days of the sentence. Then, on

June 8, 2009, the trial court apparently attempted to reimpose the original 180-day

jail sentence. Since Appellant’s sentence had already been executed because he

had served part of the jail sentence, the 100-day jail term became final and the court

had no authority to modify the sentence by adding 80 extra days. Appellant’s

argument reasonably sustains the conclusion that the trial court should have granted

his motion and should have reduced the 180-day jail sentence to 100 days.

Appellant’s assignment of error is sustained and the decision of the trial court to

increase the sentence from 100 days to 180 days is reversed. The sentence is

hereby modified to reflect that, in Youngstown Municipal Court Case No.

07TRD4978, the trial court imposed a jail term of 100 days in jail to be served

concurrently with the sentence imposed in Youngstown Municipal Court Case No.

07TRD8037.

Donofrio, J., concurs.

Vukovich, P.J., concurs.