[Cite as State v. Future,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96997

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

DARWIN FUTURE DEFENDANT-APPELLANT

JUDGMENT: REVERSED AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-505815

BEFORE: Celebrezze, P.J., Cooney, J., and E. Gallagher, J.

RELEASED AND JOURNALIZED: May 24, 2012 ATTORNEYS FOR APPELLANT

Robert L. Tobik Cuyahoga County Public Defender BY: John T. Martin Assistant Public Defender 310 Lakeside Avenue Suite 200 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor BY: Katherine Mullin Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 FRANK D. CELEBREZZE, JR., P.J.:

{¶1} Appellant, Darwin Future, alleges that

the trial court’s plea colloquy was constitutionally inadequate when it failed to advise appellant that his right against self-incrimination included a constitutional protection against any adverse comment being made about, or adverse inference drawn from, the exercise of his right not to testify at trial.

However, because the trial court lacked jurisdiction to grant appellant’s motion for

resentencing, we reverse the trial court’s entry filed June 8, 2011, remand this cause to the

trial court with instructions to vacate this entry, and reinstate the April 30, 2008

sentencing entry.

{¶2} Appellant pled guilty to two counts of felonious assault with three-year

firearm specifications and having a weapon under disability on April 7, 2008. He was

originally sentenced on April 30, 2008 to an aggregate prison term of 15 years. At

sentencing, the trial court failed to advise appellant of his appellate rights. As a result of

this lapse, three years later, appellant filed a motion for resentencing on April 18, 2011.

The state did not oppose the motion, and a resentencing hearing was conducted to restart

the period appellant had to perfect an original appeal.

{¶3} Appellant did just that, claiming the above-cited error. However, he did not

seek leave to file a delayed appeal with this court and did not file a motion for

postconviction relief based on the failure of the trial court to advise him of his appellate

rights under Crim.R. 32. {¶4} Last year, this court addressed a very similar case with a slightly different

procedural posture, State v. Barr, 8th Dist. No. 96907,

. In that case, the

trial court denied Barr’s motion for resentencing filed four years after his original

sentence was imposed, claiming the trial court failed to advise him of his appellate rights.

This court affirmed the denial and further held that because the original sentence was a

final order, “the trial court lack[ed] jurisdiction to resentence Barr pursuant to a ‘motion

for resentencing.’” Id. at ¶ 9.

{¶5} As set forth in State v. Gover,

,

(1995),

the appropriate remedy is first to seek leave to file a delayed appeal with this court and, if

unsuccessful, to then file a motion for postconviction relief through R.C. 2953.21 with the

trial court.

{¶6} Appellant cites State v. Hunter, 8th Dist. No. 92626,

, as

controlling precedent. That case is similar to the present situation with one important

distinction. At the time his appeal was decided, Hunter’s sentence was considered void

for lack of proper imposition of postrelease control. Id. at ¶ 9, 16. The sentence was not

a final order and could be modified by the trial court. In the case before us, we have a

sentence that constitutes a final order that cannot be modified absent some jurisdictional

basis. State v. Carlisle,

,

,

.

{¶7} The trial court lacked jurisdiction to vacate a final order of sentence without a

postconviction relief petition. Its attempt to reinstate the time period to perfect an appeal

was void. {¶8} Judgment reversed, and the cause is remanded to the trial court with

instructions to vacate its June 8, 2011 entry and reinstate its April 30, 2008 entry.

It is ordered that appellant recover of said appellee 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.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

COLLEEN CONWAY COONEY, J., and EILEEN A. GALLAGHER, J., CONCUR