[Cite as State v. Pippen,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY

STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 12CA3526 : vs. : : DECISION AND JUDGMENT DANIEL C. PIPPEN, : ENTRY : Defendant-Appellant. : Released: 05/30/13

APPEARANCES:

James H. Banks, Dublin, Ohio, for Appellant.

Mark E. Kuhn, Scioto County Prosecuting Attorney, and Pat Apel, Assistant Prosecuting Attorney, Portsmouth, Ohio, for Appellee.

McFarland, P.J.

{¶1} Daniel C. Pippen appeals from the sentence imposed by the

Scioto County Court of Common Pleas after he was re-sentenced pursuant to

the remand order issued by this Court in State v. Pippen, 4th Dist. No.

11CA3412,

, hereinafter “Pippen I.”. On appeal, Pippen

(Appellant hereinafter) contends that the trial court erred in re-sentencing

him. Because we find that the trial court was acting pursuant to this Court’s

remand instructions when it re-sentenced Appellant, we conclude that the trial

court properly exercised its jurisdiction, despite the fact that an application for Scioto App. No. 12CA3526 2

reconsideration was pending in this Court. However, because the trial court

incorrectly reduced Appellant’s conviction for possession of criminal tools to

a minor misdemeanor, rather than a first degree misdemeanor in accordance

with our remand instructions, we sustain Appellant’s sole assignment of error.

Accordingly, the decision of the trial court is reversed, in part, and remanded

for further proceedings consistent with this opinion.

FACTS

{¶2} As noted in Pippen I, on October 25, 2010, Officer Steve

Timberlake was unloading items from his vehicle when an unknown male

approached him. The male knew Timberlake by name and told him there

were men from Detroit selling drugs out of Katherine Lansing’s residence at

616 Sixth Street in Portsmouth, Ohio. The next morning, Timberlake found

an anonymous note on his vehicle’s windshield, addressed to him, indicating

there were “D-boys” at the house on Sixth Street, and illegal activity was

occurring at another location in Portsmouth.

{¶3} After determining that Lansing was on probation, Timberlake

contacted Nick Ferrara, the court’s chief probation officer, and discussed the

tip about Lansing. Ferrara noted Lansing’s listed address was not on Sixth

Street, but she had not been reporting to her probation officer and had an

outstanding warrant for her arrest. Based upon new information that placed Scioto App. No. 12CA3526 3

Lansing at 518 Sixth Street only one month earlier, Ferrara decided it would

be prudent to visit the residence and arrest Lansing. Because of Timberlake’s

tip that there may be as many as five additional persons present, who were

allegedly selling drugs, Ferrara requested Timberlake and other officers from

the Portsmouth Police Department assist with the home search for safety

reasons. Timberlake and two other officers accompanied Ferrara and two

probation officers to the residence.

{¶4} Because the specifics of the ultimate entry into the house and

subsequent search are not pertinent to this appeal, we simply note that upon

entering the residence, law enforcement found Daniel Pippen in the upstairs

restroom and Tyrone Dixon, Evan Howard, and Eric Durr in a small upstairs

bedroom. The bedroom had a dresser and a mattress in it, along with a pile of

money on the floor. The money totaled $3,090. At the conclusion of a

contraband search, law enforcement found a total of $16,803, 1,824

oxycodone pills, cocaine, heroin, marijuana, and two digital scales.

{¶5} Pippen along with the others were ultimately convicted of:

Count 1: “Trafficking in Drugs/Oxycodone/Vicinity of a

School/Major Drug Offender.”

Count 2: “Possession of Drugs/Major Drug Offender.” Scioto App. No. 12CA3526 4

Count 3: “Trafficking in Drugs/Heroin/Within the Vicinity of a

School.”

Count 4: “Possession of Drugs/Heroin.”

Count 7: “Trafficking in Drugs/Marijuana/Within the Vicinity of a

School.”

Count 8: “Possession of Criminal Tools.”

Count 9: “Possession of Marijuana.”

Count 10: “Conspiracy to Traffic in Drugs, F2.”

{¶6} The trial court sentenced Pippen to 27 years in prison. The bulk

of Pippen’s sentence consisted of a ten year mandatory sentence on Count 1,

as well as ten year sentence on the mandatory drug offender specification

attached to Count 1. The trial court stated that the sentence for the major drug

offender specification was also mandatory. Several of the offenses were

determined to be allied offenses of similar import and therefore merged for

purposes of sentencing and all of the sentences actually imposed were ordered

to be served consecutively to one another.

{¶7} Pippen appealed his convictions and sentences. In Pippen I, this

Court affirmed in part, reversed in part, and remanded the matter for

resentencing. Specifically, we affirmed Appellant’s convictions and

sentences on Counts 1, 3, 4 and 7. Additionally, although Pippen was not Scioto App. No. 12CA3526 5

actually sentenced on his convictions on Counts 2 and 9, we remanded the

matter with respect to Counts 2 and 9 and instructed the trial court to reduce

the degree of those offenses due to problems identified in the jury forms.

Further, we vacated Appellant’s conviction on Count 8, for which Appellant

was sentenced to a 12 month prison term, and remanded the matter to the trial

court reduce the degree of offense from a fifth degree felony to a first degree

misdemeanor, and to re-sentence Appellant accordingly. Finally, we noted

that the ten year mandatory sentence imposed on Count 1’s major drug

offender specification should not have been characterized as mandatory, and

as a result we remanded the matter for further proceedings.

{¶8} Our decision in Pippen I was released on September 25, 2012.

Subsequently, Appellant filed an application for reconsideration in this Court

on October 5, 2012.1 The trial court re-sentenced Appellant pursuant to our

remand instructions on November 8, 2012. It is from this re-sentencing that

Appellant now brings his timely appeal, assigning a single assignment of

error for our review.

1 This Court issued a decision denying Appellant’s application for reconsideration on January 29,

2013. Scioto App. No. 12CA3526 6

ASSIGNMENT OF ERROR

“I. THE TRIAL COURT ERRED IN RE-SENTENCING THE DEFENDANT.”

LEGAL ANALYSIS

{¶9} In his sole assignment of error, Appellant contends that the trial

court erred in re-sentencing him. Appellant raises three questions under this

assignment of error. First, Appellant questions whether the trial court lacked

jurisdiction to re-sentence him when an application for reconsideration was

pending in the Court of Appeals. Second, Appellant questions whether his

sentence was contrary to law. Finally, Appellant questions whether the trial

court abused its discretion or acted arbitrarily in re-sentencing him.

{¶10} We initially address the question raised by Appellant regarding

the trial court’s jurisdiction to re-sentence him. As set forth above, this Court

issued a decision on September 25, 2012, which affirmed in part and reversed

in part Appellant’s multiple felony convictions and sentences, and remanded

the matter for further proceedings. Ten days later, on October 5, 2012,

Appellant filed an application for reconsideration with this Court, urging us to

reconsider our decision with respect to the issues of constructive possession,

and standing to assert a Fourth Amendment violation as a result of a

warrantless search. The record further reflects that the trial court, pursuant to Scioto App. No. 12CA3526 7

this Court’s remand order, held a re-sentencing hearing on November 8, 2012.

Our decision denying Appellant’s application for reconsideration was

subsequently issued on January 29, 2013.

{¶11} As noted by Appellee in its brief on appeal, Appellant fails to

cite any authority for the proposition that the trial court lacked jurisdiction to

re-sentence him pursuant to a remand order by this Court when an application

for reconsideration was pending at the appellate level, nor has this Court been

able to locate any authority. However, generally speaking, “[a] challenge to a

trial court's jurisdiction is reviewed de novo upon appeal.” In re J.M., 3rd Dist.

No. 16-12-01,

; citing In re L.B., L.B., A.F., 9th Dist.

No. 26034,

. “Under the de novo standard of review, the

appellate court may substitute, without deference, its judgment for that of the

trial court.” In re J.M. at ¶ 15; citing Arnett v. Precision Strip, Inc., 3d Dist.

No. 2-11-25,

,

, ¶ 10; citing Castlebrook, Ltd.

v. Dayton Properties Ltd. Partnership,

,

(2nd Dist. 1992)

{¶12} App.R. 22 governs entries of judgment and provides that a

judgment becomes effective when entered by the clerk on the journal. App.R.

26(A) governs applications for reconsideration and fails to provide any

guidance as to the trial court’s jurisdiction once an application for Scioto App. No. 12CA3526 8

reconsideration is filed in the appellate court. Additionally, App.R. 27

provides that “[a] court of appeals may remand its final decrees, judgments,

or orders, in cases brought before it on appeal, to the court or agency below

for specific or general execution thereof, or to the court below for further

proceedings therein.” Thus, read together, we find no express prohibition

against the trial court’s exercise of jurisdiction in re-sentencing Appellant,

pursuant to our remand order, despite the fact that an application for

reconsideration had been filed and was still pending at the time of the re-

sentencing hearing.

{¶13} Further, it could be argued that the trial court had no discretion to

do anything except re-sentence Appellant according to this Court’s remand

order. In re J.M. at ¶ 17; quoting Nolan v. Nolan,

,

(1984) (stating that according to the doctrine of the law of the

case, a lower court is compelled to “follow the mandates of reviewing

courts.”). Finally, as noted by the court in In re J.M. at ¶ 17:

“The Supreme Court of Ohio has stated, that ‘where at a rehearing

following remand a trial court is confronted with substantially the same

facts and issues as were involved in the prior appeal, the court is bound

to adhere to the appellate court's determination of the applicable law.

Moreover, the trial court is without authority to extend or vary the Scioto App. No. 12CA3526 9

mandate given.’ [Nolan v. Nolan] at 3-4,

(citations

omitted).”

Accordingly, we find no merit to this portion of Appellant’s argument.

{¶14} Appellant next argues that the sentences imposed at his re-

sentencing hearing were contrary to law and that the trial court abused its

discretion in imposing them. Appellant specifically argues that the overall

length of the sentences imposed upon Appellant should have been reduced by

more than what they were, pointing out that Appellant’s aggregate sentence

was only reduced from 27 to 26 years. Appellant further argues that the

imposition of consecutive sentences was an abuse of discretion, and that the

trial court specifically erred in re-sentencing him on Count 8 (possession of

criminal tools).

{¶15} When reviewing felony sentences, this Court follows the two-

step approach the Supreme Court of Ohio outlined in State v. Kalish,

,

,

. See State v. Welch,

4th Dist. No. 08CA29,

, ¶ 6. “First, [we] must examine the

sentencing court’s compliance with all applicable rules and statutes in

imposing the sentence to determine whether the sentence is clearly and

convincingly contrary to law. If this first prong is satisfied, [that is, if the Scioto App. No. 12CA3526 10

sentence complies with the law,] the trial court’s decision shall be reviewed

under an abuse-of-discretion standard.” Kalish at ¶ 4.

{¶16} We begin our analysis by examining the decision issued after

Appellant’s direct appeal of this matter. In Pippen I, we affirmed the trial

court’s decision with respect to Appellant’s convictions on Count 1

(aggravated trafficking in drugs), Count 3 (trafficking in heroin), Count 4

(possession of heroin), and Count 7 (trafficking in marijuana). Pippen I at ¶

85. However, we reversed the ten year mandatory sentence imposed by the

trial court on the R.C. 2925.03(C)(1)(f) major drug offender specification

attached to Count 1, reasoning that the while the ten year sentence was within

the statutory range, the sentence itself was not mandatory, and thus was an

abuse of discretion by the trial court. Pippen I at ¶ 27. We further found as

follows with respect to the remaining counts:

Count 2 (possession of drugs): remanded to reduce from a first degree felony to a minor misdemeanor, but noted there would be no change in sentence as Count 2 was merged with Count 1 for purposes of sentencing. Pippen I at ¶ 90.

Count 8 (possession of criminal tools): vacated 12 month sentence and remanded to reduce from a fifth degree felony to a first degree misdemeanor. Pippen I at ¶ 92.

Count 9 (possession of Scioto App. No. 12CA3526 11

marijuana): remanded to reduce to a minor misdemeanor, but noted there would be no change in sentence as Count 9 was merged with Count 7 for purposes of sentencing. Pippen I at ¶ 93.

Count 10 (conspiracy): noted that there was no actual conviction to vacate as Count 10 was merged with Counts 1 and 2 for purposes of sentencing. Pippen I at ¶ 56.

Thus, a review of Pippen I indicates that trial court was only instructed to re-

sentence Appellant on the major drug offender specification, for which the

trial court imposed a ten year mandatory sentence, as well as on Count 8,

possession of criminal tools, for which the trial court imposed a 12 month

prison term.

{¶17} As set forth above, pursuant to this Court’s remand order in

Pippen I, the trial court held a re-sentencing hearing on November 8, 2012.

In accordance with our remand order, the trial court re-sentenced Appellant

on the major drug offender specification, again imposing a ten year sentence.

However, in imposing the ten year sentence, the trial court stated that it was

non-mandatory. At the sentencing hearing, the trial court stated on the record

that it had considered the record, oral statements and principles and purposes

of sentencing under R.C. 2929.11, 2929.12, and 2929.13 in imposing

sentence. Further, as noted in Pippen I at ¶ 24, a ten year sentence was within Scioto App. No. 12CA3526 12

the permissible range. Thus, we cannot conclude that the trial court’s

sentence was contrary to law.

{¶18} Additionally, as explained in Pippen I at ¶ 24 , “the trial court

was permitted to impose an additional prison term of ten years for the major

drug offender specification, but the statutory language did not make the

additional prison term mandatory.” As such, imposition of the ten year

maximum was within the discretion of the trial court and the trial court

properly exercised its discretion in imposing this sentence. Further, there was

no reduction in Appellant’s aggregate sentence by virtue of his re-sentencing

on the major drug offender specification. Because the trial court specified on

the record at the re-sentencing hearing that the ten year sentence it was

imposing was non-mandatory, which was in complete accord with our remand

instructions, we find no abuse of discretion on the part of the trial court with

respect to this portion of Appellant’s re-sentencing.

{¶19} Appellant next contends that the trial court erred in re-sentencing

him with respect to Count 8, possession of criminal tools, in violation of R.C.

2923.24(A). For the following reasons, we agree. In Pippen I, with respect to

Count 8, we concluded that “the verdict form was devoid of the level of the

offense findings or aggravating factors” and therefore that Appellant could

only be convicted of the “the least degree of the offense charged: a first Scioto App. No. 12CA3526 13

degree misdemeanor.” Pippen I at ¶ 92. As such, we vacated Appellant’s

conviction. Id.

{¶20} However, on remand, instead of reducing Count 8 to a first

degree misdemeanor, the trial court reduced Count 8 to a minor misdemeanor

and sentenced Appellant to a six month jail sentence. First, Count 8 was

improperly reduced to a minor misdemeanor. Second, a jail term may not be

imposed for a minor misdemeanor. Third, the maximum term that may be

imposed for a first degree misdemeanor is 180 days, not six months. State v.

Pierce, 4th Dist. No. 10CA10,

(stating that “six months

is not the same as one hundred eighty days because each month has a

different number of days.”) (internal citations omitted).

{¶21} In light of the foregoing and applying the test set forth in

we conclude that the sentence imposed with respect to Count 8 is

contrary to law. As such, we sustain this portion of Appellant’s argument.

Accordingly, this portion of Appellant’s sentence is vacated and the matter is

remanded to the trial court once again for further proceedings consistent with

this opinion.

{¶22} Finally, we briefly address Appellant’s contention that the trial

court erred and abused its discretion in imposing consecutive sentences. We

initially note that Appellant’s sentences were ordered to be served Scioto App. No. 12CA3526 14

consecutively the first time he was sentenced, and the majority of his

convictions and sentences were affirmed in his first direct appeal. Appellant

did not challenge the consecutive nature of his sentences as part of his first

appeal of this matter. Thus, this issue is arguably barred by res judicata.

{¶23} Further, Appellant’s re-sentencing was ordered as part of a

limited remand. The only actual issues on remand related to 1) the reduction

of Counts 2 and 9, which had already merged for purposes of sentencing; 2)

the reduction of Count 8 and re-sentencing, which resulted in a new

concurrent, not consecutive sentence, but which we already vacated, supra;

and 3) re-sentencing on the additional prison term associated with major drug

offender specification. None of these issues related to the consecutive nature

of Appellant’s sentences that were originally imposed.

{¶24} However, in an effort to address Appellant’s argument on the

merits, we will review the trial court’s adherence to the requirements for

imposing consecutive sentences. As noted by the First District Court of

Appeals, as a result of H.B. 86's recent enactment, we now have another

consideration when determining whether consecutive sentences imposed by a

trial court are contrary to law. State v. Alexander, 1st Dist. Nos. C-110828, C-

110829,

. For example, in Alexander, the court reasoned

as follows at ¶ 13-14: Scioto App. No. 12CA3526 15

“The General Assembly has ‘revived the requirement that trial

courts make findings before imposing consecutive sentences in

R.C. 2929.14(C).’ State v. Jones, 1st Dist. No. C-110603, 2012-

Ohio-2075, ¶ 17; see also State v. Hites, 3rd Dist. No. 6-11-07,

; State v. Bonner, 8th Dist. No. 97747,

(‘The revisions * * * now require a trial

court to make specific findings when imposing consecutive

sentences.’); State v. Sullivan, 10th Dist. No. 11AP-414, 2012-

Ohio-2737, ¶ 24. Our determination of whether a trial court has

adhered to the applicable requirements of R.C. 2929.14(C)(4) in

imposing consecutive sentences is also subject to review under

the first prong of Kalish and under R.C. 2953.08(G)(2). See

Kalish,

,

,

.” See also, State v. Midlam, 4th Dist. No. 12CA2, 2012-

Ohio-6299, ¶ 8.

{¶25} H.B. No 86 amended subsection (E)(4) of R.C. 2929.14 [now

subsection (C)(4) ], effective September 30, 2011, which is applicable herein,

and states as follows:

(C)(4) If multiple prison terms are imposed on an offender for

convictions of multiple offenses, the court may require the Scioto App. No. 12CA3526 16

offender to serve the prison terms consecutively if the court finds

that the consecutive service is necessary to protect the public

from future crime or to punish the offender and that consecutive

sentences are not disproportionate to the seriousness of the

offender's conduct and to the danger the offender poses to the

public, and if the court also finds any of the following:

(a) The offender committed one or more of the multiple offenses

while the offender was awaiting trial or sentencing, was under a

sanction imposed pursuant to section 2929.16, 2929.17, or

2929.18 of the Revised Code, or was under post-release control

for a prior offense.

(b) At least two of the multiple offenses were committed as part

of one or more courses of conduct, and the harm caused by two

or more of the multiple offenses so committed was so great or

unusual that no single prison term for any of the offenses

committed as part of any of the courses of conduct adequately

reflects the seriousness of the offender's conduct.

(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from

future crime by the offender. Scioto App. No. 12CA3526 17

{¶26} Thus, as explained by the Alexander court at ¶ 15, “R.C.

2929.14(C)(4) now requires that a trial court engage in a three-step analysis in

order to impose consecutive sentences.” Further, “[i]n each step of this

analysis, the statutory language directs that the trial court must ‘find’ the

relevant sentencing factors before imposing consecutive sentences. R.C. 2929

.14(C)(4)” Alexander at ¶ 16.

{¶27} Here, the trial court made the necessary findings to support the

imposition of consecutive sentences both on the record at the re-sentencing

hearing, and in its sentencing entry. We further find that the record supports

the trial court’s findings. Accordingly, we find no error or abuse of discretion

on the part of the trial court in the imposition of consecutive sentences.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART AND CAUSE REMANDED. Scioto App. No. 12CA3526 18

JUDGMENT ENTRY

It is ordered that the trial court’s JUDGMENT BE AFFIRMED IN PART AND REVERSED IN PART and that the CAUSE IS REMANDED. Appellant and Appellee shall split the costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Scioto County Common Pleas Court to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

Hoover, J.: Concurs in Judgment and Opinion. Abele, J.: Concurs in Judgment Only.

For the Court,

BY: _________________________

Matthew W. McFarland Presiding Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.