[Cite as State v. Roscoe,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 102191

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

ANTHONY ROSCOE, JR. DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-12-563953-A and CR-12-563166-A

BEFORE: E.A. Gallagher, P.J., McCormack, J., and Stewart, J.

RELEASED AND JOURNALIZED: September 24, 2015 ATTORNEY FOR APPELLANT

Stephanie L. Lingle Lingle Legal Services, L.L.C. 850 Euclid Avenue, Suite 1122 Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor BY: Brent Kirvel Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 EILEEN A. GALLAGHER, P.J.:

{¶1} Defendant-appellant Anthony Roscoe, Jr. appeals from the judgment of

conviction entered by the Cuyahoga County Court of Common Pleas

resentencing him on various offenses in accordance with this court’s mandate

in State v. Roscoe, 8th Dist. Cuyahoga No. 99113,

. Roscoe

contends that the trial court erred in resentencing him on a count of having a

weapon while under disability — a count that this court, in Roscoe’s prior

appeal, had vacated his conviction — and that his sentence on that count

should, therefore, be reversed.

Factual and Procedural Background

{¶2} Following a bench trial, Roscoe was found guilty of one count of

kidnapping with firearm and sexual motivation specifications (Count 1), three

counts of rape with firearm specifications (Counts 2-4), two counts of

aggravated robbery with firearm specifications (Counts 5-6) and one count of

having a weapon while under disability (Count 7). Roscoe was sentenced to a

total prison term of 19 years, which included consecutive sentences. Roscoe

appealed his convictions and sentences. On appeal, this court (1) vacated his

convictions for aggravated robbery and having a weapon while under disability

and all of the firearm specifications, concluding that the convictions were not supported by sufficient evidence, and (2) entered judgment against Roscoe on

the lesser-included offense of robbery.

. The case was

remanded to the trial court with instructions to resentence Roscoe pursuant to

R.C. 2911.02(A)(2). Id. at ¶ 43.

{¶3} The convictions that remained after the disposition of Roscoe’s

appeal were one count of kidnapping with sexual motivation specifications

(Count 1), three counts of rape (Counts 2-4) and two counts of robbery (Counts

5-6). At the resentencing hearing on March 5, 2014, the trial court indicated

that Counts 1, 2 and 5 would be merged. The trial court indicated that Roscoe

would receive eight-year prison sentences on Counts 2, 3 and 4, to run

concurrently with each other, five-year prison sentences on Counts 5 and 6, to

run concurrently with each other but consecutive to the eight years imposed

on Counts 2, 3 and 4, and a 12-month prison term on Count 7 to be served

concurrently with the sentences imposed on the other counts, for a total prison

term of 13 years. Although Roscoe’s conviction on Count 7 had been vacated

in his prior appeal, no one raised the issue at the resentencing hearing.

{¶4} Consistent with its oral pronouncements at Roscoe’s resentencing

hearing, in its March 14, 2014 journal entry (the “resentencing journal entry”),

the trial court stated that Count 1 merged with Counts 2 and 5 and imposed

the sentences on Counts 2 through 6 that it indicated it would impose at the

resentencing hearing. No sentence was imposed in the resentencing journal entry as to Count 7. With respect to Count 7, the resentencing journal entry

stated: “On a former day of court, the court found the defendant not guilty of

having weapons while under disability 2923.13 A(2) F3 as charged in Count(s)

7 of the indictment.”

{¶5} Roscoe appeals from the March 14, 2014 resentencing journal entry,

raising the following assignment of error for review:

The trial court erred by resentencing appellant on Count Seven because this court

vacated the conviction for Count Seven in the first appeal.

Law and Analysis

{¶6} In his sole assignment of error, Roscoe contends that the trial court

erred in resentencing him to 12 months in prison on Count 7, having a weapon

while under disability, because this court vacated his conviction on sufficiency

grounds in his prior appeal. Roscoe’s argument is meritless.

{¶7} It is well-established that “‘[a] court of record speaks only though

its journal and not by oral pronouncement or mere written minute or

memorandum.’” State v. Hampton,

,

,

, quoting Schenley v. Kauth,

,

(1953), paragraph one of the syllabus. Crim.R.32(C) reflects this rule,

providing, in relevant part: “A judgment of conviction shall set forth the fact of

conviction and the sentence. * * * A judgment is effective only when entered on the journal by the clerk.” Thus, “‘[a]n oral pronouncement of sentence in open

court does not meet this rule.’” State v. Draughon, 10th Dist. Franklin Nos.

11AP-703 and 11AP-995,

, ¶ 30, quoting State v. Teets, 9th

Dist. Medina No. C.A. 3022-M,

, *4 (Sept. 20, 2000).

Accordingly, it is the trial court’s judgment entry and not the oral

pronouncement of a sentence at a sentencing hearing (or a resentencing

hearing) that is “the effective instrument for sentencing a defendant.” State

v. Rodriguez-Baron, 7th Dist. Mahoning No. 10-MA-176,

(Because a court of record speaks only through its journal entries, “the

judgment entry, not the open court pronouncement of sentence, is the effective

instrument for sentencing a defendant.”).

{¶8} In Draughon, supra, the Tenth District considered an argument

very similar to that raised by Roscoe here. In Draughon, the trial court

granted appellant’s Crim.R. 29 motion for acquittal on an aggravated robbery

count. Draughon, at ¶ 2, 30. At the sentencing hearing, the trial court,

nevertheless, orally imposed a sentence of ten years on that count. Id. at ¶

30. The trial court’s sentencing entry, however, did not impose a sentence on

the dismissed aggravated robbery count. Id. The defendant filed a motion to

vacate his sentence, asserting, in relevant part, that his sentence was void, was

not a final, appealable order and failed to comply with Crim.R. 32(C) because

the sentencing entry failed to properly address the dismissal of the aggravated robbery charge. Id. at ¶ 5. The trial court denied the motion, and the Tenth

District affirmed the trial court’s decision. The Tenth District concluded that

because the sentencing judgment entry did not impose a sentence on the

aggravated robbery count and the trial court “speaks only through its journal,”

the trial court did not err in denying the defendant’s motion to vacate on that

issue. Id. at ¶ 2, 30. A similar conclusion is warranted in this case.

{¶9} Here, as in Draughon, although the trial court orally pronounced a

12-month sentence on Count 7 during the resentencing hearing, it did not

impose that sentence (or any other sentence) on Count 7 in its resentencing

journal entry, i.e., its judgment of conviction under Crim.R. 32(C). Rather,

the trial court correctly indicated in its resentencing journal entry that Roscoe

had not been convicted of having a weapon while under disability as charged

in Count 7. Because the trial court speaks only through its journal and there

is no journal entry resentencing Roscoe on Count 7, Roscoe has not been

resentenced on that count. Draughon at ¶ 30; see also State v. Smith, 1st Dist.

Hamilton Nos. C-080712 and C-090505,

, ¶ 38 (rejecting

argument that trial court erred in imposing sentence for murder that included

postrelease control where although sentencing transcript showed that trial

court improperly advised defendant that he would be subject to postrelease

control during sentencing hearing, the trial court correctly stated in its journal

entry that defendant was not subject to postrelease control); State v. Mercer, 9th Dist. Summit No. 26361,

(overruling assignment

of error based on trial court’s purported improper sentencing of defendant on

allied offenses of similar import where although the trial court, when orally

pronouncing defendant’s sentence at the sentencing hearing, imposed a

sentence on both rape and gross sexual imposition counts, the sentence “was

not ultimately reflected in the [trial] court’s sentencing entry” in which the

trial court ordered the merger of the gross sexual imposition count into the

rape count and imposed a sentence only on the rape count); State v. Stevens,

2d Dist. Montgomery No. 23817,

, ¶ 4 (where defendant

claimed that the trial court erred in orally pronouncing that defendant serve

seven years for both aggravated robbery and kidnapping, appellate court “need

not address any misstatement that may have been made during the sentencing

hearing” because even assuming the trial court failed to merge the convictions

as allied offenses of similar import during the sentencing hearing, the trial

court specifically stated in its judgment of conviction that the two counts

merged); State v. Swiergosz,

,

,

(6th Dist.) (“[A] sentencing court speaks only through its judgment

entry of sentence, not its oral pronouncements. * * * [V]erbal miscues or

misstatements in open court during sentencing are harmless.”).

{¶10} Roscoe’s assignment of error is overruled.

{¶11} Judgment affirmed. It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were not 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.

______________________________________________ EILEEN A. GALLAGHER, PRESIDING JUDGE

TIM McCORMACK, J., and MELODY J. STEWART, J., CONCUR