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State v. Franklin

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
Jun 12, 2017
2017 Ohio 5551 (Ohio Ct. App. 2017)

Opinion

Case No. 2016CA00083

06-12-2017

STATE OF OHIO Plaintiff-Appellee v. DONALD FRANKLIN Defendant-Appellant

APPEARANCES: For Plaintiff-Appellee JOHN D. FERRERO, Prosecuting Attorney, Stark County, Ohio By: RONALD MARK CALDWELL Assistant Prosecuting Attorney Appellate Section 110 Central Plaza S., Suite 510 Canton, Ohio 44702 For Defendant-Appellant WAYNE E. GRAHAM, JR. 4450 Belden Village St., N.W. Suite 703 Canton, Ohio 44718


JUDGES: Hon. W. Scott Gwin, P.J. Hon. William B. Hon. John W. Wise, J.

OPINION

CHARACTER OF PROCEEDING: Appeal from the Strark County Common Pleas Court, Case No. 2003CR1311 JUDGMENT: Reversed and Remanded APPEARANCES: For Plaintiff-Appellee JOHN D. FERRERO,
Prosecuting Attorney,
Stark County, Ohio By: RONALD MARK CALDWELL
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza S., Suite 510
Canton, Ohio 44702 For Defendant-Appellant WAYNE E. GRAHAM, JR.
4450 Belden Village St., N.W.
Suite 703
Canton, Ohio 44718 Hoffman, J.

{¶1} Defendant-appellant Donald Franklin appeals the April 21, 2016 Judgment Entry entered by the Stark County Court of Common Pleas, which resentenced him pursuant to R.C. 2929.191. Plaintiff-appellee is the state of Ohio.

STATEMENT OF THE CASE

A rendition of the facts is unnecessary for the resolution of this appeal. --------

{¶2} In 2003, Appellant was convicted and sentenced on attempted murder and aggravated burglary. This Court affirmed those convictions and sentence on direct appeal in 2004. State v. Franklin, 5th Dist. Stark No. 2003CA00442, 2004-Ohio-5398.

{¶3} In 2016, Appellant filed a "Motion to Vacate Void Judgment," arguing post-release control was improperly imposed and the offenses should have merged pursuant to 2941.25.

{¶4} The trial court sustained Appellant's motion as to the first prong and conducted a video-conference resentencing on April 1, 2016. The trial court denied the second prong via Judgment Entry filed April 19, 2016.

{¶5} Appellant filed a pro se Notice of Appeal on April 25, 2016, and May 2, 2016, indicating his challenge to both the resentencing and the denial of his allied offenses claim.

{¶6} On June 6, 2016, the trial court appointed appellate counsel for Appellant only as to his challenge to resentencing.

{¶7} Appellant assigns as error:

I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN FAILING TO APPOINT COUNSEL FOR THE RESENTENCING HEARING.

II. TRIAL COURT ERRED AS A MATTER OF LAW IN FAILING TO APPOINT COUNSEL FOR APPEAL OF THE TRIAL COURT'S DENIAL OF APPELLANT'S MOTION TO VACATE A VOID SENTENCE AS IT PERTAINED TO ALLIED OFFENSES.

I.

{¶8} In his first assignment of error, Appellant contends his right to counsel was violated during the video conference resentencing on April, 1, 2016. The record does not indicate counsel was afforded to Appellant at resentencing, nor does the record indicate Appellant waived his right to counsel. Appellant argues his constitutional right to counsel was violated based upon the Ohio Supreme Court's decision in State v. Schleiger, 141 Ohio St.3d 67, 2014-Ohio-3970.

{¶9} The state concedes the validity of Appellant's argument and we agree.

{¶10} Appellant's first assignment of error is sustained.

II.

{¶11} Based upon our disposition of Appellant's first assignment of error, we find analysis of this assignment of error premature and can be addressed by the parties with the trial court upon remand.

{¶12} That portion of the sentence entered by the trial court regarding post-release control contained within its April 21, 2016 Judgment Entry is vacated and the case is remanded to that court for further proceedings. By: Hoffman, J. Gwin, P.J. and Wise, John, J. concur


Summaries of

State v. Franklin

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
Jun 12, 2017
2017 Ohio 5551 (Ohio Ct. App. 2017)
Case details for

State v. Franklin

Case Details

Full title:STATE OF OHIO Plaintiff-Appellee v. DONALD FRANKLIN Defendant-Appellant

Court:COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

Date published: Jun 12, 2017

Citations

2017 Ohio 5551 (Ohio Ct. App. 2017)