State v. Cherry

S
[Cite as State v. Cherry, 2021-Ohio-1473.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                         C.A. No.       29732

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
ELLIOTT J. CHERRY                                     COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR-2001-05-1091

                                 DECISION AND JOURNAL ENTRY

Dated: April 28, 2021



        HENSAL, Presiding Judge.

        {¶1}     Elliott Cherry appeals from the judgment of the Summit County Court of Common

Pleas. This Court affirms

                                                 I.

        {¶2}     This is the third time this case has been before this Court. In our most recent

decision, this Court set forth the procedural background of this case as follows:

        In 2001, a jury found Mr. Cherry guilty of one count of child endangering and one
        count of murder. Although finding that the counts should merge, the trial court
        sentenced him to eight years on the child endangering count and fifteen years to life
        on the murder count. It ordered the sentences to run concurrently. Mr. Cherry
        appealed his convictions and sentence, but this Court upheld the trial court’s
        judgment. State v. Cherry, 9th Dist. Summit No. 20771, 2002-Ohio-3738.
        [(“Cherry I”)]

        In March 2019, Mr. Cherry moved to vacate his sentence, arguing that it is void
        because it imposed separate sentences for allied offenses. The trial court denied
        Mr. Cherry’s motion because it concluded that his argument was barred under the
        doctrine of res judicata.
                                                   2


State v. Cherry, 9th Dist. Summit No. 29369, 2019-Ohio-4445, ¶ 2-3 (“Cherry II”). Mr. Cherry

appealed the trial court’s denial of his motion to vacate his sentence in Cherry II. This Court

analyzed Revised Code Section 2941.25 regarding allied offenses of similar import, as well as the

Ohio Supreme Court’s decision in State v. Williams, 

148 Ohio St. 3d 403

, 2016-Ohio-7658, which

interpreted that statute. We explained that,

        [i]n Williams, the trial court determined at the sentencing hearing that one count of
        murder and two counts of aggravated murder merged into one of the aggravated
        murder counts. In its sentencing entry, however, it imposed a sentence for each of
        the counts and ordered them to run concurrently. Although the court also wrote in
        its entry that the counts “merged into” one of the aggravated murder counts, the
        Ohio Supreme Court determined that there was error because the “imposition of
        concurrent sentences is not the equivalent of merging allied offenses.”

Id. at ¶ 7,
19,

quoting State v. Damron, 

129 Ohio St. 3d 86

, 2011-Ohio-2268, ¶ 17.

Id. at ¶ 6.

        {¶3} 

  This Court then compared Mr. Cherry’s case to Williams, stating that:

        [s]imilar to Williams, the trial court in this case found at the sentencing hearing that
        the endangering-children count merged with the murder count. It stated that,
        although it “[was] not sure that there is any need to impose the 8 year sentence [for
        the endangering-children count], * * * the Court will do that.” In its sentencing
        entry, the court imposed both an eight-year sentence for the endangering children
        count and a sentence of 15 years to life for the murder count. It wrote that the
        “sentences are concurrent for the reason that they are merged[.]” As the Ohio
        Supreme Court explained in Williams, however, concurrent sentences and merged
        sentences are not equivalent.

Id.

Id. at ¶

7. We then addressed the conclusion in Williams that, “because the imposition of separate

sentences for merged offenses ‘is contrary to law’ under Section 2941.25(A), ‘those sentences are

void[,]’” and may be reviewed at any time. Cherry II at ¶ 8, quoting Williams at ¶ 28. Following

Williams, we concluded that Mr. Cherry’s sentence for endangering children was void, and that

the trial court erred by denying his motion to vacate the void sentence on the basis of res judicata.

Id. at ¶ 9.

We then reversed Mr. Cherry’s judgment of conviction and remanded the matter for a
                                                3


new sentencing hearing at which the State was required to elect which allied offense it would

pursue against Mr. Cherry.

Id.

{¶4}

   On remand, the trial court held a new sentencing hearing. Attorney Noah Munyer

appeared on behalf of the defense; Mr. Cherry was not present. On appeal, Mr. Cherry asserts that

Attorney Michael Partlow (who is his attorney on appeal) was his counsel of record at that time,

yet neither he (Mr. Cherry) nor his counsel received notice of the hearing.

       {¶5}    At the resentencing hearing, the State addressed this Court’s remand in Cherry II,

and elected that Mr. Cherry be sentenced on the murder count (i.e., count 4 of the indictment). The

State explained that the trial court had no discretion as to the sentence it could impose for that

count, and that, under State v. Robinson, 9th Dist. Summit No. 28488, 2017-Ohio-7380, it could

simply issue an order vacating the sentence for the child endangering count (i.e., count 3 of the

indictment). Attorney Munyer agreed, noting that he did not think it was necessary for the trial

court to hold a full resentencing hearing since Mr. Cherry’s sentence was not going to change. The

trial court then concluded that Mr. Cherry’s sentence for child endangering was void, and that his

15-years-to-life sentence for murder would stand.

       {¶6}    Mr. Cherry now appeals, raising two assignments of error for this Court’s review.

We will address Mr. Cherry’s assignments of error together.

                                                II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED, AS A MATTER OF LAW, BY RESENTENCING
       APPELLANT IN THE ABSENCE OF APPELLANT’S PRESENCE OR ANY
       WAIVER BY APPELLANT OF SUCH.
                                                 4


                                  ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED, AS A MATTER OF LAW, BY DEPRIVING
       APPELLANT OF HIS RIGHT TO BE REPRESENTED BY COUNSEL OF HIS
       CHOICE.

       {¶7}    In his first assignment of error, Mr. Cherry argues that the trial court erred by

conducting a resentencing hearing without his presence.             He argues that Robinson is

distinguishable, and that the trial court was required to hold a full resentencing hearing, which he

had a constitutional right to attend. He also argues that his presence was required so that he could

exercise his right of allocution, and further argues that the trial court’s decision was based upon

the assumption that the State would choose the most serious crime for sentencing purposes, which

– he argues – is not always accurate. In his second assignment of error, Mr. Cherry argues that he

is entitled to an automatic reversal because the trial court committed structural error by allowing

Attorney Munyer to appear on his behalf despite the fact that he had retained another attorney.

       {¶8}    We begin our analysis with a review of our holding in Robinson. In Robinson, the

defendant moved to vacate his sentence, arguing that it was void under Williams because the trial

court issued separate sentences for allied offenses. Robinson, 2017-Ohio-7380, at ¶ 4. In response,

the State agreed that some of the defendant’s sentences should be vacated, and elected which count

it wanted the defendant to remain sentenced on.

Id. Without first holding

a hearing, the trial court

issued an order that vacated some of the defendant’s sentences, and resentenced the defendant

consistent with the State’s election.

Id. In doing so,

the trial court imposed the same sentence that

it previously imposed for that count.

Id.

{¶9}

   On appeal, the defendant argued that “the trial court was required to hold a new

sentencing hearing, where he could be physically present and represented by counsel, and also

afforded the opportunity to respond to the State’s election on which allied offenses he should be
                                                   5


sentenced.”

Id. at ¶ 6.

This Court disagreed, holding that, because the State elected which count

it wanted the defendant to remain sentenced on, and because the trial court vacated the sentences

for the counts it had no discretion to impose in the first place, a remand for resentencing was

unwarranted.

Id. at ¶ 8,

citing Williams, 2016-Ohio-7658, at ¶ 32.

        {¶10} Mr. Cherry argues that Robinson is distinguishable based upon procedural

differences. He asserts that, in Robinson, the trial court simply vacated its own prior sentencing

entry and issued a new sentencing entry after the State made a written election as to which offense

it wanted the defendant to remain sentenced on. His case is distinguishable, he argues, because

this Court previously reversed and remanded the matter for resentencing, and – unlike Robinson -

the trial court held a hearing.

        {¶11} In response, the State argues that this case falls squarely within Williams and

Robinson, and that Mr. Cherry was not entitled to a de novo sentencing hearing. The State asserts

that, as reflected in this Court’s decision in Cherry I, the State and Mr. Cherry agreed at his original

sentencing hearing in 2001 that there was one sentence the trial court could impose: 15 years to

life on the murder count. See Cherry I at ¶ 64. While the State interjected at that hearing to inquire

as to whether the trial court would impose a concurrent sentence for the child-endangering count,

the State maintains on appeal that it was already on the record in 2001 as having elected to have

Mr. Cherry sentenced on the murder count. See

id. at ¶ 65.

It, therefore, concludes that Mr.

Cherry’s contention that there was no guarantee that the State would elect to have him remain

sentenced on the murder count is groundless.

        {¶12} The State also argues that more recent Ohio Supreme Court case law indicates that

erroneous sentences are voidable, not void, if the sentencing court had jurisdiction over the case

and the defendant. The State asserts that the law now requires a defendant to challenge sentencing
                                                 6


errors on direct appeal, thereby eliminating resentencing altogether except in cases remanded after

direct appeals. It concludes that Mr. Cherry was not entitled to a de novo resentencing hearing,

and that it follows that he had no right to be present, and that his rights to counsel and counsel of

choice did not attach.

       {¶13} Having reviewed the arguments presented, as well as this Court’s prior decisions in

the case, we conclude that Mr. Cherry has not established error on appeal. “Under Williams, a

remand for a resentencing hearing is not required in order to vacate an erroneous conviction where

the trial court has determined at the original sentencing hearing that merger applies and the state

has made an election of which charge to pursue for sentencing.” State v. Cruz-Altunar, 10th Dist.

Franklin No. 18AP-951, 2019-Ohio-2298, ¶ 15. Here, there is no dispute that the trial court

determined at the original sentencing hearing that merger applied. See Cherry I at ¶ 64. On appeal,

the State maintains that it elected the murder count at the original sentencing hearing, and that the

trial court’s most recent sentencing entry is consistent with its election. While the transcript from

the original sentencing hearing does not clearly reflect an express election by the State, it does

reflect that the State agreed with the trial court’s determination that it could only impose one

sentence: 15 years to life on the murder count.

Id. Moreover, the State

has indicated on appeal

that the trial court’s sentence is consistent with its election. See Cruz-Altunar at ¶ 24-27

(addressing a situation wherein the State did not make an election but, on appeal, expressed

agreement with the trial court’s sentence, and holding that the absence of an election did not

implicate any constitutional right belonging to the defendant); State v. Bragg, 8th Dist. Cuyahoga

No. 108671, 2020-Ohio-4059, ¶ 18-20 (addressing a situation wherein the transcript from the

original sentencing hearing did not reflect the State’s election but, on appeal, the State expressed

agreement with the trial court’s sentence).
                                                  7


       {¶14} While this Court is mindful of our remand instructions in Cherry II, the fact remains

that Mr. Cherry was not entitled to a full resentencing hearing. Robinson at ¶ 7-8; Williams at ¶

30-32. It, therefore, follows that the trial court did not deprive Mr. Cherry of his counsel of choice

at a hearing that neither he, nor any counsel, had a right to attend. Moreover, as the State suggests,

recent Ohio Supreme Court case law now holds that a “sentence is only void ‘when a sentencing

court lacks jurisdiction over the subject-matter of the case or personal jurisdiction over the

accused.’” State v. Payne, 9th Dist. Summit No. 29714, 2020-Ohio-4804, ¶ 10, quoting State v.

Harper, 

160 Ohio St. 3d 480

, 2020-Ohio-2913, ¶ 42. Consequently, Cherry II is no longer good

law in that, under more recent Ohio Supreme Court case law, Mr. Cherry’s sentence was voidable

(not void), rendering any challenge to that sentence in Cherry II barred by res judicata. See Cherry

II at ¶ 9; Harper at ¶ 42 (holding that – when a sentencing court has jurisdiction to act - the

erroneous imposition of postrelease control renders a sentence voidable, not void, and providing

that a voidable sentence must be challenged on direct appeal); State v. Henderson, 

161 Ohio St. 3d

285

, 2020-Ohio-4784, ¶ 26-27 (clarifying that its holding in Harper extends to other sentencing

errors other than the erroneous imposition of postrelease control). In light of the foregoing, Mr.

Cherry’s assignments of error are overruled.

                                                 III.

       {¶15} Mr. Cherry’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                                 Judgment affirmed.




       There were reasonable grounds for this appeal.
                                                 8


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT



CARR, J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

MICHAEL A. PARTLOW, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellee.

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