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Date: 11-08-2018

Case Style:

STATE OF OHIO v. TAMMY DIANE CLARK

Case Number: 8-18-10

Judge: Stephen R. Shaw

Court: COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY

Plaintiff's Attorney: Sarah J. Warren

Defendant's Attorney: Samantha L. Berkhofer

Description:







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Defendant-Appellant, Tammy D. Clark, appeals the March 1, 2018
judgment of the Logan County Court of Common Pleas imposing a sentence of fifty
four months in prison following the revocation of her community control.
{¶2} Clark was indicted in December of 2015 for theft of drugs, a felony of
the fourth degree in case number CR 15-12-330, which is the trial court proceeding
underlying this appeal. Clark entered into a negotiated plea agreement wherein she
tendered a guilty plea to the abovementioned theft of drugs charge and three other
charges arising out case number CR 15-09-0174, which included a third degree
felony domestic violence, a first degree misdemeanor petty theft, and a fourth
degree misdemeanor criminal trespass. The trial court accepted Clark’s guilty pleas
and ordered the completion of a presentence investigation with a mental health
evaluation.
{¶3} On February 6, 2017, Clark appeared for sentencing. The trial court
ordered Clark to be placed on five years of community control for the fourth degree
felony theft of drugs. The trial court imposed specific sanctions and conditions as
part of Clark’s community control. Clark was further advised by the trial court that
any violation of the terms and condition of her community control could result in
the trial court imposing a more restrictive sanction, including an eighteen-month
prison term. The trial court specified that the eighteen-month prison term for the



Case No. 8-18-10


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theft of drugs conviction in case number CR 15-12-330 could also be imposed
consecutive to the sentence in case number CR 15-09-0174, for an aggregate prison
term of fifty-four months. (Doc. No. 60).
{¶4} On October 20, 2017, the State filed a motion to revoke Clark’s
community control and attached as an exhibit an affidavit of Clark’s parole officer
alleging that Clark had violated the conditions of her community control. The trial
court subsequently held a hearing on the matter where Clark admitted to the
violations. Specifically, the record reflects Clark’s violations of the conditions of
her community control were (1) her failure to complete the Probation Incentive
Program and (2) her failure to complete a drug and alcohol assessment.
{¶5} On December 18, 2017, the trial court issued a judgment entry revoking
Clark’s community control and imposing an eighteen-month prison term in the
underlying action (CR 15-12-330) to be served consecutively to the thirty-six month
sentence in case number CR 15-09-0174, for an aggregate prison term of fifty-four
months.
{¶6} On February 7, 2018, Clark filed a “Motion for Resentencing Hearing,”
wherein her defense counsel argued that Clark’s violations of the terms and
conditions of her community control were “technical violations” and that R.C.
2929.15(B) had recently been amended to limit the amount of prison time a court



Case No. 8-18-10


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can impose for any technical violation of the conditions of a community control
sanction for a felony of the fourth degree, such as the one in Clark’s case.
{¶7} On March 1, 2018, the trial court held a hearing on the matter. The trial
court specifically found that Clark’s violations of the conditions of her community
control were more than technical violations and issued a judgment entry of
“resentencing” reiterating the same. The trial court imposed the same eighteen
month prison term for the underlying fourth degree felony offense in CR 15-12-330
to be served consecutively to the thirty-six month prison term in CR 15-09-0174,
for an aggregate prison term of fifty-four months.
{¶8} Clark appealed, asserting the following assignment of error.
WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING CLARK TO FIFTY-FOUR MONTHS [IN PRISON] FOR A COMMUNITY CONTROL VIOLATION WITHOUT PROOF OF SUBSTANTIAL NATURE [SIC].

{¶9} At the outset, we note that the statutory amendment to R.C. 2929.15(B),
which forms the basis of Clark’s assigned error, took effect on September 29, 2017,
approximately a month prior to the State filing its motion to revoke Clark’s
community control. However, Clark did not raise the claim that her failure to abide
by the conditions of her community control amounted to a mere “technical
violation” at the revocation hearing or within thirty days from the trial court’s
December 18, 2017 Judgment Entry revoking her community control and imposing
the eighteen-month prison term. See App.R. 4(A)(which states that “A party shall



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file the notice of appeal required by App.R. 3 within thirty days of the later of entry
of the judgment or order appealed”).
{¶10} Instead, for reasons not apparent in the record, Clark waited nearly two
months to file a motion with the trial court requesting it to consider the newly
amended statute with respect to her sentence. Consequently, since Clark failed to
raise this claim either at the revocation hearing or in a timely appeal from the
judgment entry imposing the eighteen month sentence, we would question whether
it is now barred by the doctrine of res judicata.
{¶11} This notwithstanding, we must determine whether this Court has
jurisdiction to reach the merits of Clark’s assigned error.
{¶12} “It is well established that a trial court cannot reconsider a valid final
judgment in a criminal case.” State v. Cozzone, 11th Dist. Geauga No. 2017-G-041,
2018-Ohio-2249, ¶ 34, citing State ex rel. Hansen v. Reed, 63 Ohio St.3d 597, 599
(1992); Brook Park v. Necak, 30 Ohio App.3d 118, 120 (8th Dist.1986). In essence,
Clark’s February 7, 2018 “Motion for Resentencing Hearing” was a motion for
reconsideration of her sentence. “A motion to modify a sentence after it has begun
is akin to a motion for reconsideration after a final appealable order has been
rendered.” State v. Young, 2d Dist. Montgomery No. 20813, 2005-Ohio-5584, ¶ 6.
{¶13} We further note that a motion for reconsideration of a final judgment
in the trial court is a nullity and a purported judgment ruling on a motion for



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reconsideration is likewise a nullity. State v. Arega, 10th Dist. Franklin No. 17AP
112, 2017-Ohio-5610, ¶¶ 10-14, citing Pitts v. Ohio Dept. of Transp., 67 Ohio St.2d
378, 379 (1981); see also State v. Dunn, 4th Dist. No. 06CA23, 2007-Ohio-854, ¶
12 (stating “the Ohio Rules of Criminal Procedure provide no authority for a motion
for reconsideration and they, too, are a nullity”).
{¶14} Thus, because a motion for reconsideration of a final order is a nullity,
and all orders from said motion are also a nullity and not subject to appeal, the trial
court’s March 1, 2018 Judgment Entry overruling Clark’s “Motion for Resentencing
Hearing” in the present case is not a final, appealable order. Accordingly, due to
the fact that the trial court’s March 1, 2018 Judgment Entry was not a final,
appealable order, this Court is without jurisdiction to entertain an appeal from that
judgment. Therefore, Clark’s appeal must be dismissed.

Outcome: Accordingly, Clark’s single assignment of error is rendered moot and
we dismiss the appeal.

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