[Cite as State v. Smith, 2012-Ohio-926.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION

No. 97038

STATE OF OHIO 

PLAINTIFF-APPELLEE 

vs. 

ERIC SMITH

 DEFENDANT-APPELLANT

JUDGMENT:

REVERSED AND REMANDED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-521598 

BEFORE: Stewart, P.J., Cooney, J., and Kilbane, J. 

RELEASED AND JOURNALIZED: March 8, 2012 
ATTORNEY FOR APPELLANT

Susan J. Moran 

55 Public Square, Suite 1616 

Cleveland, OH 44113-1901 

ATTORNEYS FOR APPELLEE

William D. Mason 

Cuyahoga County Prosecutor 

BY: Marc D. Bullard 

Assistant County Prosecutor 

The Justice Center 

1200 Ontario Street, 9th Floor 

Cleveland, OH 44113 
MELODY J. STEWART, P.J.: 

{¶1} Defendant-appellant, Eric Smith, appeals from an eight-year term of 

incarceration that was imposed at a resentencing hearing. He complains that the trial 

court ordered the same sentence that it had previously given him, did not weigh 

seriousness and recidivism factors when considering the felony sentencing guidelines, 

and did not state that it considered the requisite sentencing factors. Smith requests this 

court to vacate his sentence and remand for another sentencing hearing. We reverse and 

remand this case to the trial court, but for reasons different from those asserted by 

appellant. 

{¶2} Smith, while being arrested for his participation in a buy bust operation, 

became involved in a skirmish with a law enforcement officer after he attempted to 

wrestle away the officer’s service weapon. In response, the officer kicked Smith in the 

chest and never lost control of his weapon. Smith was charged with aggravated robbery 

in violation of R.C. 2911.01(B)(1) with both a one-year and a three-year firearm 

specification, and drug possession pursuant to R.C. 2925.11. After a jury trial, he was 

found guilty of aggravated robbery with a one-year firearm specification and drug 

possession. He was sentenced to eight years for the aggravated robbery, one year for the 

firearm specification, and one year for drug possession, to be served consecutively for a 

total of ten years. 

{¶3} Smith appealed, challenging the weight and sufficiency of the evidence 

used to convict him. This court affirmed in part and reversed in part after finding that 
the evidence was insufficient to sustain his conviction on the one-year firearm 

specification. We remanded the case with instructions to vacate the firearm 

specification. State v. Smith, 8th Dist. No. 93593, 2010-Ohio-4006, 2010 WL 3353606 

(“Smith I”). 

{¶4} A resentencing hearing was held, but was continued by the trial court when 

it realized that no presentence investigation had been conducted, that Smith’s institutional 

records had not been obtained by defense counsel, and that counsel had not spoken to 

Smith prior to the hearing. 

{¶5} When the resentencing hearing was reconvened three weeks later, defense 

counsel informed the trial court that in spite of his involvement in several minor 

infractions while incarcerated, Smith had signed up for several rehabilitative programs. 

Smith addressed the court and stated that he was attending Bible studies and was also 

attempting to gain admission into college. The trial court noted that it had considered the 

institutional reports, and also encouraged Smith to continue his pursuit of higher 

education. Then, the court reinstated the eight-year term for the charge of aggravated 

robbery, and the one-year term for drug possession. However, the sentences were 

ordered to be served concurrently, as opposed to the previously imposed consecutive 

term, for a total of eight years. The trial court informed Smith that “you got a year off 

because of your good behavior and things you’re doing.” 

{¶6} In his sole assignment of error, Smith complains that the trial court abused 

its discretion when sentencing him to an eight-year term of incarceration. He claims that 
the trial court failed to reconsider his sentence in its entirety, and relies upon language 

from this court’s decision to reverse his firearm specification conviction to bolster his 

argument for a sentence reduction for the aggravated robbery count. However, the fact 

that the trial court reconsidered his sentence at all was error. 

{¶7} In Smith I, this court sustained Smith’s first assignment of error, and the 

matter was “[r]emanded with instructions to the trial court to vacate the conviction on the 

one-year firearm specification.” Therefore, the trial court on remand was authorized 

only to follow these instructions, and erred in resentencing Smith because it lacked 

jurisdiction to do so. “Absent statutory authority, a trial court is generally not 

empowered to modify a criminal sentence by reconsidering its own final judgment.” 

State v. Carlisle, __ Ohio St.3d __, 2011-Ohio-6553, __ N.E.2d __, ¶ 1. 

{¶8} Because the trial court lacked authority to resentence Smith, we need not 

address his assigned error. We reverse and remand to the trial court with instructions to 

reinstate Smith’s original sentence, minus the conviction on the one-year firearm 

specification. 

{¶9} This case is reversed and remanded for proceedings consistent with this 

opinion. 

It is ordered that the parties bear their own costs herein taxed. 

It is ordered that a special mandate issue out of this court directing the Cuyahoga 

County Court of Common Pleas to carry this judgment into execution. Case remanded 

to the trial court for execution of sentence. 
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

 

 

MELODY J. STEWART, PRESIDING JUDGE 

COLLEEN CONWAY COONEY, J., and 

MARY EILEEN KILBANE, J., CONCUR