State v. David L. Reed, Medina Case No.
10CR0407
Mr. David Reed was
indicted by the Medina County grand jury on August 18, 2010, charging him with
two counts of trafficking in drugs(cocaine F-5) and one count of trafficking in
drugs(crack cocaine F-4). On May 13m
2011, Mr. Reed appeared before Judge Collier and entered a plea of “guilty” to
two counts of trafficking in drugs (F-5).
On June 24, 2011, Mr. Reed appeared before Judge Collier for
sentencing. According to Mr. Reed, Judge
Collier sentenced him to 12 months on Count I and 5 months on Count II, for an aggregate term of 17 months
imprisonment.
On July 5, 2011,
while still in the Medina County Jail and awaiting transfer to the Ohio
Department of Corrections, Mr. Reed, Pro
Se, filed Appeal of Sentence Due to
Prosecutorial Misconduct and Other Errors at Sentencing. In his motion, Mr. Reed raised the issue
of his illegal sentence with Judge Collier, who sentenced him to 5 months on
one of the two counts of conviction. In
his motion, Mr. Reed expressly stated:
I
(David Reed) was sentenced to a term of 17 months for (2) F’5 Trafficking in
Cocaine. I (David Reed) was sentenced to a 12 month & a five month prison
term. 1 of my questions to the court is how can I be sentenced to 5 months when
the law states that for F 5’s the minimum is 6 months?
On September 19,
2011, while still in confinement, Mr. Reed, Pro
Se, filed Motion to Amend Sentencing
to Make it Conform to Original Sentence or to Vacate Journal Entry and Remand
Matter for Resentencing With the Defendant Present. In this motion, Mr. Reed again asserted
that Judge Collier had sentenced him to 12 months on Count I and to 5 months on
Count II, to be served consecutively.
Mr. Reed argues thusly:
Under the O.R.C. 2929.11 the sentences for
F5 begin at 6 months and proceed by increments of 1 month to a maximum of 12
months. The sentence that was pronounce
in open Court was later modified in the Sentencing Judment entry to bring it in
line with the law.
. .
. .
In effect, Mr. Reed was resentenced without his being present or
represented by counsel. A Trial Court
may not use a nunc pro tunc journal entry to correct an illegal sentence that it
had imposed upon a defendant in the defndant’s presence. The journal entry must be vacated and the
defendant must be brought back to Court
for resentencing. “Columbus v. Rowland 440 n.e.2D1365,” “State v,. Cavllo No.
59282 8th Dist.,” State v. Walton 583 N.E. 2D 1106.” Since the sentenced pronounced in open court
was illegal it was required by law the (sic) Mr. Reed be present for any future
sentencing and the Trial Court abused it (sic) authority in resentencing Mr.
Reed withou his being present. Moreover
at the June 22, 2011 sentencing hearing the Trial Court failed in open court to
impose a driver’s license suspension but later included it in the sentencing
entry.
The State did
not oppose Mr. Reed’s motion. Judge
Collier , in a September 20, 2011 Judgment Entry (the day after Mr. Reed filed
his motion), Judge Collier quickly dispatched Mr. Reed’s motion with the
following questionable language:
The
defendant states that the sentencing judgment entry does not reflect the
sentence that was stated in open court and on the record. A review of the court transcript reveals that
this is not true.
Mr. Reed has
furnished an affidavit averring that Judge Collier, indeed, sentenced him to
consecutive 12-month and 5-month sentences in open court. Mr.Reed requested the transcript of his
sentencing hearing from his appellate counsel in June 2014. To the present date, his appellate counsel
has not been forthcoming with his transcript.
On the strength
of Mr. Reed’s affidavit, Judge Collier either materially altered the
transcript, or the sentencing journal entry, or both.
Copies of Mr.
Reed’s motions, Judge Collier’s September 20, 2011 Judgment Entry, and Mr. Reed’s affidavit are
attached as Exhibit Twenty-Three.
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