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Date: 12-03-2020
Case Style:
STATE OF OHIO v. CORY M. ROWE
Case Number: 2019-CA-17
Judge: Rosemarie A. Hall
Court: IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
DARKE COUNTY
Plaintiff's Attorney: R. KELLY ORMSBY, Atty. Reg. No. 0020615, Darke County Prosecutor’s Office
Defendant's Attorney:
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Description:
Dayton, OH - Criminal defense lawyer represented defendant Cory M. Rowe with appeals from a judgment of the Darke County Court of Common Pleas, which denied a “Motion to Correct Illegal Sentence” that he filed in the trial court on July 11, 2019.
} We outlined the underlying proceedings in Rowe’s direct appeal, in which we
affirmed the trial court’s judgment:
On November 25, 2013, pursuant to a plea agreement, Rowe pled
guilty to one count of aggravated burglary, in violation of R.C.
2911.11(A)(1), a felony of the first degree, and one count of aggravated
robbery, in violation of R.C. 2911.01(A)(1), also a felony of the first degree,
along with a firearm specification. Three other counts and all other
specifications were dismissed. The State recommended an aggregate
sentence of 15 years, and the parties jointly recommended that Rowe's
sentence be served concurrently with a federal sentence in an unrelated
matter. On December 20, 2013, Rowe was sentenced to a term of 10 years
each for aggravated burglary and aggravated robbery, to be served
concurrently with each other and concurrently with the seven year sentence
imposed in federal district court. The court also imposed a mandatory three
-3-
year term for the firearm specification, to be served consecutively to the 10
year sentence, for an aggregate term of 13 years.
State v. Rowe, 2d Dist. Darke No. 2014-CA-1, 2014-Ohio-4100, ¶ 2.
{¶ 3} On May 24, 2019, Rowe filed a “Motion for Clarification of Sentencing
Order” wherein he requested an explanation of how his sentences were to be served in
conjunction with his federal imprisonment, which he was then serving in Tucson, Arizona.
Also on May 24, 2019, the trial court issued a decision on Rowe’s motion, reiterating that
his aggregate 13-year Ohio sentence was concurrent with his federal sentence, that upon
completion of the shorter federal sentence Rowe would be given credit for the federal
time concurrently served, and he would then serve in Ohio the 3-year mandatory firearm
specification followed by the remainder of his 10-year sentence after deducting the federal
service credit. Notably, Rowe did not appeal this decision, although he undoubtedly
received it, because he referred to that decision in his next filing.
{¶ 4} On July 11, 2019, Rowe filed his “Motion to Correct Illegal Sentence.” He
argued that his sentence was illegal because a firearm specification was statutorily
required to be served first, before the underlying 10-year stated prison term. The trial
court dismissed this new motion and determined that it was moot, because the court had
already ruled on the May 24, 2019 motion. Rowe filed a notice of appeal, late, but
eventually we accepted his filing as a delayed appeal under App.R. 5(A).
{¶ 5} We have also reviewed the Ohio Department of Rehabilitation and Correction
website, of which we routinely take judicial notice. Rowe has apparently completed his
federal sentence, and he entered the Ohio prison system on the convictions at hand on
May 26, 2020. The website indicates that he is serving a 3-year firearm specification plus
-4-
a 10-year stated prison term. The expiration of his stated term is listed as “12/17/2026”
which is thirteen years from his December 20, 2013 sentencing, minus three days which
can be attributed to his transportation to and from Darke County while he was in federal
custody. He is therefore serving the sentence as ordered by the trial court.
{¶ 6} We have conducted an independent review of the record as required by
Anders, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. First, we observe that Rowe did
not appeal the trial court’s clarification decision of May 24, 2019. That decision was final
and res judicata prevents Rowe from appealing it by effectively re-filing a new motion on
the same issue. But more importantly, the trial court was correct in both decisions. Finally,
Rowe is now serving exactly the sentence imposed and he was given credit for the prison
time he served after his sentence while in federal custody. There is no possibility we
would find reversible error. Any argument to the contrary is without merit and is wholly
frivolous.
Outcome: Accordingly, the judgment of the trial court is affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: