State v. Bolling
2019 Ohio 227
Ohio Ct. App.2019Background
- In 2003 Anthony K. Bolling was convicted by jury of four counts of rape (victim under 13, by force) and one count of felonious sexual penetration; he received life sentences, with certain counts consecutive; the original journal entry did not state the manner of conviction but reflected convictions and sentence.
- Bolling’s direct appeal (Bolling I) affirmed convictions and sentence. In 2011 he unsuccessfully moved to dismiss the indictment for a speedy-trial claim; the appellate court held the 2003 journal entry met judgment-entry requirements under State v. Lester (Bolling II).
- In 2017 Bolling sought de novo resentencing to correct post‑release control and other alleged defects (designation as sexual predator; lack of findings for consecutive sentences).
- Trial court limited the 2018 resentencing to imposing proper post‑release control for the rape counts; it issued a nunc pro tunc/amended termination entry noting Bolling was "convicted by a jury." Bolling appealed.
- The appellate court affirmed: it held only the post‑release control portion of the sentence was void and subject to correction; other challenges were barred by res judicata because they were or could have been raised on direct appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bolling was entitled to a full de novo resentencing | State: only post‑release control was void and may be corrected; no new de novo hearing required | Bolling: his entire sentence was void due to improper post‑release control and he also identified other defects warranting de novo resentencing | Court: limited resentencing to imposition of post‑release control; no full de novo resentencing (only post‑release control portion void) |
| Whether trial restrictions on cross‑examination and confrontation violated rights | State: these claims were previously or could have been raised on direct appeal and are barred | Bolling: trial restrictions violated confrontation/cross‑examination rights and due process | Court: barred by res judicata; claims overruled |
| Whether prosecutor misled jury about expert status of witness (prosecutorial misconduct) | State: issue was or could have been raised on direct appeal; cured by res judicata | Bolling: prosecution misled jury by presenting non‑qualified witness as expert | Court: claim barred by res judicata; overruled |
| Whether indictment was insufficient and whether bias questioning was improperly restricted | State: such challenges were available on direct appeal and are barred | Bolling: indictment failed to give fair notice; he was improperly limited from exploring accuser’s bias while prosecution did so on rebuttal | Court: barred by res judicata; overruled |
Key Cases Cited
- State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332 (Void post‑release control portion of sentence must be set aside)
- State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142 (requirements for effective journal entry of conviction)
- State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958 (pre‑Fischer, held sentence lacking post‑release control contrary to law)
- Magwood v. Patterson, 561 U.S. 320 (Resentencing produces a new judgment for habeas purposes)
- King v. Morgan, 807 F.3d 154 (6th Cir.) (application of Magwood to challenges following resentencing)
- In re Stansell, 828 F.3d 412 (6th Cir.) (Ohio resentencing to impose post‑release control creates a new judgment for habeas review)