2013 Ohio 2912
Ohio Ct. App.2013Background
- In 2002, a jury convicted Cottrell of aggravated murder and attempted murder with firearm and gang specifications.
- This court affirmed those convictions on direct appeal in 2003 (State v. Cottrell, 8th Dist. No. 81356).
- In 2012, this court found the trial court erred by failing to impose a mandatory term of postrelease control and remanded for resentencing limited to postrelease control.
- At the resentencing, Cottrell argued for de novo resentencing on all counts and for retroactive application of R.C. 2929.191, which had been enacted after his 2002 sentencing.
- The trial court denied de novo resentencing, believing it must follow the remand limited to postrelease control.
- The court upheld that the remand limited the proceedings to postrelease control and that Fischer permits limited resentencing; Bloomer was not applicable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether resentencing may be de novo on all counts | Cottrell urged de novo resentencing on all counts. | State contends remand limited to postrelease control only. | Limited resentencing to postrelease control proper; no de novo resentencing on all counts. |
| retroactivity of R.C. 2929.191 procedures | Cottrell argued the postrelease-control procedures cannot apply retroactively. | State relied on Fischer overruling Singleton to permit postrelease-control procedures on remand. | Fischer permits applying postrelease-control procedures on remand; no retroactive error. |
Key Cases Cited
- State v. Fischer, 128 Ohio St.3d 92 (2010) (limits new sentencing Bezak to proper postrelease-control imposition)
- State v. Singleton, 124 Ohio St.3d 173 (2009) (held R.C. 2929.191 could not be applied retroactively to pre-July 11, 2006 offenders)
- State v. Bezak, 114 Ohio St.3d 94 (2007) (Bezak syllabus on limited resentencing when Bezak remand applies)
- State v. Carlisle, 131 Ohio St.3d 127 (2011) (supports limited remand framework and appellate discretion)
- State v. Sanders, 2012-Ohio-5025 (2012) (collects cases on limited resentencing after Fischer)
- State v. Bloomer, 122 Ohio St.3d 200 (2009) (addressed de novo resentencing; not controlling here)