State v. Cottrill
2012 Ohio 1021
Ohio Ct. App.2012Background
- Convicted of aggravated robbery with gun specs, theft, and kidnapping on June 8, 2004; aggregate sentence 17 years; sentencing entry (June 11, 2004) omitted post-release control.
- Post-conviction relief motions failed; filed de novo sentencing request August 26, 2010.
- Remand directed another re-sentencing hearing to properly impose five-year mandatory post-release control.
- On remand (April 28, 2011) the trial court issued a nunc pro tunc re-sentencing entry instead of holding a hearing.
- Appellant appeals asserting error in nunc pro tunc correction, failure to include §2929.19 requirements, and improper multiple/consecutive sentences; appellate court reverses and remands on first issue, mootness and res judicata dispose of others.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether nunc pro tunc correction violated R.C. 2929.191 | Cottrill contends nunc pro tunc re-sentencing corrected a void sentence improperly. | State argues nunc pro tunc correction permissible to fix mandatory post-release control. | Sustained; nunc pro tunc entry as remandful correction is improper. |
| Whether judgment entry included §2929.19 requirements | Cottrill argues failure to include statutory §2929.19 requirements. | State maintains error moot due to remand outcome. | Moot due to reversal for remand and the need to re-sentence. |
| Whether multiple prison sentences for allied offenses were proper | Cottrill asserts allied offenses of similar import were improperly sentenced separately. | State asserts proper sentencing under applicable statutes. | Barred by res judicata; issue not reviewable on this appeal. |
| Whether consecutive sentences were proper | Cottrill challenges consecutive sentences. | State argues within remand scope and res judicata limits. | Barred by res judicata; issue not reviewable on this appeal. |
Key Cases Cited
- State v. Fischer, 128 Ohio St.3d 92 (Ohio 2010) (re-sentencing and post-release control framework; guidance on remedies on remand)
- State v. Cottrill, Pickaway App. No. 10CA38, 2011-Ohio-2122 (Ohio App. 2011) (remand directing another re-sentencing hearing for proper post-release control)
- State v. Qualls, 2010-Ohio-5316 (Meigs App. 2010) (affirming nunc pro tunc entry under certain circumstances)
- Allen v. Bennett, 2011-Ohio-1210 (Summit App. 2011) (mandate adherence; trial court may not vary appellate mandate)