State v. Cottrill
2011 Ohio 2122
Ohio Ct. App.2011Background
- Cottrill appeals a Pickaway County re-sentencing judgment after a post-release control imposition; argues de novo hearing required and Fischer retroactivity matters.
- In 2004 Cottrill was convicted of aggravated robbery with gun specs, theft, and kidnapping with gun specs, receiving a 17-year aggregate sentence; the 2004 sentencing entry did not include post-release control.
- In 2010 Cottrill moved for de novo sentencing; a re-sentencing hearing was held to address post-release control, where court informed Cottrill of a mandatory five-year term.
- The October 2010 re-sentencing entry stated a mandatory post-release period of up to five years, mislabeling the term as 'up to five years.'
- State v. Fischer held that failure to impose post-release control renders the sentence void and requires only a post-release control correction; the court applied Fischer but with an incorrect entry.
- The court remanded for a second re-sentencing limited to proper imposition of a five-year post-release control term; second and third assignments of error were barred by res judicata, affirming in part and reversing in part.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the court need a full de novo hearing instead of a Fischer-limited remand? | Cottrill contends a de novo hearing was required. | State argues Fischer controls and a limited post-release correction suffices. | Remand for proper five-year post-release control; not a full de novo hearing. |
| Was the sentence properly imposed under 2929.14 with findings required at trial? | Cottrill asserts trial findings were missing for minimum/concurrent sentence. | State argues Fischer precludes reexamination of those aspects on direct appeal. | Res judicata bars review of these issues; affirmed in part, reversed in part only on post-release control. |
| Is Cottrill's conviction/victim claim of ineffective counsel reviewable on direct appeal? | Cottrill alleges counsel slept during trial, warranting reversal. | State contends issues are unrelated to re-sentencing and precluded by res judicata. | Res judicata applies; ineffective assistance claim not reviewable on direct appeal. |
Key Cases Cited
- State v. Fischer, 128 Ohio St.3d 92 (2010-Ohio-6238) (void sentence for missing post-release control; limited Bezak correction)
- State v. Singleton, 124 Ohio St.3d 173 (2009-Ohio-6434) (retroactivity of 2929.191; de novo vs nunc pro tunc procedures)
- State v. Bezak, 114 Ohio St.3d 94 (2007-Ohio-3250) (Bezak remedial procedures for post-release control)