State v. Falkenstein
2013 Ohio 5315
Ohio Ct. App.2013Background
- Falkenstein was convicted in 2003 of 41 counts of rape of a child under 13 and sentenced to consecutive life terms with potential parole after 20 years.
- This court previously affirmed the conviction in Falkenstein I (2004).
- In 2010 Falkenstein filed a pro se motion challenging the sentencing entry for failing to advise about mandatory five-year postrelease control (PRC) and its consequences.
- In Falkenstein II (2011), the court held the sentencing entry was defective but declined a de novo resentence, instructing remand to correct the PRC imposition and consequences.
- On remand, the trial court corrected the sentencing entry to reflect a mandatory five-year PRC and its consequences, consistent with Falkenstein II and Qualls.
- In the current (third) appeal, Falkenstein argues the re-sentencing on remand occurred without a hearing, violating his rights.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the remand-based correction without a hearing violated due process | State: correction via nunc pro tunc pursuant to Falkenstein II/Qualls authorized without new hearing. | Falkenstein: remand re-sentencing requires a new hearing with counsel present. | No error; correction pursuant to the mandate was proper; no new hearing required. |
Key Cases Cited
- State v. Qualls, 131 Ohio St.3d 499 (2012-Ohio-1111) (approved nunc pro tunc correction of a defective postrelease-control entry when PRC notification occurred at sentencing)
- State v. Fischer, 128 Ohio St.3d 92 (2010-Ohio-6238) (new sentencing hearing is limited to proper imposition of postrelease control)
- State v. Cvijetinovic, 2013-Ohio-3251 (8th Dist. Cuyahoga No. 99316) (nunc pro tunc correction of PRC notification omission)
- State v. Robinson, 2012-Ohio-5506 (8th Dist. Cuyahoga No. 97951) (PRC omission corrected by nunc pro tunc entry)
- State v. Williamson, 2013-Ohio-3733 (8th Dist. Cuyahoga No. 99473) (no new sentencing hearing where PRC notification lacked in judgment but could be corrected nunc pro tunc)
- State v. May, 2011-Ohio-6647 (8th Dist. Cuyahoga Nos. 96362 and 96421) (judgment modified to reflect mandatory five-year PRC; remanded to correct entry)