State v. Gopp
2011 Ohio 1530
Ohio Ct. App.2011Background
- Gopp pled guilty to two counts of rape in 2003 and was sentenced to consecutive 10-year terms with a sexual predator designation.
- Appellate review noted failure to expressly determine habitual offender status; amended judgment entered; initial appeal dismissed as untimely.
- Gopp pursued various post-conviction and relief motions (Blakely-based challenges, petitions to vacate, mandamus) through 2006.
- In 2009, Gopp moved for resentencing alleging improper findings and defective post-release control notice; trial court denied and reconsidered sua sponte.
- April 10, 2010 resentencing imposed the same sentence and post-release control; Gopp argued due process delay and other defects; direct appeal followed.
- This court held Fischer controls: no de novo resentencing required absent Bezak scope; affirmed post-release control, vacated de novo sentencing portion, and left lawful portions intact.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to resentence after void/indeterminate judgment | Gopp alleges lack of final appealable order and jurisdiction to resentence. | State contends resentencing was proper and jurisdiction adequate. | Resentencing not de novo; parts vacated; some jurisdictional issues remain resolved. |
| Due process and de novo sentencing requirements | Gopp asserts delay and defective proceedings violated due process and required de novo hearing. | State relies on Fischer limiting de novo review to post-release control corrections. | Fischer governs; no full de novo hearing required; some issues barred by res judicata. |
| Bezak scope and post-release control | Gopp argues Bezak mandates de novo sentencing for proper post-release control. | State maintains limited Bezak scope applies; post-release control properly imposed. | Bezak scope limited to post-release control considerations; post-release control affirmed. |
| Constitutional challenges to counts and charges | Gopp contends Count 2 is a carbon-copy, violating due process. | State argues no reversible error given controlling authorities. | Issues regarding carbon-copy charges not central to resentencing; no reversal on this basis. |
| Overall validity of resentencing ruling | Gopp seeks full de novo resentencing and reversal of certain legal determinations. | State argues partial validity of prior sentencing entries and limited scope of review. | Judgment affirmed in part, vacated in part; mandatory five-year post-release control affirmed. |
Key Cases Cited
- State v. Fischer, 128 Ohio St.3d 92 (2010-Ohio-6238) (sentence void for missing postrelease control may be reviewed; limits on res judicata)
- State v. Bezak, 109 Ohio St.3d 1 (2006-Ohio-856) (Bezak de novo hearing limited to proper post-release control imposition)
- State v. Woods, 9th Dist. No. 25236, 2011-Ohio-562 (2011-Ohio-562) (vacate de novo sentence; retain lawful portions of prior judgment)
- State v. Ward, 9th Dist. No. 25324, 2011-Ohio-1211 (2011-Ohio-1211) (supports limited scope of resentencing review post-Fischer)