2011 Ohio 2527
Ohio Ct. App.2011Background
- Hall shot two victims from a moving vehicle on Oct. 17, 1998; he was charged with felonious assault counts and attempted murder plus firearm specifications and a failure-to-comply offense.
- First trial ended in a hung jury; second trial convicted Hall on all counts and specifications except attempted murder of Davis.
- At sentencing (Aug. 1999), the court merged some counts/specifications and imposed an aggregate term of 39 years 5 months, but failed to provide proper postrelease-control notifications.
- On appeal, this court affirmed, later acknowledging an erroneous aggregate-length statement; the Ohio Supreme Court denied further appeal.
- In 2009, the trial court resentenced for the postrelease-control defect, correcting the entry and applying nunc pro tunc language; Hall now appeals the resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the attempted murder and felonious-assault counts are allied offenses. | Hall | Hall | Allied offenses issue barred by res judicata; postrelease-control appeal limited; merge not required. |
| Whether felonious assaults against the same victim were allied offenses. | Hall | Hall | barred by res judicata; proper scope limited to postrelease-control issues. |
| Scope of resentencing after postrelease-control defect. | Hall | Court must correct defect de novo. | Remedy limited to postrelease-control defect; issues beyond are barred by res judicata. |
| Whether the aggregate sentence was increased at the resentencing. | Hall | Sentence length improperly stated. | Court did not increase aggregate term; misstatement occurred; corrected entry appropriate. |
| Whether nunc pro tunc correction was proper. | Hall | Correction reflects actual 1999 sentence. | Nunc pro tunc correction permissible; correction to reflect actual sentence proper. |
Key Cases Cited
- State v. Singleton, 124 Ohio St.3d 173 (2009-Ohio-6434) (de novo resentencing to correct postrelease-control defect)
- State v. Bezak, 114 Ohio St.3d 94 (2007-Ohio-3250) (Bezak remedy for void postrelease-control portion; res judicata considerations)
- State v. Fischer, 128 Ohio St.3d 92 (2010-Ohio-6238) (limits review to issues arising at resentencing; remedy for void sentence)
- State v. Saxon, 109 Ohio St.3d 176 (2006-Ohio-1245) (principles for res judicata and sentencing remands)
- State v. Brown, 2011-Ohio-1029 (1st Dist.) (discusses res judicata and review scope)
- State v. Goldsmith, 2011-Ohio-840 (8th Dist.) (notes on review and sentencing principles)