2020 Ohio 2961
Ohio Ct. App.2020Background
- In Feb. 2003 Simpson was convicted of felonious assault (2nd degree), aggravated robbery (1st degree), and murder (unclassified) and sentenced to an aggregate 33 years to life. The original judgment said he "will/may" serve post-release control (PRC).
- This court affirmed Simpson’s convictions on direct appeal. Years later (Aug. 2018) Simpson moved for resentencing to correct alleged PRC errors and other claims (indictment defects, ineffective assistance, and challenges to convictions).
- The State conceded PRC had not been properly imposed and agreed Simpson had completed the felonious-assault term (so PRC could not be added for that count) and asked resentencing solely to advise on the correct PRC for aggravated robbery and parole for murder.
- The trial court held a resentencing hearing by video conference on Sept. 4, 2019, limited to correcting PRC. The court (1) declined PRC on the felonious-assault count (already served), (2) imposed five years of PRC on aggravated robbery, and (3) advised Simpson he would be subject to parole for the murder count.
- Simpson objected to appearing by video and filed pro se claims contesting conviction merits and indictment sufficiency; appellate counsel filed an Anders brief. The court reviewed whether any non-frivolous issues existed and affirmed the amended judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether resentencing was limited to correcting PRC under State v. Fischer | Fischer controls; when PRC was not properly imposed the sentence is partly void and may be corrected, but resentencing may be limited to PRC correction | Fischer does not apply; Simpson sought broader de novo resentencing to challenge convictions and sentencing package | Court followed Fischer: resentencing properly limited to correcting PRC; broader challenges were barred by res judicata and frivolous |
| Properness of PRC placement (aggravated robbery, felonious assault, murder) | State agreed original PRC was improper; PRC mandatory for aggravated robbery and not for murder; cannot add PRC to a sentence already served | Simpson contended PRC issues required broader correction and that PRC should apply differently (claimed mandatory PRC on both assault and robbery; remove from murder) | Court imposed 5 years PRC on aggravated robbery (mandatory), declined PRC on felonious assault (sentence served), and advised parole applies for murder — disposition proper |
| Whether video-conference resentencing violated right to be physically present | State: R.C. authorizes video for PRC resentencing; any absence was harmless because no discretion was exercised | Simpson: objected to video appearance and preserved right to physical presence | Court: video resentencing authorized and harmless here (defense counsel present; no prejudice; mandatory PRC so no discretion) |
| Whether Simpson could raise independent challenges to convictions/indictment/ineffective assistance in this PRC resentencing | State: those claims are direct-appeal issues and are res judicata now; not reviewable in PRC correction | Simpson: argued Fischer does not apply so he may reopen convictions and raise these claims | Court: those claims were barred by res judicata and raising them in this appeal would be frivolous |
Key Cases Cited
- State v. Fischer, 128 Ohio St.3d 92 (2010) (failure to properly impose post-release control renders that part of the sentence void and reviewable at any time)
- State v. Holdcroft, 137 Ohio St.3d 526 (2013) (once prison term for an offense is fully served court may not later add post-release control for that offense)
- State v. Qualls, 131 Ohio St.3d 499 (2012) (trial court must notify defendant at sentencing about PRC and consequences of violation)
- McCain v. Huffman, 151 Ohio St.3d 611 (2017) (unclassified felonies such as murder are not subject to PRC)
- State v. Clark, 119 Ohio St.3d 239 (2008) (release following an unclassified felony is subject to parole rather than PRC)
- Snyder v. Massachusetts, 291 U.S. 97 (1934) (defendant’s presence at critical stages of trial tied to due process)
- Anders v. California, 386 U.S. 738 (1967) (procedure for counsel to withdraw when appeal is frivolous)
- Penson v. Ohio, 488 U.S. 75 (1988) (appellate-court review standard when counsel files an Anders brief)