STATE OF OHIO, ) ) CASE NO. 12 MA 26 PLAINTIFF-APPELLEE, ) ) - VS - ) OPINION ) DuJUAN ADAMS, ) ) DEFENDANT-APPELLANT. )
CASE NO. 12 MA 26
STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
March 25, 2013
[Cite as State v. Adams, 2013-Ohio-1433.]
Hon. Mary DeGenaro, Hon. Gene Donofrio, Hon. Joseph J. Vukovich
CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas Court, Case No. 00 CR 102. JUDGMENT: Affirmed.
For Plaintiff-Appellee: Attorney Paul J. Gains, Prosecuting Attorney, Attorney Ralph M. Rivera, Assistant Prosecuting Attorney, 21 W. Boardman St., 6th Floor, Youngstown, OH 44503
For Defendant-Appellant: Attorney Lynn Maro, 7081 West Boulevard, Youngstown, OH 44512
{¶1} Defendant-Appellant, DuJuan Adams, appeals the decision of the Mahoning County Court of Common Pleas, issuing a nunc pro tunc judgment entry to properly impose post-release control following a limited resentencing hearing. On appeal, Adams presents several constitutional challenges to his resentencing pursuant to
{¶2} Adams’ arguments are meritless. Adams has not proven beyond a reasonable doubt that
Facts and Procedural History
{¶3} In August 2000, Adams was convicted of two counts of attempted murder (
{¶4} On March 28, 2011, Adams filed a pro-se motion in the trial court seeking a de novo sentencing hearing, arguing that his sentence was void because the October 2006 sentencing entry did not comply with State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163 and did not include his applicable term of post-release control. The trial court overruled this motion and Adams appealed. On appeal, the matter was remanded for a resentencing hearing regarding the limited issue of post-release control pursuant to
{¶5} Upon remand, during a January 26, 2012 resentencing hearing the trial court advised Adams that upon his release from prison, he would be subject to a mandatory term of five years of post-release control, and the consequences of violating post-release control. Adams raised several issues at the hearing, including that his sentencing entries were not time-stamped. The trial court declined to address any issues other than as directed by this court. On January 27, 2012, the trial court issued a nunc pro tunc judgment entry of sentence that specified the manner of Adams’ conviction pursuant to Baker and included the proper post-release control notification.
Constitutionality of R.C. 2929.191
{¶6} Adams asserts four assignments of error on appeal. As the first three challenge the constitutionality of his resentencing under
{¶7} “The trial court erred in resentencing Appellant pursuant to the procedures in
{¶8} ”
{¶9} “The trial court erred in sentencing Appellant under
{¶10} Adams argues that his resentencing pursuant to
{¶11}
{¶12} The Ohio Supreme Court has instructed that when a “judge fails to impose statutorily mandated postrelease control as part of a defendant‘s sentence, that part of the sentence is void and must be set aside.” State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶26. For “sentences imposed on and after July 11, 2006, in which a trial court failed to properly impose post-release control, trial courts shall apply the procedures set forth in
{¶13} The sentence-correction mechanism of
At any time before the offender is released from imprisonment under that term and at a hearing conducted in accordance with division (C) of this section, the court may prepare and issue a correction to the judgment of conviction that includes in the judgment of conviction the statement that the offender will be supervised under section 2967.28 of the Revised Code after the offender leaves prison. * * *
Before a court holds a hearing pursuant to this division, the court shall provide notice of the date, time, place, and purpose of the hearing to the offender who is the subject of the hearing, the prosecuting attorney of the county, and the department of rehabilitation and correction. * * * At the hearing, the offender and the prosecuting attorney may make a statement as to whether the court should issue a correction to the judgment of
conviction.
{¶14} Statutes enacted in Ohio are presumed to be constitutional unless it is proven beyond a reasonable doubt that the legislation is clearly unconstitutional. State v. Williams, 88 Ohio St.3d 513, 521, 728 N.E.2d 342 (2000).
{¶15} Adams did not specifically challenge the constitutionality of
[Adams III] said I was entitled to a sentencing entry that comports with Baker and to a resentencing hearing and to a revised sentencing entry to correct post-release control status pursuant to 2929.191(C), both which apply retroactively to Adams’ 2000 and 2006 Foster resentencing hearing. Both of them two sentencing entries was void for the PRC and Baker and both of them wasn‘t never timestamped. * * * So both of them was void from the beginning. Like my whole sentence was unconstitutional since 2000. Both of them – that Foster law was unconstitutional and the one for 2000.
(Tr. 12-13).
{¶16} “Failure to raise at the trial court level the issue of the constitutionality of a statute or its application, which issue is apparent at the time of trial, constitutes a waiver of such issue and a deviation from this state‘s orderly procedure, and therefore need not be heard for the first time on appeal.” State v. Awan, 22 Ohio St.3d 120, 489 N.E.2d 277 (1986), at syllabus. However, the Ohio Supreme Court has recognized that this waiver doctrine is discretionary. In re M.D., 38 Ohio St.3d 149, 527 N.E.2d 286 (1988), at syllabus. Since Adams has generally challenged the constitutionality of his sentence, we exercise the discretion to address the challenge.
{¶17} First, Adams argues that
{¶18} “Section 5(B), Article IV of the Ohio Constitution vests [the Ohio Supreme Court] with the power to ‘prescribe rules governing practice and procedure in all courts of the state, which rules shall not abridge, enlarge, or modify any substantive right’ and further provides that ‘[a]ll laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.‘” State v. Bloomer, 122 Ohio St. 3d 200, 2009-Ohio-2462, 909 N.E.2d 1254, ¶42.
{¶19} As to the statute‘s alleged conflict with
{¶20} As to
{¶21} Next, Adams contends that his resentencing under
[P]rospective application of
R.C. 2929.191 does not implicate double-jeopardy concerns arising from the imposition of multiple punishments for the same offense at successive proceedings. On or after the effective date ofR.C. 2929.191 , an offender can have no legitimate expectation of finality in a sentence rendered defective by the trial court‘s failure to properly impose a mandatory term of postrelease control, because an offender is charged with knowledge of the fact that his sentence is legally incomplete and thatR.C. 2929.191 provides a statutory mechanism to correct it.
{¶22} Accordingly, because the part of Adams’ sentence improperly imposing post-release control was void pursuant to Fischer, he did not have a legitimate expectation of finality in his sentence and thus, his resentencing did not violate the Due Process or Double Jeopardy clauses.
{¶23} Finally, Adams contends that when the trial court resentenced him, it applied
{¶24} However, in Adams III this court determined that
Adams was sentenced on October 20, 2006, and subject to the sentence-correction mechanism of
R.C. 2929.191 . See Singleton at ¶ 27. The fact that his original sentence occurred before July 11, 2006 does not affect the applicability ofR.C. 2929.191(C) to this case. See State v. Craddock, 8thDist. No. 94387, 2010-Ohio-5782 (applying R.C. 2929.191(C) where defendant was originally sentenced before July 11, 2006, but resentenced de novo pursuant to a Foster remand after that date.)
Adams III, 2011-Ohio-6428, at ¶16.
{¶25} Thus, the trial court‘s application of
{¶26} Thus, the trial court‘s resentencing of Adams pursuant to
Subject Matter Jurisdiction of Trial Court
{¶27} In his fourth assignment of error, Adams argues:
{¶28} “The trial court was without subject matter jurisdiction over Appellant because the indictment and subsequent pleadings, including the sentencing entries, were not properly filed.”
{¶29} Adams argues that because the pleadings in this matter were not properly filed with the clerk of courts, the trial court lacked subject matter jurisdiction and thus, its judgment is void ab initio. A review of the record reveals that the indictment, sentencing entries, and other pleadings were date-stamped by the Mahoning County Clerk of Courts, but these pleadings do not indicate the time of filing.
{¶30} Two statutes denote the information the common pleas court clerk indorses on filings with that office;
{¶31} The Ohio Supreme Court has explained that the filing of the complaint invokes the jurisdiction of the trial court, but that a pleading is “filed” when it is properly deposited with the clerk of courts. Zanesville v. Rouse, 126 Ohio St.3d 1, 2010-Ohio-2218, 929 N.E.2d 1044, ¶5, 7, judgment vacated in part on reconsideration on other grounds, 126 Ohio St.3d 1227, 2010-Ohio-3754, 933 N.E.2d 260. Once a pleading is
{¶32} Here, the indictment, sentencing entries, and other pleadings contain a date-stamp by the Mahoning County Clerk of Courts. Based on the reasoning in Rouse, it appears that this certification demonstrates that these documents were filed with the clerk, regardless of the fact that they do not contain a time-stamp. Thus, the trial court had subject matter jurisdiction over the case, and Adams’ fourth assignment of error is meritless.
Conclusion
{¶33} In sum, Adams’ assignments of error are meritless. Adams has not proven beyond a reasonable doubt that
Donofrio, J., concurs.
Vukovich, J., concurs.