State v. AddisonState v. Addison
Rendered on May 3, 2011
Ron O‘Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellee.
Shaw & Miller, and Mark J. Miller, for appellant.
APPEAL from the Franklin County Court of Common Pleas.
BRYANT, P.J.
{¶1} Defendant-appellant, Maurice H. Addison, appeals from a judgment of the Franklin County Court of Common Pleas sentencing him to eight years in prison and five years of mandatory post-relеase control. Because (1) defendant lacks standing to challenge the constitutionality of
I. Facts and Procedural History
{¶2} On June 24, 2003, the trial court, following a bench trial, found defendant guilty of one count of aggravated robbery, two counts of robbery, two counts of kidnapping, two counts of abduction, all with firearm specifications, as well as one count of carrying a concealed weapon, and one count of receiving stolen property. At a September 23, 2003 sentencing hearing, the triаl court merged the two counts of robbery, one count of kidnapping, and one count of abduction with the conviction for receiving stolen property. The trial court further merged the remaining count of abduction with the conviction for the remaining count of kidnapping and made the findings that allowed the trial court to sentence defendant on the kidnapping offense as a second-degree felony.
{¶3} During the sentencing hearing, the trial court explained to defendant the nature of post-release control, detailed the consequences of violating the terms of post-release control, and told defendant he was “gоing to be on post-release control” for five years. (Sept. 23, 2003 Tr. 17.) The trial court then sentenced defendant to a total of eight years in prison, imposing three years for the first-degree felony aggravated robbery, two years for the second-degree felony kidnapping, and three years for the firearm specifications, all to run consecutively to each other but concurrently with the concurrent one-year sentences the court imposed for each of the fourth-degree felonies of receiving stolen property and carrying a concealed weapon.
{¶4} The October 7, 2003 judgment entry journalizing defendant‘s sentence indicated “the court notified the defendant of the applicable periods of post-release control pursuant to
{¶5} Defendant appealed his conviction, claiming ineffective assistance of counsel. This court affirmed. State v. Addison, 10th Dist. No. 03AP-1102, 2004-Ohio-5154.
{¶6} On June 1, 2010, the trial court held a resentencing hearing in which defendant appeared via videoconference. The trial court imposed the same eight-year sentence it originally imposed and specified defendant was subject to five years of mandatory post-release control. A judgment entry journalizing the resentencing was filed June 1, 2010, and in it the trial court sрecified defendant is subject to a mandatory five-year period of post-release control.
II. Assignments of Error
{¶7} Defendant appeals from the June 1, 2010 judgment, assigning the following errors:
- The Legislature usurped the Supreme Court‘s authority with the passage of
R.C. 2929.191 because Section 5(B), Article IV of the Ohio Constitution grants the Supreme Court and not the Legislature the authority to prescribe rules governing practice and procedure in all state courts in Ohio. - Resentencing an offender pursuant to
2929.191 violates the Due Process Clause of the United States Constitution because it interferes with the legitimate expectation of finality in a nearly completed prison term. - Resentencing an offender аfter his sentence has commenced, pursuant to
R.C. 2929.191 , violates the Fifth Amendment protections against Double Jeopardy.
III. First Assignment of Error – Constitutionality of R.C. 2929.191
{¶8} Defendant‘s first assignment of error asserts
{¶9} The General Assembly enacted
{¶10} Here, the trial court originally sentenced defendant at a hearing conducted September 23, 2003, journalized its sentence in an October 7, 2003 judgment entry, and so imposed defendant‘s original sеntence prior to July 11, 2006. Pursuant to Singleton, the resentencing hearing on June 1, 2010 necessarily was a de novo sentencing hearing rather than an application of
{¶11} Because defendant lacks standing to challenge the facial constitutionality of
IV. Second and Third Assignments of Error – Resentencing
{¶12} Defendant‘s second and third assignments of error are interrelated, so we address them together. In his second and third assignments of error, defendant asserts the trial court erred in applying
{¶13} Defendant‘s second assignment of error asserts the trial court violated his due process rights in resentencing him when he had completed all but 15 days of his eight-year prison term and had a legitimate expectation of finality in his sentence. His third assignment of error contends the trial court violated his protection against double jeopardy when it resentenced him, added post-release control to his sentence and in effect imposed multiple punishments for the same offense in direct conflict with the Fifth Amendment‘s prоtection against double jeopardy.
{¶14} This court addressed a similar argument in State v. Mays, 10th Dist. No. 10AP-113, 2010-Ohio-4609, where the defendant, who appeared by videoconference for resentencing regarding the applicable period of post-release control, challenged the
{¶15} Explaining, this court observed Mays’ original sentencing entry included the statemеnt that “[a]fter imposition of sentence the Court notified the defendant, orally and in writing, of the applicable periods of post-release control pursuant to
{¶16} Here, as in Mays, defendant‘s original sentencing entry included the statement that “the court notified the defendant of the applicable periods of post-release control pursuant to
{¶17} Although, unlike Mays, the record here does not contain either a guilty plea form or a disposition sheet indicating compliance with S.B. 186, the transcript from the original sentencing reveals the trial court adequately explained post-release control and informed defendant he would be subject to a mandatory five-year period of post-release control due to his conviction of a first-degree felony. The trial court also explained the possible penalties defendant could face if he violated the terms of his post-release control.
{¶18} Because of its overwhelming similarities to defendant‘s cаse, Mays controls, meaning “[t]he subsequent hearing was unnecessary and had no legal effect.” Mays at ¶8. As a result, to the extent defendant contends the trial court erred in originally sentencing him, defendant‘s appropriate remedy was to challenge his sentence on direct appeal. See Watkins v. Collins, 111 Ohio St.3d 425, 2006-Ohio-5082, ¶51 (holding sentencing entry‘s error in refеrring to post-release control as discretionary rather than mandatory did not operate to deprive the petitioner of notice of the imposition of post-release control, so “[a]ny challenge to the propriety of the sentencing court‘s imposition of postrelease control in thе entries could have been raised on appeal“).
{¶19} Although defendant appealed his conviction, he did not raise any issues of sentencing and thus is precluded from so doing at this time. See State v. Stekelenburg, 9th Dist. No. 24825, 2010-Ohio-219, ¶8 (holding that where appellant could have raised
{¶20} In applying Mays, we nonetheless are mindful of the Supreme Court of Ohio‘s recent decision in State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, which held that “[a] sentence that does not include the statutorily mandated term of postrelease control is void, is not precluded from appellate review by principles of res judicata, and may be reviewed at any time, on direct appeal or by collateral attack.” Fischer at paragraph one of the syllabus. Our holdings in Mays and here are consistent with Fischer.
{¶21} The trial court in both Mays and the present case properly included the statutorily mandated term оf post-release control in the defendant‘s original sentencing hearing. Indeed, the court in Fischer repeatedly referred to the duty to include post-release control in the sentence as the trial court‘s obligation to notify the defendant at the sentencing hearing of any post-release control obligations. See Fischer at ¶10, 12. As the record here is clear the trial court properly informed defendant of his post-release control obligations during the September 23, 2003 sentencing hearing, his sentence is not void, and Fischer does not resurrect the post-release control argument defendant failed to raise during his first appeal.
{¶22} Even if Mays does not apply, defendant‘s arguments are unpersuasive. Defendant first contends the trial court interfered with his expectation of finality in resentencing him when he completed all but 15 days of his eight-year prison term. Had the trial court actually failed to properly include post-release control in defendant‘s sentence, thаt sentence would be void. Fischer at paragraph one of the syllabus. Defendant can have no legitimate expectation of finality in a void sentence. State v. Barber, 2d Dist. No. 22929, 2010-Ohio-831, ¶15; Bloomer at ¶28. So long as defendant had not completed his sentence, the trial court retained authority to correct a void sentence. Bloomer at ¶28. That defendant nearly completed the eight-year prison term does not deprive the trial court of the authority to correct his sentence. Id.; State v. Ramey, 10th Dist. No. 06AP-245, 2006-Ohio-6429 (affirming the imposition of post-release control at a resentencing hearing one day before defendant‘s scheduled release from prison and rejecting defendant‘s double jeopаrdy and due process arguments).
{¶23} Defendant next suggests the trial court violated principles of double jeopardy because the resentencing amounted to multiple punishments for the same conduct. In Bloomer, the Supreme Court of Ohio held that “[b]ecause jeopardy does not attach to a void sentence, the subsequеnt imposition of the statutorily required sentence cannot constitute double jeopardy.” Bloomer at ¶27. As a result, even if defendant‘s original sentence were void, the trial court did not violate double jeopardy in correcting that sentence to include the requisite period of post-release control. Were we to rеach defendant‘s due process and double jeopardy arguments, they would fail.
{¶24} In the final analysis, we apply this court‘s decision in Mays and conclude the trial court included the five-year term of post-release control in defendant‘s original sentence, at least to the point the sentence was not void. Any errors were correctable in a timely filed appeal of the original sentence. Defendant‘s second and third assignments of error are overruled.
V. Disposition
{¶25} Accordingly, we overrule defendant‘s first assignment of error because defendant lacks standing to challenge the facial constitutionality of
Judgment affirmed; case remanded with instructions to vacate June 1, 2010 resentencing entry.
FRENCH and DORRIAN, JJ., concur.
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