State v. Barnes, 2006-P-0089 (6-29-2007)State v. Barnes, 2006-P-0089 (6-29-2007)
{¶ 1} Appellant, Mr. Marcus D. Barnes, appeals from the August 17, 2006 judgment entry of the Portage County Court of Common Pleas, which corrected appellant‘s sentence prior to his release from incarceration to reflect notification of post-release control, in accordance with
Substantive History and Procedural Facts
{¶ 2}
{¶ 3} This case stems from an altercation that occurred on November 21, 1997. While attending a party in Kent with his girlfriend, appellant became involved in an
{¶ 4} The Portage County Grand Jury indicted appellant on two counts of felonious assault on November 26, 1997. On December 12, 1997, following the death of Wawrin, the Grand Jury indicted appellant for one count of murder. On January 16, 1998, the Grand Jury amended the indictment and charged appellant with the attempted murder of DeAngelis.
{¶ 5} The jury returned a verdict of guilty on the counts of involuntary manslaughter and felonious assault with a deadly weapon. Subsequently, the trial court sentenced appellant to consecutive prison terms of nine years for the offense of involuntary manslaughter and six years for the offense of felonious assault.
{¶ 6} Appellant then appealed to this court, and we reversed both convictions. We found that the trial court erred by (1) excluding evidence of Wawrin‘s specific instances of violent conduct; (2) instructing the jury that felonious assault with a deadly weapon was a lesser included offense of attempted murder; and (3) sentencing appellant to consecutive prison terms without making the factual findings required by
{¶ 7} The Supreme Court of Ohio reversed our decision in State v. Barnes (2002), 94 Ohio St.3d 21. The Court held that a defendant asserting self defense cannot introduce evidence of specific acts of the victim to demonstrate that the victim
{¶ 8} On June 20, 2002, the trial court, on remand, overruled appellant‘s motion to dismiss the felonious assault conviction, and resentenced appellant to concurrent prison terms of nine years for the offense of involuntary manslaughter and six years for the offense of felonious assault. Once again, appellant‘s case was appealed to this court, where appellant raised two assignments of error dealing with issues of due process of law. We affirmed the trial court, holding that the trial court could not dismiss the conviction for felonious assault because the Supreme Court of Ohio had already established it could not be reversed. We also held that the trial court made the requisite finding that the minimum sentence would demean the seriousness of the offense in this case. State v. Barnes, 11th Dist. No. 2002-P-0079, 2003-Ohio-6674.
{¶ 9} Inasmuch as appellant was never notified that he would be subject to post-release control following his release, the trial court, pursuant to the provisions of
{¶ 10} On September 1, 2006, the trial court granted appellant‘s motion to correct the August 17, 2006 order and judgment entry in part and issued a new nunc pro tunc
{¶ 11} Appellant timely appealed the August 17, 2006 judgment, which was corrected by the September 1, 2006 judgment, and now raises the following six assignments of error:
{¶ 12} “[1.] Defendant was denied due process of law when the court granted the state‘s motion for a nunc pro tunc order to supply an omission.
{¶ 13} “[2.] Defendant was denied his rights under the
{¶ 14} “[3.] Defendant was denied his constitutional rights when the court proceeded to apply a 2006 statute in an ex-post facto and retroactive manner.
{¶ 15} “[4.] Defendant was denied due process of law when the court journalized a nunc pro tunc entry as if it had occurred in 1998 and 2002.
{¶ 16} “[5.] Defendant was denied due process of law when the court failed to apply res judicata to claims for an increase of sentence adding post-release control.
{¶ 17} “[6.] Defendant was denied due process of law when the court failed to grant defendant his right of allocution and did not properly inform him concerning post-release control.”
Post-release Control
{¶ 18}
{¶ 19} Appellant is challenging the trial court‘s authority to hold a resentencing hearing to correct an earlier failure to advise appellant post-release control would be imposed following his period of incarceration. His assignments of error essentially challenge the constitutionality of
{¶ 20} Appellant was not notified at the time of his original sentencing or at a subsequent resentencing that he would be subject to post-release control, either orally or in the judgment entry of the sentence. However, a plain reading of the post-control release statute,
{¶ 21} In relevant part,
{¶ 22} Pursuant to
Procedural Issues — The Nunc Pro Tunc Entry
{¶ 23}
{¶ 24} Appellant‘s first and fourth assignments of error deal with whether the nunc pro tunc judgment entry is the proper vehicle to resentence a defendant where the defendant was not notified of post-release control at the time of his sentencing or in the judgment entry. Specifically, in his first assignment of error, appellant contends that he was denied due process of law when the court granted the state‘s motion for a nunc pro tunc order to supply an “omission.” In his fourth assignment of error, appellant contends that he was denied due process when the court journalized the nunc pro tunc entry as if it had occurred in 1998 and 2002. We reject both of these contentions and hold that the trial court properly used a nunc pro tunc entry to correct appellant‘s sentence.
{¶ 25}
{¶ 26} The Supreme Court of Ohio in State ex. rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5797, explained that a nunc pro tunc judgment entry may be used in two instances under the court‘s jurisdiction. Generally, “trial courts lack authority to reconsider their own valid final judgments in criminal cases.” Id. at ¶ 18, quoting State ex rel. White v. Junkin (1997), 80 Ohio St.3d 335, 338; State ex rel. Hansen v. Reed (1992), 63 Ohio St.3d 597, 599. However, “this general rule is subject to two exceptions under which the trial court retains continuing jurisdiction.” Cruzado at ¶ 19, citing State v. Garretson (2000), 140 Ohio App.3d 554, 559. “First, a trial court is authorized to correct a void sentence.” Id. citing Garretson at 559, citing State v. Beasley (1984), 14 Ohio St.3d 74, 75. “Second, a trial court can correct clerical errors in judgments.” Id. citing
{¶ 27} When the trial court neglected to inform appellant of his post-release control, the sentence was rendered void since “[a]ny attempt by a court to disregard statutory requirements when imposing a sentence renders the attempted sentence a nullity or void.” Id. at ¶ 20, citing Beasley at 75. “[W]here a sentence is void because it does not contain a statutorily mandated term, the proper remedy is * * * to resentence the defendant.” Id. citing State v. Jordan, 104 Ohio St.3d 21. Thus, the trial court properly gave notice, held a hearing, and used the nunc pro tunc judgment entry to resentence appellant.
{¶ 28} Further, “[t]he court‘s placement upon the journal of the entry nunc pro tunc before the offender is released from imprisonment under the term shall be considered, and shall have the same effect, as if the court at the time of original sentencing had included the statement in the sentence and the judgment of conviction entered on the journal and had notified the offender that the offender will be so
{¶ 29} Appellant‘s first and fourth assignments of error are overruled.
The Constitutionality of R.C. 2929.191 — Separation of Powers
{¶ 30}
{¶ 31} In the next four assignments of error, appellant challenges the constitutionality of the imposition of post-release control as it concerns his sentence. In his second assignment of error, appellant contends that his
{¶ 32} Appellant‘s sentence was not increased by the imposition of post-release control following his incarceration. Indeed, this condition is a mandatory requirement of appellant‘s sentence that existed at the time of appellant‘s original sentence. Woods v. Telb (2000), 89 Ohio St.3d 504, 512. The failure to notify appellant at the original sentencing hearing does “not negate, limit, or otherwise affect the mandatory period of supervision that is required for the offender under this division.”
{¶ 33} Appellant‘s argument that the legislature violated the separation of powers doctrine by enacting
{¶ 34} As the Fifth Appellate District noted in a similar case, State v. Merideth (2007), 5th Dist. No. 06-CA-15, 2007-Ohio-176; “Clearly the determination of guilt in a criminal matter and the sentencing of a defendant convicted of a crime are solely the province of the judiciary.” Id. at ¶ 16, citing State ex rel. Bray v. Russell (2000), 89 Ohio St.3d 132, 136, citing State ex rel. Atty Gen. v. Peters (1885), 43 Ohio St. 629, 648. “Because the task of resentencing an offender on account of a void sentence falls on the judicial branch via the trial court, we hold appellant‘s recall for resentencing in this matter did not violate the doctrine of separation of powers.” Id. We find this reasoning persuasive.
{¶ 35} Appellant‘s second assignment of error is overruled.
Ex Post Facto and Double Jeopardy
{¶ 36}
{¶ 37} In his third assignment of error, appellant argues that his constitutional rights were violated when the court applied
{¶ 38} “In construing Ohio‘s constitution, we must adapt the test for retroactive legislation to apply to retroactive judicial decisions. In determining whether a law violates
{¶ 39}
{¶ 40} The Supreme Court of Ohio granted a writ of habeas corpus and compelled the defendant‘s release from prison since he was being held for violating a non-existent condition. In doing so, the court effectively held that resentencing the defendant could not be permitted because the defendant‘s journalized sentence had already expired.
{¶ 41} Six months later, the General Assembly enacted
{¶ 42} Four months later, the Supreme Court of Ohio reviewed the newly enacted
{¶ 43} Troubled though we may be, we are nonetheless bound to follow the precedent established by the Ohio Supreme Court in Cruzado and the precedent that has since been established by this court in State v. Leonard (2007), 11th Dist. No. 2006-A-0064, 2007-Ohio-1545. In Leonard, we similarly found that
{¶ 44} Fundamentally, there is no ex post facto violation since “[t]he statutory amendments affect only the remedy provided, not the offender‘s substantive rights. They do not impose new burdens, duties, or obligations related to a past transaction, take away vested rights, or create new rights.” Bankhead at ¶ 13, citing State v. Cook, 83 Ohio St.3d 404, 410-411. “Correcting the judgment entry does not prejudice the offender. The court merely gives the offender additional written notice of a legal obligation that is tied to the original conviction before the offender begins post-release control. Nothing extends the duration of imprisonment or of post-release control beyond what was contemplated at the original sentencing.” Id. citing State v. Ramey, 10th Dist. No. 06AP-245, 2006-Ohio-6429, at ¶ 17. See, also, State v. Rich, 5th Dist. No. 2006 CA 00171, 2007-Ohio-362. Thus,
{¶ 45} Nor does resentencing appellant offend double jeopardy guarantees since there is no expectation of finality in a void sentence.
{¶ 46} When dealing with a void or illegal sentence, the proper remedy is to resentence the defendant. Cruzado at ¶ 20, citing State v. Jordan, 104 Ohio St.3d 21. Thus, “an invalid sentence may be corrected although the defendant began to serve the invalid sentence.” Ramey at ¶ 16, citing Bush. See, also, State v. Beasley (1984), 14 Ohio St.3d 74. The rationale is that “an invalid sentence for which there is no statutory authority is * * * a circumstance under which there can be no expectation of finality” to trigger the protections of the Double Jeopardy Clause.” State v. McColloch (1991), 78 Ohio App.3d 42, 46; Ramey at ¶ 16. Thus, double jeopardy guarantees have not been offended by resentencing appellant.
{¶ 47} Appellant‘s third assignment of error is overruled.
Res Judicata
{¶ 48}
{¶ 49} In his fifth assignment of error, appellant argues that he was denied due process of law when the court failed to apply the doctrine of res judicata since he contends his sentence was effectively increased by the imposition of post-release control and the state failed to raise the issue of post-release control during any appeal. We reject this argument.
{¶ 50} Similar to claims of double jeopardy violations, claims of a res judicata bar do not apply to a void sentence. “When a court fails to perform its statutory duty of advising of post-release control and including it as part of its sentence, the original sentence is void because post-release control was not properly imposed.” Ramey at ¶ 14. “Moreover, in such cases, the sentencing court on remand is not modifying the sentence, but is correcting a statutorily incorrect sentence.” Id. Appellant‘s sentence was void due to the trial court‘s initial failure to notify appellant of the mandatory requirement of post-release control following incarceration. The court properly returned appellant to the court for resentencing since resentencing is the proper remedy when dealing with a void sentence. State v. Broyles, 5th Dist. No. 2006CA00170, 2007-Ohio-487, ¶ 12, citing Cruzado at ¶ 19-20. See, also, Ramey at ¶ 14.
{¶ 51} As the Fifth Appellate District noted in a similar case, State v. Broyles, supra, at fn2: “At oral argument, appellant argued that the Cruzado decision rendered his sentence merely voidable, not void; therefore, res judicata is applicable. The Ohio Supreme Court did not specifically address the issue of `void’ versus `voidable’ in Cruzado. The Court did however, reiterate the term `void’ as used in Beasley, and we must interpret the language as such and find res judicata does not apply.”
{¶ 52} Appellant‘s fifth assignment of error is overruled.
The Right of Allocution
{¶ 53}
{¶ 54} In his sixth assignment of error, appellant argues that his right of allocution was violated since his sentence was effectively increased due to the imposition of the mandatory post-release control. We reject this argument.
{¶ 55} “Pursuant to
{¶ 56} However, as we have noted numerous times above, appellant‘s notification of post-release control does not equate to an increase in his overall
{¶ 57} In this case we are concerned solely with the issue of properly notifying appellant of the mandatory imposition of post-release control. Although appellant is entitled, pursuant to
{¶ 58} Furthermore, even at the time of sentencing where the right of allocution is applicable, the trial court‘s failure to address a defendant personally and allow him or
{¶ 59} Appellant‘s sixth assignment of error is overruled.
{¶ 60} The judgment of the Portage County Court of Common Pleas is affirmed.