Case Information
*1
[Cite as
State v. Benjamin
,
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
State of Ohio, :
:
Plaintiff-Appellee, :
: Case No. 10CA3378 v. :
: DECISION AND Akie H. Benjamin, : JUDGMENT ENTRY :
Defendant-Appellant. : Filed: October 27, 2011 ________________________________________________________________
APPEARANCES:
Akie H. Benjamin, Chillicothe Correctional Institution, Chillicothe, Ohio, pro se, Appellant.
Mark E. Kuhn, Scioto County Prosecuting Attorney and Danielle M. Parker, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for Appellee. ________________________________________________________________
Kline, J.: Akie H. Benjamin appeals the trial court’s denial of his Motion to Vacate Void
Sentence Pursuant to R.C. 2953.08(A)(4). Benjamin contends that his sentence was void because the trial court failed to impose a statutorily mandated driver’s license suspension, and thus, he is entitled to a resentencing hearing. We agree. Because the trial court failed to impose a statutorily mandated driver’s license suspension, Benjamin’s sentence is void, and the trial court must resentence Benjamin. However, we limit Benjamin’s resentencing hearing to the proper imposition of the statutorily mandated driver’s license suspension.
I.
{¶2}
On November 26, 2007, a Scioto County Grand Jury indicted Benjamin for
possession of and trafficking in both crack cocaine and methylenedioxymeth-
amphetamine (commonly referred to as “ecstasy”). The trafficking charges were
dismissed, and the state tried Benjamin on the possession charges. Benjamin was
convicted of two counts of possession in violation of R.C. 2925.11(A)/(C)(4)(c) and R.C.
2925.11(A)/(C)(1)(b), both felonies of the third degree. We affirmed Benjamin’s
convictions in State v. Benjamin , Scioto App. No. 08CA3249,
{¶4} Benjamin appeals and asserts the following assignment of error: I. “The sentence in the case is void due to the trial courts [sic] failure to impose a statutorily mandated drivers [sic] license suspension. Therefore Defendant is entitled to re- sentencing hearing [sic].”
II. In his sole assignment of error, Benjamin contends that his sentence is void
and that he should be granted a de novo sentencing hearing. Benjamin argues that, because the trial court’s sentence did not impose a mandatory driver’s license suspension, his entire sentence is void.
{¶6}
“Appellate courts ‘apply a two-step approach [to review a sentence]. First,
[we] must examine the sentencing court’s compliance with all applicable rules and
statutes in imposing the sentence to determine whether the sentence is clearly and
convincingly contrary to law. If this first prong is satisfied, the trial court’s decision shall
be reviewed under an abuse-of-discretion standard.’” State v. Smith , Pickaway App.
No. 08CA6,
{¶7}
Here, we focus on the first prong. Specifically, Benjamin contends that the
trial court failed to comply with all applicable rules and statutes, and thus, his sentence
is clearly and convincingly contrary to law. We review de novo whether the trial court
clearly and convincingly complied with all applicable rules and statutes. State v.
Walker , Mahoning App. No. 08MA103,
{¶8}
Benjamin was convicted of two counts of possession of drugs, in violation of
R.C. 2925.11(A)/(C)(4)(c) and R.C. 2925.11(A)/(C)(1)(b), each felonies of the third
degree. R.C. 2925.11(E)(2) provides that “the court that sentences an offender who is
convicted of or pleads guilty to a violation of division (A) of this section shall do all of the
following that are applicable regarding the offender: * * * (2) The court shall suspend for
not less than six months or more than five years the offender’s driver’s or commercial
driver’s license or permit.” Therefore, under R.C. 2925.11(E)(2), the trial court was
required to suspend Benjamin’s driver’s license for at least six months. The trial court,
however, failed to impose the statutorily mandated driver’s license suspension.
Benjamin asserts that he is entitled to a resentencing hearing because his
sentence is void. Benjamin relies on State v. Beasley (1984),
mandated driver’s license suspension, his sentence is a nullity or void under Beasley .
Therefore, according to Benjamin, “where a sentence is void because it does not
contain a statutorily mandated term, the proper remedy is * * * to resentence the
defendant.” State v. Jordan ,
{¶11}
Courts have found that the failure to impose a statutorily mandated driver’s
license suspension renders a sentence void and that the proper remedy is resentencing
of the defendant. See State v. Harris ,
Ohio-4187, remanded a case for resentencing after the trial court failed to impose a statutorily mandated fine. The court stated: “[A] trial court retains jurisdiction to correct its void judgments. Because the court below did not include in Fields’s sentence for cocaine possession the statutorily mandated fine, the sentence was void. And regardless of the jurisdictional bar to its consideration of Fields’s postconviction claim on its merits, the court should have vacated the void sentence and conducted a new sentencing hearing. Accordingly, we vacate the sentence imposed on Fields for cocaine possession and remand the case for a new sentencing hearing.” Id. at ¶10-11 (citations omitted).
{¶13}
We agree that Benjamin’s sentence is void because the trial court failed to
impose a statutorily mandated driver’s license suspension. The state concedes the
error. And both Benjamin and the state contend that the proper remedy is to
resentence Benjamin. The state, however, argues that the resentencing hearing should
address only the trial court’s imposition of the statutorily mandated driver’s license
suspension.
The state relies on State v. Fischer ,
Fischer , the Court held that when a trial court fails to properly impose statutorily mandated postrelease control, the defendant’s resentencing hearing is limited to the imposition of postrelease control. Id. at ¶29. The Fischer Court stated: “[W]hen 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.” Id. at ¶26 (emphasis sic). And “[t]he new sentencing hearing to which an offender is entitled * * * is limited to proper imposition of postrelease control.” Id. at paragraph two of the syllabus {¶15} We agree with the state that Benjamin’s resentencing hearing should be limited to the proper imposition of the statutorily mandated driver’s license suspension. We acknowledge that the Fischer Court stated that its decision was “limited to a discrete vein of cases: those in which a court does not properly impose a statutorily mandated period of postrelease control.” Id. at ¶31. However, as the Fischer Court noted, “when an appellate court concludes that a sentence imposed by a trial court is in part void, only the portion that is void may be vacated or otherwise amended.” Fischer at ¶28. Benjamin’s sentence is void only to the extent that the trial court failed to properly impose the statutorily mandated driver’s license suspension. And limiting Benjamin’s resentencing hearing to the proper imposition of the statutorily mandated driver’s license suspension “provides an equitable, economical, and efficient remedy for [Benjamin’s] void sentence.” Fischer at ¶30. In short, the principles that justify limiting a resentencing hearing in the postrelease control context apply here to remedy the trial court’s failure to impose a statutorily mandated driver’s license suspension.
{¶16} Benjamin’s sentence is void because the trial court failed to impose the statutorily mandated driver’s license suspension. Thus, we sustain Benjamin’s assignment of error, and we reverse the judgment of the trial court. We vacate Benjamin’s sentence to the extent the trial court failed to impose the statutorily mandated driver’s license suspension under R.C. 2925.11(E)(2). And we remand this case to the trial court for a resentencing hearing. However, we limit Benjamin’s resentencing hearing to the proper imposition of the statutorily mandated driver’s license suspension under R.C. 2925.11(E)(2).
III. In conclusion, the trial court’s judgment is reversed, and this cause is
remanded to the trial court for proceedings consistent with this opinion.
JUDGMENT REVERSED AND CAUSE REMANDED. JUDGMENT ENTRY
It is ordered that the JUDGMENT BE REVERSED AND THIS CAUSE BE REMANDED for further proceedings consistent with this opinion. Appellee shall pay the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Harsha, P.J. and McFarland, J. : Concur in Judgment and Opinion. For the Court
BY:_____________________________ Roger L. Kline, Judge NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.
Notes
[1] We note that in State v. Thomas , Hamilton App. Nos. C-090716 & C-090463, 2010-
Ohio-4856, the court held that “a trial court’s omission of a statutorily mandated driver’s
license suspension does not render void an otherwise lawful sentence.” Id. at ¶11. And
the Supreme Court of Ohio has certified a conflict between Thomas and State v. Harris ,