State v. BrownState v. Brown
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: March 9, 2011
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Antоn Lapp, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Michaela M. Stagnaro, for Defendant-Appellant.
Please note: We have removed this case from the accelerated calendar.
{¶1} In 2007, defendant-appеllant James Brown robbed the Delhi branch of the Northside Bank & Trust Company. He now appeals from the sentence imposed by the trial court in its third sentencing proceeding held in May 2010. Beсause Brown‘s argument that the trial court had erred in entering multiple convictions for allied offenses of similar import was precluded by the doctrine of res judicata, and becausе the trial court did not abuse its discretion in imposing sentence, we affirm.
{¶2} Following a 2008 jury trial, Brown had been found guilty of and sentenced on two counts of robbery of the bank, as well as three cоunts of kidnapping the bank‘s tellers. Brown was also convicted of separate counts of escape and vandalism for damage that he had caused to his jail cell while awаiting trial on the bank-robbery offenses. The trial court imposed an aggregate sentence of 49 years’ imprisonment.
{¶3} In April 2009, in Brown‘s first direct appeal, this court reversed the trial court‘s judgmеnt in part.1 In the resolution of his fifth assignment of error, we concluded that the three kidnapping convictions had been committed with an animus separate from that of the robbery and thus that the trial court had properly entered separate convictions for those offenses. But we held that the two robbery convictions involved allied offenses of similar import that сould not be separately punished.2 We remanded the case so that the trial court could impose a single sentence for the merged robbery offenses.3 Because the kidnаpping victims had been released in a safe place and unharmed, we also instructed
{¶4} In Brown‘s second appeal, we reviewed the trial court‘s June 2009 resentencing at which it had imposed an aggregate sentence of 41 years’ imprisonment.6 But contrary to this court‘s mandate in Brown I, the trial court had failed to merge the two robbery convictions, although it had ordered the prison sentences for thоse convictions to be served concurrently. During the sentencing hearing, the trial court also had failed to notify Brown that he would be subject to postrelease control as part of his sentence. And the trial court also had failed to ensure that its judgment entry identified the kidnapping convictions as felonies of the second degree.
{¶5} Without citation to authority, wе determined that the trial court‘s failure to properly include postrelease-control notice rendered the sentence void. Therefore, we affirmed the trial court‘s judgment in part, vacated the sentence, and remanded the case “for a new sentencing hearing so that the trial court can impose only one robbery sentence and appropriately inform Brown about postrelease control.”7
{¶6} The trial court held a third sentencing hearing at which it merged the robbery offenses and notified Brown of his postreleasе-control obligations. But presumably acting in conformity with the Ohio Supreme Court‘s 2007 decision in State v. Bezak, the trial court conducted a de novo resentencing.8 It sentenced Brown on each of the felony offenses “as if there had been no original sentence.”9 The trial court again imposed maximum, consecutive sentences for each offense—one count of robbery,
{¶7} In his single assignment of error, Brown now asserts that the trial court erred as a matter оf law in imposing sentence. Brown first argues that the trial court erred in imposing a sentence for both the single robbery offense and the three kidnapping offenses. He asserts, as he had in his first and second appeals, that these offenses were allied offenses of similar import under
{¶8} First, we note that because the trial court had imposed each of Brown‘s sentenсes after the July 11, 2006, effective date of
{¶9} Next, during the pеndency of this appeal, the Ohio Supreme Court released its decision in State v. Fischer, which further limited the Bezak remedy.12 The court clarified the scope of the sentencing hearing that the trial court must undertake on remand. When a trial court does not properly impose postrelease control as part of a defendant‘s sentence, “that part of the sentence * * * is void and must be set аside.”13
{¶10} Because “only the offending portion of [a] sentence is subject to review and correction,”14 on remand, the new sentencing hearing “is limited to [the] proper imposition of postrelease control.”15 Thus “[t]he scope of an appeal from a resentencing
{¶11} Here, the only issues arising at the resentencing, and thus subject to review, were those surrounding the postrelease-control notification and the imposition of a single conviction and sentence for robbery. The trial court‘s failure to notify Brown of postrelease control following the Brown II remand had rendered the sentence void.17 The issue of sentencing was thus properly before the trial court for correction in May 2010. But the trial cоurt‘s remand authority was limited under Fischer and
{¶12} While these issues properly arose at the resentencing hearing and are properly before us for review, the doctrine of res judicata “still applies to other aspects of the merits of a conviction, including the determination of guilt and the lawful elements of the ensuing sentence.”20 Brown had raised his allied-offenses argument relating to the kidnapping offenses in his first direct appeal. And we rejected that argument in Brown I.21 He is thus precluded by res judicata from again raising that argument in this appeal.22
{¶13} Brown next argues that the trial court erred in imposing maximum, consecutive sentences without considering the purposes and principles of felony
{¶14} Here, the sentence imposed was not contrary to law. The sentence for robbery was within the range provided by statute for second-degree felonies.27 And the trial court was not obligated to engage in judicial fact-finding prior to making that sentence consecutive to the other sentences imposed in these cases.28 Although the trial court did not specifically state that it had considered
{¶15} We note, however, that the trial court failed to ensure that its May 2010 judgment entry identified the kidnapping convictions as felonies of the second degree as we had mandated in Brown I. Neither party has raised this issue in their appellate briefs. “Although trial courts generally lack authority to reconsider their own valid final judgments in criminal cases, they retain continuing jurisdiction to сorrect clerical errors in
{¶16} Therefore, the judgment of the trial court is affirmed.
Judgment affirmed.
HILDEBRANDT, P.J., and SUNDERMANN, J., concur.
Please Note:
The court has recorded its own entry on the date of the release of this oрinion.