State v. CobbState v. Cobb
JUDGMENT: AFFIRMED AND REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-354043
RELEASED AND JOURNALIZED: October 21, 2010
Matthew M. Nee
The Law Office of Matthew M. Nee
14701 Detroit Avenue
Suite 700
Lakewood, Ohio 44107
David H. Brown
David H. Brown, LLC
4403 St. Clair Avenue
Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Thorin Freeman
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
ALSO LISTED
Michael Cobb
Inmate No. 355-344
Richland Correctional Institution
P.O. Box 8107
Cleveland, Ohio 44901
FRANK D. CELEBREZZE, JR., J.:
Procedural History
{¶ 2} Appellant pled guilty in 1998 to the robbery and murder of John Weeks and received an 18-year-to-life prison sentence consisting of 15 years to life for murder, five years for robbery to be served concurrently, plus a three-year term for a firearm specification to be served consecutively. The facts associated with these convictions were recited in a previous appeal, State v. Cobb, Cuyahoga App. No. 76950, 2001-Ohio-4132 (“Cobb I”). In this previous appeal, appellant challenged the validity of his plea, arguing it was not knowingly, voluntarily, and intelligently made because the trial court failed to comply with
{¶ 3} During this unsuccessful appeal, appellant filed an untimely motion for postconviction relief pursuant to
{¶ 4} Appellant then filed a motion to vacate his sentence on July 18, 2005, arguing that he had not entered a separate plea to a firearm specification, which was required. The trial court denied this motion, and this court dismissed the appeal taken from this ruling because appellant failed to file the record.
{¶ 5} Then, on February 6, 2009, appellant filed a motion to “vacate and correct void sentence” with the trial court. The state joined in the motion, conceding that appellant’s sentence failed to include postrelease control. The trial court scheduled a hearing for resentencing. Two days before the hearing, appellant filed a motion to withdraw his guilty pleas pursuant to
Withdrawal of Plea and Res Judicata
{¶ 6} Appellant argues that his sentence is void and, as such, res judicata cannot apply. Appellant contends that because his previous sentence is void, it deprived this court of jurisdiction to hear any prior appeal, and therefore, it is as if his prior appeals never occurred.
{¶ 7} In State v. Boswell, 121 Ohio St.3d 575, 576, 2009-Ohio-1577, 906 N.E.2d 422, the Ohio Supreme Court determined that a motion to withdraw a guilty plea after the imposition of a void sentence was to be treated as a presentence motion, which should be liberally granted. The court remanded the case to determine if there was a legitimate basis for withdrawal.
{¶ 8}
{¶ 10} This doctrine applies to
{¶ 11} In Fountain, this court found that “the application of res judicata to a motion to withdraw is not impacted by a void sentence.” Id. Fountain attempted to withdraw his plea, complaining that the trial court misinformed
{¶ 12} In the present case, appellant’s multiple, successive attempts to withdraw his plea based on information known at the time he instigated his direct appeal bars further litigation. State v. Tate, Cuyahoga App. No. 93936, 2010-Ohio-2357, ¶7-9; Fountain at ¶8-11. Accordingly, appellant’s first, fourth, fifth, and sixth assignments of error are overruled.1
Imposition of Postrelease Control
{¶ 13} Appellant’s second assignment of error alleges that “[t]he trial court erred by imposing postrelease control in violation of
{¶ 14} The journal entry memorializing appellant’s 2009 resentencing states, “[appellant] advised of 5 years post-release control on each count 1 and 5.” There are two problems with this statement. First, Count 1 is a conviction for murder, an unclassified felony where postrelease control should not be imposed.
{¶ 15} There is a third problem. This court, in State v. Dresser, Cuyahoga App. No. 92105, 2009-Ohio-2888, reversed on other grounds in State ex rel. Carnail v. McCormick, 126 Ohio St.3d 124, 2010-Ohio-2671, 931 N.E.2d 110, has recently held that it is the expiration of the sentence for which postrelease control is applicable that determines whether a court may correct a sentencing error and impose postrelease control at resentencing.
{¶ 16} In State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, the Ohio Supreme Court held, “[i]n cases in which a defendant is convicted of, or pleads guilty to, an offense for which postrelease control is required but not properly included in the sentence, the sentence is void, and the state is entitled to a new sentencing hearing to have postrelease control imposed on the defendant unless the defendant has completed his sentence.” Id. at the syllabus. Once that sentence has been served, the court can no longer correct sentencing errors and impose postrelease control at resentencing. State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961. Dresser clarified this holding, determining that it was the expiration of the individual terms, not the overall sentence that precludes trial courts from correcting errors in postrelease control at resentencing, holding “it is the expiration of the prisoner’s journalized sentence, rather than the offender’s
{¶ 17} Appellant’s robbery conviction carried a prison term of five years, and the state concedes that it was satisfied in 2003. Therefore, the trial court was without authority to impose postrelease control at appellant’s resentencing. Appellant’s second assignment of error is sustained. This case must be remanded for reimposition of appellant’s original sentence without any term of postrelease control.
Delay in Sentencing
{¶ 18} Appellant argues that “[t]he trial court erred in sentencing [appellant] more than twelve years after his plea, as such a delay between sentencing is unreasonable and the trial court no longer had jurisdiction to impose any sentence.”
{¶ 19} Appellant cites to cases dealing with a long delay between a finding of guilt and the imposition of sentence to support a claim that the delay in his original sentence and the 2009 resentencing act to deprive the trial court of jurisdiction. However, these cases are factually distinguishable. In State v. Mack, Cuyahoga App. No. 92606, 2009-Ohio-6460, the trial court imposed a term of incarceration, but left other penalties to be worked out after this prison term was served. When appellant was released from prison without the imposition of those additional penalties, the court lost jurisdiction to impose any further sanctions because appellant had served his validly-imposed sentence.
{¶ 20} In the present case, appellant is still incarcerated. The Ohio Supreme Court in Simpkins, supra, recognized that the court loses jurisdiction to resentence a defendant where an imposed sentence has been satisfied. Id. at the syllabus. Because appellant is still serving his prison term, the trial court retains jurisdiction to resentence him. See Smith v. Cuyahoga Cty. Sheriff’s Dept., Cuyahoga App. No. 94626, 2010-Ohio-1763, ¶9-11. Appellant’s third assignment of error is overruled.
Conclusion
{¶ 21} Appellant’s argument that his sentence is void is barred by res judicata. His arguments are based on information known to him at the time he brought his first appeal, his postconviction relief petition, and his first attempt to withdraw his plea. However, when appellant was resentenced, the trial court improperly imposed postrelease control on an unclassified felony and on a conviction for which the stated prison term had expired. Therefore, this cause is affirmed, but remanded to the lower court for reimposition of the previous sentencing order, without postrelease control.
It is ordered that appellant and appellee share 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 common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
FRANK D. CELEBREZZE, JR., JUDGE
KENNETH A. ROCCO, P.J., and LARRY A. JONES, J., CONCUR
APPENDIX
Appellant’s Assignments of Error I, IV, V, and VI:
I. “The trial court erred by denying Mr. Cobb’s presentence motion to withdraw his guilty plea.”
IV. “Because a void sentence precludes a valid judgment of conviction, the previous appeal is a legal nullity and an appeal following a de novo sentencing under Bezak and progeny is the first appeal of right that could validly be the subject of an appeal.”
V. “The trial court abused its discretion when it denied [appellant’s] pre-sentence Crim.R. 32.1 motion to vacate guilty plea, because he was not afforded a full hearing pursuant to Crim.R. 11, before he entered the plea, thereby denying him due process of and equal protection of the law in violation of the Fourteenth Amendment to the U.S. Constitution and Article 1, Section 2 and 16 of the Ohio Constitution.”