STATE OF OHIO v. DONALD FALKENSTEIN
No. 99670
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
December 5, 2013
[Cite as State v. Falkenstein, 2013-Ohio-5315.]
McCormack, J., Stewart, A.J., and Blackmon, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-434255
David L. Doughten
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, OH 44103
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Adam M. Chaloupka
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
{¶1} This is the third time Donald Falkenstein appeals his сonviction of rape of a child under the age of 13. In this appeal, he claims the trial court erred by resentencing him without a hearing. Finding no merit tо his claim, we affirm the judgment of the trial court.
{¶2} In 2003, Falkenstein was convicted of 41 counts of rape of a child under the age of 13. The trial court sentenced him to consecutive life terms in prison, with the parole eligibility after 20 years. This court affirmed Falkenstein’s conviction, in State v. Falkenstein, 8th Dist. Cuyahoga No. 83316, 2004-Ohio-2561 (“Falkenstein I”).
{¶3} In October 2010, Falkenstein filed a pro se “motion to set aside/vacate or in the alternat[ive] resentence him on an otherwise void sentence.” He argued his sentence was void because the trial court failed to advise him of the mandatory five years of postrelease control and of the consequences of a postrelease control violation — in the 2003 sentencing entry, the trial court stated postrelease control was рart of Falkenstein’s prison sentence “for the maximum period allowed for the above felony(s) under
{¶4} The trial court denied Fаlkenstein’s motion to set aside/vacate, and he appealed that decision. In his (second) appeal, State v. Falkenstein, 8th Dist. Cuyahoga No. 96659, 2011-Ohio-5188, (“Falkenstein II”), we noted that Falkenstein did not file a
{¶5} We determined, however, that the sentencing entry was defective because the trial court did not specifically notify him of the mandatory five-year term of postrelease control for his first-degree sex offense, nor the consequences of a violation. The main issue in the second appeal was how the defect in the sentencing entry should be corrected by the trial court.
{¶6} Falksenstein argued he was entitled to a de novo sentencing hearing. We rejected that clаim, citing State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332. Fischer held that “[t]he new sentencing hearing to which an offender is entitled * * * is limited to proper imposition of postrelease control,” not a de novo sentencing hearing. Fischer at paragraph two of the syllabus.
{¶7} Moreover, quoting the Fischer court’s observation that remand for resentencing “is just one arrow in the quiver,” id. at ¶29, we interpreted Fischer as permitting a correction of the sentеncing entry without a remand for a (limited) hearing, where a defendant had been notified of postrelease control at the sentencing hearing. “Cоrrecting the defect without remanding for resentencing can provide an equitable, economical, and efficient remedy for a void sentеnce.” Id. at ¶30.
{¶9} Falkenstein did not appeal our decision in Falkenstein II to the Supreme Court of Ohio, and upon remand, the trial court followed our directives — in a December 21, 2011 judgment entry, the court corrected the sentencing entry to refleсt a notice of the mandatory term of five years of postrelease control, and also of the consequences of a violatiоn.
{¶10} Falkenstein filed a delayed appeal challenging that judgment. This court granted leave for the delayed appeal.
{¶11} In this (third) appeal, Falkenstein’s sole assignment of error states: “The trial court erred by re-sentencing the defendant without a hearing in which the defendant was present and represented by counsel.”
{¶13} Here, on remand from Falkenstein II, thе trial court followed our instructions and issued a corrected sentencing entry. In this third appeal, Falkenstein is essentially challenging our holding in Falkenstein II — that the lack of a proper postrelease advisement in the judgment entry can be remedied by a corrected judgment entry reflecting the proрer imposition of postrelease control.
{¶14} Filing an appeal from the trial court’s judgment that merely carried out our mandate is not the proper procedural vehicle for having this court reconsider its prior decision. To properly challenge our holding in Falkenstein II, Falkenstein should have appealed our decision in Falkenstein II to the Supreme Court of Ohio. He did not.
{¶15} Furthermore, even if, for argument’s sake, we were to reconsider our decision in Falkenstein II, we note that after this court issued Falkenstein II, the Supreme Court of Ohio, in State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, specifically approved the use of a nunc pro tunc order to correct a flawed sentencing entry that had omitted proper postrelease control notification, where the notification had beеn given at the sentencing hearing. This case falls into that category, because of a
{¶16} Since the 2012 Qualls decision, this court has consistently applied Qualls to allow the use of a nunc pro tunc entry to correct a defective sentencing entry. See, e.g., State v. Cvijetinovic, 8th Dist. Cuyahoga No. 99316, 2013-Ohio-3251 (the trial court properly advised a defendant of postrelease control at the sentencing hearing, but failed to include it in the sentencing journal entry, and the omission can be corrected nunc pro tunc); State v. Robinson, 8th Dist. Cuyahoga No. 97951, 2012-Ohio-5506 (the sentencing entry did not mention postrelease cоntrol, and this court remanded the matter for a nunc pro tunc entry to reflect the proper imposition of postrelease control); State v. Williamson, 8th Dist. Cuyahoga No. 99473, 2013-Ohio-3733, ¶ 17 (where a defendant failed to demonstrate a deficient postrelease control notification at the sentencing hearing but the judgment entry omitted a full notification, the defendant was not entitled to a new sentencing hearing and a nunc pro tunc entry may be used to correct any omission).
{¶17} In Falkenstein II, we modified appellant’s sentence and remanded the case for the trial court to correct the sentencing entry. Although we did not specifically use the term “nunc pro tunc,” our instructions regarding the trial court’s duty on remand is consistent with Qualls.
{¶18} Falkenstein’s assignment of error lacks merit. The judgment of the trial court is affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
It is ordered that a special mandate issue out of this court directing the common pleas court to сarry this judgment into execution. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
TIM McCORMACK, JUDGE
MELODY J. STEWART, A.J., and
PATRICIA ANN BLACKMON, J., CONCUR