State v. HarmonState v. Harmon
Dated: September 2, 2009
MOORE, Presiding Judge.
{¶1} Appellant, Jimmy L. Harmon, appeals the judgment of the Summit County Court of Common Pleas. This Court affirms.
I.
{¶2} In 2004, a jury found Harmon guilty of engaging in a pattern of corrupt activity, a first-degree felony, and two counts of trafficking in cocaine, a third-degree felony. The trial court sentenced him to an aggregate prison term of nine years. During sentencing, the trial court did not inform Harmon of his obligations regarding postrelease control, and the trial court’s sentencing entry provided that Harmon would be “subject to post-release control to the extent the parole board may determine as provided by law.” Harmon appealed to this Court, and we affirmed his convictions on July 20, 2005. State v. Harmon, 9th Dist. No. 22399, 2005-Ohio-3631.
II.
ASSIGNMENT OF ERROR I
“THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING DEFENDANT’S RIGHT TO FULLY CROSS-EXAMINE AND IMPEACH A STATE’S WITNESS ABOUT HIS PREVIOUS CONVICTIONS WHEN IT REFUSED TO PERMIT DEFENDANT TO QUESTION THE WITNESS ABOUT THE CIRCUMSTANCES OF HIS PREVIOUS CONVICTIONS.”
{¶4} As an initial matter, this Court must determine whether Harmon’s first assignment of error can be considered in the context of this appeal. The State argues that prior decisions of this Court limit our review to errors arising out of the resentencing. See State v. Fischer, 9th Dist. No. 24406, 2009-Ohio-1491; State v. Ortega, 9th Dist. No. 08CA009316, 2008-Ohio-6053. This Court must revisit this issue, however, in light of State ex rel. Culgan v. Medina Cty. Court of Common Pleas, 119 Ohio St.3d 535, 2008-Ohio-4609, and State v. Bedford, 9th Dist. No. 24431, 2009-Ohio-3972.
{¶5} In Culgan, the Supreme Court of Ohio considered whether Culgan, whose convictions in 2002 had been affirmed by this Court in a direct appeal, was entitled to writs of mandamus and procedendo compelling the Medina County Court of Common Pleas to enter a judgment on his convictions that complied with
“[I]f Culgan is correct that appellees’ sentencing entry violated
Crim.R. 32(C) , which would render the entry nonappealable, his claims for writs of mandamus and procedendo would have merit, and the court of appeals erred in sua sponte dismissing his complaint.” (Emphasis added.) Culgan, 2008-Ohio-4609, at ¶9.
The Court concluded that Culgan’s sentencing entry did not, in fact, comply with
{¶6} The implication of the Supreme Court’s opinion in Culgan is that regardless of whether a defendant has already appealed his conviction, if the order from which the first appeal was taken is not final and appealable, he is entitled to a new sentencing entry which can itself be appealed. Although the connection between Culgan and cases involving postrelease control has not yet been explicitly stated, the logic inherent in recent Supreme Court cases regarding postrelease control leads to a similar result. See Fischer, 2009-Ohio-1491, at ¶15 (Dickinson, J., concurring) (observing that two of the appellant’s assignments of error, which challenged his underlying conviction and the continuing viability of this Court’s earlier opinion in his direct appeal, were “the logical extension of the Ohio Supreme Court’s decisions in State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, and State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250.“).
{¶7} In Bedford, this Court considered the implications of the Supreme Court’s holdings that failure to notify a defendant of postrelease control renders a sentence void rather than voidable. Bedford was misinformed regarding his postrelease control obligations and assigned the trial court’s error on direct appeal. This Court concluded that, while Bedford’s sentencing order complied with
“The effect of determining that a judgment is void is well established. It is as though such proceedings had never occurred; the judgment is a mere nullity and the parties are in the same position as if there had been no judgment.” State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, at ¶ 27 (quoting State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, at ¶ 12). Taking the Supreme Court at its word, this Court must act as if the journal entry containing Mr. Bedford’s void sentence ‘had never occurred’ and ‘as if there had been no judgment.’ Id. (quoting Bezak, 2007-Ohio-3250, at ¶ 12).
“*** While a judgment of conviction qualifies as a final order if it contains the requirements identified in State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, if there has been no judgment then there is no final order.” Bedford at ¶10-11.
Because the order from which Bedford had appealed was void, this Court exercised its inherent power to vacate the order despite the fact that we lacked jurisdiction to review the merits of his appeal. Id. at ¶14-15.
{¶8} In this case, the trial court failed to inform Harmon of his postrelease control obligations in its 2004 sentencing entry. Although he appealed that entry, Bezak and Simpkins require the conclusion that his original sentence – and the journal entry in which the trial court attempted to impose that sentence – are void. See Bedford at ¶8. “Taking the Supreme Court at its word,” as this Court did in Bedford, the journal entry that purported to impose sentence upon
Final, Appealable Order
{¶9} Harmon was entitled to be resentenced to correct the error in notification of postrelease control and to a final order that, once issued, could be appealed notwithstanding his direct appeal in 2005. See Culgan at ¶9-11. In light of Culgan and Bedford, therefore, this Court is reluctantly compelled to address Harmon’s first assignment of error.
Merits of the Appeal
{¶10} Harmon’s first assignment of error is that the trial court erred by limiting his cross-examination of a witness against him at trial. Specifically, Harmon argues that
{¶11}
{¶12}
ASSIGNMENT OF ERROR II
“THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING DEFENDANT’S U.S. CONST. AMEND V RIGHTS WHERE HIS SENTENCE HAS BEEN INCREASED AFTER HE HAD ALREADY COMMENCED SERVICE OF HIS SENTENCE.”
{¶14} As in Simpkins, Harmon had no expectation of finality in a void sentence, and the constitutional prohibition against double jeopardy does not apply. “Because jeopardy does not attach to a void sentence, the subsequent imposition of the statutorily required sentence cannot constitute double jeopardy.” State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, at ¶27, citing State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, at ¶25. Harmon’s second assignment of error is overruled.
ASSIGNMENT OF ERROR IV
“DEFENDANT HAS BEEN DENIED DUE PROCESS OF LAW WHEN THE TRIAL COURT FAILED TO APPLY THE DOCTRINE OF RES JUDICATA TO CLAIMS WHERE A SENTENCE HAS BEEN INCREASED BY ADDING A TERM OF POSTRELEASE CONTROL.”
{¶15} Harmon’s fourth assignment of error is that the trial court erred by imposing a sentence including postrelease control when the State’s motion to resentence was barred by application of res judicata. The Supreme Court of Ohio also considered, and rejected, this argument in Simpkins. Id. at ¶24-36. Harmon’s fourth assignment of error is overruled.
ASSIGNMENT OF ERROR III
“DEFENDANT HAS BEEN DENIED HIS CONSTITUTIONAL RIGHT WHEN THE TRIAL COURT APPLIED A STATUTE ENACTED IN 2006 IN AN EX POST FACTO AND RETROACTIVE MANNER TO A CONVICTION AND SENTENCE THAT WAS ORIGINALLY IMPOSED IN 2004.”
“AM SUB. H.B. 137 VIOLATES THE SINGLE SUBJECT RULE UNDER OHIO CONST. ART. II, §15(D).”
ASSIGNMENT OF ERROR VI
“AM. SUB. H.B. 137 RENDERS POSTRELEASE CONTROL UNCONSTITUTIONAL BECASE IT PERMITS THE EXECUTIVE TO IMPOSE THE SANCTION WITHOUT A COURT ORDER.”
ASSIGNMENT OF ERROR VII
“ORC §2929.191 IS UNCONSTITUTIONAL UNDER THE SEPARATION OF POWERS DOCTRINE CONTAINED IN OHIO CONST. ART. IV, §5(B).”
{¶16} Harmon’s third assignment of error argues that
{¶17} As this Court recently recognized in State v. Holcomb, 9th Dist. No. 24287, 2009-Ohio-3187, the Supreme Court of Ohio has created a remedy in cases in which the failure to notify a defendant of his postrelease control obligations is apparent from the record. Id. at ¶13-14, citing Simpkins. In such cases, the trial court must resentence the defendant, an obligation that arises not by statute but by virtue of the fact that the trial court is both authorized and obligated to correct a void sentence. Holcomb at ¶14. In Simpkins, the Supreme Court explicitly concluded that when there has been an error in postrelease control notification, “the state is entitled to a new sentencing hearing to have postrelease control imposed on the defendant unless the defendant has completed his sentence.” (Emphasis added.) Id. at syllabus. In Holcomb, this
{¶18} In this case, both Harmon and the State moved the trial court for resentencing under the authority of Simpkins without reference to
III.
{¶19} Harmon’s assignments of error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
CARLA MOORE
FOR THE COURT
WHITMORE, J.
DICKINSON, J.
CONCUR
APPEARANCES:
NEIL P. AGARWAL, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.