State v. HollowayState v. Holloway
JUDGMENT: AFFIRMED AND REMANDED
ATTORNEY FOR APPELLANT
Mary Elaine Hall
645 Leader Building
526 Superior Avenue, East
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Thorin Freeman
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
N.B. This entry is an announcement of the court’s decision. See
{¶ 1} Defendant-appellant, Adam Holloway, appeals from common pleas court orders resentencing him in the underlying criminal cases pursuant to an order of remand from this court. Appellant urges that the court erred when it failed to impose a three-year term of postrelease control as directed by this court, that this error rendered his sentences void, and that to remand for a fourth sentencing hearing would constitute cruel and unusual punishment.
{¶ 2} We find no error in the proceedings below and affirm the trial court’s judgments. Although the court exceeded the scope of our remand order by conducting a complete resentencing hearing, it accepted and applied the law as stated in our previous opinions. Moreover, the court properly dismissed one count on which it had previously imposed a sentence, because appellant had not actually pled guilty to that count.
{¶ 3} Even though we affirm the trial court’s judgment, we must nevertheless remand pursuant to
{¶ 4} Although these cases have been consolidated in this appeal, their complicated procedural history will be more manageable and comprehensible if we consider them separately.
Case No. CR-459859
Procedural History
{¶ 5} Appellant was charged in a three-count indictment filed December 9, 2004. Two counts charged that appellant committed felonious assault with firearm and peace officer specifications; the remaining count charged that appellant had a weapon while under disability. The indictment was amended to remove a seven-year firearm specification from the two felonious assault counts. Appellant then entered a plea of guilty to all three charges as amended.
{¶ 6} On April 20, 2005, the court entered a judgment of conviction that sentenced appellant to a total of nine years of imprisonment, specifically, three years of imprisonment as to the firearm specifications, to be served
{¶ 7} Appellant appealed to this court. This court initially decided that the trial court failed to comply with
{¶ 8} On remand from this court, the trial court sentenced appellant “to the same sentence that was imposed on 4-13-05.” The court further stated that “post release [sic] control is part of this prison sentence for 5 years for
{¶ 9} On the second remand, the trial court conducted a sentencing hearing on July 23, 2009, after which it entered the following judgment:
“The court considered all required factors of the law.
“The court finds that prison is consistent with the purpose ofR.C. 2929.11 .
“The court imposes a prison sentence at the Lorain Correctional Institution of 9 year(s).
“3 years as to the gun specs on counts 1 and 2 (gun specs merge for sentencing) to run prior to and consecutive to base charge of 6 years on each of counts 1 and 2; and 1 year on Count 3, counts to run concurrent to one another for a total of 9 years.
“Mandatory 3 years PRC [post release control] on count 3; 5 years on counts 1 and 2.
“* * *
“Post release [sic] control is part of this prison sentence for 5 years for the above felony(s) underR.C. 2967.28 .”
Law and Analysis
{¶ 10} Appellant now complains that the trial court did not follow our instructions on remand, which he claims to have required the trial court to
{¶ 11} We note that “[i]f an offender is subject to more than one period of post-release [sic] control, the period of post-release [sic] control for all of the sentences shall be the period of post-release [sic] control that expires last, as determined by the parole board or court. Periods of post-release [sic] control shall be served concurrently and shall not be imposed consecutively to each other.”
{¶ 12} Although we find no error, we remand for the court to conduct a hearing and correct its failure to include in its journal entry a notice that the parole board could impose a prison term on appellant for a violation of
{¶ 13} Appellant’s remaining argument — that a third resentencing would be a cruel and unusual punishment — assumes that we find error in the court’s judgment. We find no error, so this argument necessarily fails.
Case No. CR-460371
Procedural History
{¶ 14} Appellant and two co-defendants were charged in a 14-count indictment filed December 21, 2004. Appellant was charged in 12 of the 14 counts, specifically, four counts of drug possession, seven counts of drug trafficking, and one count of possessing criminal tools. On March 16, 2005, he entered a plea of guilty to one count of cocaine trafficking, a second-degree felony, and three counts of trafficking in other controlled substances, all third-degree felonies. All four of the charges to which appellant pleaded guilty contained firearm specifications. The remaining charges were to be dismissed.
{¶ 15} Appellant was sentenced on April 20, 2005 to a term of three years’ imprisonment on the merged firearms specifications, to be served prior and consecutive to a mandatory term of imprisonment of four years on the cocaine trafficking count. The court further sentenced appellant to three
{¶ 16} Appellant appealed to this court. This court initially decided that the trial court failed to comply with
{¶ 17} On remand from this court, the trial court resentenced appellant “to the same sentence that was imposed on 4-13-05.” The court also stated that “post release [sic] control is part of this prison sentence for 5 years for
{¶ 18} On remand, the trial court conducted an oral resentencing hearing on July 23, 2009. At that hearing, the court stated:
“And then on Case No. 460371, we have — we have mandatory time of four years on Count 10 [cocaine trafficking], three years on Counts 11, 12, 13, with mandatory time being only on Counts 12 and 13, and nine months on Count 14 [possession of criminal tools]. All of these will run concurrent with each other but consecutive to Case No. 459859, for a total of 13 years, four on 460371 and the nine I already spoke about on 459859.
“On this case, 460371, the only mandatory period of post-release [sic] control will apply to sentence for – let’s see which one.
“MR. FREEMAN [prosecuting attorney]: Count 10.
“THE COURT: * * * To Count 10. All the others carry three years post-release [sic] control but not mandatory.”
{¶ 19} The court’s sentencing entry was filed July 29, 2009. Contrary to
“The court considered all required factors of the law.
“The court finds that prison is consistent with the purpose ofR.C. 2929.11 .
“The court imposes a prison sentence at the Lorain Correctional Institution of 7 year(s).
“3 years as to gun specs on Count 10 (1 year and 3 years gun specs merge for sentencing) to run prior to and consecutive to base charge of mandatory 4 years on Count 10; 3 years as to gun specs on Counts 11, 12, and 13 (1 year and 3 years gun specs merge for sentencing) to run prior to and consecutive to base charge of 3 years on Counts 11, 12, and 13; all counts to run concurrent to each other; all firearm specs merge for sentencing purposes; for a total of 7 years.
“Mandatory 3 years on Counts 12, [sic] and 13.
“Cases CR 459859 and CR 460371 to run consecutive to each another; firearms specs in both cases merge for a total of 13 years.”
“ * * *
“Post release [sic] control is part of this prison sentence for three years for the above felony(s) underR.C. 2967.28 .”
Law and Analysis
{¶ 20} Appellant’s sole assignment of error contends that:
“The trial court’s failure to impose a three year [sic] sentence of post-release [sic] control upon the third remand from the Eighth District Court of Appelas [sic] rendered the defendant/appellant’s entire sentence [i.e., 13 years in prison and any term of post-release control] null and void as a matter of law.”
{¶ 21} This assignment of error does not claim that any error was made in the judgment in this case. The trial court’s judgment correctly stated that
{¶ 22} The trial court’s judgment entry did not specifically state the term of postrelease control applicable to each offense, nor did it include an explanation of the possibility that the parole board could impose a prison term if he violates a term of supervision. See
Law of the Case
{¶ 23} Our decision in the last appeal affirmed the “total sentence” imposed. We reversed only “those portions of the journal entries of sentence purporting to impose inapplicable periods of post-release [sic] control,” and “remanded for a limited resentencing hearing at which the trial court is instructed to apprise Holloway of the appropriate periods of post-release [sic] control applicable to each of his convictions in the underlying cases.”
{¶ 24} The trial court had no discretion to disregard our mandate. State ex rel. Smith v. O’Connor (1995), 71 Ohio St.3d 660, 662, 646 N.E.2d 1115. The doctrine of “the law of the case” required the trial court to accept and apply all legal rulings of this court in all subsequent proceedings. Nolan v. Nolan (1984), 11 Ohio St.3d 1, 3, 462 N.E.2d 410. To the extent that the court reimposed the same sentences it imposed previously, the court did accept and apply our previous ruling, albeit with unnecessary (and
{¶ 25} The one point on which the court varied from the judgment affirmed by this court was when the court found Count 14 had been “nolled,” (that is, dismissed) and did not reimpose the nine-month sentence on that charge.
{¶ 26} Neither we nor the trial court previously recognized that the trial court had imposed a sentence on a charge to which appellant had not plead guilty, specifically, Count 14 in Case No. CR-460371. Appellant did not raise this issue in either of his previous appeals, so we never explicitly decided that the conviction on that charge was proper. We will not construe our reversal of the prior judgment solely on the issue of postrelease control to preclude the trial court from correcting this error. The law of the case doctrine is “a rule of practice rather than a binding rule of substantive law and will not be applied so as to achieve unjust results.” Nolan v. Nolan (1984), 11 Ohio St.3d 1, 3. “A reversal upon one ground alone does not necessarily amount to an implied approval of everything else done in the trial to the extent of establishing the law of the case. Thomas v. Viering (1934), 18 Ohio Law Abs. 343.” Hann v. Perkins Twp., Erie App. No. E-03-025, 2004-Ohio-3445, ¶8. Therefore, we find that the trial court did not exceed
{¶ 27} Affirmed and remanded for further proceedings consistent with this opinion and for correction of the journal entries regarding postrelease control, pursuant to
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution. The defendant’s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
KENNETH A. ROCCO, PRESIDING JUDGE
LARRY A. JONES, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR