STATE OF OHIO v. MICHAEL T. LEWIS
C.A. CASE NO. 2012-CA-31; T.C. NO. 04CR295
IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO
March 8, 2013
[Cite as State v. Lewis, 2013-Ohio-809.]
FROELICH, J.
(Criminal appeal from Common Pleas Court)
Rendered on the 8th day of March, 2013.
NATHANIEL R. LUKEN, Atty. Reg. No. 0087864, Assistant Prosecutor, 61 Greene St., Xenia, Ohio 45385
Attorney for Plaintiff-Appellee
MARK A. DETERS, Atty. Reg. No. 0085094, 1800 Lyons Road, Dayton, Ohio 45458
Attorney for Defendant-Appellant
FROELICH, J.
{¶ 1} Michael T. Lewis appeals from a judgment of the Greene County Court of Common Pleas, which resentenced him, on the State’s motion, due to the improper
{¶ 2} In 2004, Lewis pled guilty to one count of engaging in a pattern of corrupt activity (Count 1), one count of conspiracy to engage in a pattern of corrupt activity (Count 2), five counts of burglary, one count of attempted burglary, one count of receiving stolen property, and one count of possession of criminal tools. In exchange for his plea, the prosecutor agreed to recommend three-year sentences on Counts 1 and 2, to be served concurrently, and to recommend community control on the remaining counts. The trial court sentenced Lewis to ten years on Count 1, seven years on Count 2, and to lesser prison sentences on the other counts, all to be served concurrently, for an aggregate term of ten years. The judgment ordered Lewis to pay restitution in the amount of $12,198.19 and stated that postrelease control was mandatory “up to a maximum of 5 years.” We affirmed his conviction and sentence on appeal. State v. Lewis, 2d Dist. Greene No. 2004-CR-295, 2005-Ohio-3736.
{¶ 3} In January 2012, the State filed a Motion to Correct Post Release Control. After a hearing at which Lewis participated by video-conferencing, the trial court imposed a mandatory term of postrelease control of five years on Count 1 and imposed lesser amounts of mandatory or “optional” postrelease control on all of the other counts.1 In response to an
{¶ 4} Lewis raises five assignments of error on appeal.
{¶ 5} Lewis’s first assignment of error states:
THE TRIAL COURT ERRED BY FAILING TO CONDUCT A DE NOVO RESENTENCING HEARING.
{¶ 6} Lewis contends that the trial court should have conducted a de novo sentencing hearing. However, his resentencing hearing was for the limited purpose of correcting a defect in the imposition of postrelease control. It is well established that, when a trial court errs in imposing a term of postrelease control at sentencing, “that part of the sentence is void and must be set aside.” State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 26. “[O]nly the offending portion of the sentence is subject to review and correction.” Id. at ¶ 27. Where postrelease control has been improperly imposed, res judicata applies to all other aspects of the conviction and sentence, including the determination of guilt and the lawful elements of the sentence. Id. at ¶ 34. See, also, State v. Wilson, 2d Dist. Montgomery Nos. 24461, 24496, 24501, 2012-Ohio-1660, ¶ 19. The case upon which Lewis relies, State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, was reversed by Fischer. Thus, no issues other than postrelease control were subject to review by the trial court at Lewis’s resentencing hearing, and the trial court did not err in refusing to sentence him de novo.
{¶ 7} Based on the holding in Fischer that res judicata applies to all aspects of the conviction and sentence that are not void, and because of our affirmance of Lewis’s conviction on direct appeal, it may be questionable whether the trial court had jurisdiction to merge Counts 1 and 2, despite the State’s acknowledgment that these counts were allied offenses of similar import. But the State initiated the merger of Counts 1 and 2 in this case, Lewis arguably benefitted from it, and neither party has challenged the merger on appeal. Therefore, we will not review the trial court’s merger of these offenses.
{¶ 8} The first assignment of error is overruled.
{¶ 9} Lewis’s second assignment of error states:
THE TRIAL COURT ERRED BY ALLOWING APPELLEE TO BREACH ITS PLEA AGREEMENT WITH APPELLANT.
{¶ 10} At the hearing for the proper imposition of postrelease control, the prosecutor stated: “The State would incorporate by reference any previous statements put on the record during the September 2nd, 2004, sentencing hearing. We would ask to impose the same sentence previously given in this case, * * * .” Lewis contends that the State’s statement that the trial court should reimpose the original sentence, except with respect to postrelease control, violated the provision of his plea agreement by which the State agreed to recommend a sentence of three years on Counts 1 and 2 and community control on the remaining counts.
{¶ 11} We disagree with Lewis’s contention that the State violated his plea agreement by encouraging the trial court to “impose” its original sentence except with respect to postrelease control. As we discussed above, the trial court was authorized to address only the portion of the sentence related to postrelease control, because only that portion of its
{¶ 12} The second assignment of error is overruled.
{¶ 13} Lewis’s third assignment of error states:
APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.
{¶ 14} Lewis claims that his attorney at the resentencing hearing, who had not previously been involved with his case, did not provide effective assistance of counsel because she was not prepared, had not reviewed the record, failed to clarify the plea agreement, and failed to object to the prosecutor’s breach of the plea agreement.
{¶ 15} To reverse a conviction based on ineffective assistance of counsel, it must be demonstrated that trial counsel’s conduct fell below an objective standard of reasonableness and that the errors were serious enough to create a reasonable probability that, but for the errors, the result of the trial would have been different. Strickland v. Washington (1984), 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674, adopted by the Supreme Court of Ohio in State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373. Trial counsel is entitled to a strong presumption that his or her conduct falls within the wide range of reasonable assistance. Id.
{¶ 16} We have already discussed the very limited purpose of the resentencing to properly impose postrelease control in this case and the trial court’s inability to modify any
{¶ 17} The third assignment of error is overruled.
{¶ 18} Lewis’s fourth and fifth assignments of error state:
THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING APPELLANT TO A MAXIMUM PRISON SENTENCE.
THE TRIAL COURT ERRED BY FAILING TO GIVE ITS REASONS FOR DISAPPROVING INTENSIVE PROGRAM PRISON AT SENTENCING.
{¶ 19} Lewis’s fourth and fifth assignments address sentencing issues unrelated to postrelease control. As we stated above, the trial court was not at liberty to alter those sentences because we had affirmed Lewis’s convictions on appeal, and they “remain[ed] valid under the principles of res judicata.’” Fischer at ¶ 17. The trial court did not err in failing to revisit these issues. Moreover, Lewis was not eligible for intensive program prison, because he had been convicted of a felony of the first degree.
{¶ 20} The fourth and fifth assignments of error are overruled.
{¶ 21} The judgment of the trial court will be affirmed.
FAIN, P.J. and WELBAUM, J., concur.
Copies mailed to:
Nathaniel R. Luken
Mark A. Deters
Hon. Stephen A. Wolaver