State v. MaldonadoState v. Maldonado
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 23, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-634404-A
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Glen Ramdhan, Assistant Prosecuting Attorney, for appellee.
Eric M. Levy, for appellant.
SEAN C. GALLAGHER, J.:
{1} Pursuant to
Decision of the En Banc Court:
{2} In this en banc proceeding, we must resolve a straightforward question of law in order for the panel to resolve the merits of the underlying appeal: Does a defendant have a right to be present at a hearing, or other proceeding, under
I. Scope of the Conflict
{3} It has long been held that “a defendant‘s presence in court is not required every time judicial action is taken to correct a sentence.” United States v. Clark, 816 F.3d 350, 355 (5th Cir.2016), quoting United States v. Erwin, 277 F.3d 727, 730 (5th Cir.2001).
{4} Even where the appellate mandate suggests or implies more than amending a sentencing entry must be done by the trial court, such as when the mandate includes a reference to the generic term “resentencing,” a de novo resentencing of the entire case or particular count is not required, or even permitted as a matter of law. State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 15 (“[O]nly the sentences for the offenses that were affected by the appealed error are reviewed de novo; the sentences for any offenses that were not affected by the appealed error are not vacated and are not subject to review.” (Emphasis added.)). No matter what language or generic phrasing is used in a remand order, the appellate court cannot require or authorize a trial court to act in a manner that is inconsistent with the law.
{5} As a result, although a “remand for resentencing” generally contemplates a de novo resentencing, that is required only if the trial court adds a punishment or otherwise increases the burden of the sanction in the sentencing entry. State ex rel. Roberts v. Marsh, 156 Ohio St.3d 440, 2019-Ohio-1569, 128 N.E.3d 222, ¶ 11; State v. Mitchell, 11th Dist. Portage No. 2019-P-0105, 2020-Ohio-3417, ¶ 48. In other words, even in situations in which a sentencing hearing is erroneously required by the appellate court in cases in which the remand is limited to vacating or deleting punishments from an aggregate sentence, the relevant question underlying this en banc proceeding is whether an offender maintains some
{6} In Howard, the offender‘s direct appeal resulted in the reversal of his conviction for burglary, requiring the trial court to correct the sentencing entry upon remand. Howard, 8th Dist. Cuyahoga No. 87490, 2006-Ohio-6412, at ¶ 2-3. The remainder of the sentences imposed for other offenses, all of which were to be served concurrent to each other and the vacated conviction, were maintained. Id. According to Howard, in response to the defendant‘s claim that
{7} The panel in Jarmon concluded otherwise. Upon a remand ordering “the vacation of one of the five-year drive-by specifications” following a direct
II. Jarmon is Overruled
{8} Howard‘s legal conclusion is in line with the Ohio Supreme Court‘s more recent pronouncement. In Marsh, 156 Ohio St.3d 440, 2019-Ohio-1569, 128 N.E.3d 222, at ¶ 10-11, the Ohio Supreme Court concluded that
{9} In State ex rel. Vigil v. Cuyahoga Cty. Common Pleas Court, 8th Dist. Cuyahoga No. 109840, 2020-Ohio-4571, ¶ 9, 11 (”Vigil“), the panel recognized the implications of Marsh. As this court has concluded, when a panel‘s remand order dictates “[c]ase remanded to the trial court for resentencing,” as the remand was ordered expressly stated in State v. Vigil, 8th Dist. Cuyahoga No. 103940, 2016-Ohio-7485, ¶ 47 (”Vigil I“), the trial court‘s reissuance of a final entry of conviction only deleting the vacated sentences “complied with the appellate court‘s decision and order” without triggering the defendant‘s presence under
{10} Howard and Vigil are not mere outliers but are based on or are extensions of established precedent. State ex rel. Ellis v. Burnside, 8th Dist.
{11} Jarmon did not discuss the implications of Marsh with respect to the scope of
{12} We recognize that
III. Conclusion
{13} As a result of the foregoing analysis, we answer the en banc question in the negative and hereby overrule Jarmon. Under
SEAN C. GALLAGHER, JUDGE
ANITA LASTER MAYS, A.J.; MARY J. BOYLE, FRANK DANIEL CELEBREZZE, III, EILEEN T. GALLAGHER, EMANUELLA D. GROVES, KATHLEEN ANN KEOUGH, MICHAEL JOHN RYAN, and MICHELLE J. SHEEHAN, JJ., CONCUR;
EILEEN A. GALLAGHER, J., CONCURS IN JUDGMENT ONLY;
LISA B. FORBES and MARY EILEEN KILBANE, JJ., DISSENT.
Decision of the Merit Panel:
{14} Elvin Maldonado appeals the trial court‘s correction of his final entry of conviction to reflect the deletion of any registration requirements imposed under Sierah‘s Law and a five-year sentence imposed on a “drive by shooting” firearm specification that were vacated in a direct appeal. For the following reasons, the convictions are affirmed.
{16} Following a jury trial, Maldonado was found not guilty of attempted murder and each of the one- and three-year firearm specifications, but guilty on all other charges. Counts 2, 3, and 8 merged for sentencing, and the state elected to proceed with sentencing on Count 8. The court sentenced Maldonado to five years in prison for the “drive by shooting” firearm specification to be served prior to and consecutively to four years in prison on Count 8 as well as five years in prison to be served prior to and consecutively to four years in prison on Counts 4, 5, 6, and 7 each to be served concurrently to the nine years on Count 8 for a total prison term of nine years in prison. In addition, the trial court required Maldonado to register as a violent offender following his release from prison pursuant to Sierah‘s Law.
{17} Upon remand from State v. Maldonado, 8th Dist. Cuyahoga No. 108907, 2021-Ohio-1724, in which the panel vacated the registration requirements imposed under Sierah‘s Law and a five-year sentence imposed on a “drive by shooting” firearm specification, the trial court issued a corrected sentencing entry
{18} In the first assignment of error, Maldonado claims the trial court erred by failing to conduct a sentencing hearing, at which Maldonado‘s presence was required under
{19} This issue was resolved by this court through the en banc proceedings. It is undisputed that Maldonado‘s aggregate term of imprisonment was not impacted by the deletion of the vacated firearm specification and removal of the notification requirement under Sierah‘s Law decreased the overall sentencing burden. The first assignment of error is overruled based on the analysis presented in the en banc portion of this opinion. Under
{20} In the second assignment of error, Maldonado claims that “[t]he trial court erred when it did not include in the calculation of credit for time served on resentencing all time served in prison prior to Appellant being resentenced on June 18, 2021.” In other words, it appears Maldonado is claiming that the trial court
{21} In Christian, the Ohio Supreme Court concluded that upon remand for a de novo resentencing, in which the reversed sentences were originally concurrent to one another but imposed consecutively following de novo resentencing on those affected counts, the offender is entitled to have his time served in prison on the reversed sentences count toward the new aggregate sentence, but only as to the counts actually affected by the direct appeal. Id., citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). It must be recognized that Christian appears to supplement
{22} Collier, despite its reliance on the unambiguous statutory language, appears to conflict with Christian. Under the holding of Christian, without any reference to
{23} Christian is limited in scope and only applies to situations in which sentences imposed upon certain counts are reversed or vacated and remanded for a de novo resentencing on those affected counts - the “affected counts” being the actual sentence reversed in the direct appeal. See id. In simplistic terms, when prison sentences are reversed or vacated in a direct appeal, there is no longer any prison sentence for that count. The prison portion of the sentence upon that affected count only comes into existence at the time of the de novo resentencing. Upon that resentencing, the trial court must account for any time previously served on that particular count up to the imposition of the new sentence of imprisonment, but only with respect to those counts actually affected by the direct appeal. See Christian, 159 Ohio St.3d 510, 2020-Ohio-828, 152 N.E.3d 216.
{25} Having presented no other argument for review, the second assignment of error is overruled.
{26} Maldonado‘s convictions are affirmed.
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 issue out of this court directing the common pleas 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.
SEAN C. GALLAGHER, PRESIDING JUDGE
JAMES A. BROGAN, J.,* CONCURS;
LISA B. FORBES, J., CONCURS IN JUDGMENT ONLY
*(Sitting by assignment: James A. Brogan, J., retired, of the Second District Court of Appeals.)