STATE OF OHIO, Plaintiff-Appellee, v. RODERICK J. MASON, Defendant-Appellant.
No. 107447
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
May 9, 2019
2019-Ohio-1773
MARY J. BOYLE, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-602780-A
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: May 9, 2019
Appearances:
Mancino Mancino and Mancino, Paul A. Mancino, Jr., for appellant.
Michael C. O‘Malley, Prosecuting Attorney, and Christopher D. Schroeder, Assistant Prosecuting Attorney, for appellee.
MARY J. BOYLE, J.:
{¶ 1} Defendant-appellant, Roderick J. Mason, appeals his sentence. He raises two assignments of error for our review:
- Defendant was denied due process of law when the court modified defendant‘s sentence without defendant being personally present.
Defendant was denied due process of law when the court increased defendant‘s sentence by adding an additional period of post-release control [after] defendant had been sentenced and was serving his previously imposed sentence.
{¶ 2} Finding merit to Mason‘s first assignment of error, we reverse and remand this case for the trial court to hold a limited resentencing hearing — during which Mason is allowed to be present — to impose the proper period of postrelease control.
I. Procedural History and Factual Background
{¶ 3} We set forth most of the procedural history of this case in State v. Mason, 8th Dist. Cuyahoga No. 104533, 2017-Ohio-7065.
{¶ 4} On January 29, 2016, the Cuyahoga County Grand Jury indicted Mason for two counts of trafficking in violation of
{¶ 6} The trial court found that Mason‘s convictions for trafficking merged with his convictions for drug possession. The state elected to proceed on sentencing for the drug possession convictions. The trial court sentenced him to 11 years for a first-degree felony of drug possession plus one year for the firearm specification; two years for third-degree felony of drug possession; nine months for possessing criminal tools; and two years for having weapons while under disability. The trial court ran Mason‘s sentences for drug possession (with the one-year sentence for the firearm specification) and having weapons while under disability consecutive to one another and ran his sentence for possessing criminal tools concurrently, giving Mason an aggregate sentence of 16 years.1 The trial court also suspended Mason‘s driver‘s license for four years, ordered Mason to forfeit his assets, and waived costs and fines.
{¶ 7} Mason appealed, raising a number of arguments including the denial of his motion to suppress, whether the trial court informed him of the effect of his no contest pleas, the trial court‘s advisement regarding postrelease control, and failure to record a particular hearing during the lower court proceedings.
{¶ 9} Mason appealed our decision to the Ohio Supreme Court, but it did not accept his appeal for review. State v. Mason, 152 Ohio St.3d 1425, 2018-Ohio-923, 93 N.E.3d 1005.
{¶ 10} Subsequent to the Ohio Supreme Court‘s denial, the trial court, without holding a hearing, issued a journal entry on April 19, 2018, stating,
Pursuant to remand from the court of appeals, the defendant advised of post release control for 5 years mandatory. Defendant advised that if/when post release control supervision is imposed following his/her release from prison and if he/she violates that supervision or condition of post release control under
R.C. 2967.131(B) , parole board mayimpose a prison term as part of the sentence of up to one-half of the stated prison term originally imposed upon the offender.
{¶ 11} Mason moved to vacate the trial court‘s judgment, but the trial court denied his motion in June 2018.
{¶ 12} Mason now appeals.
II. Law and Analysis
A. Modification of Mason‘s Sentence
{¶ 13} In his first assignment of error, Mason argues that the trial court erred when it modified his sentence in his absence in violation of
{¶ 14} In response, the state argues that we did not remand Mason‘s case for resentencing and instead “exercised [our] own statutory authority to modify Mason‘s sentence.” It also argues that Mason had no right to be present for the trial court‘s issuance of a journal entry that reflected our mandate because such an issuance was a ministerial act and not a critical stage of the proceedings. Finally, the state argues that even if Mason‘s absence constituted an error, that error was harmless because Mason‘s presence or absence would not have affected the outcome of any proceedings or resulted in prejudice since the trial court had “no discretion.”
{¶ 15} Foremost, both
On and after July 11, 2006, a court that wishes to prepare and issue a correction to a judgment of conviction * * * shall not issue the correction until after the court has conducted a hearing in accordance with this division. Before a court holds a hearing pursuant to this division, the court shall provide notice of the date, time, place, and purpose of the hearing to the offender who is the subject of the hearing, the prosecuting attorney of the county, and the department of rehabilitation and correction. The offender has the right to be physically present at the hearing, except that, upon the court‘s own motion or the motion of the offender or the prosecuting attorney, the court may permit the offender to appear at the hearing by video conferencing equipment if available and compatible. An appearance by video conferencing equipment pursuant to this division has the same force and effect as if the offender were physically present at the hearing. At the hearing, the offender and the prosecuting attorney may make a statement as to whether the court should issue a correction to the judgment of conviction.
(Emphasis added.)
{¶ 16} The Ohio Supreme Court has held that “a resentencing hearing held for the limited purpose of properly imposing statutorily mandated postrelease control is a critical stage of a criminal proceeding.” State v. Schleiger, 141 Ohio St.3d 67, 2014-Ohio-3970, 21 N.E.3d 1033, ¶ 15.2 In that case, the Ohio Supreme Court stated that “‘[a] defendant has a legitimate interest in the character of the procedure which leads to the imposition of sentence even if he may have no right to object to a
{¶ 17} The state acknowledges Schleiger, but argues that it is distinguishable because we did not remand Mason‘s case for resentencing as the court did in Schleiger, but “instead, modified the postrelease control portion of Mason‘s sentence itself to correct the error.” It argues that unlike the resentencing that occurred in Schleiger, the trial court‘s issuance of a journal entry to comply with our modification was “a purely ministerial that did not qualify as a critical stage of the proceedings.”
{¶ 18} While the state is correct that the facts in Schleiger are not entirely aligned with those in this case, we disagree that Mason does not have a right to be present at all critical stages of his criminal proceedings and that a resentencing hearing is unnecessary when an appellate court modifies a defendant‘s period of postrelease control on appeal. Agreeing with the state would undermine the plain
{¶ 19} In fact, the Fourth District recently rejected an argument similar to the state‘s in State v. Smith, 4th Dist. Scioto No. 14CA3657, 2015-Ohio-841. There, the Fourth District reviewed the trial court‘s denial of the defendant‘s request for resentencing after the trial court failed to impose mandatory fines and driver‘s license suspension. The court found that the trial court erred by denying the defendant‘s request for resentencing because such an error “requires resentencing” to impose the necessary punishments. Id. at ¶ 9. The Fourth District disagreed with the state‘s position, which was that a resentencing hearing was not necessary because the trial court could simply issue an amended judgment entry correcting the void sentence. The Fourth District pointed to the Ohio Supreme Court‘s holding in Schleiger and
{¶ 20} Even though we modified Mason‘s sentence on appeal and did not remand Mason‘s original appeal for resentencing like the court did in Smith, we find that a resentencing hearing to notify Mason of the modification in open court and
{¶ 21} Accordingly, it is now clear that we did not have the authority to modify Mason‘s postrelease control in his first appeal. In that appeal, we relied on State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, and found that we did not have to remand Mason‘s sentence and could modify it ourselves. Id. at ¶ 45. While Fischer held that an appellate court has the discretion to correct “a defect in a sentence without a remand” and that “[c]orrecting the defect without remanding for resentencing can provide an equitable, economical, and efficient
{¶ 22} Other appellate courts have recognized that a resentencing hearing is necessary to correct a defendant‘s postrelease control imposed after July 11, 2006, pursuant to
{¶ 24} Therefore, we agree with Mason that the trial court erred by not holding a hearing to impose the statutorily mandated postrelease control and allowing him to be present during such a hearing.3
{¶ 25} Finally, we reject the state‘s contention that the error was harmless and that Mason did not suffer prejudice. While appellate courts routinely analyze
{¶ 26} Accordingly, we sustain Mason‘s first assignment of error.
B. Increase of Mason‘s Sentence
{¶ 27} In his second assignment of error, Mason argues that the trial court erred by increasing his sentence and “adding an additional period of post-release control after [he] had been sentenced and was serving his previously imposed sentence.” Our resolution of Mason‘s first assignment of error, however, renders his second assignment of error moot.
{¶ 28} Judgment reversed and remanded. The trial court‘s April 19, 2018 judgment entry imposing the correct period of postrelease control is vacated. Case is remanded for the trial court to hold a limited resentencing hearing to properly impose postrelease control and allow Mason to be physically present or appear via video-conferencing equipment for that hearing. The limited hearing must cover only the imposition of postrelease control.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue of this court directing the common pleas court to carry this judgment into execution.
MARY J. BOYLE, JUDGE
EILEEN T. GALLAGHER, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR