State v. SamplesState v. Samples
For Plaintiff-Appellee
JOHN D. FERRERO PROSECUTING ATTORNEY BY: KATHLEEN O. TATARSKY 110 Central Plaza South, Ste. 510 Canton, OH 44702
For Defendant-Appellant
JENNIFER A. ROBERTS P.O. Box 20227 Canton, OH 44701
{¶1} Appellant Douglas Samples appeals his conviction for aggravated robbery and burglary in the Stark County Court of Common Pleas. The relevant facts underlying appellant’s case, which involves two separate crimes, are set forth in State v. Samples, Stark App. No. 2008-CA-00027, 2009-Ohio-1043.
STATEMENT OF THE CASE
{¶2} Appellant was indicted on a charge of aggravated robbery with a firearm specification and a charge of burglary. After hearing the evidence and receiving instructions from the trial court, the jury returned a verdict finding appellant guilty as charged in the indictment. Appellant received a sentence of ten years for the aggravated robbery conviction, along with three years on the gun specification. For the burglary conviction, appellant received a prison term of three years. Thus, appellant was sentenced to an aggregate term of sixteen years.
{¶3} At both his sentencing hearing held December 20, 2007, and in the resulting Judgment Entry filed January 3, 2008 appellant was advised that he was subject to “up to a mandatory five years post release control.”
{¶4} On February 1, 2008, appellant filed a notice of appeal alleging Colon errors, failure to give limiting instructions, prosecutorial misconduct, ineffective assistance of counsel and sufficiency of the evidence. His conviction and sentence were affirmed by this Court, State v. Samples, Stark App. No. 2008CA00027, 2009-Ohio-1043, appeal allowed by 122 Ohio St.3d 1477, 2009-Ohio-3525, 910 N.E.2d 477, appeal not allowed by 123 Ohio St. 3d 1524, 2009-Ohio-6487, 918 N.E.2d 526, judgment affirmed by 124 Ohio St.3d 120, 2009-Ohio-6542, 919 N.E.2d 737.
{¶6} “[COURT] But pursuant to
{¶7} And pursuant to that code section, I am advising you that upon your release from prison you will face mandatory post release control for a period of 5 years.” (T., March 11, 2010, at 9).
{¶8} The current Notice of Appeal was then timely filed. In his present appeal appellant has raised the following seven (7) assignments of error for our consideration1:
{¶9} “I. APPELLANT‘S SENTENCE DATED APRIL 16, 2010 IS VOID BECAUSE THE TRIAL COURT FAILED TO CONDUCT A DE NOVO SENTENCING HEARING.
{¶10} “II. APPELLANT IS ENTITLED TO AN APPEAL OF RIGHT DUE TO THE TRIAL COURT‘S VOID SENTENCE IN DECEMBER 2007.
{¶11} “III. THE APPELLANT‘S DUE PROCESS RIGHTS WERE VIOLATED BECAUSE THE INDICTMENT FAILED TO STATE A MENS REA.
{¶12} “IV. THE TRIAL COURT ERRED IN NOT GIVING A LIMITING INSTRUCTION AFTER THE PROSECUTOR IMPLIED THE ACCUSED HAD CONVICTIONS THAT WERE WITHHELD FROM THE JURY.
{¶14} “VI. THE APPELLANT WAS DENIED HIS EFFECTIVE ASSISTANCE OF COUNSEL.
{¶15} “VII. THE TRIAL COURT‘S FINDING OF GUILTY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.”
II, III, IV, V, VI & VII.
JURISDICTION TO CONSIDER APPELLANT’S THIRD THROUGH SEVENTH ASSIGNMENTS OF ERROR
{¶16} Appellant argues that a direct appeal from a void sentence is a legal nullity and a defendant‘s appeal following resentencing is actually a defendant‘s first appeal as of right. Therefore, appellant argues that, even though this Court reviewed the merits of the arguments that he had raised in his first direct appeal relating to his conviction2, he now has the right to assert additional arguments relating to his conviction following his resentencing on September 11, 2010. The State disagrees citing State v. Fischer (2009), 181 Ohio App.3d 758, 910 N.E.2d 1083.3 In Fisher the Ninth District Court of Appeals held that, despite the fact that the original appeal arose from a void sentence, the law of the case doctrine still applied to the decision reached in that proceeding. Thus, the defendant was precluded from asserting additional arguments relating to his
{¶17} However, the Ninth District, which decided Fischer, later reversed its holding in State v. Harmon (9th Dist.), 2009 Ohio 4512, 2009 Ohio App. LEXIS 3809. Both cases are currently on appeal to the Supreme Court of Ohio. Oral Arguments were held in the Fischer case on March 30, 2010. See, State v. Nichols, Richland App. No. 2009CA0111, 2010-Ohio-3104.
{¶18} Recently, the Ohio Supreme Court has rejected the argument that a void sentence is a legal nullity and a defendant‘s appeal following resentencing for post release control errors was his first appeal as of right. In State v. Ketterer, 126 Ohio St.3d 448, 935 N.E.2d 9, 2010-Ohio-3831, Donald Ketterer had been convicted of capital and noncapital offenses. The Ohio Supreme Court held that the trial court properly denied the motion to withdraw Ketterer‘s guilty pleas. Because mandatory post release control was not properly imposed, however, the Court remanded the case for the trial court to conduct a hearing under
{¶19} The Court agreed noting, “In Ketterer‘s first appeal, this court considered most of the claims that Ketterer raised on remand as a basis to withdraw his guilty pleas...Thus, res judicata was a valid basis for rejecting these claims.” (Id. at ¶60). Furthermore, the Court found, “In addition, the state invokes State ex rel. Special
{¶20} “On appeal, this court affirmed Ketterer‘s convictions and death sentence. State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 12. Ketterer‘s appeal was later reopened and his case was remanded for the limited purpose of resentencing him on his noncapital offenses, 113 Ohio St.3d 1463, 2007-Ohio-1722, 864 N.E.2d 650. Under the authority of Special Prosecutors, the panel had no authority to consider Ketterer‘s motion to withdraw his guilty pleas, let alone grant him a new trial.” Ketterer 126 Ohio St.3d at 460, 935 N.E.2d at 22, 2010-Ohio-3831 at ¶ 61-62.
{¶21} We note that in the case at bar, the trial court originally sentenced appellant on December 20, 2007 after the effective date of
{¶22} In the case at bar, we find as we did in Nichols, supra, “that an appeal from a re-sentencing entry for sentences imposed after July 11, 2006, is limited to issues concerning the re-sentencing procedure. Under these circumstances, we find
{¶23} Accordingly, appellant’s second, third, fourth, fifth, sixth and seventh assignments of error are dismissed. However, this does not end our inquiry in the case at bar. Appellant’s first assignment of error concern the trial court’s resentencing hearing which occurred on April 16, 2010.
I.
{¶24} In his first assignment of error, appellant claims that the post release control notification hearing held March 11, 2010 and journalized April 16, 2010 was void because the trial court failed to conduct a de novo sentencing hearing. We disagree.
{¶25} “[W]ith
{¶26} The Supreme Court further noted, ”
{¶27} The Court in Singleton concluded, “Based upon the foregoing, the de novo sentencing procedure detailed in the decisions of the Ohio Supreme Court is the appropriate method to correct a criminal sentence imposed prior to July 11, 2006, that lacks proper notification and imposition of post release control. However, because
{¶28} Appellant was given a
{¶29} Based upon the foregoing, the judgment of the Stark County Court of Common Pleas is affirmed.
By Gwin, J.,
Edwards, P.J., and
Hoffman, J., concur
HON. W. SCOTT GWIN
HON. JULIE A. EDWARDS
HON. WILLIAM B. HOFFMAN
WSG:clw 1210
JUDGMENT ENTRY
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Stark County Court of Common Pleas is affirmed. Costs to appellant.
HON. W. SCOTT GWIN
HON. JULIE A. EDWARDS
HON. WILLIAM B. HOFFMAN