State v. SealeyState v. Sealey
Ellis L. Sealey, pro se, PID: A431-327, Mansfield Correctional Institution, P.O. Box 788, 1150 North Main Street, Mansfield, OH 44901 (Defendant-Appellant).
O P I N I O N
COLLEEN MARY O‘TOOLE, J.
{¶1} Appellant, Ellis L. Sealey, appeals from the March 17, 2016 judgment of the Lake County Court of Common Pleas, denying his pro se motion for “‘Sentencing‘” and for “‘Vacation of Non-Cognizable Offenses,‘” in addition to various other motions. In the appealed judgment, in addition to denying appellant‘s various pro se motions, the court also held that the June 10, 2002 sentencing entry improperly noted the terms of
{¶2} On December 28, 2001, appellant was indicted by the Lake County Grand Jury on five counts of attempted murder, felonies of the first degree, in violation of
{¶4} On June 10, 2002, the trial court sentenced appellant to ten years each on counts one, three, five, seven, and nine (attempted murder). Counts three, five, seven, and nine were ordered to be served concurrently with each other and consecutively to count one. Counts two, four, six, eight, and ten (felonious assault) merged into counts one, three, five, seven, and nine, respectively. Appellant was also required to serve an additional three years as a mandatory prison term for the first firearm specification on count one and five years as a mandatory prison term for the second firearm specification on count one, which were to be served consecutive to each other and prior to and consecutive to the foregoing prison term. Thus, appellant was sentenced to a total period of incarceration of 28 years. In addition, the trial court imposed mandatory post-release control for “up to a maximum of 5 years.”2
{¶5} Appellant timely appealed, Case No. 2002-L-100, raising issues involving the calling of his brother as a court‘s witness, sufficiency of the evidence, manifest weight of the evidence, sentencing, and ineffective assistance of counsel. On December 5, 2003, this court affirmed appellant‘s conviction and sentence. State v. Sealey, 11th Dist. Lake No. 2002-L-100, 2003-Ohio-6697.
{¶7} Over four years later, on November 19, 2015, appellant filed a pro se motion for “‘Sentencing‘” and for “‘Vacation of Non-Cognizable Offenses,‘” in addition to various other motions. On March 17, 2016, the trial court denied the motions. However, the court held that the June 10, 2002 sentencing entry improperly noted the terms of appellant‘s post-release control. As a result, the court conducted a hearing via video conference to correct appellant‘s sentencing entry to reflect that he is to serve a mandatory term of five years of post-release control upon his release from prison. Appellant filed the instant pro se appeal and asserts the following three assignments of error:
{¶8} “[1.] Whether, and pursuant to the clear and unambiguous language of State v. Singleton, 124 Ohio St.3d 173, at: ¶1; State v. Bezak, 114 Ohio St.3d 94; and, Hernandez v. Kelly, 108 Ohio St.3d 395, at: ¶23, the trial court was/is prohibited from a *retroactive application of the *new judicial ruling in: State v. Fischer, 128 Ohio St.3d 92; and, an ex post facto application of:
{¶9} “[2.] Whether, and in imposing a term of mandatory postrelease control where the defendant has fully completed one or more of the underlying offenses, the discretion as per which of the underlying sentences which has been fully completed lies
{¶10} “[3.] Whether appellant‘s conviction for ‘attempted murder,’ pursuant to
{¶11} In his first assignment of error, appellant argues the trial court erred in not providing him a de novo sentencing hearing due to the post-release control error.
{¶12} By way of background, this court in State v. Young, 11th Dist. Portage No. 2015-P-0087, 2016-Ohio-5006, ¶9-11, recently stated the following regarding post-release control in light of the Ohio Supreme Court‘s 2010 decision in Fischer, supra:
{¶13} “‘(A) trial court must provide statutorily compliant notification to a defendant regarding postrelease control at the time of sentencing, including notifying the defendant of the details of the postrelease control and the consequences of violating postrelease control.’ State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, ¶18 * * *. Further, ‘a trial court must incorporate into the sentencing entry the postrelease-control notice to reflect the notification that was given at the sentencing hearing.’ Id. at ¶19. When a judge failed to properly impose statutorily mandated post-release control prior to July 11, 2006, that part of the sentence is void and must be set aside. State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, ¶26 * * *; State v. Shepherd, 11th Dist.
{¶14} “Pursuant to
{¶15} “‘(W)hen a defendant is notified about postrelease control at the sentencing hearing, but notification is inadvertently omitted from the sentencing entry, the omission can be corrected with a nunc pro tunc entry and the defendant is not entitled to a new sentencing hearing.’ Qualls, supra, at ¶30. On the other hand, when a defendant is not properly notified about post-release control at the sentencing hearing, regardless of what is stated in the sentencing entry, the defendant is entitled to a correction to the sentencing judgment after a limited hearing is held for that purpose.
{¶17} On March 17, 2016, the trial court held that the June 10, 2002 sentencing entry improperly noted the terms of appellant‘s post-release control. As a result, the court conducted a hearing via video conference on April 26, 2016. At the hearing, appellant was not afforded a de novo sentencing. Rather, the court held the hearing to specifically correct appellant‘s sentencing entry to reflect that he is to serve a mandatory term of five years of post-release control upon his release from prison. On May 3, 2016, the trial court issued a judgment correcting post-release control, detailing “that post release control is mandatory in this case for a period of five years, as well as the consequences for violating conditions of post release control imposed by the Parole Board under Revised Code section 2967.28.”
{¶18} Appellant now argues he was entitled to a de novo sentencing hearing due to the post-release control error. Appellant bases his argument on cases that preceded Fischer on the issue of post-release control notification and maintains that Fischer should not apply retroactively to his case. Appellant‘s assertions, however, are not well-taken.
{¶20} Like Sanders, appellant‘s argument in the case at bar is also misplaced as Fischer abrogates an offender‘s entitlement to a de novo sentencing hearing. Sanders, 2012-Ohio-5025, ¶15. The Fischer Court held that “when a judge fails to impose statutorily mandated postrelease control as part of a defendant‘s sentence, that part of the sentence * * * is void and must be set aside.” (Emphasis sic.) Id. at ¶26. In that case, the proper remedy is to resentence the defendant. Id. at ¶10. However, “the new sentencing hearing to which an offender is entitled * * * is limited to proper imposition of postrelease control.” Id. at ¶29.
{¶22} Appellant‘s first assignment of error is without merit.
{¶23} In his second assignment of error, appellant contends he has already completed the sentences imposed for felonious assault and the relating firearm specifications and, therefore, mandatory post-release control should not have been ordered on those charges at the resentencing.
{¶24}
{¶25} “Subject to division (C)(1)(b) of this section, if a mandatory prison term is imposed upon an offender pursuant to division (B)(1)(a) of this section for having a firearm on or about the offender‘s person or under the offender‘s control while committing a felony, if a mandatory prison term is imposed upon an offender pursuant to division (B)(1)(c) of this section for committing a felony specified in that division by discharging a firearm from a motor vehicle, or if both types of mandatory prison terms are imposed, the offender shall serve any mandatory prison term imposed under either division consecutively to any other mandatory prison term imposed under either division or under division (B)(1)(d) of this section, consecutively to and prior to any prison term imposed for the underlying felony pursuant to division (A), (B)(2), or (B)(3) of this section or any other section of the Revised Code, and consecutively to any other prison term or mandatory prison term previously or subsequently imposed upon the offender.”
{¶27} Again, on June 10, 2002, the trial court sentenced appellant to ten years each on counts one, three, five, seven, and nine (attempted murder). Counts three, five, seven, and nine were ordered to be served concurrently with each other and consecutively to count one. Counts two, four, six, eight, and ten (felonious assault) merged into counts one, three, five, seven, and nine, respectively. Appellant was also required to serve an additional three years as a mandatory prison term for the first firearm specification on count one and five years as a mandatory prison term for the second firearm specification on count one, which were to be served consecutive to each other and prior to and consecutive to the foregoing prison term. Thus, appellant was sentenced to a total period of incarceration of 28 years which included eight years of mandatory firearm specifications.
{¶29} Accordingly, the trial court properly imposed a mandatory five-year term of post-release control at the resentencing as appellant is currently serving a sentence for first-degree attempted murder.
{¶30} Appellant‘s second assignment of error is without merit.
{¶31} In his third assignment of error, appellant alleges that his conviction for attempted murder should be vacated because it is void.
{¶32} [Removed 2 paragraphs]
{¶33} “A void sentence ‘is not precluded from appellate review by principles of res judicata, and may be reviewed at any time, on direct appeal or by collateral attack.‘” State v. Britta, 11th Dist. Lake No. 2011-L-041, 2011-Ohio-6096, ¶14, quoting State v. Fischer, supra at paragraph one of the syllabus.
{¶34} Appellant cites to State v. Nolan, 141 Ohio St.3d 454, 2014-Ohio-4800 for the proposition that his conviction for attempted murder is void and must be vacated. Appellant‘s reliance on Nolan is misplaced. In Nolan, the Ohio Supreme Court held that attempted felony murder in violation of
{¶35} Appellant‘s third assignment of error is without merit.
{¶36} For the foregoing reasons, appellant‘s assignments of error are not well-taken. The judgment of the Lake County Court of Common Pleas is affirmed.
CYNTHIA WESTCOTT RICE, P.J.,
TIMOTHY P. CANNON, J.,
concur.