STATE OF OHIO v. DEREK SCOTT STIGGERS aka FLOWERS
C.A. No. 25486
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
August 24, 2011
[Cite as State v. Stiggers, 2011-Ohio-4225.]
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 96 11 2733
WHITMORE, Judge.
{1} Defendant-Appellant, Derek Stiggers, appeals from the judgment of the Summit County Court of Common Pleas. This Court affirms in part and vacates in part.
I
{2} In 1997, Stiggers was convicted of two counts of attempted murder, two counts of felonious assault, and one count of aggravated robbery. This Court recalled the facts underlying this matter in Stiggers’ direct appeal. State v. Stiggers (Apr. 15, 1998), 9th Dist. No. 18405. In 2007, Stiggers sought a resentencing due to an invalid post-release control notification. In response to Stiggers’ motion, the trial court issued a nunc pro tunc entry imposing a post-release control term.
{3} On March 26, 2010, Stiggers filed a motion to vacate his void sentence, arguing that a trial court may not correct a void sentence by way of a nunc pro tunc entry. The State conceded that Stiggers had a void sentence and asked the court to sentence Stiggers in
{4} Stiggers now appeals from his sentence and raises one assignment of error for our review.
II
Assignment of Error
“STIGGER‘S (sic) DUE PROCESS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS WERE VIOLATED WHEN THE TRIAL COURT EXCEEDED ITS SENTENCING AUTHORITY DURING HIS POST[-]RELEASE CONTROL RESENTENCING HEARING.”
{5} In his sole assignment of error, Stiggers argues that the trial court lacked authority to take any additional action with regard to his sentence other than to properly impose post-release control. We agree.
{6} After the trial court imposed Stiggers’ new sentence, the Supreme Court issued State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238. Fischer dictates that an invalid post-release control notification does not taint the entirety of an offender‘s sentence. Instead, “when a judge fails to impose statutorily mandated post[-]release control as part of a defendant‘s sentence, [only] that part of the sentence is void and must be set aside.” Fischer at ¶26. A resentencing must be limited to the imposition of post-release control. Id. at ¶27-28. Applying Fischer, this Court has recognized that a trial court exceeds its sentencing authority when it
{7} Acting without the benefit of Fischer, the trial court here conducted a de novo sentencing hearing at which it modified the terms of Stiggers’ underlying sentence. It lacked the authority to do so. Fischer at ¶26-28. Yet, the post-release control portion of the court‘s sentencing entry is correct, and Stiggers concedes that the court properly advised him of his mandatory post-release control obligations. As such, to the extent the trial court‘s June 22, 2010 sentencing entry imposes post-release control upon Stiggers, it is affirmed. “The remainder of the trial court‘s action in resentencing [Stiggers] exceeded the trial court‘s jurisdiction and is a nullity. Accordingly, this Court vacates the remainder of the trial court‘s [June 22, 2010] judgment, leaving the original sentence intact.” Cool at ¶5. Stiggers’ sole assignment of error is sustained.
III
{8} Stiggers’ sole assignment of error is sustained. The judgment of the Summit County Court of Common Pleas is affirmed in part and vacated in part in accordance with the foregoing opinion.
Judgment affirmed in part, and vacated in part.
There were reasonable grounds for this appeal.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
CARR, P. J.
MOORE, J.
CONCUR
APPEARANCES:
DONALD R. HICKS, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.