Case Information
*1
[Cite as
State v. Taylor
,
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HIGHLAND COUNTY
State of Ohio, : Case No. 10CA7
Plaintiff-Appellee, :
v. : DECISION AND JUDGMENT ENTRY Timothy J. Taylor, :
Defendant-Appellant. : RELEASED 03/21/11 ______________________________________________________________________
APPEARANCES:
Timothy J. Taylor, Ross Correctional Institution, Chillicothe, Ohio, pro se appellant. James B. Grandey, Highland County Prosecutor, and Anneka P. Collins, Highland County Assistant Prosecutor, for appellee.
______________________________________________________________________
Harsha, P.J. Timothy J. Taylor appeals from the prison sentence imposed by the
Highland County Common Pleas Court. The court held a resentencing hearing after it became apparent that it failed to advise Taylor of mandatory postrelease control sanctions in his original 1997 sentence. After properly advising Taylor of postrelease control sanctions, the court imposed the same sixteen-year sentence it had in 1997.
{¶2}
In this appeal, Taylor attacks various aspects of the length of his
sentence, including the court’s ability to impose consecutive and non-minimum
sentences. We reject these arguments in light of the Supreme Court of Ohio’s recent
ruling in State v. Fischer , --- Ohio St.3d ---,
{¶3} Taylor also argues that he suffered an unreasonable nine-month delay in sentencing, which divested the trial court of jurisdiction to resentence him. The court promptly resentenced Taylor after he notified the court about the omission of a postrelease control notification in his original sentence. The delay in Taylor’s resentencing is the result of our determination that the trial court mistakenly issued a judgment entry that lacked the necessary elements to constitute a final appealable order. After we dismissed that appeal, the court promptly issued a revised judgment entry. Thus, the nine-month period of delay in obtaining a valid final sentence was reasonable. Consequently, we reject Taylor’s assignments of error and affirm the
judgment of the trial court.
I. Summary of the Facts The state indicted Taylor in 1996 on charges of murder, abuse of a corpse, tampering with evidence, and theft. Under a plea agreement, Taylor pleaded guilty in 1997 to involuntary manslaughter, gross abuse of a corpse, tampering with evidence, and theft. His agreed sentence included prison terms of ten years for involuntary manslaughter, one year for gross abuse of a corpse, four years for tampering with evidence, and one year for theft. The court ordered his sentences to run consecutively, for an aggregate prison term of sixteen years.
{¶6} In April of 2009, Taylor filed a motion to have his sentence vacated on the basis that the court failed to advise him of mandatory postrelease control sanctions. Accordingly, the court held a resentencing hearing in July 2009. At the hearing, the court notified Taylor about mandatory postrelease control sanctions and imposed the same prison term it had in 1997.
{¶7}
After Taylor appealed that sentence, we determined that we lacked
subject-matter jurisdiction because the resentencing entry did not contain the guilty
plea, the jury verdict, or the finding of the court upon which the convictions were based,
i.e., it was not a final appealable order. Accordingly, we dismissed the appeal. See
State v. Taylor , Highland App. No. 09CA23,
been found guilty by “plea agreement.” Taylor then filed this appeal.
II. Assignments of Error Taylor sets forth three assignments of error which we have taken verbatim from his brief:
ASSIGNMENT OF ERROR I “The Trial Court erred by not making the findins pursuant to R.C. 2929.14(B)(2), R.C. 2929.14(E)(4), as well as R.C. 2929.19(B)(2), When imposing more than minimum, and consecutive sentences on the Appellant. Violating the Appellant’s rights under Ohio.Const.Art.I.Sections 5, 10,and 16, to Trial by Jury, Equal Protection of Law, and Due Process of Law. In addition, this also violated the 5th, 6th, and 14th Amendments of the United States Constitution to Due Process of Law, Trial by Jury, and Equal Protection of Law.”
ASSIGNMENT OF ERROR II “The Trial Court erred by enhancing the Appellant’s sentence beyond the ‘Statutory Maximum’ as defined by the United States Supreme Court in BLAKELY v. WASHINGTON. Violating Appelant’s rights under Ohio.Const.Art.I.Sections 5, 10, and 16 to Equal Protection of Law, Trial by Jury, and Due Process of Law. In addition this also violated the 5th, 6th, and 14th Amendments of the United States Constitution to Due Process of Law, Trial by Jury, and Equal Protection of Law.” ASSIGNMENT OF ERROR III “The Trial Court erred by not imposing the Appellant’s sentence within the statutory mandates of Crim.R.32(A), or SupR.39(B)(4). Creating a unnecessary delay, thereby divesting itself of the requisite jurisdiction to impose any sentence in relation to this matter. Violating the Appellant’s rights under Ohio.Const.Art.I.Sections 10, and 16 to Equal Protection of Law, Due Process of Law, and Justice Administered without Denial or Delay. In addition to violating the 5th, 6th, and 14th Amendments of the United States Constitution, to Due Process of Law, Speedy Trial Guarantee, and Equal Protection of Law.”
III. Taylor’s Resentencing was Limited to the Addition of Postrelease Control [1] In his first two assignments of error, Taylor presents various arguments challenging the length and nature of his sentence. However, this appeal is limited to what occurred at the resentencing. Under the present state of felony sentencing law in Ohio, the court was limited to adding the proper postrelease control terms to Taylor’s original sentence. It did that. Therefore, the only aspect of Taylor’s new sentence that he can challenge in this direct appeal is the addition of postrelease control. Had we decided this appeal a few months earlier, we would have held that
Taylor’s first sentence was void under State v. Beasley (1984),
of cases involving postrelease control sentencing errors. Most notably, the Court overruled its holding in Bezak concerning void judgments and the failure of a court to notify the offender of postrelease control sanctions. In Fischer , the court held that a sentence that failed to include statutorily required postrelease control provisions is only partially void, i.e., the only “void” portion of the sentence is the failure to impose the proper sanction and notice. Therefore, “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.” Id. at ¶26. (Emphasis sic.) And “the new sentencing hearing to which an offender is entitled * * * is limited to proper imposition of postrelease control.” Id. at ¶29.
{¶13}
In so holding, the Court has adhered to the line of reasoning in State v.
Saxon ,
{¶14} In light of Fischer , it is now clear that the trial court was limited at Taylor’s resentencing to the addition of statutorily required notice of postrelease control sanctions. [2] Taylor cannot appeal an aspect of his sentence that the court did not, and in fact could not, revisit at resentencing. Consequently, we overrule Taylor’s first and second assignments of error,
which contest the length and terms of the sentence he received in 1997 because they are res judicata. See Fischer at ¶40.
IV. Delay in Sentencing In his third assignment of error, Taylor complains that the trial court lacked jurisdiction to resentence him because of an unreasonable delay in sentencing. Taylor contends that he appeared before the trial court for resentencing on July 14, 2009, “[h]owever, his sentence was unreasonably delayed until April 22, 2010, more than nine months later.” Taylor claims that the reason for the delay was that “the trial court failed to incorperate [sic] the guilty plea, the jury verdict, or the finding of the court upon which the convictions were based into the ‘Judgment Entry of Confinement.’” Taylor contends that this delay violated Crim.R. 32(A) and Sup.R. 39(B)(4). The state responds that it became aware of our decision concerning Taylor’s first resentencing entry on April 8, 2010, and that it prepared a new sentencing entry which was executed by the trial court on April 22, 2010. For purposes of this appeal, we will assume without deciding that the
mandate of Crim.R. 32(A) is jurisdictional in nature. However, it is clear that Sup.R.
39(B)(4) has no such effect. See State v. Tyler (1990),
delay.” In the present case, the court conducted a resentencing hearing on July 14, 2009. The same day, the court issued a judgment entry of confinement. Taylor filed a notice of appeal on August 12, 2009. We reviewed Taylor’s sentencing entry and subsequently ordered the parties to submit supplemental briefs addressing our jurisdiction over the appeal. After the parties filed briefs, we issued our decision April 7, 2010, holding that the trial court’s entry did not constitute a final, appealable order. Accordingly, we dismissed the appeal for lack of jurisdiction. Subsequently, on April 22, 2010, the trial court issued a revised entry which satisfied the requirements for a final appealable order. From this timeline, at best we can discern a fifteen-day “delay” from April 7, 2010 through April 22, 2010. Such a delay is not unreasonable. Nor do we believe the nine-month “delay” between his resentencing in July 2009 and the entry of a final appealable order in April 2000 was unreasonable given the circuitous appellate path the case followed. Given the total lack of any evidence of purposeful or grossly negligent delay on the part of the state or the trial court, the period required to resentence Taylor was well within reasonable timelines. Nonetheless, Taylor cites Willoughby v. Lukehart (1987), 39 Ohio App.3d
74,
are clearly distinguishable. In both, the courts found the defendants guilty but did not sentence them. Here, the court found Taylor guilty in 1997 and sentenced him promptly. He then filed a motion for a new sentence after he realized the court failed to notify him of postrelease control sanctions. The court held a hearing within three months of his petition to vacate his earlier sentence. On the same day of the hearing, the court issued a new sentencing entry. After our decision in Taylor’s first appeal, the court issued a revised judgment entry within fifteen days. There was no unreasonable delay in sentencing. Any delay was attributable to the appellate process and a clerical, albeit significant, error concerning the finality of the court’s judgment entry of confinement. Although issues with the sentencing entry delayed his appeal, there was no unnecessary delay in violation of Crim.R. 32(A). Accordingly, we hold that this assignment of error is meritless.
V. Conclusion We affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Highland County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Kline, J.: Concurs in Judgment and Opinion.
McFarland, J.: Concurs in Judgment Only.
For the Court
BY: _______________________________ William H. Harsha, Presiding Judge NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.
Notes
[1] The state argues that we lack jurisdiction to review Taylor’s sentence because it was originally entered pursuant to a plea agreement. The state cites R.C. 2953.08(D)(1), which prohibits appellate review of agreed sentences authorized by law. We do not address this argument in light of Fischer , supra, and the analysis that follows.
[2] We apply Fischer retroactively because of the general rule that states that a decision of a court of
supreme jurisdiction overruling a former decision is retrospective in its operation. See State v. Vance ,
Meigs App. No. 10CA4,