State v. TownsendState v. Townsend
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: October 21, 2009
APPEARANCES:
For Plaintiff-Appellee: GREGG MARX 0008068 Assistant Prosecuting Attorney Fairfield County, Ohio 201 S. Broad Street Suite 400 Lancaster, Ohio 43130
For Defendant-Appellant: ANDREW T. SANDERSON 0066327 Burkett & Sanderson, Inc. 21 W. Church Street Suite 201 Newark, Ohio 43055
O P I N I O N
{¶1} Defendant-Appellant, Simon Townsend, appeals from his jointly recommended sentence and the judgment entry of the Fairfield County Court of Common Pleas, convicting him of one count of burglary with specification, one count of theft of a firearm, and one count of having a weapon while under disability. The State of Ohio is Plaintiff-Appellee.
{¶2} On December 17, 2004, Appellant was indicted on one count of burglary, in violation of
{¶3} On August 4, 2005, Appellant entered pleas of not guilty at his arraignment to all counts in the indictment.
{¶4} On September 25, 2005, Appellant appeared before the trial court and withdrew his previously entered not guilty pleas and entered pleas of guilty to all counts in the indictment. The firearm specification on count one was included as part of the plea agreement; the specifications on counts two and three were dismissed as part of the negotiated plea agreement. The parties jointly recommended a sentence of five years in prison for count one, consecutive to the one year mandatory sentence for the firearm specification; a consecutive sentence of two years was also agreed upon on count two, and a consecutive sentence of two years was also agreed upon on count three. The four year prison sentence on counts two and three was suspended, per the
{¶5} At the sentencing hearing, the trial court conducted a Rule 11 colloquy with Appellant, and explained to him the ranges of sentences that could be imposed. The court additionally informed Appellant that he would be subject to a maximum three year period of post-release control. Appellant signed a plea agreement form, which acknowledged the range of penalties for his crimes.
{¶6} At sentencing, the State further noted that Appellant had been to prison three times previously, and that he had prior convictions for burglary, theft of firearms, and other felonies, and that he was on post-release control at the time of the present offenses.
{¶7} The court indicated that it had considered the purposes and principles of sentencing, and that it considered the need to protect the public and hold Appellant accountable for his actions. The court considered Appellant s criminal history, and the fact that Appellant was on post-release control at the time of committing these offenses when sentencing Appellant. The court, however, failed to include the post-release control language for the offenses in the sentencing entry.
{¶8} On November 16, 2007, Appellant filed a Motion to Vacate Sentence based on the omission of the post-release control language in the original sentencing entry. A hearing was held on April 28, 2008, at which time the omission of the post release control language was noted and corrected pursuant to
{¶9} Appellant appealed from the May 1, 2008, judgment entry, raising two assignments of error:
{¶10} I. THE SENTENCING OF THE DEFENDANT-APPELLANT WAS UNCONSTITUTIONAL.
{¶11} II. THE RESENTENCING OF THE APPELLANT WAS IN ERROR.
{¶12} This Court, in reversing the trial court s judgment, found with respect to the first assignment of error that the Appellant s original sentence from 2005 was based on an unconstitutional statute and that his sentence therefore was void based on the Ohio Supreme Court s holding in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. Accordingly, this court vacated and remanded for a resentencing pursuant to Foster. See State v. Townsend, 5th Dist. No. 08-CA-37, 2008-Ohio-6783. We additionally found, with respect to Appellant s second assignment of error, that the trial court did not provide Appellant with notice of a resentencing hearing regarding post-release control as required by
{¶13} On March 13, 2009, a resentencing hearing was held and the trial court resentenced Appellant to an identical sentence, with the exception that it did not impose a fine upon Appellant for court costs. At the resentencing, the court stated with respect to post-release control:
{¶14} Even after having completed the prison term which has been imposed in count on of this indictment, that is, the five-year term of imprisonment, plus the mandatory one-year term of imprisonment as to the firearm specification, you are subject to a mandatory period of post-release control for up to three years.
{¶15} And during that period of time, if you violate the terms and conditions of post-release control, you could be sent to prison to serve up to one-half of the originally imposed prison sentence. Further, if, while on post-release control, you would violate the terms and conditions of post-release control by committing a new felony, the judge in that case could, in addition to any sentence imposed for the new felony, could order that you serve additional time in prison up to one-half of the remaining PRC time.
{¶16} Further, you are subject to a possible period of post-release control with regard to counts two and three of this indictment in the event that you would be ordered to serve one or both of those sentences, you may be subject to a period of supervision by the Ohio Adult Parole Authority for up to three years. And during that period of time, if you violate the terms and conditions of post-release control, you could be sent back to prison to serve up to one-half of the originally ordered sentence.
{¶17} Further, if you commit a new felony while on post-release control as to those matters, the sentencing Judge in the new case, wherein you would be convicted of a separate felony, could order that you serve that sentence consecutive to any
{¶18} In the judgment entry from the resentencing, the court stated with respect to post-release control:
{¶19} The Court further notified the Defendant that post-release control is mandatory in this case for a period of five (5) years, as well as the consequences for violating the conditions of post-release control imposed by the Parole Board. The Court further notified the Defendant of all the items contained in the Ohio Revised Code
{¶20} Appellant appeals from this judgment entry, raising two assignments of error, which are virtually identical to those raised in his 2008 appeal:
{¶21} I. THE ORIGINAL SENTENCING OF THE DEFENDANT-APPELLANT WAS UNCONSTITUTIONAL.
{¶22} II. THE RESENTENCING OF THE APPELLANT WAS IN ERROR.
I.
{¶23} In his first assignment of error, Appellant argues that his original sentence was unconstitutional, as it was in violation of the Ohio Supreme Court s ruling in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. In support of that contention, Appellant relies heavily on this Court s December 17, 2008, opinion, wherein we stated, In his first assignment of error, Appellant argues that the sentence imposed on him by the trial court is unconstitutional because it imposed more than the minimum sentence and ordered the sentences to run consecutive to one another. We agree. State v. Townsend, 5th Dist. No. 08-CA-37, 2008-Ohio-6783, ¶16.
{¶24} However, when viewing this paragraph in context, we did not determine that Appellant was entitled to a minimum, concurrent sentence. The rest of our opinion, following that paragraph, states:
{¶25} Appellant argues that his sentence is unconstitutional pursuant to State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470, 2006-Ohio-856. Foster addressed constitutional issues concerning felony sentencing and held that portions of Ohio‘s felony sentencing framework requiring judicial findings before imposition of more than the minimum, maximum, and consecutive sentences were unconstitutional and void. 109 Ohio St.3d at ¶ 100.
{¶26} As Appellant‘s original sentence was imposed on September 27, 2005, pre- Foster, Appellant‘s sentence is based upon an unconstitutional statute which was deemed void.
{¶27} While the trial court did hold a hearing on Appellant‘s Motion to Vacate his sentence pursuant to Foster, supra, we find the trial court failed to re-sentence Appellant at said hearing.
{¶28} Appellant‘s first assignment of error is sustained. Accordingly, we vacate Appellant‘s sentence and remand the matter for re-sentencing in accordance with Foster, supra. Townsend, supra, at ¶¶17-20.
{¶29} When viewing this opinion in context, it is clear that this Court merely ordered a resentencing of Appellant, in compliance with the Supreme Court s decision in Foster.
{¶30} The trial court properly resentenced Appellant in compliance with Foster.
{¶31} Moreover, Appellant is complaining about a jointly recommended sentence. It is not necessary for us to address these arguments, because the court‘s imposition of non-minimum, consecutive sentences in this case was done as part of a joint sentencing recommendation. Blakely and Foster do not apply to lawful sentences that were jointly recommended by the parties. State v. Covington, 5th Dist. No. CT2005-0038, 2006-Ohio-2700; State v. Wyche, 10th Dist. No. 06AP-1047, 2007-Ohio-2784, at ¶ 6; State v. Hall, 8th Dist. No. 87059, 2007-Ohio-414, discretionary appeal not allowed, 114 Ohio St.3d 1413, 2007-Ohio-2632; State v. Dye, 4th Dist. No. 06CA24, 2007-Ohio-3934.
{¶32} As such, Appellant s first assignment of error is overruled.
II.
{¶33} In his second assignment of error, Appellant argues that his resentencing was unconstitutional because the after the fact proceedings now at issue were
{¶34} We would first note that Appellant failed to raise the constitutionality argument at the trial court level and is raising it for the first time on appeal.
{¶35} It is well established that failure to raise an alleged error in the trial court, even an error of constitutional magnitude, results in the waiver of such issue on appeal. State v. Williams (1977), 51 Ohio St.2d 112, 117, 364 N.E.2d 1364.
{¶36} The general rule is that an appellate court will not consider any error which counsel for a party complaining of the trial court‘s judgment could have called but did not call to the trial court‘s attention at a time when such error could have been avoided or corrected by the trial court. State v. Childs (1968), 14 Ohio St.2d 56, 236 N.E.2d 545 paragraph three of the syllabus; State v. Glaros (1960), 170 Ohio St. 471, 166 N.E.2d 379 [11 O.O.2d 215], paragraph one of the syllabus; State v. Lancaster (1971), 25 Ohio St.2d 83, 267 N.E.2d 291 [54 O.O.2d 222], paragraph one of the syllabus; State v. Williams (1977), 51 Ohio St.2d 112, 117, 364 N.E.2d 1364 [5 O.O.3d 98]. Likewise, [c]onstitutional rights may be lost as finally as any others by a failure to assert them at the proper time. State v. Childs, supra, 14 Ohio St.2d at 62, 236 N.E.2d 545, citing State v. Davis (1964), 1 Ohio St.2d 28, 203 N.E.2d 357 [30 O.O.2d 16]; State, ex rel. Specht, v. Bd. of Edn. (1981), 66 Ohio St.2d 178, 182, 420 N.E.2d 1004 [20 O.O.3d 191], citing Clarington v. Althar (1930), 122 Ohio St. 608, 174 N.E. 251, and Toledo v. Gfell (1958), 107 Ohio App. 93, 95, 156 N.E.2d 752 [7 O.O.2d 437].FN1 Accordingly, the question of the constitutionality of a statute must generally be raised at the first opportunity and, in a criminal prosecution, this means in the trial court. See
{¶37} The Supreme Court, in Awan, determined that although
{¶38} Appellant failed to object to the post-release control language, let alone challenge the constitutionality of the issue, at the resentencing hearing. As such, we find that he has waived any constitutional challenge on appeal.
{¶39} We will briefly address, however, whether the trial court properly resentenced Appellant regarding post-release control pursuant to
{¶40} When a trial court fails to notify an offender that he may be subject to post release control at a sentencing hearing, as required by
{¶41} A trial court retains jurisdiction to correct a void sentence and is authorized to do so when its error is apparent. Simpkins, supra, citing Cruzado, supra, at ¶19. Moreover, resentencing a defendant to add a mandatory period of post-release control does not violate due process. Simpkins, supra.
{¶42} In cases in which a defendant is convicted of, or pleads guilty to, an offense for which post-release control is required but not properly included in the sentence, the sentence is void and the state is entitled to a new sentencing hearing in order to have post-release control imposed on the defendant unless the defendant has completed his sentence. State v. Simpkins, supra at ¶1 of the syllabus; See also, State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263. In
{¶43} In the case at bar, the trial court held the de novo resentencing hearing and properly informed Appellant of the mandatory and discretionary post-release control conditions for his convictions. The trial court also resentenced Appellant in accordance with the requirements of
{¶44} Thus, we find that the trial court properly resentenced Appellant, and that the court did not violate Appellant s rights in resentencing him and imposing the proper conditions for post-release control.
{¶45} Appellant s second assignment of error is overruled.
By: Delaney, J.
Farmer, P.J. and
Wise, J. concur.
HON. PATRICIA A. DELANEY
HON. SHEILA G. FARMER
HON. JOHN W. WISE
For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Fairfield County Court of Common Pleas is affirmed. Costs assessed to Appellant.
HON. PATRICIA A. DELANEY
HON. SHEILA G. FARMER
HON. JOHN W. WISE