State v. VuState v. Vu
- Reporters:
- ,
- Before:
- Carla Moore, Whitmore, Belfance
MOORE, Presiding Judge.
{¶1} Appellants, Lai Vu, Lan Vu, Khuong Hoang, Phu Hoang, and Huong Nguyen appeal the decision of the Medina County Court of Common Pleas. This Court reverses and remands for a resentencing hearing.
I.
{¶2} In April of 2006, Medway agents began surveillance on eight properties in Brunswick, Ohio, on suspicion of cultivation and possession of marijuana. Through the investigation, Medway agents noted a pattern of behavior of the subjects of the surveillance. Agents stated that they observed several people of Asian descent traveling among the eight locations. The eight locations were; Stoneybrook Lane apts. 104, 106, and 107, a Grand Lake apartment, and single family homes located at 4784 Baywood, 3384 Red Clover, 1480 Troon
{¶3} On June 15, 2006, a search warrant was executed at all eight properties. The appellants were all detained and eventually arrested. Accordingly, on June 23, 2006, the appellants were indicted for possession of marijuana, greater than 20,000 grams, along with forfeiture specifications. On August 17, 2006, a supplemental indictment was filed, charging the appellants with the following crimes: possession of marijuana, in violation of
{¶4} The appellants all pled not guilty to the charges and their cases proceeded to jury trials. Lai and Lan Vu‘s trials were consolidated. At the conclusion of their trials, the appellants were all sentenced to various terms of incarceration. The appellants separately appealed their sentences and convictions. Their appeals were consolidated by this Court. The appellants have each raised separate assignments of error, asserting 91 in total. This Court has combined and rearranged the assigned errors to facilitate our review.
II
Sentencing Errors
Post-release control “up to 3 years“:
{¶5} As an initial consideration, this Court must review whether Lai, Lan, Phu, Khuong, and Huong‘s sentences were void due to the trial court‘s improper notification of post release control. We conclude that based upon Ohio Supreme Court precedent, the appellants’ sentences are void and therefore, we must vacate their sentences and remand for re-sentencing hearings.
{¶6} The Ohio Supreme Court has recently reiterated its position with regard to proper notification of post-release control. “In cases in which a defendant is convicted of, or pleads guilty to, an offense for which postrelease control is required but not properly included in the sentence, the sentence is void, and the state is entitled to a new sentencing hearing to have postrelease control imposed on the defendant unless the defendant has completed his sentence.” State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, at syllabus. The Court applied the reasoning from State v. Beasley (1984), 14 Ohio St.3d 74, in which it determined that when a
{¶7}
{¶8}
{¶9} In the instant case, the trial court notified the appellants at their sentencing hearings and in their sentencing entries that “post release control is mandatory in this case up to a maximum of 3 years[.]” (Emphasis added). In so stating, the trial court has misapplied
{¶10} The Ohio Supreme Court has “repeatedly stated that if the meaning of a statute is clear on its face, then it must be applied as it is written. Thus, if the statute is unambiguous and definite, there is no need for further interpretation. To construe or interpret what is already plain is not interpretation but legislation, which is not the function of the courts.” (Internal citations and quotations omitted.) State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, at ¶11. We conclude that the relevant statutes here are not ambiguous.
{¶11} Further, the Supreme Court has explained that it has consistently held “that a sentence that does not contain a statutorily mandated term is a void sentence.” Simpkins, supra, at ¶14, citing Beasley, supra. “Because a sentence that does not conform to statutory mandates requiring the imposition of postrelease control is a nullity and void, it must be vacated.” Simpkins, at ¶22. We are bound to follow the Supreme Court‘s directive, and therefore we conclude that the trial court‘s failure to properly notify the appellants of post-release control renders their sentences void. Accordingly, their sentences must be vacated and remanded for a resentencing hearing.
{¶12} Finally, we conclude that this decision is not in conflict with the Ohio Supreme Court‘s directive regarding notification of post-release control at a plea hearing. The Ohio Supreme Court has explained that the requirement pursuant to
“detailed the constitutional significance of a trial court including postrelease control in its sentence. We stated that because the separation of powers doctrine precludes the executive branch of government from impeding the judiciary‘s ability to impose a sentence, the problem of having the Adult Parole Authority impose postrelease control at its discretion is remedied by a trial court incorporating postrelease control into its original sentence. Consequently, unless a trial court includes postrelease control in its sentence, the Adult Parole Authority is without authority to impose it.” (Internal citations omitted.) Jordan, supra, at ¶19, citing Woods v. Telb, 89 Ohio St.3d 504 at 512-513 (2000).
{¶14} Accordingly, the appellants’ sentences are vacated and the cause is remanded to the trial court for resentencing.
Manifest Weight and Sufficiency
Manifest weight/Sufficiency:
{¶15} Our resolution that these appellants’ sentences are void does not render their challenges to the sufficiency of the evidence moot. The Ohio Supreme Court “distinguish [ed] between appellate court reversals based solely upon insufficiency of the evidence and those based on ordinary ‘trial errors‘.” State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, at ¶18. Pursuant to the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution, notwithstanding some procedural defect by the trial court warranting reversal, the State remains entitled to “one, and only one, full and fair opportunity” to prosecute the defendant in regard to a single offense. Richardson v. United States (1984), 468 U.S. 317, 331. We recently explained that the Brewer court recognized “that the State is not entitled to retry a criminal defendant after reversal for trial court
Lai, Lan, Phu and Khuong:
{¶16} The overwhelming majority of the briefs of these appellants are identical. Some minor adjustments are made to identify differences in the State‘s evidence against each party, but the legal arguments are copied practically verbatim. In their sixth assignments of error, Lai, Lan, Phu, and Khuong assert that their convictions were against the manifest weight of the evidence and were based upon insufficient evidence. While these appellants allege in their sixth assignments of error that their convictions were against the manifest weight of the evidence, their supporting argument focuses on the sufficiency of evidence. Their argument as to their sixth assignments of error neither refers to the credibility of witnesses nor does it request this Court to weigh the evidence. See
{¶17} These appellants “laid out the standard of review for both sufficiency of the evidence and manifest weight, but [they] failed to cite any authority in [their] argument that would support [their] contentions, which is required under
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{¶19} These appellants do not explain how the alleged failures on the part of the State amounted to a failure to establish the elements of the convicted crimes. In fact, these appellants neglect to explain to this Court which elements they believe the State had to prove, or the respects in which the proof was lacking. These appellants were each convicted of eight offenses, involving conspiracy, possession and complicity. Although they complain of a litany of facts they contend the State failed to show, nowhere do they explain to which element of which crime these alleged failures relate.
{¶20} We have consistently stated that an appellant has the burden to affirmatively demonstrate an error on appeal. Stelzer, at ¶7; State v. Ha, 9th Dist. No. 07CA0089-M, 2009-Ohio-1134, at ¶24. If an argument exists that could support these appellants’ assignment of error, it is not our duty to ferret it out. See Cardone v. Cardone (May 6, 1998), 9th Dist. Nos. 18349 and 18673, at *8. These appellants, although each presents his or her own brief on appeal, have simply copied and pasted their argument one from the other, with no regard to the fact that they do not share a common record below. The arguments do not direct us to any portion of the voluminous transcript where we might find support. Therefore, if this Court were inclined to
Huong Nguyen:
{¶21} In her first and second assignments of error, Huong contends that her convictions for conspiracy were not based on sufficient evidence and were against the manifest weight of the evidence. Although Huong contends under her first assignment of error that her conspiracy convictions were not based upon sufficient evidence, her argument with regard to this error consists of challenges to the jury verdict forms. As she fails to separately assign error to any issue regarding the verdict forms or instructions, we decline to address this argument on appeal.
{¶22} When considering a challenge to the sufficiency of the evidence, the court must determine whether the prosecution has met its burden of production, while a manifest weight challenge requires the court to examine whether the prosecution has met its burden of persuasion. State v. Thompkins (1997), 78 Ohio St.3d 380, 390 (Cook, J., concurring). To determine whether the evidence in a criminal case was sufficient to sustain a conviction, an appellate court must view that evidence in a light most favorable to the prosecution:
“An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus.
{¶23} In the instant case, Huong was convicted of two counts of conspiracy to cultivate marijuana and two counts of conspiracy to commit possession of drugs, in violation of
“(A) No person, with purpose to commit or to promote or facilitate the commission of *** a felony drug trafficking, manufacturing, processing, or possession offense, theft of drugs, or illegal processing of drug documents, *** shall do either of the following:
“(1) With another person or persons, plan or aid in planning the commission of any of the specified offenses;
“(2) Agree with another person or persons that one or more of them will engage in conduct that facilitates the commission of any of the specified offenses.”
“[n]o person shall be convicted of conspiracy unless a substantial overt act in furtherance of the conspiracy is alleged and proved to have been done by the accused or a person with whom the accused conspired, subsequent to the accused‘s entrance into the conspiracy. For purposes of this section, an overt act is substantial when it is of a character that manifests a purpose on the part of the actor that the object of the conspiracy should be completed.”
{¶24} Specifically, Huong contends that there was no evidence that she entered into an agreement or plan or that she committed a substantial overt act in furtherance of the conspiracy. We do not agree.
{¶25} Initially, we note that
{¶26} Huong does not appear to contest the fact that the State presented a substantial amount of evidence to prove that a conspiracy existed. Rather, she contends that the State did not show that she was part of the conspiracy. To this end, the State presented the testimony of Tuan Do, a co-defendant, who testified to his role in the conspiracy. He specifically testified that he lived and worked at the Troon grow house. He explained that Henry Tran, Huong‘s fiancé, was the person who brought him to Brunswick to water the marijuana plants. Do stated that when he first moved to Brunswick, at the beginning of May of 2006, he stayed at the apartment that Henry and Huong shared. He explained that he and Henry had conversations in Huong‘s presence regarding what was going on at the Troon grow house.
{¶27} Do further explained that he moved into the Troon grow house and that Henry, as well as many others, including Huong, would come to the Troon grow house. He stated that Henry explained to him that people would come over and bring their children in order to make it look like a family lived there. He testified that Huong brought her children to the house. He further identified Huong from a photograph taken at the Troon grow house. Do testified that he primarily worked in the basement of the home, watering the marijuana plants. He stated that Huong brought him down a coke, water, beer or food one or two times. Reviewing this testimony in the light most favorable to the prosecution, we find that the State has presented sufficient circumstantial evidence to establish that Huong agreed with another person to engage in the conduct that facilitated the conspiracy. Huong does not contend that other co-conspirators did not commit substantial overt acts in furtherance of the conspiracy. Having found that Huong
{¶28} As we stated above, “an overt act is substantial when it is of a character that manifests a purpose on the part of the actor that the object of the conspiracy should be completed.”
All Appellants Remaining Assignments of Error
{¶29} Based upon our determination that the appellants’ sentences are void, their remaining assignments of error are moot. Accordingly, we decline to address them here.
III.
{¶30} The appellants’ sentences are void. The appellants’ assignments of error with regard to sufficiency are overruled. We decline to address their remaining assignments of error. The judgment of the Medina County Court of Common pleas is vacated and remanded for proceedings consistent with this opinion.
Judgment vacated, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
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 Appellee.
CARLA MOORE
FOR THE COURT
WHITMORE, J. CONCURS
BELFANCE, J. CONCURS IN JUDGMENT ONLY, SAYING:
{¶31} I concur in the judgment only. I write to point out that in light of the issues raised by the majority concerning the Appellants’ briefs, it appears that it would have been appropriate to have granted the Appellants leave to exceed the page limitations for their merit briefs.
APPEARANCES:
MICHAEL J. CALLOW, Attorney at Law, for Appellants.
WESLEY A. JOHNSTON, Attorney at Law, for Appellant.
DEAN HOLMAN, Prosecuting Attorney, and RUSSELL HOPKINS, Assistant Prosecuting Attorney, for Appellee.