State v. WardState v. Ward
Dated: March 16, 2011
CARR, Presiding Judge.
{¶1} Appellant, Desmond Ward, appeals the judgment of the Summit County Court of Common Pleas. This Court affirms, in part, and vacates, in part.
I.
{¶2} This case stems out of a series of events which transpired between August 30, 2006, and September 2, 2006, which resulted in Ward being charged with several criminal offenses.
{¶3} On October 1, 2007, the matter proceeded to a bench trial. The trial court found Ward guilty of assault on a police officer in violation of
{¶4} On December 21, 2007, this Court issued a journal entry indicating that the order from which Ward appealed did not dispose of all the counts in the indictment. Ward was given until January 11, 2008, to obtain a final, appealable order. On January 28, 2008, this Court issued a journal entry dismissing the appeal due to the fact that Ward had not responded to the previous journal entry. On February 4, 2008, the trial court issued a nunc pro tunc journal entry which imposed the same sentence and disposed of all the remaining counts levied against Ward. On February 29, 2008, Ward filed a notice of appeal. Ward‘s conviction was subsequently affirmed by this Court on November 26, 2008. State v. Ward, 9th Dist. No. 24105, 2008-Ohio-6133.
{¶5} On January 15, 2010, the trial court sua sponte issued a journal entry ordering the Summit County Sheriff to return Ward for resentencing on February 5, 2010. The resentencing hearing was later continued until March 12, 2010. Ward subsequently appeared for the resentencing hearing and the trial court issued a new sentencing entry on March 15, 2010. Ward was sentenced to a five-year term of incarceration as well as a mandatory period of five years post-release control. Ward filed a notice of appeal on March 29, 2010.
{¶6} On appeal, Ward raises two assignments of error.
II.
ASSIGNMENT OF ERROR I
“THE COURT ERRED WHEN IT VOIDED A VALID SENTENCE AND ORDERED APPELLANT TO BE RESENTENCED DE NOVO, IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, ARTICLE I, SECTIONS TEN AND SIXTEEN OF THE OHIO CONSTITUTION, AND
SECTION 2929.191 OF THE OHIO REVISED CODE .”
“APPELLANT WAS DEPRIVED OF HIS DUE PROCESS AND HIS SPEEDY TRIAL RIGHTS WHEN HE WAS NOT GIVEN A VALID SENTENCE UNTIL OVER TWO YEARS AFTER HE WAS FOUND GUILTY, IN VIOLATION OF THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, ARTICLE ONE, SECTION SIXTEEN OF THE OHIO CONSTITUTION, AND CRIMINAL RULE 32(A).”
{¶7} In his first assignment of error, Ward argues that the trial court did not comport with the requirements of
{¶8} The Supreme Court of Ohio recently decided State v. Fischer, -- N.E.2d --, No. 2010-Ohio-6238, in which it addressed several questions arising from a sentencing court‘s failure to impose post-release control as mandated by the Ohio General Assembly. The Supreme Court had previously held that “[w]hen a defendant is convicted of or pleads guilty to one or more offenses and post[-] release control is not properly included in a sentence for a particular offense, the sentence for that offense is void. The offender is entitled to a new sentencing hearing for that particular offense.” State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, at syllabus. In Fischer, the Supreme Court specifically noted that its decision in Bezak left certain questions unanswered. Id. at ¶18, 27. The Supreme Court in Fischer reaffirmed its position that “[a] sentence that does not include the statutorily mandated term of post[-]release control is void, 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.” Fischer, at paragraph one of the syllabus. The Supreme Court also modified a portion of the precedent established in Bezak by holding that
{¶9} In this case, the trial court‘s original sentencing entry which disposed of all the charges in the indictment was journalized on February 4, 2008.
III.
{¶10} The judgment of the Summit County Court of Common Pleas is vacated to the extent the court exceeded its authority and resentenced Ward. The trial court‘s decision to properly impose a mandatory five-year period of post-release control to Ward‘s sentence is affirmed.
Judgment affirmed in part, and vacated in part.
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 Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
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. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
DONNA J. CARR
FOR THE COURT
DICKINSON, J.
WHITMORE, J.
CONCUR
APPEARANCES:
ADAM VAN HO, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.