2005 Ohio 3839 | Ohio Ct. App. | 2005
Lead Opinion
{¶ 2} The record reflects that in 1989, Webb and his co-defendant, Merl Sharpley, were jointly indicted in two separate cases for offenses arising out of three armed robberies and a shooting. The cases were consolidated for trial. After a jury trial, Webb was convicted of five counts of aggravated robbery, three counts of kidnapping, felonious assault, attempted murder, possession of a dangerous ordnance, and having a weapon while under disability.
{¶ 3} On appeal, this court reversed Webb's and Sharpley's convictions for the firearm specification appurtenant to the conviction for the aggravated robbery which occurred on January 31, 1989, and reversed Webb's conviction for felonious assault. We affirmed the remaining convictions. State v. Webb (Jan. 2, 1992), Cuyahoga App. Nos. 59544/59626/59627.
{¶ 4} In light of this court's decision reversing two of his convictions, Webb subsequently filed a motion to vacate and modify his sentence, which the trial court denied. This appeal followed.
{¶ 6} The State concedes this error, but argues that the matter should be remanded for resentencing only on the reversal of the firearm specification on the aggravated robbery conviction and the reversal on the felonious assault conviction. The State contends that a "completely new sentencing hearing" is not necessary. We disagree.
{¶ 7} As this court previously stated in State v. Gray, Cuyahoga App. Nos. 81474, 2003-Ohio-436, at ¶ 12:
{¶ 8} "The court of appeals does not have the power to vacate just a portion of a sentence. State v. Bolton (2001),
{¶ 9} Furthermore, this court has recognized that trial judges customarily view the sentence as a package in which the trial judge balances various parts to arrive at the desired end.State v. Moore, Cuyahoga App. No. 83703,
{¶ 10} The Tenth District explained this principle as follows:
{¶ 11} "The sentence package doctrine provides that, when a defendant is sentenced under a multi-count indictment and the sentences imposed on those counts are interdependent, the trial court has the authority to reevaluate the entire aggregate sentence, including those on the unchallenged counts, on remand from a decision vacating one or more of the original counts. Inthe Matter of Fabiaen L. Mitchell (June 28, 2001), Franklin App. No. 01AP-74. The underlying theory is that, in imposing a sentence in a multi-count conviction, the trial court typically looks to the bottom line, or the total number of years. Id. Thus, when part of a sentence is vacated, the entire sentencing package doctrine becomes `unbundled,' and the trial judge is, therefore, entitled to resentence a defendant on all counts to effectuate its previous intent. Id." State v. Jackson, 2004-Ohio-1005, at ¶ 5, Franklin App. No. 03AP-698.
{¶ 12} Accordingly, upon remand, the trial court is to conduct a complete sentencing hearing upon resentencing Webb.
{¶ 13} Appellant's first assignment of error is sustained.
{¶ 15} Webb's argument, however, is barred by the doctrine of res judicata. Under the doctrine of res judicata, a final judgment of conviction bars a defendant from raising and litigating in any proceeding, except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial which resulted in that judgment of conviction or an appeal from that judgment. State v. Perry (1967),
{¶ 16} Webb filed a direct appeal of his conviction and could have raised any sentencing errors on appeal. Accordingly, his argument is barred by the doctrine of res judicata.
{¶ 17} Appellant's second assignment of error is therefore overruled. BLAKELY ISSUE
{¶ 18} In his third assignment of error, Webb contends that the imposition of consecutive sentences for the firearm specifications violates the United States Supreme Court's recent decision in Blakely v. Washington (2004), ___ U.S. ___,
{¶ 19} Webb was sentenced on March 15, 1990, nearly 15 years before the United States Supreme Court decided Blakely. Since the decision in Blakely was announced, numerous federal courts have declined to apply Blakely retroactively. See, e.g., In reDean (C.A.11, 2004),
{¶ 20} As explained by the Eleventh Circuit Court of Appeals:
{¶ 21} "For a new rule to be retroactive to cases on collateral review * * *, the Supreme Court itself must make the rule retroactive. * * * Additionally, the Supreme Court does not make a rule retroactive through dictum. Multiple cases can, together, make a rule retroactive, but only if the holdings in those cases necessarily dictate retroactivity of the new rule.
{¶ 22} "* * * [T]he Supreme Court has not expressly declaredBlakely to be retroactive to cases on collateral review. Moreover, no combination of cases necessarily dictate retroactivity of the Blakely decision. Blakely itself was decided in the context of a direct appeal, and the Supreme Court has not since applied it to a case on collateral review. The same day the Supreme Court decided Blakely, the Court also issued its decision in Schriro v. Summerlin, ___ U.S. ___,
{¶ 23} Webb's third assignment of error is therefore overruled.
Reversed and remanded.
This cause is remanded for further proceedings consistent with the opinion herein.
It is, therefore, ordered that appellant recover from appellee costs herein.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Kilbane, J., Concurs. Gallagher, P.J., Concurs in part anddissents in part with separate concurring and dissentingopinion.
Dissenting Opinion
{¶ 24} I respectfully dissent from the majority position to vacate the entire sentence based on the first assignment of error. I would remand for resentencing only on the earlier reversal of the firearm specification associated with the aggravated robbery conviction and the reversal of the felonious assault conviction. I write separately to address my concerns about the application of State v. Bolton, cited by the majority opinion. With respect to the second and third assignments of error, I concur in the judgment and analysis of the majority.1
{¶ 25} The majority decision, relying on Bolton andSteimle, mandates that appellate courts do not have the power to vacate "just a portion of a sentence." The decision requires a trial court to conduct a completely independent sentencing hearing, complete with all the applicable procedures, on remand. This, however, is not an exclusive view in this district.
{¶ 26} Some have viewed R.C.
{¶ 27} "(A) In addition to any other right to appeal and except as provided in division (D) of this section, a defendant who is convicted of or pleads guilty to a felony may appeal as a matter of right the sentence imposed upon the defendant on one of the following grounds: * * *
{¶ 28} "(4) The sentence is contrary to law."
{¶ 29} The pertinent language of R.C.
{¶ 30} This language has largely been read to mean the appellate court may increase, reduce or modify a sentence, or may vacate the sentence and remand the case for resentencing. The portion of the statute often overlooked is the language "* * * a sentence that is appealed under this section * * *." This language indicates the matter under review is not necessarily the full sentence, but rather that which is expressly assigned as error. It is that portion of the sentence that the court may either increase, reduce or modify, or in the alternative, vacate.
{¶ 31} Often, an appeal focuses on one or two aspects of a sentence rendered by a trial court. While we often look at a sentence in a singular context, the plain language of the phrase "* * * a sentence that is appealed under this section * * *" certainly suggests that what is under review is the claimed error, not necessarily the entire sentence. Judge Kenneth A. Rocco of our court pointed out the merit of this position in his concurring and dissenting opinion in State v. Fair, Cuyahoga App. No. 82278, 2004-Ohio-2971, when he stated the following:
{¶ 32} "We do a grave disservice to finality principles when we reverse and remand for resentencing cases in which the sentence is not necessarily incorrect, but only incomplete. In my view, given the statute's mandate, we should demand a record containing the findings necessary to support the sentence imposed, then review the correctness of that sentence, rather than reopen the entire sentencing proceeding and ask the common pleas court to reconsider a decision which we did not find to be wrong. Vacating a sentence and remanding the matter for resentencing allows for multiple appeals of the same sentence on different grounds, either because new issues arise as a result of the remand, or because, as here, the defendant chooses to argue issues after the remand which could have been raised before. See, e.g., State v. Morton, Cuyahoga App. No. 82095, 2003-Ohio-4063;State v. Rotarius, Cuyahoga App. No. 81555, 2003-Ohio-1526. Neither of these situations would arise if the matter was simply remanded for supplementation; a single appeal would conclude all issues surrounding the sentencing issues to which R.C.
{¶ 33} Issues involving resentencing also impact the law of the case doctrine. Again, Judge Kenneth A. Rocco outlined the impact of the doctrine on vacated sentences and resentencing hearings in State v. Moore, Cuyahoga App. No. 83703,
{¶ 34} It is my view that vacating an entire sentence on review, when only a portion of the total sentence contains error, is inconsistent with the scope of appellate review. While I recognize there may be instances where the underlying error so undermines the legitimacy of the original sentence that it must be fully vacated, I do not believe this premise is automatic. Appellate courts are in the best position to determine the rare circumstances when, or if, a sentence must be fully vacated.
{¶ 35} In light of the statutory language, I respectfully disagree with the view in Bolton that the entire sentence must be vacated and remanded. I believe the decision to increase, reduce, modify, or vacate should be limited, in the absence of a clearly defined reason, to that which the court finds erroneous.
