STATE OF OHIO v. FREDERICK C. WEST
C.A. No. 25748
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
September 28, 2011
2011-Ohio-4941
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 05 04 1128
Dated: September 28, 2011
WHITMORE, Judge.
{¶1} Defendant-Appellant, Frederick West, appeals from the judgment of the Summit County Court of Commоn Pleas. This Court affirms in part and vacates in part.
I
{¶2} In 2006, this Court affirmed West‘s convictions for aggravatеd robbery and tampering with evidence on direct appeal. State v. West, 9th Dist. No. 22839, 2006-Ohio-2985. West‘s original sentencing entry ordered him to “pay all prosecution costs, including any fees permitted pursuant to
{¶3} West now appeals from the trial court‘s sentencing entry and raises four assignments of error for our review. We consоlidate the assignments of error.
II
Assignment of Error Number One
“THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN ASSESSING COURT COSTS AGAINST DEFENDANT WITHOUT COMPLYING WITH
Assignment of Error Number Two
“DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL COUNSEL FAILED TO ARGUE THAT THE TRIAL COURT‘S IMPOSITION OF COURT COSTS UNDER
Assignment of Error Number Three
“THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN ASSESSING ATTORNEY FEES AGAINST DEFENDANT AS IT LACKED JURISDICTION TO IMPOSE ANY SUCH FEES.”
Assignment of Error Number Four
“DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL COUNSEL FAILED TO ARGUE THAT THE TRIAL COURT LACKED JURISDICTION TO IMPOSE ATTORNEY FEES.”
{¶4} In his assignments of error, West argues that his sentence must be vacatеd because the trial court improperly imposed court costs and attorney fees against him. Specifically, he argues that: (1) the court could not impose costs without first making certаin statutory notifications; and (2) the court could not impose attorney fees because it оnly had jurisdiction to correct the post-release control error in his original sentence. He further argues that his trial counsel was ineffective for failing to raise these arguments at the time of his resentencing. We find State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, to be dispositive in this matter.
”Fischer dictates that an invalid post-release control notification does not taint the entirety of an offender‘s sentence. Instead, ‘when a judge fails to impose statutorily mandated post[-]release control as part of a defendant‘s sentence, [only] that part of the sentence is void and must be set aside.’ Fischer at ¶26. A resentencing must be limited to the imposition of post-release control. Id. at ¶27-28. *** [T]his Court has recognized that a trial court excеeds its sentencing authority when it conducts a de novo sentencing to correct a post-release control error. State v. Cool, 9th Dist. Nos. 25135 & 25214, 2011-Ohio-1560, at ¶4-6. Because resentencing is limited to the imposition of pоst-release control, any additional action taken by the trial court with respect to the sentence is a nullity. Id.” State v. Stiggers, 9th Dist. No. 25486, 2011-Ohio-4225, at ¶6.
In post-Fischer cases where a trial court has erroneously conducted a de novo resentencing to remedy a post-release control error, this Court has excised the proper post-release control notification portion of the new sentenсing entry and vacated the remainder of the entry. Cool at ¶5.
{¶5} The trial court here conducted a de nоvo sentencing hearing to correct West‘s post-release control error. Pursuant to Fischer, it lacked the authority to do so. Fischer аt ¶26-28. Yet, the post-release control portion of the court‘s December 2010 sentencing entry is correct, and West concedes that the court properly advised him of his mandatory post-release control obligations. Accordingly, to the extent the court‘s December 10, 2010 sentencing entry imposes post-release control upon West, it is affirmed. “The remainder of the trial court‘s action in resentencing [West] exceeded the trial court‘s jurisdiction and is a nullity. Accordingly, this Court vacates the remainder of the trial court‘s [December 10, 2010] judgment.” Cool at ¶5. Accord State v. Stallworth, 9th Dist. No. 25461, 2011-Ohio-4492, at ¶35-36. West‘s original sentеnce remains intact, including the order that he “pay all prosecution costs, including any feеs permitted pursuant to
III
{¶6} West‘s third assignment of error is sustained for the foregoing reasons, and his remaining assignments of error are moot. The trial court‘s Decеmber 10, 2010 sentencing entry is vacated with the exception of the post-release control portion of the entry. West‘s original sentencing entry remains valid. The judgment of the Summit County Court of Common Plеas is affirmed in part and vacated in part, consistent with the foregoing opinion.
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
Immediately upon the filing hereof, this document shall constitute the journal entry оf judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period fоr review shall begin to run.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
MOORE, J.
CONCUR
APPEARANCES:
SHUBHRA N. AGARWAL, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.