State v. West , 2011 Ohio 4941 ( 2011 )

[Cite as State v. West, 2011-Ohio-4941.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 25748
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
FREDERICK C. WEST COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 05 04 1128
DECISION AND JOURNAL ENTRY
Dated: September 28, 2011
WHITMORE, Judge.
{¶1} Defendant-Appellant, Frederick West, appeals from the judgment of the Summit
County Court of Common Pleas. This Court affirms in part and vacates in part.
I
{¶2} In 2006, this Court affirmed West’s convictions for aggravated 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 O.R.C. 2929.18(A)(4).” In 2010, West filed a motion to dismiss, arguing
both that his sentence was void due to an invalid post-release control notification and that he
could not be resentenced. The trial court conducted a de novo resentencing in December 2010
and journalized a new sentencing entry on December 10, 2010. The new entry orders West to
pay court costs as well as his attorney fees.
2
{¶3} West now appeals from the trial court’s sentencing entry and raises four
assignments of error for our review. We consolidate 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 R.C. 2947.23(A).”
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 R.C. 2947.23(A) WAS DEFECTIVE.”
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 vacated
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 certain
statutory notifications; and (2) the court could not impose attorney fees because it only 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.
3
“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 exceeds 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 post-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 sentencing entry and vacated the remainder of the entry. Cool at
¶5.
{¶5} The trial court here conducted a de novo sentencing hearing to correct West’s
post-release control error. Pursuant to Fischer, it lacked the authority to do so. Fischer at ¶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
sentence remains intact, including the order that he “pay all prosecution costs, including any fees
permitted pursuant to O.R.C. 2929.18(A)(4).” To the extent that West argued in his third
assignment of error that the trial court lacked jurisdiction to impose attorney fees, that
4
assignment of error is sustained. Based on our application of Fischer, his remaining assignments
of error are moot and we decline to address them. App.R. 12(A)(1)(c).
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 December 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 Pleas 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 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.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
5
CARR, P. J.
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.