State v. Shinholster ( 2015 )

[Cite as State v. Shinholster, 2015-Ohio-5098.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 27687
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
CHRISTOPHER SHINHOLSTER COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 2009-07-2264A
DECISION AND JOURNAL ENTRY
Dated: December 9, 2015
HENSAL, Presiding Judge.
{¶1} Defendant-Appellant, Christopher Shinholster, now appeals from the judgment of
the Summit County Court of Common Pleas. This Court affirms.
I.
{¶2} Following a jury trial, Mr. Shinholster was convicted of one count of possession
and one count of trafficking in regard to an amount of cocaine that equaled or exceeded 1,000
grams. Each count contained an attendant major drug offender specification, and the trial court
found him guilty of both specifications. The court sentenced Mr. Shinholster to a mandatory
term of ten years on his possession count and a mandatory term of five years on the major drug
offender specification linked to that count. Likewise, the court sentenced him to a mandatory
term of ten years on his trafficking count and a mandatory term of five years on the major drug
offender specification linked to that count. The court ordered each of the five-year terms to run
consecutively to each of the ten-year terms, but ordered the resulting 15-year terms to run
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concurrently for a total sentence of 15 years in prison. On direct appeal, this Court affirmed Mr.
Shinholster’s convictions. See State v. Shinholster, 9th Dist. Summit No. 25328, 2011-Ohio-
2244. The Ohio Supreme Court declined to hear his appeal, and this Court denied his application
for reopening.
{¶3} Subsequently, Mr. Shinholster filed a writ of habeas corpus in the United States
District Court for the Northern District of Ohio. The district court denied the writ, but the Sixth
Circuit Court of Appeals determined that one of Mr. Shinholster’s grounds for relief had merit.
See Shinholster v. Bradshaw, 6th Cir. No. 14-3026 (Nov. 26, 2014). Specifically, it agreed that
his appellate counsel was ineffective for not assigning as error that he had been convicted of
allied offenses of similar import. Because the Sixth Circuit determined that Mr. Shinholster’s
possession and trafficking counts were allied offenses under Ohio law, it reversed the district
court’s judgment in part and remanded the matter to the district court for further proceedings.
On remand, the district court granted the writ on the basis that Mr. Shinholster had been
convicted of allied offenses. See Shinholster v. Bradshaw, N.D.Ohio No. 5:12 CV 2495 (Dec.
18, 2014). The district court ordered the trial court, within 90 days, “to determine which of [Mr.
Shinholster’s] two convictions and concurrent sentences to vacate.”
{¶4} Following the district court’s order, the trial court scheduled the matter for a
hearing and appointed counsel for Mr. Shinholster. Eight days later, Mr. Shinholster filed a pro
se motion entitled “Memorandum of House Bill 86’s Impact on Resentencing Hearing.” The
thrust of his motion was that, when resentencing him, the court had to apply the more lenient
sentencing laws that went into effect after his original sentence. The court, however, declined to
conduct a de novo sentencing hearing. Instead, the court informed the parties that, pursuant to
the order of the federal district court, it would simply vacate a portion of Mr. Shinholster’s
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sentence once the State elected the offense on which it wished to proceed. Because the State
elected to proceed on Mr. Shinholster’s trafficking offense, the court left intact his 15-year
sentence on that offense and its attendant specification and vacated the 15-year sentence that it
had imposed upon him for the offense of possession and its attendant specification.
{¶5} Mr. Shinholster now appeals from the court’s judgment and raises three
assignments of error for our review. For ease of analysis, we consolidate two of the assignments
of error.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO
CONDUCT A DE NOVO RESENTENCING HEARING TO REMEDY THE
ALLIED-OFFENSE SENTENCING ERROR IDENTIFIED BY THE SIXTH
CIRCUIT COURT OF APPEALS.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN FAILING TO APPLY THE LAW AS
ESTALBISHED [SIC] UNDER OHIO HOUSE BILL 86 TO DEFENDANT’S
RESENTENCING HEARING.
{¶6} In his first and second assignments of error, Mr. Shinholster argues that the court
erred when, upon remand from the federal district court, it did not conduct a de novo sentencing
hearing and sentence him based upon the sentencing laws in effect at the time of the hearing.
We disagree.
{¶7} If a trial court sentences an offender on allied offenses of similar import, the
resulting sentence is contrary to law, but it is not void. State v. Wilson, 9th Dist. Summit No.
27361, 2015-Ohio-2023, ¶ 11. The error merely renders the sentence voidable and subject to
correction. See id. When a reviewing court reverses a judgment as a result of an allied offense
error, the court generally will vacate the affected portion of the sentence and remand the matter
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for a de novo sentencing hearing at which the State will elect the offense(s) upon which it wishes
to proceed. See State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, ¶ 13-15; State v.
Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, paragraphs one and two of the syllabus. Even so,
“a number of discretionary and mandatory limitations may apply to narrow the scope of a
particular resentencing hearing.” Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, at ¶ 15. For
example, “the sentences for any offenses that were not affected by the appealed error are not
vacated and are not subject to review.” Id., citing State v. Saxon, 109 Ohio St.3d 176, 2006-
Ohio-1245, paragraph three of the syllabus. See also State v. Stovall, 9th Dist. Medina No.
07CA0027-M, 2008-Ohio-272, ¶ 5 (apart from correcting void sentences and clerical errors, trial
courts lack authority to reconsider their own valid final judgments).
{¶8} When issuing a writ of habeas corpus, “the choice of habeas remedy lies within
the district court’s sound discretion * * *.” Gentry v. Deuth, 456 F.3d 687, 697 (6th Cir.2006).
Here, the district court chose to remand this matter to the trial court with an instruction to the
court to vacate one of Mr. Shinholster’s convictions. Mr. Shinholster did not appeal from the
district court’s ruling so as to challenge its choice of remedy, so he cannot now contest it. See
Ford Motor Credit Co., L.L.C. v. Collins, 8th Dist. Cuyahoga No. 101405, 2014-Ohio-5152, ¶ 17
(“Ohio constitutional and statutory law provides that [state appellate courts] have no jurisdiction
to * * * review federal district court decisions.”), citing State v. Fawcett, 91 Ohio St.3d 1, 3
(2000) and Sundstrom v. Sundstrom, 11th Dist. Ashtabula No. 2005-A-0013, 2006-Ohio-486, ¶
31. Moreover, the trial court could not simply ignore the district court’s mandate and conduct
his resentencing as it saw fit. See generally Gentry at 696-697; State v. Slagle, 2d Dist.
Montgomery No. 23934, 2012-Ohio-1575, ¶ 42; Hegedus v. Hegedus, 8th Dist. Cuyahoga No.
42268, 1980 WL 355471, *1 (Dec. 24, 1980). The district court’s order essentially constituted a
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mandatory limitation on the scope of Mr. Shinholster’s particular resentencing hearing. See
Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, at ¶ 15.
{¶9} Unlike the defendants in the allied offense cases upon which he relies, Mr.
Shinholster exhausted his state court remedies without obtaining a reversal of his judgment of
conviction. Accordingly, no court in this State vacated any portion of his sentence or remanded
this matter for a de novo sentencing hearing. Had Mr. Shinholster’s judgment of conviction been
reversed and his sentences vacated pursuant to that determination, the trial court would have
been obligated to conduct a de novo sentencing. See id. at ¶ 13-15. However, Mr. Shinholster
obtained relief through a writ of habeas corpus, and, in granting his writ, the district court did not
vacate any portion of his sentence. Instead, the district court ordered the trial court, within 90
days, “to determine which of [his] two convictions and concurrent sentences to vacate.” By
allowing the State to elect the offense upon which it wished to proceed and then vacating Mr.
Shinholster’s other offense, the trial court complied with the mandate of the district court and did
not exceed its authority upon remand. Mr. Shinholster has not shown that the trial court erred by
resentencing him in accordance with the federal district court’s mandate. See App.R. 16(A)(7).
Accordingly, his first and second assignments of error are overruled.
ASSIGNMENT OF ERROR III
THE TRIAL COURT COMMITED [SIC] REVERSABLE [SIC] ERROR WHEN
IT DENIED DEFENSE COUNSEL’S REQUEST FOR A CONTINUANCE TO
REVIEW THE FEDERAL COURT’S GRANT OF HABEAS CORPUS AND
THE MEMORANDUM FILED PRO SE BY SHINHOLSTER REGARDING
HOUSE BILL 86.
{¶10} In his third assignment of error, Mr. Shinholster argues that the trial court erred
when it did not give his appointed counsel additional time to review the pro se motion he filed,
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which was entitled “Memorandum of House Bill 86’s Impact on Resentencing Hearing.” We
disagree.
{¶11} “Because the decision to grant or deny a continuance lies within the sound
discretion of the trial court, such decision will not be reversed absent a showing of an abuse of
discretion.” State v. Bennett, 9th Dist. Lorain No. 12CA010286, 2014-Ohio-160, ¶ 22. An abuse
of discretion connotes that a trial court was unreasonable, arbitrary, or unconscionable in its
ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶12} The record reflects that Mr. Shinholster’s appointed counsel asked the court for a
continuance strictly to review the pro se motion that Mr. Shinholster had filed. The thrust of the
motion was that, in resentencing him, the trial court should apply the more lenient sentencing
laws that the legislature had enacted since his original sentence. As previously noted, however,
this matter was not remanded to the trial court for it to conduct a de novo sentencing. Instead,
the federal district court ordered the trial court to vacate one of Mr. Shinholster’s allied offense
convictions. Because the trial court was limited to simply vacating one of his convictions, we
cannot say it was unreasonable for the court to refuse to continue the matter so that Mr.
Shinholster’s counsel could review a motion that related solely to a de novo sentencing.
{¶13} Moreover, Mr. Shinholster filed his pro se motion eight days after the trial court
appointed counsel to represent him. “[T]his Court has concluded that a defendant who is
represented by counsel may not file pro se motions.” State v. Burks, 9th Dist. Summit No.
27423, 2015-Ohio-1246, ¶ 9. A defendant does not have a right to dual representation and such
motions are “not properly before the trial court.” State v. Rice, 9th Dist. Medina No. 08CA0054-
M, 2009-Ohio-5419, ¶ 8. Accordingly, even if the trial court had given Mr. Shinholster’s
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counsel additional time to review the pro se motion, the motion was not properly before the
court. See id. Mr. Shinholster’s third assignment of error is overruled.
III.
{¶14} Mr. Shinholster’s assignments of error are overruled. The judgment of the
Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
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(C). 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.
JENNIFER HENSAL
FOR THE COURT
WHITMORE, J.
MOORE, J.
CONCUR.
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APPEARANCES:
JENNIFER A. CUNDIFF, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.