State v. Adams , 2012 Ohio 432 ( 2012 )

[Cite as State v. Adams, 2012-Ohio-432.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
) CASE NO. 11 MA 65
PLAINTIFF-APPELLEE, )
)
- VS - ) OPINION
) AND
DuJUAN ADAMS, ) JUDGMENT ENTRY
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Application for Reconsideration,
Criminal Appeal from Common Pleas
Court, Case No. 00 CR 102.
JUDGMENT: Application Denied.
APPEARANCES:
For Plaintiff-Appellee: Attorney Paul J. Gains
Prosecuting Attorney
Attorney Ralph M. Rivera
Asst. Prosecuting Attorney
21 W. Boardman Street, 6th Floor
Youngstown, OH 44503
For Defendant-Appellant: DuJuan Adams, Pro-se
#395-935
Trumbull Correctional Institution
5701 Burnett Road
P.O. Box 901
Leavittsburg, OH 44430
JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Dated: January 31, 2012
[Cite as State v. Adams, 2012-Ohio-432.]
PER CURIAM:
{¶1} Appellee, the State of Ohio, has filed a timely application for reconsideration
regarding our December 9, 2011 opinion, State v. Adams, 7th Dist. No. 11 MA 65, 2011-
Ohio-6428, which affirmed in part and reversed in part the judgment of the trial court, and
remanded the cause for a corrected judgment entry and for the trial court to hold a limited
resentencing hearing pursuant to R.C. 2929.191(C). Appellee urges us to reconsider our
decision because the remedy we prescribed in Adams conflicts with that in State v. Davis,
7th Dist. No. 10 MA 160, 2011-Ohio-6025, a case released 20 days before Adams.
Appellant has not filed a response to the reconsideration motion.
{¶2} Pursuant to App.R. 26(A), a party may file an application for reconsideration
of an appellate court decision. The standard for reviewing an application for
reconsideration is whether the application calls to the attention of the court an obvious
error in its decision or raises an issue for our consideration that was either not considered
at all or was not fully considered by us when it should have been. Juhasz v. Costanzo,
7th Dist. No. 99CA294, 2002-Ohio-553. "A motion for reconsideration is 'a mechanism by
which a party may prevent miscarriages of justice that could arise when an appellate
court makes an obvious error or renders an unsupportable decision under the law[.]'"
Scott v. Falcon Transport Co., 7th Dist. No. 02CA145, 2004-Ohio-389, ¶3, quoting State
v. Owens, 112 Ohio App.3d 334, 336, 678 N.E.2d 956 (11th Dist.1996).
"Reconsideration motions are rarely considered when the movant simply disagrees with
the conclusions reached and the logic used by an appellate court." Victory White Metal
Co. v. N.P. Motel Syst., 7th Dist. No. 04MA245, 2005-Ohio-3828, ¶2.
{¶3} Appellee asserts that the "obvious error" in Adams is the imposition of a
remedy that conflicts with that imposed by this court in Davis. However, Davis and the
case upon which it relied, State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942
N.E.2d 332, are distinguishable from Adams with respect to the date of sentencing.
Although the legislature intended R.C. 2929.191 to apply to defendants sentenced prior to
July 11, 2006, in State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d
958, the Ohio Supreme Court rejected such retrospective application. Singleton at ¶26.
-2-
Only "sentences imposed on and after July 11, 2006, in which a trial court failed to
properly impose post-release control, trial courts shall apply the procedures set forth in
R.C. 2929.191." Singleton at paragraph two of the syllabus.
{¶4} Davis and Fischer were sentenced before July 11, 2006 and Adams was
sentenced afterward. Consequently, we properly applied the correction mechanism in
R.C. 2929.191(C) to Adams' sentence, while the Fischer and Davis opinions could not.
{¶5} Further, as we explained in our opinion, R.C. 2929.191 applies to Adams
even though he was originally sentenced prior to July 11, 2006, because he received a de
novo Foster resentencing well after that date, on October 20, 2006. Adams at ¶16, citing
State v. Craddock, 8th Dist. No. 94387, 2010-Ohio-5782. See generally State v. Foster,
109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.
{¶6} R.C. 2929.191(C) requires a limited resentencing hearing regardless of
whether the error took place in the sentencing entry or the sentencing hearing or both:
On and after July 11, 2006, a court that wishes to prepare and issue
a correction to a judgment of conviction of a type described in division
(A)(1) or (B)(1) of this section shall not issue the correction until after the
court has conducted a hearing in accordance with this division. Before a
court holds a hearing pursuant to this division, the court shall provide notice
of the date, time, place, and purpose of the hearing to the offender who is
the subject of the hearing, the prosecuting attorney of the county, and the
department of rehabilitation and correction. The offender has the right to
be physically present at the hearing, except that, upon the court's own
motion or the motion of the offender or the prosecuting attorney, the court
may permit the offender to appear at the hearing by video conferencing
equipment if available and compatible. An appearance by video
conferencing equipment pursuant to this division has the same force and
effect as if the offender were physically present at the hearing. At the
hearing, the offender and the prosecuting attorney may make a statement
-3-
as to whether the court should issue a correction to the judgment of
conviction.
(Emphasis added.)
{¶7} We must apply the statute as written. Further, the statute provides that the
limited resentencing hearing may take place via videoconferencing equipment, if
available, by motion of either party or by the trial court's own motion. Id.{¶8} Based on the foregoing, Appellee's application for reconsideration is denied.
DeGenaro, J., concurs.
Donofrio, J., concurs.
Vukovich, J., concurs.