State v. Kozic ( 2016 )

[Cite as State v. Kozic, 2016-Ohio-8556.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO )
)
PLAINTIFF-APPELLEE )
) CASE NO. 15 MA 0215
VS. )
) OPINION
ZOLTAN KOZIC )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Mahoning County,
Ohio
Case No. 2010 CR 506
JUDGMENT: Reversed in Part.
Remanded for Limited Resentencing.
APPEARANCES:
For Plaintiff-Appellee Attorney Paul Gains
Mahoning County Prosecutor
Attorney Ralph Rivera
Assistant Prosecutor
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503-1426
For Defendant-Appellant Zoltan Kozic aka Joey Kozic (Pro-se)
#604-573
P.O. Box 8000
Conneaut, Ohio 44030
JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Carol Ann Robb
Dated: December 29, 2016
[Cite as State v. Kozic, 2016-Ohio-8556.]
DeGENARO, J.
{¶1} Defendant-Appellant, Zoltan Kozic, appeals the judgment of the
Mahoning County Court of Common Pleas resentencing him pursuant to a remand
from this Court's judgment in his direct appeal, State v. Kozic, 7th Dist. No. 11 MA
160, 2014-Ohio-3788, appeal not allowed, 141 Ohio St. 3d 1476, 2015-Ohio-554
(Kozic I). As the only prejudicial error committed by the trial court was the imposition
of post-release control, Kosic's sentence is reversed in part, and the matter
remanded to the trial court for a limited resentencing hearing for the proper
advisement and imposition of post-release control.
Facts and Procedural History
{¶2} Kozic’s conviction stems from a rash of burglaries occurring in five
counties starting in late 2009 through early 2010. Following the burglaries, law
enforcement conducted numerous controlled buys of oxycodone from Kozic and
another co-defendant. A Mahoning County grand jury indicted Kozic on nine counts:
six second degree felony counts of burglary, R.C. 2911.12(A)(2)(C); two third degree
felony counts of drug trafficking, R.C. 2925.03(A)(1)(C)(1)(c); and one first degree
felony count of engaging in a pattern of corrupt activity, R.C. 2923.32(A)(1)(B).
{¶3} After the trial court dismissed one burglary count the jury found Kozic
guilty of all of the remaining counts of the indictment. The trial court sentenced him
to an aggregate term of imprisonment of eighteen years. Kozic I, ¶1-16, 20-21. Kozic
appealed his conviction and sentence. This Court affirmed in part and reversed in
part. His convictions on two third degree felonies for drug trafficking, counts 14 and
15, were reversed and a limited remand ordered for the trial court to enter convictions
on the lesser included offense of fourth degree felony drug trafficking and to
resentence accordingly. The remainder of Kozic's convictions and sentences were
affirmed.
{¶4} Pursuant to this Court's limited remand, a resentencing hearing was
held. The trial court entered convictions on the lesser included offenses of fourth
degree felony drug trafficking on counts 14 and 15. However, the trial court exceeded
the scope of the remand by changing which sentences were imposed concurrently
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and consecutively, although it reimposed the original eighteen year prison term.
Sentence
{¶5} As both of Kozic's assignments of error challenge his sentence we will
review them together for clarity of analysis:
The appellant's sentence is contrary to law, in violation of R.C. 2953.08(4),
Due Process under the Fourteenth Amendment to the United States
Constitution and Article I, Section 16 of the Ohio Constitution.
When the trial court failed to make findings in connection with imposing
a consecutive sentence pursuant to Under R.C. 2929.14(C)(4), it was
contrary to law, thereby violating procedural due process as guaranteed
under the Fourteenth Amendment to the United States Constitution and
Article I, Section 16 of the Ohio Constitution.
{¶6} "[A]n appellate court may vacate or modify a felony sentence on appeal
only if it determines by clear and convincing evidence that the record does not
support the trial court's findings under relevant statutes or that the sentence is
otherwise contrary to law." State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002,
59 N.E.3d 1231, ¶ 1.
{¶7} Kozic first argues that his sentence imposed on remand is contrary to
law because the judgment entry contained an incorrect term, specifically:
"The prison term is to be followed by a mandatory period of post-
release control of FIVE (5) YEARS to be monitored by the Adult Parole
Authority. Defendant has been informed on this date that they are
subject to up to three (3) years post release control pursuant to ORC
2967.28. If the Defendant violates that supervision or a condition of post
release control imposed under divisions (B) of Section 2967.131 of the
Revised Code, the parole board may impose a prison term, as part of
the sentence, of up to one-half of the stated prison term originally
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imposed upon defendant."
{¶8} Although the inconsistency is obvious, the State argues Kozic was
notified of the correct term of post-release control during the hearing; thus the error in
the judgment entry is harmless.
In cases where, as here, an offender is subject to multiple periods of
post-release control, 'the period of post-release control for all of the
sentences shall be the period of post-release control that expires last,
as determined by the parole board or court. Periods of post-release
control shall be served concurrently and shall not be imposed
consecutively to each other.' R.C. 2967.28(F)(4)(c). Thus, in multiple-
offense cases, the sentencing court need only notify the defendant of
the longest applicable period of post-release control.
State v. Darks, 10th Dist. No. 12AP-578, 2013-Ohio-176, ¶ 11.
{¶9} At first blush it appears that only a nunc pro tunc entry to correct the
typographical error is warranted. However, at the resentencing hearing the trial court
stated:
"When you're released from prison, you will be subject to a mandatory
post-release control time of five years……When placed on post-release
control, if you violate any term or condition of that, the time you're on
post-release control can be increased, the sanctions against you could
be increased, or you can be placed back in prison."
{¶10} In State v. Mikolaj, 7th Dist. No. 13MA152, 2014-Ohio-4007, the trial
court failed to advise the defendant at the sentencing hearing that if he violated post-
release control the parole board could impose a prison term up to half of his original
sentence. In light of this error we held:
[I]f the sentencing court determines at the sentencing hearing that a
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prison term is necessary or required, the court shall notify the offender
that if the offender violates any post-release control imposed, the parole
board may impose a prison term of up to one-half of the stated prison
term originally imposed upon the offender. R.C. 2929.19(B)(2)(e). This
notification must be done at the sentencing hearing (and also placed in
the sentencing entry). State v. Williams, 7th Dist. No. 11 MA31, 2012–
Ohio–6277, ¶ 65; State v. Whitted, 7th Dist. No. 11 MA25, 2012–Ohio–
1695, ¶ 16. See also State v. Anthony, 7th Dist. No. 12JE2, 2013–
Ohio–2955, ¶ 38–39.
To correct the lack of statutorily-required notice of post-release control
items at the sentencing hearing, the court is to conduct a limited post-
release control hearing under R.C. 2919.191(C) and correct the
notification issues. See State v. Singleton, 124 Ohio St. 3d 173, 2009–
Ohio–6434, 920 N.E.2d 958 ¶ 2 of syllabus, ¶ 1, 27–35 (trial court shall
apply statute to correct post-July 11, 2006 omissions). See also State v.
Pullen, 7th Dist. No. 11 MA10, 2012–Ohio–1498, ¶ 19–30.
In Qualls, the Supreme Court stated that in order to comply with
separation of powers concerns and to meet the requirements of the
post-release control statutes, the sentencing court must provide
statutorily compliant notification to the defendant regarding post-release
control at the time of sentencing, including notification of the
consequences for a violation. State v. Qualls, 131 Ohio St. 3d 499,
2012–Ohio–1111, 962 N.E.2d 718, ¶ 18. The sentencing entry must
reflect that the notification was provided “at the sentencing hearing.” Id.
at ¶ 19.
Where the sentencing court fails to properly notify the defendant at the
sentencing hearing of the consequences of a violation, the remedy is
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different than where the court did in fact give proper notification at the
hearing but then clerically failed to restate that notice in the entry. Id. at
¶ 21 (nunc pro tunc entry can be used to reflect what actually took
place where notification was properly given at sentencing hearing),
comparing State v. Singleton, 124 Ohio St. 3d 173, 2009–Ohio–6434,
920 N.E.2d 958, ¶ 4 (where the court failed to notify of the
consequences of a postrelease control violation at sentencing hearing).
In accordance, where the trial court does not advise the defendant at
the sentencing hearing that the parole board can impose a prison term
of up to one half of his original sentence for a violation of post-release
control, this court reverses and remands for a post-release control
imposition hearing. See, e.g., Williams, 7th Dist. No. 11 MA31, ¶ 67;
Whitted, 7th Dist. No. 11 MA25 at ¶ 16–17 (such failure cannot be
corrected by inclusion of language in an entry).
Mikolaj at ¶ 12-16
{¶11} Here, the typographical error in the sentencing entry—five or three
years of post-release control—could be corrected by a nunc pro tunc entry consistent
with the holding in Darks. However, the trial court did not advise Kozic at the
sentencing hearing that the parole board can impose a prison term of "up to one half
of his original sentence for a violation of post-release control." Instead, the trial court
informed Kozic that if he violated post-release control, "the time you're on post-
release control can be increased, the sanctions against you could be increased, or
you can be placed back in prison."
{¶12} Pursuant to Mikolaj, since the trial court did not advise Kozic at his
sentencing hearing that the parole board can impose a prison term of up to one half
of his original sentence for violating post-release control, we must reverse this portion
of Kozic's sentence so that on remand the trial court can hold a limited sentencing
hearing for the proper imposition of post-release control.
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{¶13} Turning next to Kozic's challenge to the imposition of consecutive
sentences, a review of the September 2011 judgment entry clearly demonstrates that
there were no findings made regarding consecutive sentences. Although R.C.
2929.14(C)(4) now requires three findings to be made before consecutive sentences
are imposed, at the time Kosic was originally sentenced, trial judges were not
obligated to engage in judicial fact-finding prior to imposing consecutive sentences.
State v. Hodge, 128 Ohio St. 3d 1, 2010-Ohio-6320, 941 N.E.2d 768 – superseded by
statute as stated in State v. Bonnell, 140 Ohio St. 3d 209, 2014–Ohio–3177, 16
N.E.3d 659, ¶3-4. The amendments to R.C. 2929.14 requiring findings were enacted
after he was sentenced. As recognized by our sister district, the General Assembly
expressly provided in H.B. 86 that the amendments 'apply to a person who commits
an offense specified or penalized under those sections on or after the effective
date[.]' " State v. Jones, 1st Dist. No. C–110603, 2012-Ohio-2075, ¶14.
{¶14} This Court ordered a limited remand in the present matter for
resentencing on two counts, 14 and 15. The State also has argued that the trial court
had limited jurisdiction to resolve only those two counts and this argument is
supported by the First District's recently decided State v. Neumeister, 1st Dist. No. C-
150531, 2016-Ohio-5293, where the defendant had one count remanded for
resentencing but challenged others:
“Under the doctrine of res judicata, a final judgment of conviction bars
the convicted 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 on
an appeal from that judgment.” (Emphasis added.) State v. Perry, 10
Ohio St. 2d 175, 180, 226 N.E.2d 104 (1967). We affirmed Neumeister's
convictions in his direct appeal in 2013. Neumeister, 1st Dist. Hamilton
No. C–120354. The fact that the common pleas court in 2015
resentenced him on Count 40 did not implicate the finality of his
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convictions on the remaining counts. Accordingly, res judicata barred
him from assigning as error in this appeal any matter that either was
determined or could fairly have been determined in his 2013 appeal.
See State v. D'Ambrosio, 73 Ohio St. 3d 141, 143, 652 N.E.2d 710
(1995).
Neumeister at ¶ 9.
{¶15} Thus, Kozic cannot challenge the trial court's entry for a lack of
consecutive sentence findings. However, he further argues that the trial court erred
by changing which of his sentences would be served concurrently and consecutively
to each other.
{¶16} "Absent extraordinary circumstances, such as an intervening decision
by the Supreme Court, an inferior court has no discretion to disregard the mandate of
a superior court in a prior appeal in the same case." Nolan v. Nolan, 11 Ohio St. 3d 1,
462 N.E.2d 410 (1984), syllabus. The trial court on remand had no authority to revisit
which counts were to be served concurrently or consecutively, its authority was
limited to imposing a sentence for the lesser included offenses for counts 14 and 15.
{¶17} Although in another case a trial court exceeding its authority on
remand could result in prejudicial error, here it does not. On remand the trial court
reimposed Kosic's aggregate 18-year sentence. The date an offender can file a
motion for judicial release is calculated by the offender's aggregate nonmandatory
sentence pursuant to R.C. 2929.20. Thus, this error is harmless as the length of
Kosic's aggregate sentence has not been changed and the date he can seek judicial
release has not been impacted.
Conclusion
{¶18} Accordingly, Kozic's assignments of error are meritorious in part. The
trial court erred by failing to advise Kozic at his resentencing hearing that the parole
board can impose a prison term of up to one half of his original sentence for violating
post-release control. Accordingly, Kozic's sentence is reversed in part, and the matter
remanded to the trial court for a limited resentencing hearing for the proper
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advisement and imposition of post-release control.
Donofrio, P. J., concurs.
Robb, J., concurs.