State v. Collins , 2018 Ohio 4760 ( 2018 )

[Cite as State v. Collins, 2018-Ohio-4760.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 27939
:
v. : Trial Court Case No. 2006-CR-3250
:
ANTHONY COLLINS : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 30th day of November, 2018.
...........
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
KIRSTEN KNIGHT, Atty. Reg. No. 0080433, P.O. Box 137, Germantown, Ohio 45327
Attorney for Defendant-Appellant
.............
FROELICH, J.
{¶ 1} Anthony Collins appeals from his resentencing in the Montgomery County
Court of Common Pleas for the purpose of properly imposing post-release control. For
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the following reasons, the trial court’s judgment will be affirmed. However, the matter
will be remanded for the limited purposes of a nunc pro tunc entry to reflect that Collins’s
endangering children sentence is to be served consecutively to the rape sentence,
consistent with the 2007 judgment entry.
I. Anders Standard
{¶ 2} Collins’s appellate counsel filed a brief pursuant to Anders v. California, 386
U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), stating that she has found “no appealable
issues” and that this appeal is frivolous. We informed Collins that his attorney had filed
an Anders brief on his behalf and granted him 60 days from that date to file a pro se brief.
No pro se brief was filed.
{¶ 3} Pursuant to Anders, we must determine, “after a full examination of all the
proceedings,” whether the appeal is “wholly frivolous.” Id. at 744; Penson v. Ohio, 488
U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988). An issue is not frivolous merely
because the prosecution can be expected to present a strong argument in reply. State
v. Pullen, 2d Dist. Montgomery No. 19232, 2002-Ohio-6788, ¶ 4. Rather, a frivolous
appeal is one that presents issues lacking arguable merit, which means that, “on the facts
and law involved, no responsible contention can be made that it offers a basis for
reversal.” State v. Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-3242, ¶ 8, citing
Pullen at ¶ 4. If we find that any issue — whether presented by appellate counsel,
presented by the defendant, or found through an independent analysis — is not wholly
frivolous, we must appoint different appellate counsel to represent the defendant. Id. at
¶ 7.
II. Background and Procedural History
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{¶ 4} In July 2007, after a jury trial, Collins was found guilty of endangering children
(Count 1) and rape (victim under the age of 10) (Count 2). At a sentencing hearing on
July 26, 2007, the trial court sentenced him to life without parole for the rape and to five
years for endangering children; the endangering children sentence was ordered to be
served consecutively to the rape sentence. The trial court did not mention post-release
control. With respect to any sex offender registration requirement pursuant to R.C.
2950.01, the trial court stated, “Based on the Court’s sentence, the requirement of any
registration or sexual offender designation is academic.”
{¶ 5} The court filed its judgment of conviction on July 31, 2007. On August 1,
2007, the trial court filed an “Explanation of Duties to Register as a Sex Offender of Child-
Victim Offender,” which indicated that Collins had been classified as a child-victim
predator, explained the requirements associated with that classification, and notified
Collins that any failure to register, to verify his residence, or to provide notice of a change
of residence would result in criminal prosecution. The August 1, 2007 order was signed
by the trial judge on July 26, 2007 (the sentencing hearing date) with a certification that
the judge had “specifically informed the offender of these duties as set forth above and
the offender indicated to me an understanding of those duties.”
{¶ 6} Collins appealed from his judgment of conviction, but not from the sex
offender “Explanation of Duties.” We affirmed Collins’s convictions, State v. Collins, 2d
Dist. Montgomery No. 22330, 2008-Ohio-2590, but upon reconsideration, we modified his
sentence for rape to life in prison.
{¶ 7} Collins filed several post-conviction motions, many of which are not relevant
to this appeal. Of relevance, on August 4, 2017, Collins filed a “motion for resentencing
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and motion for final appealable order.” Collins claimed that the trial court’s judgment of
conviction failed to address post-release control and his mandatory duty to register as a
“Tier III sex offender.” The trial court granted Collins’s motion as to the post-release
control issue, but found that any challenge to the trial court’s sex offender classification
was barred by res judicata.
{¶ 8} On February 15, 2018, the trial court held a resentencing hearing on post-
release control only. The trial court advised Collins that, upon his release from prison,
he would be required to serve a mandatory period of three years of post-release control
for endangering children and a mandatory period of five years of post-release control for
the rape. Defense counsel objected to the trial court’s notification for endangering
children, arguing that the post-release control period was discretionary, not mandatory.
The trial court overruled the objection, noting that post-release control was mandatory
because the offense involved serious physical harm by a parent. The trial court noted
the prison sentences that Collins was required to serve, but it expressly stated that Collins
had already been sentenced and that it was not modifying any previously-imposed
sentence.
{¶ 9} The trial court filed an amended judgment entry on February 23, 2018. The
amended entry reflected the trial court’s imposition of post-release control. It also
restated the five-year sentence for endangering children and the modified life sentence
for rape (child under ten years old). The entry noted “both counts to be served
consecutively to each other.”
{¶ 10} Collins appeals from the trial court’s judgment.
III. Anders Review
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{¶ 11} Collins’s appellate counsel raises two potential assignments of error for
appeal. First, she raises that Collins was denied his right to a sex offender classification
hearing. Second, she raises that the trial court erred when it resentenced Collins to
impose post-release control.
A. Sex Offender Classification Hearing
{¶ 12} In 2007, when Collins was sentenced, sex offender classification
proceedings under R.C. Chapter 2950 were governed by Megan’s Law, Am.Sub.H.B. No.
180, 146 Ohio Laws, Part II, 2560.
Proceedings under Megan’s Law were civil in nature, not criminal. State v.
Ferguson, 120 Ohio St. 3d 7, 2008-Ohio-4824, 896 N.E.2d 110, ¶ 43. As a
result, sex-offender-classification proceedings were “legally distinct from
the proceedings governing a defendant’s underlying criminal conviction(s)
and sentence.” State v. Gibson, 2d Dist. Champaign No. 2009 CA 47,
2010-Ohio-3447, ¶ 25, citing State v. Wilson, 113 Ohio St. 3d 382, 2007-
Ohio-2202, 865 N.E.2d 1264, ¶ 32 (2007) (applying different standards of
review to appeals from criminal convictions and classification proceedings).
Because this determination was not criminal, Crim.R. 32(C) does not list it
as a necessary component of a sentencing order to make the order final
and appealable. To the contrary, courts often addressed the criminal
sentence and the classification determination in separate entries and
treated them as separately appealable orders. See, e.g., State v. Dobrski,
9th Dist. Lorain No. 06CA008925, 2007-Ohio-3121, ¶ 1 (concluding that the
criminal sentencing entry was not final and appealable, but that the sexual-
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predator classification, contained in a separate entry, was final and
appealable).
State ex rel. Hunter v. Binette, Ohio Slip Opinion No. 2018-Ohio-2681, __ N.E.3d __,
¶ 16. See also State v. Megarry, 4th Dist. Adams No. 17CA1051, 2018-Ohio-4242, ¶ 20
(“A sex-offender classification under Megan’s Law constitutes a final appealable order
even when the sentencing entry itself is not a final appealable order.”).
{¶ 13} Collins appealed from the July 31, 2007 judgment of conviction; he did not
separately appeal from the trial court’s August 1, 2007 order designating him a child-
victim predator. Although he raised nine assignments of error in his direct appeal, he did
not raise any challenge to his child-victim predator classification or the process by which
he was classified.
{¶ 14} “Pursuant to the doctrine of res judicata, a valid final judgment on the merits
bars all subsequent actions based on any claim arising out of the transaction or
occurrence that was the subject matter of the previous action.” State v. Collins, 2d Dist.
Montgomery No. 25612, 2013-Ohio-3645, ¶ 9, citing Grava v. Parkman Twp., 73 Ohio
St.3d 379, 653 N.E.2d 226 (1995). The res judicata bar applies to any issue that was
raised or could have been raised in a criminal defendant’s prior appeal from his conviction
or any other final appealable order. See State v. Perry, 10 Ohio St. 2d 175, 226 N.E.2d
104 (1967). Because Collins could have appealed from his child-victim predator
classification but did not, res judicata bars him from now attempting to challenge his
classification and the procedure by which he was classified. The trial court, therefore,
did not err in denying his motion for a classification hearing, and we conclude that any
challenge to the trial court’s decision would be frivolous.
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B. Post-Release Control
{¶ 15} “Post-release control” involves a period of supervision by the Adult Parole
Authority after an offender’s release from prison that includes one or more post-release
control sanctions imposed under R.C. 2967.28. R.C. 2967.01(N). Post-release control
is mandatory for some offenses and is imposed at the discretion of the Parole Board for
others, depending on the nature and degree of the offense. R.C. 2967.28(B) and (C).
Under R.C. 2967.28(B), a period of post-release control is required for both endangering
children, a third-degree felony, and rape, a first-degree felony. The Ohio Supreme Court
has specifically held that the post-release control statute applies to rape convictions under
R.C. 2907.02, even when a life sentence has been imposed. State ex rel. Carnail v.
McCormick, 126 Ohio St. 3d 124, 2010-Ohio-2671, 931 N.E.2d 110 (defendant’s
concurrent life sentences on two rape charges were required to include a five-year term
of post-release control).
{¶ 16} If a defendant has committed an offense subject to post-release control
under R.C. 2967.28, the trial court must notify the defendant at sentencing of the post-
release control requirement and the consequences if the defendant violates post-release
control. R.C. 2929.19; State v. Qualls, 131 Ohio St. 3d 499, 2012-Ohio-1111, 967 N.E.2d
718, ¶ 18. It is well-established that when a judge fails to impose the required post-
release control as part of a defendant’s sentence, “that part of the sentence is void and
must be set aside.” (Emphasis sic.) State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-
6238, 942 N.E.2d 332, ¶ 26; see also State v. Holdcroft, 137 Ohio St. 3d 526, 2013-Ohio-
5014, 1 N.E.3d 382, ¶ 7. The improper post-release control sanction “may be reviewed
at any time, on direct appeal or by collateral attack.” Fischer at ¶ 27. However, res
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judicata still applies to all other aspects of conviction, including the determination of guilt
and the lawful elements of the sentence.” Id. at ¶ 40; Boyd v. State, 2d Dist. Montgomery
No. 27553, 2018-Ohio-108, ¶ 33.
{¶ 17} Once a defendant has served the prison term for an offense for which post-
release control applies, the trial court no longer has the authority to resentence the
defendant for the purpose of adding a term of post-release control as a sanction for that
particular offense. Holdcroft at paragraph three of the syllabus. This is true even if the
defendant remains incarcerated on other charges. Id. at ¶ 18.
{¶ 18} The trial court’s July 31, 2007 judgment entry did not mention post-release
control, and the record reflects that post-release control was not properly imposed at
Collins’s July 26, 2007 sentencing hearing.1 (Although the trial court apparently did not
review the transcripts, the court, in an abundance of caution, assumed that post-release
control had not been properly imposed.) With the record before us, there is no arguably
meritorious claim that the trial court erred in holding a resentencing hearing on post-
release control.
{¶ 19} Nevertheless, we must consider whether there is an arguably meritorious
claim that the trial court erred in imposing post-release control on both the rape and the
endangering children offenses. Collins has not yet been released from prison, thus he
continues to be incarcerated on the rape conviction. Accordingly, any claim that the trial
court could not impose post-release control on the rape charge would be frivolous.
1
On November 15, 2018, we ordered, sua sponte, that the clerk of the court of appeals
transfer the written transcripts of proceedings (three volumes) that had been filed in
Collins’s direct appeal (Case No. 22330) to this appeal. One of the transferred
volumes was a transcript of the July 26, 2007 sentencing hearing.
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However, resentencing on the endangering children conviction was appropriate only if
Collins had not yet completely served that five-year sentence prior to the resentencing
hearing.
{¶ 20} In determining the order in which consecutive sentences should be served,
we look first to the language of the trial court’s judgment. When the judgment does not
specify the order of service, we have looked to the order in which the trial court imposed
its sentences and have construed any ambiguity regarding the order of service in the
defendant’s favor. State v. Beverly, 2d Dist. Clark No. 2015-CA-71, 2018-Ohio-2116,
¶ 10; State v. Powell, 2d Dist. Montgomery No. 24433, 2014-Ohio-3842, ¶ 28.
{¶ 21} In this case, the trial court’s July 31, 2007 judgment entry imposed the life
sentence for rape and then imposed five years for endangering children “to be served
consecutively with” the rape sentence. In our view, the judgment entry unambiguously
provided that the rape sentence was to be served first, followed by the five-year sentence
for endangering children. Accordingly, when the trial court imposed post-release control
in February 2018, Collins had not completely served his sentence for endangering
children.2 Under these circumstances, we find no arguably meritorious claim that the
trial court erred in imposing post-release control on both the rape and the endangering
children offenses.
{¶ 22} Finally, we find no non-frivolous claim that the trial court erred in imposing
the specific terms of post-release control. Because Collins committed a felony sex
2
Under R.C. 2967.13(A)(5), a prisoner serving a life sentence for rape becomes eligible
for parole after ten full years’ imprisonment. Thus, at the earliest, Collins did not begin
to serve his endangering children sentence until he had completed ten years of
incarceration on the rape.
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offense, the trial court was required to impose a mandatory term of five years of post-
release control for the rape. See R.C. 2967.28(A)(1). The trial court also informed
Collins of the consequences of violating post-release control.
{¶ 23} With respect to the endangering children offense, Collins’s counsel argued
at the sentencing hearing that the endangering children offense, R.C. 2919.22(A), was
subject only to a discretionary term of post-release control. Under the version of R.C.
2967.28 in effect when Collins was “resentenced, ” a mandatory term of three years of
post-release control was required for a felony of the third degree that is an offense of
violence. R.C. 2901.01(A)(9) enumerates the offenses that constitute offenses of
violence. With respect to endangering children, R.C. 2901.01(A)(9) provides that only
violations of R.C. 2919.22(B)(1), (2), (3), or (4) constitute an offense of violence.
Accordingly, under the version of R.C. 2967.28(A) in effect at the time of the resentencing
hearing, Collins’s conviction for R.C. 2919.22(A)(2) did not constitute an offense of
violence.
{¶ 24} In contrast, when Collins committed the offenses in 2006 and was originally
sentenced in 2007, R.C. 2967.28(B)(3) provided for the imposition of a mandatory three-
year term of post-release control for “a felony of the third degree that is not a felony sex
offense and in the commission of which the offender caused or threatened physical harm
to a person.” Collins was indicted for and convicted of endangering children, in violation
of R.C. 2919.22(A), with a finding of serious physical harm. Accordingly, under the
former statute, Collins would have been subject to a mandatory term of three years of
post-release control. The trial court found that a mandatory three-year term of post-
release control was required due to Collins’s causing serious physical harm to his child.
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{¶ 25} Nonetheless, we find no arguably meritorious claim for appeal based on any
alleged error in the trial court’s determination that post-release control for endangering
children was mandatory. R.C. 2967.28(F)(4)(c) specifically provides: “If an offender is
subject to more than one period 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.” (Emphasis added.)
Regardless of whether post-release control was properly imposed for endangering
children, Collins was subject to a mandatory term of five years of post-release control for
the rape conviction. Any alleged error in the term of post-release control for endangering
children would have no effect on Collins’s post-release control obligation upon his release
from prison.
IV. Conclusion
{¶ 26} We have conducted our independent review of the record pursuant to
Penson, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300, and we agree with appellate
counsel that there are no non-frivolous issues for review. Accordingly, the trial court's
judgment will be affirmed.
{¶ 27} We note that the trial court’s amended judgment entry, dated February 23,
2018, indicates that the rape and endangering children offenses are to be served
“consecutively to each other,” which is different from how the sentences were imposed in
2007 and is less clear about the order in which the sentences are to be served. However,
the trial court expressly stated at the resentencing hearing that it was not altering the
sentences previously imposed. Accordingly, we remand for the limited purpose of a
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nunc pro tunc entry that reflects that the sentence for endangering children is to be served
consecutively to the rape sentence, consistent with the 2007 judgment entry.
.............
DONOVAN, J. and TUCKER, J., concur.
Copies sent to:
Mathias H. Heck
Andrew T. French
Kirsten Knight
Anthony Collins
Hon. Mary L. Wiseman