State v. Deaver ( 2011 )

[Cite as State v. Deaver, 2011-Ohio-1393.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
MEIGS COUNTY
State of Ohio, : Case No. 10CA7
Plaintiff-Appellee, :
v. : DECISION AND
JUDGMENT ENTRY
Stephen Wayne Deaver, :
Defendant-Appellant. : RELEASED 03/18/11
______________________________________________________________________
APPEARANCES:
Denise L. Bunce, Pomeroy, Ohio, for appellant.
Colleen S. Williams, Meigs County Prosecuting Attorney, and Matthew J. Donahue,
Meigs County Assistant Prosecuting Attorney, Pomeroy, Ohio, for appellee.
______________________________________________________________________
Harsha, P.J.
{¶1} Stephen Deaver appeals from the prison sentence imposed by the Meigs
County Court of Common Pleas. The court held a resentencing hearing after it became
apparent that it failed to advise Deaver of mandatory postrelease control sanctions in
his original 2000 sentence. After properly advising Deaver of postrelease control
sanctions, it imposed the same ten-year sentence it had in 2000.
{¶2} In this appeal, Deaver assigns a single error for our review. He contends
that the court failed to conduct a de novo resentencing hearing, which he claims he was
entitled to under various Supreme Court of Ohio decisions. We disagree. After Deaver
filed this appeal, the Supreme Court of Ohio issued State v. Fischer, --- Ohio St.3d ---,
2010-Ohio-6238, --- N.E.2d ---, an opinion overruling its previous holdings that an
offender who failed to receive postrelease control notice in his original sentence is
entitled to a de novo resentencing hearing. In light of Fischer, the resentencing hearing
Meigs App. No. 10CA7 2
was limited to the proper imposition of postrelease control, i.e., Deaver was not entitled
to a de novo resentencing hearing. Therefore, we reject Deaver’s assignment of error
but remand for the limited purpose of an amended sentencing entry that complies with
Fischer.
I. Factual Summary
{¶3} In 2000, Deaver pleaded guilty to two third-degree felony counts of sexual
battery. The court sentenced him to two consecutive five-year terms on both counts,
declared him a sexual offender, and indicated he could be subject to postrelease control
upon release from prison.
{¶4} In February 2010, the state filed a motion to correct Deaver’s sentencing
entry to indicate that Deaver is subject to five years of mandatory postrelease control.
In March 2010, the trial court held a resentencing hearing where it advised Deaver of
mandatory postrelease control and reimposed the remainder of the original prison term.
In its sentencing entry the court indicated it conducted a “de novo” sentencing hearing.
The Department of Corrections has since released Deaver from prison, and he is
serving postrelease control.
II. Assignment of Error
{¶5} Deaver submits one assignment of error:
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY FAILING TO
PROPERLY CONDUCT A DE NOVO SENTENCING HEARING, PRIOR TO
APPELLANT’S COMPLETION OF HIS SENTENCE.
III. The Scope of Resentencing for Failure to Notify of Postrelease Control
{¶6} In his sole assignment of error, Deaver contends that the trial court erred
by failing to provide him with a de novo resentencing hearing, contrary to the Supreme
Meigs App. No. 10CA7 3
Court of Ohio’s decisions in State v. Beasley (1984), 14 Ohio St. 3d 74, 471 N.E.2d 774
(per curiam), State v. Bezak, 114 Ohio St. 3d 94, 2007-Ohio-3250, 868 N.E.2d 961,
State v. Singleton, 124 Ohio St. 3d 173, 2009-Ohio-6434, 920 N.E.2d 958, and other
cases.
{¶7} After Deaver filed this appeal, the Supreme Court of Ohio overruled or
largely altered its holdings in the cases cited above. In Fischer, supra, the Court
reaffirmed that a sentence that failed to include the statutorily required postrelease
control term is void. Id. at paragraph one of the syllabus. However, the only part of the
sentence that is “void” is the portion that fails to comply with the requirements of
postrelease control statutes. Therefore, “when a judge fails to impose statutorily
mandated postrelease control as part of a defendant’s sentence, that part of the
sentence * * * is void and must be set aside.” Id. at ¶26. (Emphasis sic.) But “the new
sentencing hearing to which an offender is entitled * * * is limited to proper imposition of
postrelease control.” Id. at ¶29.
{¶8} In so holding, the Court has adhered to the line of reasoning in State v.
Saxon, 109 Ohio St. 3d 176, 2006-Ohio-1245, 846 N.E.2d 824, at paragraph three of
the syllabus, where it held that a sentencing hearing on remand is limited to the issue
found to be error on appeal. Fischer at ¶16. And the Court specifically rejected the line
of reasoning that led it to the conclusion in Bezak that an offender who fails to receive
notice of postrelease control is entitled to a de novo sentencing hearing. Id. at ¶28.
{¶9} Consequently, we reject Deaver’s sole assignment of error. However, to
insure compliance with Fischer1 and State v. Baker, 119 Ohio St. 3d 197, 2008-Ohio-
1
We apply Fischer retroactively. See, State v. Vance, Meigs App. No. 10CA4, 2011-Ohio-780, at ¶¶10-
11, citing Peerless Elec. Co. v. Bowers (1955), 1964 Ohio St. 209, 129 N.E.2d 467.
Meigs App. No. 10CA7 4
3330, 893 N.E.2d 1632 this matter is remanded to the trial court for the limited purpose
of issuing an amended entry that: 1.) deletes any reference to a “de novo” sentencing
hearing; 2.) mirrors the original sentencing entry with the exception of the original,
improper post-release control notifications; and 3.) adds the proper provisions for the
imposition of post-release control. Additionally, the state noted in its appellee’s brief a
clerical error in the caption of the sentencing entry. While the sentencing entry clearly
refers to Deaver’s conviction for two counts of Sexual Battery in violation of R.C.
2907.03, the caption refers to “Gross Sexual Imposition (Two Counts), 2907.05 O.R.C.,
Each a Felony of the Third Degree.” The trial court should correct this obvious clerical
error when it issues the new sentencing entry in compliance with Fischer.
JUDGMENT AFFIRMED
WITH LIMITED REMAND.
2
Baker sets out the one-document rule for final appealable orders in criminal cases.
Meigs App. No. 10CA7 5
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED WITH LIMITED REMAND and
that Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Meigs
County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.
Abele, J. & Kline, J.: Concur in Judgment and Opinion.
For the Court
BY: ____________________________
William H. Harsha, Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.