State v. Henderson ( 2012 )

[Cite as State v. Henderson, 2012-Ohio-2709.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. John W. Wise, J.
-vs-
Case No. 11-COA-045
TERRANCE C. HENDERSON
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Ashland County Common
Pleas, Trial Court Number 06-CRI-130
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 14, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RAMONA FRANCESCONI ROGERS ERIN N. POPLAR
Ashland County Prosecutor Erin Poplar Law, LLC
110 Cottage Street, Third Floor 1636 Eagle Way
Ashland, Ohio 44805 Ashland, Ohio 44805
PAUL T. LANGE
Assistant Prosecuting Attorney
110 Cottage Street, Third Floor
Ashland, Ohio 44805
Ashland County, Case No. 11-COA-045 2
Hoffman, J.
{¶1} Defendant-appellant Terrance C. Henderson appeals his sentence
entered by the Ashland County Court of Common Pleas. Plaintiff-appellee is the state
of Ohio.
STATEMENT OF THE CASE1
{¶2} On December 18, 2006, the Ashland County Grand Jury indicted
Appellant on one count of possession of marijuana, in violation of R.C. 2925.11(A). On
May 2, 2007, Appellant filed a motion to dismiss based on speedy trial grounds. By
Judgment Entry filed May 7, 2007, the trial court denied the motion.
{¶3} On May 8, 2007, a jury trial commenced. The jury found Appellant guilty
as charged. By Judgment Entry filed June 8, 2007, the trial court sentenced Appellant to
five years in prison, revoked his post-release control, and ordered Appellant to serve an
additional six hundred fifty-nine days consecutive to the five year sentence.
{¶4} Appellant filed a direct appeal in State v. Henderson, Licking App. No.
07C0A031, 2008-Ohio-5007. This Court affirmed Appellant's conviction and sentence
holding:
{¶5} "At the time of his arrest on the indictment sub judice, December 27, 2006,
appellant was under the supervision of the Adult Parole Authority, and a holder was
placed on him. On January 23, 2007, appellant was sent to prison for violating the terms
of his post-release control. He remained in prison on the violation until March 16, 2007.
Thereafter, he was returned to the Ashland County Jail.
1
A recitation of the statement of facts is unnecessary to our disposition of Appellant's
appeal.
Ashland County, Case No. 11-COA-045 3
{¶6} "We note the trial court did not hold a hearing on the motion to dismiss.
The trial court stated it had 'fully reviewed the pleadings and Ohio Revised Code
Section 2945.71.' The trial court made the following calculations in fn. 1:
{¶7} "'March 14, 2006 to March 16, 2006 (3 days in jail counted as 3 days each
for 9 days); December 27, 2006 to March 15, 2007 (79 days in jail or prison on post-
release control violation counted at actual time of 79 days); and March 16, 2007 through
May 8, 2007 (54 days in jail counted as 3 days each for a total of 162 days); less
February 20, 2007 through March 27, 2007 during which the Defendant's Motion to
Suppress Evidence was pending (36 days).'
{¶8} "We find the times of incarceration to be established by the record of
transport in the file, and the trial court was correct in its calculations."
{¶9} On November 10, 2009, Appellant filed a motion to correct a void
sentence, arguing the 659 day post-release control sanction imposed by the trial court
stemmed from a previous conviction in Lorain County. Appellant argued the post-
release control was never properly imposed in the Lorain County case; therefore, the
sentence was void. The trial court denied the motion to vacate sentence. Appellant filed
an appeal to this Court, arguing the trial court had no jurisdiction because, in the cases
in which he was on post-release control, he was not properly advised of post-release
control. Appellant further maintained, “his current sentencing order is a nullity and void,
since the trial court lacked jurisdiction to imposed (sic) the 659 days of post-release
control sanction time from an order that previously never existed.”
Ashland County, Case No. 11-COA-045 4
{¶10} As set forth previously, this Court reversed the trial court's decision, and
remanded the matter for resentencing. State v. Henderson, Ashland App. No. 10-COA-
012, 2011-Ohio-1791.
{¶11} On September 30, 2011, the trial court conducted a resentencing hearing.
Via Judgment Entry of October 6, 2011, the trial court resentenced Appellant to five
years in prison, and ordered Appellant pay court costs.
{¶12} On November 30, 2011, Appellant filed a motion for additional jail time
credit, and the State filed a response on December 13, 2011. The trial court, via
Judgment Entry of December 21, 2011, indicated Appellant had filed a notice of appeal
with this Court from the September 30, 2011 resentencing. Therefore, the trial court
correctly held it lacked jurisdiction to address Appellant's motion for additional jail time
credit.
{¶13} Appellant now appeals, assigning as error:
{¶14} “I. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S
MOTION TO DISMISS BECAUSE HIS RIGHT TO A SPEEDY TRIAL WAS VIOLATED.
{¶15} “II. IN THE ALTERNATIVE, THE TRIAL COURT ERRED WHEN IT
DENIED APPELLANT’S MOTION FOR ADDITIONAL JAIL-TIME CREDIT.
{¶16} “III. IN THE ALTERNATIVE, THE TRIAL COURT ERRED WHEN IT
FAILED TO SENTENCE APPELLANT PURSUANT TO AND CONSISTENT WITH
HOUSE BILL 86.
{¶17} “IV. IN THE ALTERNATIVE, THE TRIAL COURT ERRED AND ABUSED
ITS DISCRETION WHEN IT DENIED APPELLANT’S MOTION TO WAIVE COURT
COSTS.”
Ashland County, Case No. 11-COA-045 5
I.& II.
{¶18} Appellant's first and second assignments of error raise common and
interrelated issues; therefore, we will address the arguments together.
{¶19} Appellant maintains he was denied his right to a speedy trial as the time
he spent in jail between December 27, 2006, and March 15, 2007, should count three
per one as he was being held on a post-release control violation subsequently found to
be void. As a result, Appellant argues he was brought to trial in violation of his right to a
speedy trial.
{¶20} In the alternative, Appellant argues the time period he was held on the
post-release control violations in the unrelated cases, which were later found to be void,
should be credited to the time served in the sentence at bar.
{¶21} R.C. 2945.71 provides,
{¶22} "(A) Subject to division (D) of this section, a person against whom a
charge is pending in a court not of record, or against whom a charge of minor
misdemeanor is pending in a court of record, shall be brought to trial within thirty days
after the person's arrest or the service of summons.
{¶23} "(B) Subject to division (D) of this section, a person against whom a
charge of misdemeanor, other than a minor misdemeanor, is pending in a court of
record, shall be brought to trial as follows:
{¶24} "(1) Within forty-five days after the person's arrest or the service of
summons, if the offense charged is a misdemeanor of the third or fourth degree, or
other misdemeanor for which the maximum penalty is imprisonment for not more than
sixty days;
Ashland County, Case No. 11-COA-045 6
{¶25} "(2) Within ninety days after the person's arrest or the service of
summons, if the offense charged is a misdemeanor of the first or second degree, or
other misdemeanor for which the maximum penalty is imprisonment for more than sixty
days.
{¶26} "(C) A person against whom a charge of felony is pending:
{¶27} "(1) Notwithstanding any provisions to the contrary in Criminal Rule 5(B),
shall be accorded a preliminary hearing within fifteen consecutive days after the
person's arrest if the accused is not held in jail in lieu of bail on the pending charge or
within ten consecutive days after the person's arrest if the accused is held in jail in lieu
of bail on the pending charge;
{¶28} "(2) Shall be brought to trial within two hundred seventy days after the
person's arrest.
{¶29} "(D) A person against whom one or more charges of different degrees,
whether felonies, misdemeanors, or combinations of felonies and misdemeanors, all of
which arose out of the same act or transaction, are pending shall be brought to trial on
all of the charges within the time period required for the highest degree of offense
charged, as determined under divisions (A), (B), and (C) of this section.
{¶30} "(E) For purposes of computing time under divisions (A), (B), (C)(2), and
(D) of this section, each day during which the accused is held in jail in lieu of bail on the
pending charge shall be counted as three days. This division does not apply for
purposes of computing time under division (C)(1) of this section.
{¶31} "(F) This section shall not be construed to modify in any way section
2941.401 or sections 2963.30 to 2963.35 of the Revised Code."
Ashland County, Case No. 11-COA-045 7
{¶32} This Court held in Appellant's previous appeal of the trial court's imposition
of post-release control, State v. Henderson, Ashland Co. 11-COA-012, 2011-Ohio-1791,
{¶33} "In State v. Fischer, 942 N.E.2d 332, 2010–Ohio–6238, syllabus, the
Supreme Court of Ohio limited the nature of the de novo hearing as follows: '2. The new
sentencing hearing to which an offender is entitled under State v. Bezak is limited to
proper imposition of postrelease control. (State v. Bezak, 114 Ohio St.3d 94, 2007–
Ohio–3250, 868 N.E.2d 961, syllabus, modified).' Thus, as stated by the Fischer court in
paragraph two of the syllabus, the new sentencing hearing is limited to the proper
imposition of postrelease control.
{¶34} "In the case sub judice, appellant was on post-release control in cases out
of Richland, Crawford and Lorain Counties at the time he was sentenced in the case
sub judice. Appellant now contends that the entries in such cases mistakenly advised
him of post-release control and, therefore, such entries were void. Appellant further
maintains that, therefore, the trial court in the case sub judice lacked jurisdiction to
impose the 659 days of post-release control as additional prison time.
{¶35} "In the case sub judice, appellant was sentenced in July of 2002, in
Richland County Case No. 01 CR 018OH after being convicted of illegal conveyance of
drugs in violation of R.C. 2921.36(A)(2), a felony of the fourth degree. The Court's
Sentencing Entry in such case indicated that appellant was subject to 'up to 5 years
post-release control (PRC).' The parties, and the trial court in the case sub judice, agree
that a fourth degree felony pursuant to R.C. 2967.28 is subject to post-release control of
up to three years rather than five. Because appellant was improperly advised of post-
Ashland County, Case No. 11-COA-045 8
release control in such case, his sentence in such case was void as it related to post-
release control.
{¶36} "Appellant also was sentenced in April of 2002, in Crawford County Case
No. 01–CR–0075 after being convicted of assault of a police officer in violation of R.C.
2903.13, a felony of the fourth degree, and attempted failure to comply in violation of
R.C. 2923.02/2921.331, a felony of the fourth degree. The trial court's entry in such
case indicates that appellant was notified that ‘post-release control is optional in this
case up to a maximum of eighteen months on each count.’ As is stated above, pursuant
to R.C. 2967.28, fourth degree felonies are subject to up to three years of post-release
control. Appellant, therefore, was improperly advised of post-release control in such
case. His sentence in Crawford County Case No. 01–CR–0075 was, therefore, void as
it relates to post-release control.
{¶37} "In Lorain County Case No. 01 CR057450, appellant, in June of 2002, was
sentenced for possession of cocaine in violation of R.C. 2925.11(A), a felony of the fifth
degree, and possession of drug paraphernalia in violation of 2925.14(C)(1), a
misdemeanor of the fourth degree. The trial court's Judgment Entry in such case states
that appellant was notified 'that post-release control is (mandatory optional) in this case
up to a maximum of (3/5) years ...' R.C. 2967.28(C) states that, for a conviction of a fifth
degree felony an offender may be subject to a period of post-release control of up to
three years. Appellant, therefore, was not properly advised about post-release control in
such case.
{¶38} "Finally, appellant was sentenced in 2002, in Lorain County Case No. 01
CR058029 for domestic violence in violation of R.C. 2919.25(A), a felony of the fifth
Ashland County, Case No. 11-COA-045 9
degree. The trial court, in its Judgment Entry in such case, stated that if it had notified
appellant that post-release was '(mandatory/optional) in this case up to a maximum of
(3/5) year ...' R.C. 2967.28(C) states that with respect to a fifth degree felony, an
offender is subject to up to three years of post-release control. Appellant, therefore, was
improperly advised of post-release control in such case.
{¶39} "In short, we find that the trial courts' entries in the above cases out of
Richland, Lorain and Crawford Counties did not properly advise appellant regarding
post-release control. The sentences in such cases were void as they relate to post-
release control. The trial court, in the case sub judice, therefore, erred in imposing the
remaining 659 days of post-release control time as additional prison time on appellant.
{¶40} "Because the trial court in the case sub judice, therefore, erred in
overruling appellants Motion to Correct Void Sentence, appellant's sole assignment of
error is sustained."
{¶41} As set forth in the Statement of the Case, supra, in the previous appeal of
the calculation of Appellant’s sentence, this Court specifically recognized the time
period Appellant spent in prison between December 27, 2006 and March 15, 2007 was
correctly counted by the trial court as time spent in prison on a post-release control
violation.
{¶42} To reiterate as set forth above, subsection (E) of R.C. 2945.71 states,
"each day during which the accused is held in jail in lieu of bail on the pending charge
shall be counted as three days." (Emphasis added.)
{¶43} Here, although it was later determined the post-release control violations
for which Appellant was held in the unrelated cases were void, at the time Appellant
Ashland County, Case No. 11-COA-045 10
was imprisoned during the time period between December 27, 2006, and March 15,
2007, he nonetheless was not being held on the “pending” charges. Therefore, we find
the trial court did not err in sentencing Appellant.
{¶44} The first and second assignments of error are overruled.
III.
{¶45} In the third assignment of error, Appellant maintains the trial court erred in
not applying the provisions of the recently enacted H.B. 86 at Appellant's resentencing.
H.B. 86 became effective September 30, 2011.
{¶46} As set forth above, this Court previously remanded this matter to the trial
court for resentencing on the limited issue of post-release control. Pursuant to State v.
Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238,
{¶47} "In this situation, the postrelease-control component of the sentence is
fully capable of being separated from the rest of the sentence as an independent
component, and the limited resentencing must cover only the postrelease control. It is
only the postrelease-control aspect of the sentence that is void and that must be
rectified. The remainder of the sentence, which the defendant did not successfully
challenge, remains valid under the principles of res judicata."
{¶48} Accordingly, we find the remainder of Appellant's sentence remained valid,
and the resentencing was limited to the proper imposition of PRC on remand.
{¶49} R.C. Section 1.58(B) states,
{¶50} “If the penalty, forfeiture, or punishment for any offense is reduced by a
reenactment or amendment of a statute, the penalty, forfeiture, or punishment, if not
already imposed, shall be imposed according to the statute as amended.”
Ashland County, Case No. 11-COA-045 11
{¶51} Here, Appellant's sentence had already been imposed prior to the
enactment of H.B. 86; therefore, the trial court did not err in not applying the
amendments therein. See, State v. Fields, Muskingum App. No. CT11-0037, 2011-
Ohio-6044
{¶52} The third assignment of error is overruled.
IV.
{¶53} In the fourth assignment of error, Appellant argues the trial court erred in
denying Appellant's motion to waive court costs.
{¶54} As set forth in our analysis and disposition of Appellant's third assignment
of error, this Court previously remanded this matter to the trial court for resentencing on
the limited issue of post-release control application. Accordingly, pursuant to Fischer,
supra, the arguments raised in the fourth assignment of error are barred by the doctrine
of res judicata.
{¶55} The fourth assignment of error is overruled.
{¶56} Appellant's sentence in the Ashland County Court of Common Pleas is
affirmed.
By: Hoffman, J.
Delaney, P.J. and
Wise, J. concur s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
s/ John W. Wise _____________________
HON. JOHN W. WISE
Ashland County, Case No. 11-COA-045 12
IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
TERRANCE C. HENDERSON :
:
Defendant-Appellant : Case No. 11-COA-045
For the reasons stated in our accompanying Opinion, the judgment entered by
the Ashland County Court of Common Pleas is affirmed. Costs to Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
s/ John W. Wise _____________________
HON. JOHN W. WISE