State v. Oweis , 2012 Ohio 443 ( 2012 )

[Cite as State v. Oweis, 2012-Ohio-443.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO
Plaintiff-Appellant
-vs-
OSAMA J. OWEIS
Defendant-Appellee
JUDGES:
Hon. W. Scott Gwin, P. J.
Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.
Case No. 11 CAA 06 0050
OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 06 CR I 11 513
JUDGMENT: Affirmed in Part; Reversed in Part and
Remanded
DATE OF JUDGMENT ENTRY: February 6, 2012
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
CAROL HAMILTON O'BRIEN BRIAN G. JONES
PROSECUTING ATTORNEY THE LAW OFFICE OF BRIAN JONES
BRIAN J. WALTER 2211 U.S. Highway 23 North
ASSISTANT PROSECUTOR Delaware, Ohio 43015
140 North Sandusky Street
Delaware, Ohio 43015
Wise, J.
{¶1} Appellant/Cross-Appellee State of Ohio appeals the decision of the Court
of Common Pleas, Delaware County, following a re-sentencing of Defendant-
Appellee/Cross-Appellant Osama J. Oweis. The relevant facts leading to this appeal are
as follows.
{¶2} On August 10, 2007, appellee was convicted by a jury on one count of
aggravated robbery, in violation of R.C. 2911.01(A)(1), a felony of the first degree; one
count of grand theft, in violation of R.C. 2913.02(A)(1), a felony of the fifth degree; and
two counts of kidnapping, in violation of R.C. 2905.01(A)(2), both felonies of the second
degree.
{¶3} The trial court originally sentenced appellee on October 1, 2007. Based on
sentencing memoranda submitted by the parties, the trial court did not sentence
appellee on the aggravated robbery conviction. However, the trial court sentenced
appellee to a total of seventeen years in prison on the kidnapping and grand theft
convictions. The trial court informed appellee at the sentencing hearing and journalized
in the sentencing entry that as part of his sentence, postrelease control in this case was
discretionary for up to three years.
{¶4} On July 15, 2010, the trial court filed a Nunc Pro Tunc Judgment Entry on
Sentence pursuant to State v. Baker, 119 Ohio St.3d 197, 2008–Ohio–3330. The
judgment entry corrected the October 1, 2007 sentencing entry as to the term of
appellee’s postrelease control (“PRC”). The nunc pro tunc sentencing entry stated that
appellee was subject to a mandatory term of postrelease control of three years. See
R.C. 2967.28(B)(2). The trial court did not conduct a resentencing hearing before
issuing the judgment entry.
{¶5} Appellee thereupon appealed to this Court. On March 30, 2011, we
reversed and remanded for a resentencing hearing regarding the trial court’s nunc pro
tunc entry of July 15, 2010.
{¶6} On May 4, 2011, the trial court conducted a resentencing hearing pursuant
to our remand. On May 12, 2011, the trial court issued an entry sentencing appellee to
eight years in prison on each of the two kidnapping counts, to be served consecutively
to each other. As to the theft count, the trial the court sentenced appellee to serve
twelve (12) months in prison, to be served concurrent to the kidnapping counts. Thus,
appellee’s original sentence from October 1, 2007 was reduced by one year to a total of
sixteen years.
{¶7} On June 2, 2011, Appellant State of Ohio filed a notice of appeal. It herein
raises the following sole Assignment of Error:
{¶8} “I. THE TRIAL COURT ERRED IN RECONSIDERING THE
DEFENDANT’S ORIGINAL SENTENCE DURING A RESENTENCING HEARING
LIMITED SOLELY TO THE ISSUE OF THE PROPER IMPOSITION OF POST-
RELEASE CONTROL.”
{¶9} Appellee has raised the following sole Assignment of Error in his cross-
appeal:
{¶10} “APPELLEE WAS DENIED DUE PROCESS OF LAW UNDER THE
FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND
ARTICLE I SECTION 16 OF THE OHIO CONSTITUTION WHEN THE TRIAL COURT
IMPOSED CONSECUTIVE SENTENCES FOR BOTH KIDNAPPING CONVICTIONS.”
State’s Appeal
I.
{¶11} In its sole Assignment of Error, Appellant State of Ohio contends the trial
court erred in reconsidering the terms of appellee’s original sentence when it conducted
a PRC resentencing hearing. We agree.
{¶12} The Ohio Supreme Court has held that if a defendant is under a sentence
in which post-release control was not properly rendered, only the offending portion of
the sentence dealing with post-release control is subject to review and correction. See
State v. Fischer, 128 Ohio St.3d 92, 942 N.E.2d 332, 2010–Ohio–6238. The new
sentencing hearing to which the offender is entitled is limited to the issue of post-release
control. Id.{¶13} Most recently, in a State’s appeal raising a similar issue of sentence
alteration in the context of a PRC resentencing, we applied Fischer and held that the
trial court was not authorized to reduce a defendant-appellee's original sentence in such
a situation. See State v. Ewers, Delaware App.No. 2011–CAA–05–0040, 2011-Ohio-
6540. Similarly, we have rejected the argument that a PRC resentencing requires a de
novo hearing. See State v. McPherson, Licking 10–CA–99, 2011-Ohio-1020.
Regardless of whether common law or R.C. 2929.191 applies, the mere lack of PRC
notice never entitles a defendant to a full de novo sentencing hearing. See State vs.
Davis, Washington App.No. 10 CA 9, 2011-Ohio-6776, ¶ 8.
{¶14} In accordance with the foregoing case law precedent, the State’s sole
Assignment of Error is sustained.
Cross-Appeal
I.
{¶15} In his sole Assignment of Error on cross-appeal, appellee contends the
trial court erred and denied him due process of law by ordering consecutive sentences
for both of the kidnapping convictions, which he maintains involved no separate animus.
{¶16} In State v. Franklin, Cuyahoga App.No. 95991, 2011-Ohio-4953, the
Eighth District Court of Appeals, in light of Fischer, supra, reiterated that the issue of
merger of allied offenses was barred by res judicata on a defendant's appeal from
resentencing to impose postrelease control because the issue did not arise from the
resentencing hearing. Id. at ¶ 11-12. See, also, State v. Hunter, Cuyahoga App. Nos.
95111, 95112, and 95113, 2011–Ohio–1682.
{¶17} We find the rationale of Franklin comports with the holding of Fischer by
properly restricting the confines of PRC resentencing. We therefore apply the holding in
Franklin to the circumstances of the case sub judice, and find appellee’s challenges to
his kidnapping convictions and sentences are presently barred.
{¶18} Cross-Appellant's sole Assignment of Error is overruled.
{¶19} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Delaware County, Ohio, is hereby affirmed in part, reversed in part,
and remanded for correction of appellee’s sentence to seventeen years.
By: Wise, J.
Gwin, P. J., and Delaney, J., concur.
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JUDGES
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellant :
:
-vs- : JUDGMENT ENTRY
:
OSAMA J. OWEIS :
:
Defendant-Appellee : Case No. 11 CAA 06 0050
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Delaware County, Ohio, is affirmed in part
and reversed in part.
Costs to be assessed to appellee.
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JUDGES