State v. Griffis ( 2011 )

[Cite as State v. Griffis, 2011-Ohio-2955.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
:
-vs- :
: Case No. CT2010-57
CHRISTOPHER G. GRIFFIS :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Muskingum
County Court of Common Pleas, Case No.
CR2000-0199
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 15, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
D. MICHAEL HADDOX PETER GALYARDT
Muskingum County Prosecutor Assistant Public Defender
27 North Fifth St., Ste. 201 250 East Broad St., Ste. 1400
Zanesville, OH 43702 Columbus, OH 43215
[Cite as State v. Griffis, 2011-Ohio-2955.]
Gwin, P.J.
{¶1} This matter is on appeal from defendant-appellant, Christopher Griffis’ re-
sentencing to impose a term of post-release control.
STATEMENT OF THE FACTS AND CASE
{¶2} The record indicates that appellant was charged with committing an
assault robbery at knife point in broad daylight in a drug store parking lot. He was
positively identified by the victim, both at the scene shortly after the offense was
committed and at trial, and the identification was corroborated by additional testimony
from eyewitnesses and the officers who apprehended appellant in the area shortly after
the robbery occurred. Appellant did not testify, but his wife did, saying that her husband
had left home on foot that morning intending to submit applications for employment at
businesses located in the same area. After the jury returned a guilty verdict, one of the
jurors told defense counsel that on the night of the first day of the trial, he had driven to
appellant's house and from there to the scene in order to determine the distance from
the petitioner's residence to the location where appellant was arrested. The other jurors
present indicated that based upon that information, they determined that the defendant
had not spent the night before the robbery at his home and then gone looking for a job
the next morning.
{¶3} When defense counsel moved for a new trial on the basis of juror
misconduct, the trial court denied the motion, finding that under Ohio's “aliunde rule” a
juror is not permitted to impeach his own verdict without outside evidence from a
separate source. On direct appeal, we affirmed this ruling and the Ohio Supreme Court
Muskingum County, Case No. CT2010-57 3
denied review. Griffis v. Hurley (6th Cir. August 9, 2005), 151 Fed.Appx. 355,
unpublished, 2005 WL 2175939.
{¶4} On October 6, 2010, appellant filed a Motion to Vacate and/or Set Aside
Sentence on the basis that the trial court failed to inform appellant that he was
subject to post-release control for a mandatory period of five (5) years which the
evolving case law now required. On October 25, 2010, the trial court resentenced
appellant to the same term of imprisonment that was imposed in the original
sentence and it informed him of the mandatory five (5) year term of post-release
control both during the hearing and on the sentencing entry.
{¶5} It is from the trial court’s October 25, 2010 re-sentencing entry
appellant has timely appealed raising the following assignments of error:
{¶6} “I. THE TRIAL COURT COMMITTED PLAIN ERROR AND VIOLATED
CHRISTOPHER GRIFFIS'S RIGHT TO DUE PROCESS WHEN IT FAILED TO
PROVIDE MR. GRIFFIS WITH A DE NOVO SENTENCING HEARING AS
REQUIRED BY SUPREME COURT OF OHIO CASE LAW. FOURTEENTH
AMENDMENT, UNITED STATES CONSTITUTION; SECTION 16, ARTICLE I, OHIO
CONSTITUTION; CRIM.R. 52(B); 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. (OCTOBER 25, 2010 RESENTENCING HEARING
TRANSCRIPT, AT 3-9).
{¶7} “II. THE TRIAL COURT COMMITTED PLAIN ERROR AND VIOLATED
MR. GRIFFIS'S RIGHT TO DUE PROCESS WHEN IT FAILED TO PROVIDE HIM
WITH COUNSEL AT THE RESENTENCING HEARING. SIXTH AND FOURTEENTH
Muskingum County, Case No. CT2010-57 4
AMENDMENTS, UNITED STATES CONSTITUTION; SECTION 10, ARTICLE I,
OHIO CONSTITUTION; CRIM.R. 52(B). (OCTOBER 25, 2010 RESENTENCING
HEARING TRANSCRIPT, AT 3-9).
{¶8} “III. THE TRIAL COURT COMMITTED PLAIN ERROR AND VIOLATED
MR. GRIFFIS'S RIGHT TO DUE PROCESS WHEN IT FAILED TO DETERMINE
WHETHER HIS CONVICTIONS WERE ALLIED OFFENSES UNDER R.C. 2941.25
AT THE RESENTENCING HEARING. FOURTEENTH AMENDMENT, UNITED
STATES CONSTITUTION; SECTION 16, ARTICLE I, OHIO CONSTITUTION;
CRIM.R. 52(B); STATE V. UNDERWOOD, 124 OHIO ST.3D 365, 2010-OHIO-1,
922 N.E.2D 923; STATE V. JOHNSON, SLIP OPINION NO. 2010-OHIO-6314.
(OCTOBER 25, 2010 RESENTENCING HEARING TRANSCRIPT, AT 5).”
I.
{¶9} In his First Assignment of Error, appellant maintains that the trial court
committed plain error by not conducting a de novo sentencing hearing.
{¶10} In State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d
958, paragraph one of the syllabus, the Ohio Supreme Court recently held that “[f]or
criminal sentences imposed prior to July 11, 2006, in which a trial court failed to
properly impose post release control, trial courts shall conduct a de novo sentencing
hearing in accordance with decisions of the Supreme Court of Ohio.”
{¶11} In the instant case, a review of the record reveals that appellant was not
properly advised of post-release control at his original sentencing in 2001. Accordingly,
appellant is entitled to a de novo sentencing hearing. However, this does not end our
analysis.
Muskingum County, Case No. CT2010-57 5
{¶12} As the United States Supreme Court recently observed in Puckett v.
United States (2009), 129 S.Ct. 1423, 1428, 173 L.Ed.2d 266, “If an error is not
properly preserved, appellate-court authority to remedy the error (by reversing the
judgment, for example, or ordering a new trial) is strictly circumscribed. There is good
reason for this; ‘anyone familiar with the work of courts understands that errors are a
constant in the trial process, that most do not much matter, and that a reflexive
inclination by appellate courts to reverse because of unpreserved error would be fatal.’”
(Citation omitted).
{¶13} “[A]n appellate court may, in its discretion, correct an error not raised at
trial only where the appellant demonstrates that (1) there is an error; (2) the error is
clear or obvious, rather than subject to reasonable dispute; (3) the error affected the
appellant’s substantial rights, which in the ordinary case means it affected the outcome
of the district court proceedings; and (4) the error seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” United States v. Marcus (May 24,
2010), 560 U.S. __, 130 S.Ct. 2159, 2010 WL 2025203 at 4. (Internal quotation marks
and citations omitted).
{¶14} “We have previously held that if the defendant had counsel and was tried
by an impartial adjudicator, there is a strong presumption that any other constitutional[l]
errors that may have occurred are subject to harmless-error analysis. State v. Hill
(2001), 92 Ohio St.3d 191, 197, 749 N.E.2d 274, quoting Rose v. Clark (1986), 478
U.S. 570, 579, 106 S.Ct. 3101, 92 L.Ed.2d 460. Moreover, as we stated in State v.
Perry, 101 Ohio St.3d 118, 2004- Ohio-297, 802 N.E.2d 643, [c]onsistent with the
presumption that errors are not structural, the United States Supreme Court ha[s]
Muskingum County, Case No. CT2010-57 6
found an error to be structural, and thus subject to automatic reversal, only in a very
limited class of cases. Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544,
137 L.Ed.2d 718 (1997) (citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9
L.Ed.2d 799 (1963) (complete denial of counsel)); Tumey v. Ohio, 273 U.S. 510, 47
S.Ct. 437, 71 L.Ed. 749 (1927) (biased trial judge); Vasquez v. Hillery, 474 U.S. 254,
106 S.Ct. 617, 88 L.Ed.2d 598 (1986) (racial discrimination in selection of grand jury);
McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (denial of
self representation at trial); Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d
31(1984) (denial of public trial); Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078,
124 L.Ed.2d 182 (1993) (defective reasonable-doubt instruction). Wamsley, supra 117
Ohio St.3d at 391-392, 884 N.E.2d at 48-49, 2008-Ohio-1195 at ¶ 16. [Citations and
internal quotation marks omitted].
{¶15} Recently, the Ohio Supreme Court in State v. Fischer, Slip Opinion No.
2010-Ohio-6238, limited its holding in Bezak and concluded that the defendant is only
entitled to a hearing for the proper imposition of post release control.
{¶16} In Fischer, the Court stated:
{¶17} “We similarly hold that when a judge fails to impose statutorily mandated
post release control as part of a defendant's sentence, that part of the sentence is void
and must be set aside. (Footnote omitted.) Neither the Constitution nor common sense
commands anything more.
{¶18} “This principle is an important part of the analysis of void sentences that
we have not focused upon in prior cases involving post release control, including
Bezak,114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961. Thus, we reaffirm the
Muskingum County, Case No. CT2010-57 7
portion of the syllabus in Bezak that states ‘[w]hen a defendant is convicted of or
pleads guilty to one or more offenses and post-release control is not properly included
in a sentence for a particular offense, the sentence for that offense is void,’ but with the
added proviso that only the offending portion of the sentence is subject to review and
correction.
{¶19} “However, we now modify the second sentence in the Bezak syllabus as
ill-considered. That sentence states that the offender is entitled to a new sentencing
hearing for the offense for which post release control was not imposed properly. 114
Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961. It does not recognize a principle that
we overlooked in Bezak: when an appellate court concludes that a sentence imposed
by a trial court is in part void, only the portion that is void may be vacated or otherwise
amended.
{¶20} “Therefore, we hold that the new sentencing hearing to which an offender
is entitled under Bezak is limited to proper imposition of post-release control. In so
holding, we come more into line with legislative provisions concerning appellate review
of criminal sentences.”
{¶21} Accordingly, appellant may not raise new issues, or issues he had
previously raised on his direct appeal. See also, State v. Ketterer, 126 Ohio St.3d 448,
935 N.E.2d 9, 2010-Ohio-3831.
{¶22} To be reversible as plain error, the failure to conduct a de novo sentencing
hearing must meet the criterion that “the error seriously affect[t] the fairness, integrity or
public reputation of judicial proceedings.” Puckett, supra, at ----, 129 S.Ct. 1423(internal quotation marks omitted). Appellant cannot point with any specificity to any
Muskingum County, Case No. CT2010-57 8
prejudice he suffered as a result of the conduct of his re-sentencing hearing in the case
at bar.
{¶23} Accordingly, appellant’s first assignment of error is overruled.
II.
{¶24} In his Second Assignment of Error, appellant argues that he was
entitled to counsel to represent him during a de novo re-sentencing hearing. In
other words, appellant contends that the effect of vacating a void sentence is to
place the parties in the same position as if there had been no sentence. The
Supreme Court had applied this principle in State v. Bezak, 114 Ohio St. 3d 94,
2007-Ohio-3250, 868 N.E. 2d 961 to hold, in its syllabus, that when a sentence is
void due to inadequate post release-control notification, the defendant is entitled to
a new sentencing hearing. Because he is entitled to a new sentencing hearing
appellant believes that he was entitled to have counsel appointed to represent him
at the sentencing hearing. We disagree.
{¶25} In the case at bar, the error made by the trial court was that the court
failed to inform appellant in person during his original sentencing hearing that he
was subject to a mandatory five year period of post-release control and to misstate
in the original sentencing entry that appellant would be on mandatory post release
control for a period "up to" five years.
{¶26} As a result, because the trial court's sentencing did not conform to
statutory mandates it is void. See State v. Bloomer, 122 Ohio St. 3d 200, 909 N.E.
2d 1254, 2009-Ohio-2462, ¶ 68; see, also, State v. Jordan, 104 Ohio St.3d 21, 817
N.E.2d 864, 2004-Ohio-6085; State v. Bezak, 114 Ohio St.3d 94, 868 N.E.2d 961,
Muskingum County, Case No. CT2010-57 9
2007-Ohio-3250; State v. Simpkins, 117 Ohio St.3d 420, 884 N.E.2d 568, 2008-
Ohio-1197; State v. Boswell, 121 Ohio St.3d 575, 906 N.E.2d 422, 2009-Ohio-1577.
{¶27} However, as noted in our disposition of appellant’s First Assignment of
Error, supra, the Ohio Supreme Court in State v. Fischer, Slip Opinion No. 2010-
Ohio-6238, limited its holding in Bezak and concluded that the defendant is only
entitled to a hearing for the proper imposition of post release control.
{¶28} A “critical stage” only exists in situations where there is a potential risk
of substantial prejudice to a defendant's rights and counsel is required to avoid that
result; in other words, counsel must be present “where counsel's absence might
derogate from the accused's right to a fair trial.” United States v. Wade (1967), 388
U.S. 218, 226, 87 S.Ct. 1926.
{¶29} In the case at bar, appellant was convicted after a jury trial. Appellant
was represented by counsel at his original sentencing hearing in 2001. Appellant
was subject to a mandatory period of post release control. Both the mandatory
nature and the length of appellant’s post release control are governed by statute.
See, R.C. 2967.28. Accordingly, no discretion was involved in the trial court’s
October 25, 2010 re-sentencing hearing concerning appellant’s post release control
obligation.
{¶30} The court in Fisher, supra, further held that “[a]lthough the doctrine of
res judicata does not preclude review of a void sentence, res judicata still applies to
other aspects of the merits of a conviction, including the determination of guilt and
the lawful elements of the ensuing sentence. Accordingly, appellant could not raise
new issues, or issues he had previously raised on his direct appeal. State v.
Muskingum County, Case No. CT2010-57 10
Fischer, supra; See also, State v. Ketterer, 126 Ohio St.3d 448, 935 N.E.2d 9,
2010-Ohio-3831.
{¶31} “Consequently, the sentencing hearing was…not a de novo hearing but
a ministerial act to create a new journal entry with the addition of the corrected
language noting that post-release control was mandatory.“ State v. Davis,
Washington App. No. 10CA9, 2010-Ohio-5294 at ¶32.
{¶32} In the case at bar appellant did not face a substantial risk of prejudice
because the court was limited to informing him in person concerning the imposition
of five years mandatory post-release control and adding the words “mandatory” to
the imposition of post release control as set forth in its Judgment Entry, which it was
required to do in the first place, i.e., the court did not have the authority to make any
other substantive changes to the already-imposed sentence.
{¶33} Traditional notions of fair play and substantial justice were not offended.
Appellant cannot point with any specificity to any prejudice he suffered as a result of
not having counsel to represent him during the October 25, 2010 re-sentencing
hearing.
{¶34} Appellant’s Second Assignment of Error is overruled.
III.
{¶35} In his Third Assignment of Error appellant argues that the trial court
committed plain error by not considering whether the offenses for which he was
convicted are allied offenses of similar import. We disagree.
{¶36} As noted in our disposition of appellant’s First Assignment of Error,
supra, the Ohio Supreme Court in State v. Fischer, Slip Opinion No. 2010-Ohio-
Muskingum County, Case No. CT2010-57 11
6238, limited its holding in Bezak and concluded that the defendant is only entitled
to a hearing for the proper imposition of post release control.
{¶37} The court in Fisher, supra further held that “[a]lthough the doctrine of
res judicata does not preclude review of a void sentence, res judicata still applies to
other aspects of the merits of a conviction, including the determination of guilt and
the lawful elements of the ensuing sentence. Accordingly, appellant could not raise
new issues, or issues he had previously raised on his direct appeal. State v.
Fischer, supra; See also, State v. Ketterer, 126 Ohio St.3d 448, 935 N.E.2d 9,
2010-Ohio-3831.
{¶38} Under these circumstances, we find that an appellant may not raise
additional arguments relating to his conviction following his resentencing. See, State
v. Nichols, Richland App. No. 2006CA0077, 2007-Ohio-3257 at ¶ 19. Res judicata is
a valid basis for rejecting these claims.
{¶39} Appellant’s Third Assignment of Error is overruled.
Muskingum County, Case No. CT2010-57 12
{¶40} For the foregoing reasons, the judgment of the Muskingum County
Court of Common Pleas, Muskingum County, Ohio is affirmed.
By Gwin, P.J.,
Wise, J., and
Delaney, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. JOHN W. WISE
_________________________________
HON. PATRICIA A. DELANEY
WSG:clw 0524
[Cite as State v. Griffis, 2011-Ohio-2955.]
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
CHRISTOPHER G. GRIFFIS :
:
:
Defendant-Appellant : CASE NO. CT2010-57
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Muskingum County Court of Common Pleas, Muskingum County,
Ohio is affirmed. Costs to appellant.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. JOHN W. WISE
_________________________________
HON. PATRICIA A. DELANEY