State v. Jones , 2011 Ohio 2929 ( 2011 )

[Cite as State v. Jones, 2011-Ohio-2929.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95882
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MELVIN JONES
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-396309
BEFORE: S. Gallagher, J., Kilbane, A.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: June 16, 2011
ATTORNEY FOR APPELLANT
Dale M. Hartman
2195 South Green Road
University Heights, OH 44121
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Thorin O. Freeman
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:
{¶ 1} Appellant Melvin Jones appeals from a resentencing that
occurred in the Cuyahoga County Court of Common Pleas. For the reasons
stated herein, we affirm.
{¶ 2} On September 12, 2000, Jones was indicted on one count of
aggravated murder, in violation of R.C. 2903.01, with a firearm specification,
and one count of having a weapon while under disability, in violation of R.C.
2923.13, with a firearm specification. Pursuant to a plea agreement, Jones
pled guilty to involuntary manslaughter with a three-year firearm
specification, and he received an agreed-to prison term of 13 years, which
included ten years of incarceration for involuntary manslaughter with a
mandatory, consecutive three-year term of incarceration for the firearm
specification. This court affirmed the conviction in State v. Jones, Cuyahoga
App. No. 79811, 2002-Ohio-1271.
{¶ 3} In September 2010, because postrelease control was not properly
imposed, this court vacated Jones’s sentence and remanded the case for a de
novo sentencing hearing in accordance with State v. Singleton, 129 Ohio St.3d
73, 2009-Ohio-6434, 90 N.E.2d 958. State v. Jones, Cuyahoga App. No.
94216, 2010-Ohio-4136. In Singleton, the Ohio Supreme Court held as
follows: “For 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 Ohio
Supreme Court.” Singleton, 129 Ohio St.3d 73, at paragraph one of the
syllabus.
{¶ 4} Upon remand, the trial court held a hearing on September 28,
2010. The court incorporated “all that had gone before in this case,” and
reimposed the original 13-year sentence, with the inclusion of a mandatory
five years of postrelease control. The trial court overruled Jones’s objection
to an undue delay in sentencing. Defense counsel requested that court costs
be waived on account of defendant being indigent and in prison. The court
found that costs were imposed originally and that the only change being made
to the sentence was the advisement of postrelease control.
{¶ 5} Jones filed this appeal, raising three assignments of error for our
review. His first assignment of error provides as follows: “I. The
proceedings below were defective in that the court failed to follow the
mandate of the court of appeals upon remand by failing to provide a de novo
sentencing hearing.”
{¶ 6} At the time this court vacated Jones’s sentence, Ohio law dictated
that the failure to properly impose postrelease control resulted in a void
sentence, with the effect that it was a nullity and as if no sentence had been
imposed. State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d
961, ¶ 12. Therefore, we remanded the case for a de novo sentencing hearing
in accordance with Singleton, 129 Ohio St.3d 73. Jones, 2002-Ohio-1271.
{¶ 7} The Bezak decision was recently revisited by the Ohio Supreme
Court in State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332.
In Fischer, the court held that when a judge fails to impose statutorily
mandated postrelease control as part of a defendant’s sentence, it is only that
part of the sentence that is void and subject to review and correction. Id. at
¶ 26-27. The court did not address whether its decision was retroactive or
what effect Fischer has on sentences that were vacated pursuant to the
court’s earlier decisions. While the Ohio Supreme Court has taken steps to
clarify the law in areas such as postrelease control, the Adam Walsh Act and
Megan’s Law, and allied offenses, its holdings continue to leave gaps in the
analysis that create uncertainty for the lower courts.
{¶ 8} We recognize that Jones’s original sentence was vacated.
However, pursuant to Fischer, “the new sentencing hearing to which an
offender is entitled under Bezak is limited to proper imposition of postrelease
control.” Id. at ¶ 29; see, also, State v. Hayden, Cuyahoga App. No. 94955,
2011-Ohio-616. Thus, we find no error with regard to the trial court’s
reimposition of the original sentence with the proper addition of postrelease
control. Jones’s first assignment of error is overruled.
{¶ 9} Jones’s second assignment of error provides as follows: “II.
Defendant received ineffective assistance of counsel.”
{¶ 10} Jones fails to argue any errors with regard to the trial court’s
imposition of postrelease control at resentencing. Further, as we have found
no error with regard to the trial court’s reimposition of Jones’s original
sentence with the proper addition of postrelease control, we cannot say that
Jones received ineffective representation. Jones’s second assignment of error
is overruled.
{¶ 11} The third assignment of error provides as follows: “III. The
trial court lacked jurisdiction to impose sentence.”
{¶ 12} Jones argues that the trial court was divested of jurisdiction to
impose a sentence because there was an unreasonable delay in imposing a
proper sentence. Crim.R. 32(A) states that “[s]entence shall be imposed
without unnecessary delay.” Jones was convicted in September 2000; his
original sentence was imposed in February 2001; his sentence was rendered
void because of postrelease control in September 2010, and he was
resentenced with the proper imposition of postrelease control that same
month.
{¶ 13} Jones cites to this court’s decision in State v. Mack, Cuyahoga
App. No. 92606, 2009-Ohio-6460, appeal not allowed by 124 Ohio St.3d 1540,
2010-Ohio-1557, 924 N.E.2d 844. Mack is distinguishable because the delay
in Mack involved a lengthy delay between the defendant’s conviction and his
sentencing for the imposition of community control, which also occurred well
after his release from prison.
{¶ 14} This case involves a resentencing for the proper imposition of
postrelease control. There was not a long delay between the conviction and
sentence or the vacation of sentence and resentencing. This court has
previously rejected similar arguments premised upon a resentencing for the
imposition of postrelease control. See State v. Cardamone, Cuyahoga App.
No. 94405, 2011-Ohio-818; State v. Harris, Cuyahoga App. No. 95010,
2011-Ohio-482; State v. Jaffal, Cuyahoga App. No. 93142, 2011-Ohio-419.
Accordingly, we find no unnecessary delay and overrule the third assignment
of error.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. Case remanded to
the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
MARY EILEEN KILBANE, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR