State v. Black ( 2011 )

[Cite as State v. Black, 2011-Ohio-3127.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HARDIN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 6-10-15
v.
SHAWN MARK STEVEN BLACK, OPINION
DEFENDANT-APPELLANT.
Appeal from Hardin County Common Pleas Court
Trial Court No. 20052025 CRI
Judgment Affirmed
Date of Decision: June 27, 2011
APPEARANCES:
Nicole M. Winget for Appellant
Bradford W. Bailey for Appellee
Case No. 6-10-15
WILLAMOWSKI, J.
{¶1} Defendant-Appellant, Shawn Mark Steven Black (“Black” or
“Defendant”), appeals the judgment of the Hardin County Court of Common Pleas
after he was granted a new sentencing hearing to correct an error in the imposition
of postrelease control (“PRC”) for his 2006 convictions for rape and gross sexual
imposition. In this appeal, Black contends that the trial court erred when it failed
to provide the reasoning behind its decision to impose consecutive sentences. For
the reasons set forth below, the judgment is affirmed.
{¶2} In May of 2006, a jury found Black guilty of one count of rape of a
child under age 10, in violation of R.C. 2907.02(A)(1)(b), a felony of the first
degree, and six counts of gross sexual imposition in violation of R.C.
2907.05(A)(4), felonies of the third degree. On August 1, 2006, the trial court
classified Black as a sexual predator and sentenced him to a mandatory life prison
term for his rape conviction and to a two-year prison term for each of his gross-
sexual-imposition convictions, all to be served consecutively for a total sentence
of life plus twelve years. On June 25, 2007, this Court affirmed Black’s
conviction on appeal. See State v. Black, 172 Ohio App.3d 716, 2007-Ohio-3133,
876 N.E.2d 1255.
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{¶3} In August of 2010, the State requested a resentencing hearing “solely
to impose the five year mandatory postrelease control.”1 A resentencing hearing
was held for the “limited purpose” to “re-sentence Mr. Black, to state on the
record that he basically is going to receive five years of post release control ***.”
(Oct. 25, 2010 Sentencing Tr., p. 2.) On November 1, 2010, the trial court filed
the corrected Entry of Sentence, imposing the same sentence as in his original
sentence for each of the seven counts, but also adding the notification that PRC is
mandatory for five years.
{¶4} Black now appeals from this new sentencing entry, raising the
following assignment of error for our review.
Assignment of Error
The trial court erred as a matter of law, and in prejudice of
[Black], when it failed to give reasons in support of its findings
when it imposed consecutive sentences.
{¶5} Black argues that the trial court erred by failing to make findings,
pursuant to R.C. 2929.14(E)(4), prior to imposing consecutive sentences. We find
that his argument is without merit for several reasons.
1
The original August 1, 2006 Entry of Sentencing notified Defendant about his parole eligibility after ten
years on count one, pursuant to R.C. 2967.13. The judgment then stated that if Defendant was ever paroled
and then found to have violated any term of his parole, the Adult Parole Authority could impose a more
restrictive sanction and he could face being returned to prison until his death. The judgment entry further
stated that, “Defendant is Ordered to serve as part of this sentence any term of post release control imposed
by the Parole Board, and any prison term for violation of that parole.” However, the trial court did not
specify a definitive mandatory term of five years of postrelease control. See State ex rel. Carnail v.
McCormick, 126 Ohio St.3d 124, 2010-Ohio-2671, 931 N.E.2d 110; R.C. 2967.28(B).
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{¶6} As a preliminary matter, Black’s resentencing was only for the narrow
purpose of imposing the correct PRC. Black’s limited sentencing hearing to
correct the portion of his sentence pertaining to PRC “cannot be used as a vehicle
to reopen all other aspects of his case.” See State v. Griffin, 3d Dist. No. 1-10-27,
2011-Ohio-1462, ¶9.
{¶7} R.C. 2929.191, enacted as part of H.B. 137, establishes a procedure to
remedy sentences that fail to properly impose a term of PRC for defendants, like
Black, who were sentenced on or after its July 11, 2006 effective date. See State
v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, paragraph
two of the syllabus.
The hearing contemplated by R.C. 2929.191(C) and the
correction contemplated by R.C. 2929.191(A) and (B) pertain
only to the flawed imposition of postrelease control. R.C. 2929.191
does not address the remainder of an offender's sentence. Thus,
the General Assembly appears to have intended to leave
undisturbed the sanctions imposed upon the offender which are
unaffected by the court's failure to properly impose postrelease
control at the original sentencing.
(Emphasis added.) Singleton at ¶24.
{¶8} The Ohio Supreme Court recently affirmed that it is only the PRC
aspect of a sentence that must be rectified, and the remainder of the sentence
remains valid under the principles of res judicata. State v. Fischer, 128 Ohio St.3d
92, 2010-Ohio-6238, 942 N.E.2d 332, ¶17. Although the issue in Fischer
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pertained to the imposition of PRC in a case where the defendant was sentenced
before the effective date of R.C. 2929.191, its reasoning is equally applicable to
the facts in any case where a court has not properly imposed PRC. See id. at ¶31
(stating that “[o]ur decision today is limited to a discrete vein of cases; those in
which a court does not properly impose a statutorily mandated period of
postrelease control.”) “[R]es 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.” Id., at paragraph three of the syllabus.
{¶9} And, even if other portions of Black’s sentence would have been
subject to review, Black’s argument has no basis in the current law. In State v.
Foster, the Ohio Supreme Court declared unconstitutional those portions of the
felony sentencing statutes that required judicial fact-finding before the trial court
could impose a prison sentence, specifically including R.C. 2929.14(E)(4). 109
Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶97. The Ohio Supreme Court
held that, “[t]rial courts have full discretion to impose a prison sentence within the
statutory range and are no longer required to make findings or give their reasons
for imposing maximum, consecutive, or more than the minimum sentences.”
(Emphasis added.) Id. at paragraph seven of the syllabus. This reasoning was
recently reaffirmed in State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941
N.E.2d 768, at paragraphs two and three of the syllabus.
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{¶10} Based on the above, Black’s assignment of error is overruled.
Having found no error prejudicial to the Appellant herein in the particulars
assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ROGERS, P.J. and SHAW, J., concur.
/jlr
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