State v. Miller , 2011 Ohio 1459 ( 2011 )

[Cite as State v. Miller, 2011-Ohio-1459.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
PUTNAM COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 12-10-13
v.
TODD MILLER, OPINION
DEFENDANT-APPELLANT.
Appeal from Putnam County Common Pleas Court
Trial Court No. 03 CR 35
Judgment Affirmed
Date of Decision: March 28, 2011
APPEARANCES:
Todd Miller, Appellant
Todd C. Schroeder for Appellee
Case No. 12-10-13
SHAW, J.
{¶1} Defendant-appellant, Todd Miller (“Miller”), appeals the September 8,
2010 judgment of the Common Pleas Court of Putnam County, Ohio, notifying
Miller that upon his release from prison he would be subject to a mandatory term
of post-release control of five years.
{¶2} The facts relevant to this appeal are as follows. On July 31, 2003,
Miller pled guilty to two counts of unlawful sexual conduct with a minor in
violation of R.C. 2907.04(B)(3), both felonies of the third degree. In his signed
plea agreement, Miller was advised that he would receive five years of post-
release control (“PRC”) for committing a felony sex offense and of the potential
consequences of a violation of PRC. On September 5, 2003, Miller was sentenced
to four years on each count to be served consecutively for an aggregate sentence of
eight years. In its sentencing entry, the trial court notified Miller that he would be
placed on PRC for “up to 5 years.”1 Miller did not appeal his conviction.2
{¶3} On September 8, 2010, the trial court held a hearing for the purpose of
notifying Miller of the proper term of PRC that would be imposed upon him.
According to the court’s judgment entry regarding this hearing, it provided the
1
This Court is unaware of what PRC advisement was provided to Miller at either his plea hearing or his
sentencing hearing as no transcript of either hearing was provided to this Court.
2
Miller filed a motion for a delayed appeal with this Court, but we denied this motion. State v. Miller
(February 17, 2005), 3rd Dist. No. 12-05-02.
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parties an opportunity to make a statement regarding the issue and then determined
that Miller was subject to five years of mandatory PRC.3
{¶4} This appeal followed, and Miller now asserts two assignments of
error.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED WHEN IT FAILED TO
CONDUCT A RE-SENTENCING HEARING DE NOVO AS
REQUIRED BY LAW, THEREBY, DENYING DEFENDANT
HIS RIGHT TO DUE PROCESS AND EQUAL PROTECTION
OF THE LAW AS AFFORDED BY THE U.S.
CONSTITUTION’S FOURTEENTH AMENDMENT.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED BY FAILING TO AFFORD
APPELLANT HIS APPELLATE RIGHTS AS AFFORDED BY
THE U.S., AND OHIO CONSTITUTIONS, THEREBY,
VIOLATING APPELLANT’S RIGHT TO DUE PROCESS
AND EQUAL PROTECTION OF THE LAW.
First Assignment of Error
{¶5} In his first assignment of error, Miller asserts that his sentence in 2003
was void and that he was entitled to a de novo sentencing hearing pursuant to State
v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, and State v.
Bezak, 112 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961. Miller correctly
contends that in Bezak, the Ohio Supreme Court held that a trial court’s failure to
3
We have only the September 8, 2010 judgment entry to rely upon as to what transpired as no transcript of
that hearing has been provided to this Court.
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Case No. 12-10-13
properly notify an offender of PRC for an offense results in a void sentence for
that offense, which requires a trial court to conduct an entirely de novo
resentencing hearing for that offense. Bezak, 2007-Ohio-3250, at ¶ 16. Miller
also correctly maintains that in Singleton, the Court determined that Bezak’s
requirement of a de novo resentencing hearing applied to sentences imposed prior
to the effective date of R.C. 2929.191 in July of 2006, but that the procedures
outlined in R.C. 2929.191 applied to sentences imposed after the statute’s effective
date. Singleton, 2009-Ohio-6434, at ¶ 35. Thus, Miller concludes that because he
was originally sentenced in 2003, he was entitled to a de novo resentencing.
{¶6} However, on December 23, 2010, the Ohio Supreme Court issued its
decision in State v. Fischer, 2010-Ohio-6238. In Fischer, the Court held “that the
new sentencing hearing to which an offender is entitled under Bezak is limited to
proper imposition of postrelease control.” Id. at ¶ 29. In so doing, the Court
specifically noted that in its holding in Bezak it overlooked an important principle:
“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.” Id.
at ¶ 28. The Court further noted that in modifying Bezak, its decision in Fischer
was “more into line with legislative provisions concerning appellate review of
criminal sentences[,]” which allows an appellate court to, inter alia, increase,
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reduce, or otherwise modify a sentence without remanding it for a trial court to
conduct a resentencing. Fischer, 2010-Ohio-6238, at ¶¶ 28-29.
{¶7} In light of Fischer, we conclude that Miller was not entitled to a de
novo resentencing. To the contrary, the trial court was only obligated to correct its
erroneous advisement of PRC and to resentence him accordingly. As noted, the
trial court held a hearing regarding the proper notification of PRC, allowed the
parties to be heard as to the correct PRC notification, and then provided Miller
with the accurate notice of five years of mandatory PRC because he was convicted
of felony sex offenses, see R.C. 2967.28(B)(1). Thus, we do not find that the trial
court erred in its resentencing of Miller to properly impose five years of
mandatory PRC, and the first assignment of error is overruled.
Second Assignment of Error
{¶8} Miller contends in his second assignment of error that the trial court
erred in failing to inform him of his appellate rights pursuant to Crim.R. 32(B),
specifically his right to have counsel appointed to him if he could not afford to
obtain counsel. We agree with Miller that a trial court is required to inform a
defendant convicted of a serious offense, such as a felony sex offense, of his right
to appeal or to seek leave to appeal the sentence imposed, including the right to
court-appointed counsel if the defendant is unable to obtain appellate counsel. See
Crim.R. 32(B)(2).
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{¶9} Nevertheless, as previously noted, the record before this Court does
not include a transcript of the September 8, 2010 hearing. The burden is on an
appellant, who is claiming error in the proceedings below, to provide the appellate
court with a transcript of the proceedings. App.R. 9(B). Absent a complete and
adequate record, “[a]n appellate court reviewing a lower court’s judgment
indulges in a presumption of regularity of the proceedings below.” Hartt v.
Munobe, 67 Ohio St.3d 3, 7, 1993-Ohio-177, 615 N.E.2d 617; State v. Pringle, 3rd
Dist. No. 2-03-12, 2003-Ohio-4235, ¶ 10. Therefore, we must presume that the
trial court properly informed Miller of his right to appeal the portion of his
sentencing related to the PRC notification. See Fischer, 2010-Ohio-6238, at ¶ 30.4
{¶10} However, we also note that in its brief to this Court, the State does
not dispute Miller’s contention that the trial court failed to advise him of his
appellate rights. Even assuming arguendo that the trial court did not advise Miller
of his right to appeal the very narrow issue of the proper PRC notification, Miller
has failed to demonstrate any prejudice. Clearly, Miller was aware of his right to
appeal, as he timely filed a notice of appeal with this Court. In addition, this
assignment of error reflects that, obviously, Miller became aware of a right to have
4
In Fischer, the Court found that the “principles of res judicata, including the doctrine of the law of the
case, do not preclude appellate review. The sentence may be reviewed at any time, on direct appeal or by
collateral attack.” Fischer, 2010-Ohio-6238, ¶ ¶ 30, 40. However, “[t]he scope of an appeal from a
resentencing hearing in which a mandatory term of postrelease control is imposed is limited to issues
arising at the resentencing hearing.” Id. at ¶ 40.
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counsel appointed to him if he could not obtain counsel on his own, yet the record
is devoid of any request by Miller for court-appointed counsel. Criminal Rule
32(B)(2) simply requires that Miller be informed of this right. However, it is
incumbent upon a defendant to assert this right by requesting that counsel be
appointed. Thus, any harm suffered by Miller is due to his failure to request that
counsel be appointed. Further, given the limited scope of review permitted by
Fischer to only issues arising at the resentencing for the proper imposition of PRC,
the undisputed fact that Miller was convicted of felony sex offenses, the
requirement of R.C. 2967.28(B)(1) that an offender convicted of a felony sex
offense have a mandatory period of PRC of five years imposed upon him, and the
trial court’s notification to Miller that he would have a mandatory five-year period
of PRC imposed upon him after being released from prison, there is simply no
issue to appeal, regardless of whether Miller had counsel or not. Accordingly, the
second assignment of error is overruled.
{¶11} For all of these reasons, the judgment of the Common Pleas Court of
Putnam County, Ohio, is affirmed.
Judgment Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.
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