State v. Cottrill ( 2011 )

[Cite as State v. Cottrill, 2011-Ohio-4599.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Sheila G. Farmer, P.J.
Plaintiff - Appellee : Hon. John W. Wise, J.
: Hon. Julie A. Edwards, J.
-vs- :
:
JAMES L. COTTRILL : Case No. 10-CA-128
:
Defendant - Appellant : O P I N IO N
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas,
Case No. 03CR521
JUDGMENT: Affirmed
DATE OF JUDGMENT: September 12, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
TRACY F. VAN WINKLE ERIC W. BREHM
20 South Second Street 604 East Rich Street
4th Floor Suite 2100
Newark, OH 43055 Columbus, OH 43215
Licking County, Case No. 10-CA-128 2
Farmer, P.J.
{¶1} On April 20, 2004, appellant, James Cottrill, pled guilty to one count of
aggravated robbery in violation of R.C. 2911.01 and one count of kidnapping in violation
of R.C. 2905.01. Both counts carried firearm specifications. By judgment entry filed
same date, the trial court sentenced appellant to an aggregate term of eight years in
prison. The sentence was ordered to be served consecutively to a sentence appellant
received in Pickaway County, Ohio.
{¶2} On August 27, 2010, appellant filed a motion for de novo sentencing as
his original sentence did not include a term of postrelease control. A hearing was held
on October 18, 2010. Appellant requested a continuance in order to call witnesses.
The trial court denied the request. By nunc pro tunc judgment entry filed October 19,
2010, the trial court resentenced appellant to the eight year aggregate term and
imposed five years of postrelease control.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶4} "THE TRIAL COURT DID ERR BY IMPOSING MULTIPLE PRISON
SENTENCES, WHEN THE OFFENSES WERE ALLIED OFFENSES OF SIMILAR
IMPORT.
II
{¶5} "THE TRIAL COURT DID ERR BY REFUSING TO GRANT THE
DEFENDANT'S REQUEST FOR A CONTINUANCE."
Licking County, Case No. 10-CA-128 3
III
{¶6} "THE TRIAL COURT DID ERR BY IMPOSING CONSECUTIVE
SENTENCES."
IV
{¶7} "THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL."
I, II, III, IV
{¶8} Appellant claims the trial court erred in imposing multiple prison terms,
denying his request for a continuance, and imposing consecutive sentences. Appellant
also claims ineffective assistance of counsel for counsel's failure to object to the multiple
prison terms. We disagree.
{¶9} In State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, the Supreme
Court of Ohio held the following at paragraph one of the syllabus:
{¶10} "For criminal sentences imposed prior to July 11, 2006, in which a trial
court failed to properly impose postrelease control, trial courts shall conduct a de novo
sentencing hearing in accordance with decisions of the Supreme Court of Ohio."
{¶11} In this case, appellant was sentenced prior to July 11, 2006 and was not
properly informed of postrelease control; therefore, pursuant to Singleton, he was
entitled to a de novo hearing. However, in State v. Fischer, 128 Ohio St.3d 92, 2010-
Ohio-6238, syllabus, the Supreme Court of Ohio limited the nature of the de novo
hearing:
Licking County, Case No. 10-CA-128 4
{¶12} "1. A sentence that does not include the statutorily mandated term of
postrelease control is void, is not precluded from appellate review by principles of res
judicata, and may be reviewed at any time, on direct appeal or by collateral attack.
{¶13} "2. The new sentencing hearing to which an offender is entitled under
State v. Bezak is limited to proper imposition of postrelease control. (State v. Bezak,
114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, syllabus, modified.)
{¶14} "3. Although 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.
{¶15} "4. The 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."
{¶16} As stated by the Fischer court in paragraph two of the syllabus, the new
sentencing hearing "is limited to proper imposition of postrelease control." Upon review,
we find the trial court sub judice properly notified appellant of the mandatory five year
postrelease control requirement under R.C. 2967.28(B). T. at 10; Nunc Pro Tunc
Judgment Entry filed October 19, 2010.
{¶17} Pursuant to Fischer, the issues of multiple prison terms/allied offenses of
similar import and consecutive sentences were not reviewable during this hearing. See,
State v. Griffis, Muskingum App. No. CT2010-57, 2011-Ohio-2955; State v. Pugh, Stark
App. No. 2010CA00173, 2011-Ohio-812. The ineffective assistance of counsel claim
related to the allied offenses argument is moot.
Licking County, Case No. 10-CA-128 5
{¶18} As for the continuance request, appellant sought to present witnesses on
his behalf. Pursuant to Fischer, the hearing was not about gathering additional
testimony and/or evidence, but the proper imposition of postrelease control. The trial
court did not abuse its discretion in denying appellant's request for a continuance of the
hearing. State v. Unger (1981), 423 Ohio St.2d 65.
{¶19} Assignments of Error I, II, III, and IV are denied.
{¶20} The judgment of the Court of Common Pleas of Licking County, Ohio is
hereby affirmed.
By Farmer, P.J.
Wise, J. and
Edwards, J. concur.
_s/ Sheila G. Farmer_________________
_s/ John W. Wise__________________
_s/ Julie A. Edwards__________________
JUDGES
SGF/sg 822
[Cite as State v. Cottrill, 2011-Ohio-4599.]
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellant :
:
-vs- : JUDGMENT ENTRY
:
JAMES L. COTTRILL :
:
Defendant-Appellant : CASE NO. 10-CA-128
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Licking County, Ohio is affirmed. Costs to
appellant.
_s/ Sheila G. Farmer_________________
_s/ John W. Wise__________________
_s/ Julie A. Edwards__________________
JUDGES