State v. Freeman , 2013 Ohio 3004 ( 2013 )

[Cite as State v. Freeman, 2013-Ohio-3004.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99351
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MAURICE FREEMAN
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART; REVERSED IN PART
AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-410924
BEFORE: Jones, P.J., S. Gallagher, J., and McCormack, J.
RELEASED AND JOURNALIZED: July 11, 2013
FOR APPELLANT
Maurice Freeman, Pro se
Inmate #431-957
Trumbull Correctional Institution
P.O. Box 901
Leavittsburg, Ohio 44430
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: T. Allan Regas
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., P.J.:
{¶1} Defendant-appellant Maurice Freeman, appeals his sentence. We affirm in
part and reverse in part and remand the case for a hearing limited to the imposition of
postrelease control.
I. Procedural History
{¶2} In 2001, a jury convicted Freeman of aggravated murder with one- and
three-year gun specifications. The trial court convicted Freeman of a single bifurcated
count of having weapons while under disability. The trial court sentenced Freeman to 3
years on the gun specifications to run consecutive to 20 years to life on the aggravated
murder conviction. The court also sentenced him to one year on the having weapons
while under disability conviction to run concurrent to the aggravated murder sentence.
This court affirmed his conviction in State v. Freeman, 8th Dist. No. 80720,
2002-Ohio-4572, and denied a subsequent application for reopening of his appeal in State
v. Freeman, 8th Dist. No. 80720, 2009-Ohio-3065.
{¶3} In April 2012, the trial court filed a nunc pro tunc journal entry imposing
postrelease control as part of Freeman’s original sentence. Freeman filed a motion to
vacate his void judgment, which the state opposed and the trial court denied. Freeman
filed a timely appeal and raises three assignments of error for our review, which will be
combined for our review:
[I]. Whether [the] trial court abused [its] discretion, and implicated due
process when it denied “without hearing” defendant’s properly pled and
substantively supported motion for “vacation of void judgment” and
“sentencing,” where the record on [its] face presented a prima facie case for
the suggested relief. [Citations omitted.]
[II]. Whether [the] trial court abused [its] discretion, and offended due
process when it denied, without hearing, and failed to vacate a void
judgment, when the record presents a prima facie case for relief as the trial
court has failed to return a plea, verdict and findings, and sentence for all
charges prosecuted against the defendant, rendering judgment deficient,
interlocutory, [and] incomplete. [Citations omitted.]
[III.] The trial court abused [its] discretion and violate[d] due process when
it failed to enter judgment entry of conviction in compliance with Crim.R.
32(C). [Citations omitted.]
II. Law and Analysis
{¶4} Within his assignments of error, Freeman argues that his convictions should
be vacated because postrelease control was never properly imposed at the sentencing
hearing or in the journal entry, the trial court filed multiple journal entries, and his
indictment was defective.
{¶5} With respect to his argument that Freeman was charged under a defective
indictment, we note that Freeman’s convictions were already affirmed by this court.
Freeman, 8th Dist. No. 80720, 2002-Ohio-4572. Thus, this claim is barred by res
judicata; moreover, a review of this claim evidences that it has no merit.
{¶6} Freeman next argues that the trial court failed to properly impose postrelease
control and incorrectly issued subsequent journal entries attempting to cure this defect.
{¶7} In 2006, the Ohio General Assembly enacted R.C. 2929.191, providing courts
with a procedure to correct postrelease control errors. The statute applies to sentenced
offenders who are still in prison and were either not notified at their sentencing hearings
of the applicable term of postrelease control or did not have such notice incorporated into
their sentencing entries. R.C. 2929.191(A) and (B). For such offenders, R.C.
2929.191 provides that trial courts may, after holding a hearing, issue a nunc pro tunc
entry that includes notification of the applicable term of postrelease control.
{¶8} In 2009, the Ohio Supreme Court held that R.C. 2929.191 only applies
retrospectively to those offenders sentenced after its July 2006 enactment. State v.
Singleton, 124 Ohio St. 3d 173, 2009-Ohio-6434, 920 N.E.2d 958, syllabus.
{¶9} Because Freeman was sentenced in 2002, R.C. 2929.191 does not apply to
him. The next year, however, in State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238,
942 N.E.2d 332, the court considered sentences lacking postrelease control notification
that were imposed prior to the effective date of R.C. 2929.191. In so doing, the court
determined that such sentences were only partially void, and could be corrected to
properly impose postrelease control with a limited sentencing hearing. Id. at ¶ 28-29.
{¶10} Therefore, regardless of whether R.C. 2929.191 or Fischer applies, a
sentence lacking postrelease control notification does not entitle a criminal defendant to a
de novo sentencing hearing; rather, the defendant is entitled to be resentenced only on the
postrelease control portion of his or her sentence.
{¶11} Applying this concept to the case at bar, the parties agree that the original
sentencing court failed to advise Freeman about his postrelease control obligations during
his sentencing hearing. Consequently, Freeman’s sentence is partially void, and subject
to correction pursuant to Fischer. Contrary to Freeman’s assertions, however, his new
sentencing hearing is limited to the proper imposition of postrelease control; he is not
entitled to have his convictions vacated. Fischer at ¶ 29. “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.” Id. at ¶ 40.
{¶12} Although the state urges us to affirm the trial court’s denial of Freeman’s
motion in toto, our review of the record shows that the state filed a brief in opposition to
Freeman’s motion to vacate and asked the trial court to correct the postrelease control
notification pursuant to Fischer, but the court failed to do so. The trial court did issue a
journal entry in April 2012, informing Freeman of his postrelease control obligations, but
never held a sentencing hearing. Moreover, in the April 2012 journal entry, the trial
court imposed five years of postrelease control on the aggravated murder conviction.
When an offender convicted of an unclassified felony is released from prison “he or she is
subject to parole[,]” not postrelease control. State v. Evans, 8th Dist. No. 95692,
2011-Ohio-2153, ¶ 7. Thus, Freeman is subject to postrelease control only for the having
weapons while under disability conviction.
{¶13} We sustain the assignments of error to the extent that Freeman was not
properly notified of postrelease control for his having weapons while under disability
conviction and remand the case for a hearing that is limited to the imposition of
postrelease control for that conviction. We further instruct the trial court to correct its
journal entry.
{¶14} Affirmed in part, reversed in part and remanded to the trial court for a
Fischer sentencing hearing to impose postrelease control and correction of the journal
entry.
It is ordered that appellant and appellee share the 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.
LARRY A. JONES, SR., PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
TIM McCORMACK, J., CONCUR