State v. Falkenstein , 2011 Ohio 5188 ( 2011 )

[Cite as State v. Falkenstein, 2011-Ohio-5188.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96659
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DONALD FALKENSTEIN
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
FOR CORRECTION
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-434255
BEFORE: Boyle, J., Blackmon, P.J., and Stewart, J.
RELEASED AND JOURNALIZED: October 6, 2011
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FOR APPELLANT
Donald Falkenstein, pro se
Inmate No. 451-824
Grafton Correctional Institution
2500 S. Avon-Belden Road
Grafton, Ohio 44044
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Thorin O. Freeman
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, J.:
{¶ 1} Defendant-appellant, Donald Falkenstein, appeals the trial court’s judgment
denying his “motion to set aside/vacate or in the alternat[ive] resentence him on an
otherwise void sentence.” We find merit to his appeal and reverse and remand.
{¶ 2} In 2003, Falkenstein was convicted of 41 counts of rape of a child under the
age of 13. The trial court sentenced him to consecutive life terms in prison, with the
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parole eligibility after 20 years. This court affirmed Falkenstein’s convictions in State v.
Falkenstein, 8th Dist. No. 83316, 2004-Ohio-2561.
{¶ 3} In October 2010, Falkenstein filed a pro se “motion to set aside/vacate or in
the alternat[ive] resentence him on an otherwise void sentence,” arguing that his sentence
was void because the trial court failed to advise him of the mandatory period of
postrelease control and of the consequences of a postrelease-control violation. In the
sentencing entry, the trial court had notified Falkenstein that postrelease control was part
of his “prison sentence for the maximum period allowed for the above felony(s) under
R.C. 2967.28.” The journal entry said nothing of a postrelease-control violation.1
{¶ 4} The state filed a response to Falkenstein’s motion, agreeing that Falkenstein
had not been properly advised of postrelease control and further agreeing that he should
be resentenced.
{¶ 5} The trial court, however, denied Falkenstein’s motion without a hearing
because “defendant [was] serving a life sentence.” Falkenstein now argues that the trial
court erred when it denied his motion. We agree.
{¶ 6} R.C. 2967.28 provides:
{¶ 7} “(B) Each sentence to a prison term for felony of the first degree, *** [or]
for a felony sex offense *** shall include a requirement that the offender be subject to a
Falkenstein did not file a transcript of the sentencing hearing with this court, nor did he
1
request one. In fact, he stated that a transcript was not necessary. Thus, this court must presume
that Falkenstein was properly informed about postrelease control and the possible sanctions for
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period of post-release control imposed by the parole board after the offender’s release
from imprisonment. *** Unless reduced by the parole board pursuant to division (D)
of this section when authorized under that division, a period of post-release control
required by this division for an offender shall be of one of the following periods:
{¶ 8} “(1) For a felony of the first degree or for a felony sex offense, five
years[.]”
{¶ 9} In State ex rel. Carnail v. McCormick, 126 Ohio St.3d 124,
2010-Ohio-2671, 931 N.E.2d 110, the Ohio Supreme Court concluded that postrelease
control must be imposed upon a defendant who receives an indefinite sentence of life in
prison with parole eligibility for a conviction of rape in violation of R.C. 2907.02. Id. at
¶14. Of paramount concern to the court was the legislative intent in enacting R.C.
2967.28. The Supreme Court found that the statute’s plain, unambiguous language
expressly requires the inclusion of a mandatory postrelease control term of five years for
each prison sentence for felonies of the first degree and felony sex offenses. Id.
{¶ 10} Carnail was convicted of rape and sentenced to an indefinite sentence of life
in prison with parole eligibility after ten years. The Supreme Court, however,
determined that “[b]ecause R.C. 2967.28(B)(1) is phrased in broad, sweeping language,”
the courts “must accord it broad, sweeping application.” Id. at ¶20. Thus, “[a]lthough
it could be implied from [R.C. 2967.28(F)] that postrelease control is unnecessary for
violating it at his sentencing hearing.
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indefinite or life sentences, there is no specific language in either this or other provisions
that modifies the express language in R.C. 2967.28(B)(1) requiring postrelease control.”
Id. “That is, R.C. 2967.28(B)(1) is not expressly limited to definite sentences; instead, it
applies broadly to ‘[e]ach sentence to a prison term for a felony of the first degree.’” Id.
{¶ 11} Because Falkenstein was sentenced on both a first-degree felony and a sex
offense, five years postrelease control is mandatory, and the trial court erred when it
denied his motion. McCormick at ¶14. The state concedes as much.
{¶ 12} Falkenstein now argues that he is entitled to a resentencing hearing pursuant
to R.C. 2929.191(C), which expressly requires a trial court to conduct a hearing in
accordance with this provision before correcting a judgment of conviction with improper
postrelease control. He argues that in State v. Fischer, 128 Ohio St.3d 92,
2010-Ohio-6238, 942 N.E.2d 332, the Ohio Supreme Court does not “indicate that any of
the provisions in R.C. 2929.191 are unenforceable or inapplicable.”
{¶ 13} The procedures in R.C. 2929.191, however, only apply to sentences that
were imposed on or after July 11, 2006. State v. Singleton, 124 Ohio St.3d 173,
2009-Ohio-6434, 920 N.E.2d 958, paragraph two of the syllabus. The Ohio Supreme
Court expressly stated in Singleton that for criminal sentences, which failed to properly
include postrelease control and were imposed before July 11, 2006, as Falkenstein’s
sentence was, trial courts shall conduct a de novo sentencing hearing in accordance with
Supreme Court precedents. Id. at paragraph one of the syllabus; see State v. Bezak, 114
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Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961 (an offender is entitled to a de novo
sentencing hearing for the trial court to correct a sentence that omitted notice of
postrelease control).
{¶ 14} In Fischer, 128 Ohio St.3d 92, however, the Ohio Supreme Court modified
Bezak, and held that “the new sentencing hearing to which an offender is entitled *** is
limited to proper imposition of postrelease control,” not a de novo sentencing hearing.
Fischer at paragraph two of the syllabus. The Supreme Court further made clear that
remand for resentencing “is just one arrow in the quiver.” Id. at ¶29. It explained that
“R.C. 2953.08(G)(2) also provides that an appellate court may ‘increase, reduce or
otherwise modify a sentence *** or may vacate the sentence and remand the matter to the
sentencing court for resentencing.’ (Emphasis added.) Correcting a defect in a
sentence without a remand is an option that has been used in Ohio and elsewhere for
years in cases in which the original sentencing court, as here, had no sentencing
discretion. See, e.g., State v. Winters (July 22, 1982), 8th Dist. No. 42799; State v.
Coughlin, 11th Dist. No. 2006-A-0026, 2007-Ohio-897; State v. Gimbrone, 2d Dist. No.
23062, 2009-Ohio-6264; People v. Kelly (1965), 66 Ill.App.2d 204, 211, 214 N.E.2d 290;
State v. Sheppard (A.D.1973), 125 N.J.Super. 332, 336, 310 A.2d 731; Harness v. State
(2003), 352 Ark. 335, 339, 101 S.W.3d 235.” Fischer at ¶29. Indeed, “[c]orrecting the
defect without remanding for resentencing can provide an equitable, economical, and
efficient remedy for a void sentence.” Id. at ¶30.
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{¶ 15} Accordingly, under R.C. 2953.08(G)(2), we modify and correct
Falkenstein’s postrelease control from “the maximum period allowed *** under R.C.
2967.28” to “a mandatory term of five years postrelease control.”
{¶ 16} Judgment reversed, sentence is modified, and case remanded. Upon
remand, the trial court is instructed to correct the sentencing entry to reflect the proper
period of mandatory postrelease control, i.e., five years, and further, to include the
consequences for violating the provisions of postrelease control.
It is ordered that appellant recover of appellee 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY J. BOYLE, JUDGE
PATRICIA ANN BLACKMON, P.J., and
MELODY J. STEWART, J., CONCUR