State v. Alhajjeh ( 2011 )

[Cite as State v. Alhajjeh, 2011-Ohio-2160.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 93077
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MARWAN ALHAJJEH
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION FOR REOPENING
GRANTED (MOTION NO. 438002)
VACATED IN PART AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-512675
BEFORE: Celebrezze, J., Stewart, P.J., and Rocco, J.
RELEASED AND JOURNALIZED: May 4, 2011
FOR APPELLANT
Marwan Alhajjeh
Inmate No. 563-427
Richland Correctional Institution
1001 Olivesburg Road
P.O. Box 8107
Mansfield, Ohio 44901
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: T. Allan Regas
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:
{¶ 1} On September 30, 2010, the applicant, Marwan Alhajjeh,
pursuant to App.R. 26(B) and State v. Murnahan (1992), 63 Ohio St.3d 60,
584 N.E.2d 1204, applied to reopen this court’s judgment in State of Ohio v.
Marwan Alhajjeh, Cuyahoga App. No. 93077, 2010-Ohio-3179, in which this
court affirmed Alhajjeh’s convictions and sentences for murder, felonious
assault, and tampering with evidence. Alhajjeh argues that his appellate
counsel was ineffective for failing to assign as error that postrelease control
sanctions were improperly imposed. On October 29, 2010, the State of Ohio
filed its brief in opposition. For the following reasons, this court grants the
application to reopen, reinstates Alhajjeh’s appeal, vacates his sentence as to
postrelease control, and remands this case for resentencing on postrelease
control consistent with this opinion.
{¶ 2} In order to establish a claim of ineffective assistance of appellate
counsel, the applicant must demonstrate that counsel’s performance was
deficient and that the deficient performance prejudiced the defense. That is,
but for the unreasonable error, there is a reasonable probability that the
results of the proceeding would have been different. Strickland v.
Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 ; State v.
Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, cert. denied (1990), 497
U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d 768; and State v. Reed (1996), 74 Ohio
St.3d 534, 660 N.E.2d 456.
{¶ 3} In the present case, Alhajjeh pleaded no contest and was found
guilty of murder; felonious assault, a second-degree felony; and tampering
with evidence, a third-degree felony. On March 23, 2009, the trial court
sentenced Alhajjeh to 15 years to life on the murder charge; eight years on
the felonious assault charge, which the trial court merged into the murder
charge for sentencing; and five years on the tampering with evidence charge
consecutive to the other two counts. The trial court then ordered: “
Postrelease control is part of this prison sentence for 5 years for the above
felony(s) under R.C. 2967.28. (No reduction) on Counts 2 and 3 only.”1 The
trial court did not include in the sentence that if Alhajjeh violated any
sanction imposed as part of postrelease control, then the parole board could
impose a prison term of up to one-half of the stated prison term originally
imposed upon him.
{¶ 4} R.C. 2967.28(B) and (C) provide in pertinent part: “a period of
post-release control required by this division for an offender shall be one of
the following periods: (1) For a felony of the first degree or for a felony sex
offense, five years; (2) For a felony of the second degree that is not a felony
sex offense, three years; (3) For a felony of the third degree that is not a
felony sex offense and in the commission of which the offender caused or
threatened physical harm to a person, three years. (C) Any sentence to a
prison term for a felony of the third, fourth, or fifth degree that is not subject
to division (B)(1) or (3) of this section shall include a requirement that the
offender be subject to a period of post-release control of up to three years * * *
if the parole board * * * determines that a period of post-release control is
necessary for that offender.”
{¶ 5} The imposition of five years of postrelease control for the second-
and third-degree felonies was reversible error. In State v. Douglas,
Cuyahoga App. No. 88367, 2007-Ohio-2625, reopening allowed
Postrelease control does not apply to murder; rather, parole applies.
1
2007-Ohio-5941, this court granted an App.R. 26(B) application to reopen and
then vacated the sentence and remanded for resentencing because the trial
court had imposed five years of postrelease control for felonious assault,
which is a second-degree felony that is not a sex offense. State v. Wolford,
Cuyahoga App. No. 92607, 2010-Ohio-434, and State v. Norris, Cuyahoga
App. No. 95485, 2001-Ohio-1251. Had appellate counsel raised this issue,
this court would have vacated the postrelease control sentence and remanded
for resentencing. This court further notes that in State v. Singleton, 124
Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, the Ohio Supreme Court
ruled that informing the defendant-prisoner that a violation of postrelease
control would allow the parole board to impose a prison term as part of his
sentence up to one-half of the stated prison term originally imposed upon him
is a necessary part of imposing postrelease control.
{¶ 6} Accordingly, this court grants the application to reopen,
reinstates this appeal to the docket of this court, then vacates the sentence as
to the imposition of postrelease control, and remands to the trial court for the
proper imposition of postrelease control. State v. Fischer, 128 Ohio St.3d 92,
2010-Ohio-6238, 942 N.E.2d 332, and State v. Street, Cuyahoga App. No.
85020, 2005-Ohio-1976, reopening granted 2006-Ohio-21.
It is, therefore, ordered that appellant recover of the appellee his costs
herein taxed.
It is ordered that a special mandate be sent to said 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.
FRANK D. CELEBREZZE, JR., JUDGE
KENNETH A. ROCCO, P.J., and
MELODY J. STEWART, J., CONCUR